Chattisgarh High Court
Office Referance vs Ramnarayan Manhar on 18 November, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
RESERVED ON 18-10-2022
ORDER DELIVERED ON 18-11-2022
CRREF No. 3 of 2021
Office Reference Through- Thana Prabhari Bilaigarh,
District- Baloudabazar- Bhatapara CG
----APPLICANT
Versus
Ramnarayan Manhar S/o Bhedhuram Manhar Aged About
22 Years Sakin Rasouta, Thana Pamgarh, District - Janjgir
Champa CG
----RESPONDENT
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For State : Shri Gurudev I. Sharan, Govt. Adv.
For respondent : Shri Mirza Keshar Baig, Adv.
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Hon'ble Shri Justice N.K. Chandravanshi CAV Judgment
1. This is an office reference made under Section 318 of the Criminal Procedure Code, 1973 (in short 'Cr.P.C.') by the Additional Sessions Judge, FTC, (POCSO), Baloda Bajar, CG in Special Criminal Case (POCSO) No. 35/2018 pertaining to Crime No. 142/2018 registered at PS Bilaigarh (State of CG -v- Ramnarayan Manhar), wherein learned Additional Sessions Judge passed the judgment of conviction dated 27-10-2021 against the accused holding him guilty of offence punishable under Section 376 (2)(च) of the Indian Penal Code (in short 'IPC') and Section 4 of the Protection of Children from Sexual Offence Act, 2012 (in short 'POCSO Act').
2. Facts of the case, in brief, are that 3 - 4 days prior to present incident, accused, who is resident of village Rasauta, had come as a guest at village Karvadabari. Accused is said to be brother-in-law of uncle (Bade Pitaji) of victim. Thus, the victim is a relative of accused. On 18-3-2018, between 1.00 pm to 3.00 pm, daughter (henceforth 'victim girl') of complainant, aged about 7 2 years was playing outside her house along with her cousin sister, who was also of the same age group. At that time, accused allured the victim girl, took her in a cart near pond of the village and raped her by gagging her mouth. Victim girl told about the incident to her mother (complainant), but due to fear of public shame, complainant did not tell it to her husband. On 3-4-2018, when the victim girl was suffering from fever, her mother/ complainant told her husband and on the basis of written complaint Ex. P-1, FIR Ex. P-2 was registered on 6-4-2018 at PS Bilaigarh, Distt. Baloda Bajar. Victim girl was medically examined by Dr. Neha Gangeshri (P.W. 6) on the same day, who found, the girl is aged about 6 years. She did not find any sign of struggle on her body. Upon examination of her private part, it was found that whole vulva had redness and arythema was seen all over. All signs of inflammation were present. Foul smelling discharge was also present. Hymen was swollen, inflamed but it was intact. She opined that the injury to the private part could be caused by friction with hard and blunt object and all the injuries were in stage of healing, but healing was not complete. She prepared two slides from vulva smear. On being examined under microscope, no spermatozoa or its content was found. She also prepared another two slides of vulva smear and suggested to send it for further examination.
3. After usual investigation, charge sheet was filed and charges under Section 376(2)(च) of the IPC and Section 4 of the POCSO Act were framed and read over to the accused, which accused denied. Plea of the accused was recorded. Accordingly, his signature over the plea was obtained. In support of its case, prosecution examined as many as 15 witnesses. Thereafter examination of the accused under Section 313 of the Cr.P.C. was conducted, wherein accused replied through gesture, as he is a deaf and dumb person. Since, the accused did not want to adduce any evidence in his defence, therefore, learned trial Court heard final arguments of both the sides and passed the judgment 3 holding the accused guilty of offence punishable under Section 376(2)(च) of the IPC and Section 4 of the POCSO Act. As accused is deaf and dumb, learned trial Court held that although he is a person of sound mind, but since he is deaf and dumb, therefore, he could not have understood the proceedings of the case, and then, it referred the matter to this Court under Section 318 of the Cr.P.C. for passing appropriate order.
4. Learned counsel appearing for the State would submit that although accused seems to be a person of sound mind, as has been stated by learned trial Court also, but since he is a mute person and he cannot hear also, therefore, he could not have understood the proceedings of the Court. The proceedings of the Court have not been conducted through any interpretor, who could have made understood the accused about the evidence adduced by the prosecution witnesses against him. Although examination of accused under Section 313 of the Cr.P.C. has been conducted with the assistance of teacher of Government Drishti avm Shravan Badhitarth Vidhyalaya, but the questions have been put to the accused in very short form, as has been noted by learned trial Court in order sheet dated 1-10-2021, therefore, learned trial Court has rightly sent present case for passing appropriate order.
5. On the other hand, learned counsel for the accused would submit that jurisdiction exercised by the trial Court under Section 318 of the Cr.P.C. is not in accordance with law. He further submits that accused has been convicted only on the basis of statement of victim girl and her parents. There is no substantive evidence to hold guilty the accused for such a heinous crime of rape, moreover, Dr. Neha Gangeshri (P.W. 6) has not opined that any penetration was found in private part of victim girl, as she has not stated that her private part was found ruptured, which would likely to be done when such penetration is done with tender age girl like victim, as the Dr. has admitted in her cross-examination. It is further submitted that since the accused is deaf and dumb, and 4 he could not have understood the proceedings of the case, therefore, he cannot be punished for alleged offence.
6. In rebuttal, learned counsel for the State would submit that the accused had committed the offence of rape, that too, with the girl of tender age of about 7 years, who is his relative also and these facts have been proved by the prosecution witnesses. Since accused is a mute person, therefore, the course adopted by learned Addl. Sessions Judge by referring the matter to the High Court under Section 318 of the Cr.P.C. is just and proper. He further submits that there is no provision in the Cr.P.C. that a mute person cannot be convicted. In this regard, he relied on the decisions rendered in the matter of Emperor -v- Ulfat Singh [AIR (34) 1947 Allahabad 301] and In re: Boura @ Drigpal [2006(3) MPHT 80].
7. I have heard learned counsel for the parties at length and perused the record of the Court below with utmost circumspection.
8. In the case of Emperor (supra), the Allahabad High Court has held that, in dealing with the deaf and dumb accused charged with serious offences, it is essential for a court to record a finding, whether the accused can be made to understand the proceedings before passing an order under Section 341 of the Cr.P.C. (as it then was). It is further held that where a deaf or dumb person is committed to stand his trial in the Court of Session or is convicted, a reference has to be made under Section 341 of the Cr.P.C. as a measure of extra precaution, so that the High Court may satisfy itself that under the circumstances, it was a fair trial or enquiry and in the case of an order of commitment, the Court may further give directions as to how the trial may proceed in the Court of Session.
9. In the matter of Boura @ Drigpal (supra), the accused was deaf and dumb, but was not a lunatic or a person of unsound mind and he could not be made to understand even the gestures, he was tried for an offence of rape. In that case, the M.P. High Court said that in such a situation, Section 318 of Cr. P.C. would be 5 applicable and the trial has to proceed, though the statement of the accused u/S. 313 may not be recorded and upon the whole evidence, the judgment can be passed.
10. In In re: Peethambaran [AIR 1959 Kerala 165 : (1959 Cri LJ 596)], it was made clear that the provisions of Section 341 (as it then was) can be invoked only when the accused is unable to follow the proceedings. The Court making reference should record a finding as to whether the accused, though a deaf and mute, had sufficient intelligence to understand the criminal character of the act committed by him. To sustain conviction against such a person, the Court trying him should not only be satisfied that he is same, but also, that he is of sufficient intelligence as to know the criminal nature of the act he commits. There is no provision in the IPC under which a person found to be guilty of offence could be exempted from punishment, merely because he is deaf and dumb. This decision has been relied on the judgment of M.P. High Court in Boura @ Drigpal's reference (supra).
11. Thus, before the Court of enquiry or trial forwards the proceedings to the High Court u/S. 318, it must be satisfied that the accused cannot be made to understand the proceedings and the enquiry or the trial must result in a conviction and if these two requirements are not fulfilled, the proceedings cannot be forwarded to the High Court. Therefore, it is clear that section 318 would clearly cover the case of a person who is a deaf and dumb and who cannot be made to understand the proceedings, though not insane. Want of speech and hearing does not imply want of capacity either in the understanding or memory, but only difficulty is in the means of communicating knowledge, therefore, as an extra caution, the legislature has made the provisions of Section 318, Cr. P. C, so that the High Court may satisfy itself that under the circumstances, it was a fair trial. The language used by the legislature in Section 318 makes it clear that the Court cannot refer a case in the midst of a trial before any conviction takes place, the Court is required to proceed to the end of the trial and it 6 is only if the trial results in a conviction, then the question of forwarding proceedings to the High Court u/S. 318 would arise.
12. At this juncture, now it has to be seen as to whether in case on hand, the learned A.S.J., has rightly taken the decision to refer the matter to the High Court after being satisfied in all above aspects? In the instant case, charge sheet was filed on 22-6-2018, wherein accused has put his signature. Thereafter, on very next hearing i.e. on 18-7-2018, learned ASJ has noted in order sheet that, accused is deaf and dumb, he put signature. he was asked two questions in writing, in which, he replied, and one question was put by showing him a memo, which he also replied. After hearing the arguments before charge, learned ASJ framed charges under Section 376(2)(च) of IPC and Section 4 of the POCSO Act and when it was explained and made to understand to the accused, he denied the charges by showing gesture and also put his signature on plea recorded in prescribed format. As per order sheets of the trial Court, since accused did not engage his counsel, he was provided counsel through Legal Aid. Order sheets of the trial Court do not reveal the fact that the counsel of accused has taken any objection at any point of time, that accused is unable to understand the proceedings or he is insane or in fact, he does not understand criminal character of the act alleged to have been committed by him. It is also pertinent to mention here that, the accused has committed rape with two girls, other is also a tender aged girl of about 8 years and his relative also and in that case also i.e. Special Criminal Case (POCSO ) No. 34/2018, vide judgment dated 27-10-2021, he has been convicted for the same offence by the same Court. Order sheet dated 22-9-2021 and 1-10-2021 also reveal that since accused is deaf and dumb, his statement under Section 313 of the Cr.P.C. was recorded with the assistance of a teacher of Govt. Drishti and Shravan Badhitarth School, and he has replied/denied the questions through his gesture. All these facts show that he is unable to hear, and he is also unable to speak, and therefore, he 7 is not able to understand the proceedings. In the judgment dated 27-10-2021, the trial Court has mentioned the fact that accused is deaf and dumb and he is unable to understand the proceedings, however, he is not a person of unsound mind or he is not 'insane' and in these circumstances, the trial Court has made reference to this Court after holding the accused guilty. It is also pertinent to mention here that in almost all the order sheets when the accused was present in the Court, he had put his signature in the column of signature of parties or pleader along with his lawyer. In aforesaid view of the matter, the trial Court took a view that though the accused was not of unsound mind, but he cannot have been made to understand the proceedings and the trial Court after recording a finding of conviction, has rightly adopted the mode of referring this matter to the High Court under Section 318 of the Cr.P.C. Thus, the reference is found to be in order.
13. Now if the evidence available on record in the instant case, is examined, then it is found that victim girl has been examined as P.W. 2. She has stated in para 1 and 2 of her deposition that accused, who is her uncle (Mama), took her in a cart (thela) situated near their house, put off her underwear and his own underwear and inserted his urinary organ in her urinary place and thereby, he committed intercourse with her, while doing so by accused, she felt pain. She has also deposed in para 2 that, when she tried to shout, accused gagged her mouth. She has also admitted the suggestion in leading question that when the accused was doing such act, she felt pain. Her mother P.W. 1 has deposed that accused is real brother of her sister-in-law (Jethani). She further deposed that when her victim daughter suffered from fever, they took her to doctor, thereafter she told them about the incident. P.W. 4 father of the victim girl has also stated that his younger daughter told her about the incident that accused has committed dirty act with the victim.
14. P.W. 6 Dr. Neha Gangeshri, has examined victim prosecutrix on 6-4-2018 and prepared MLC report Ex. P-4, which 8 she has proved in her statement. As has been stated in para 2, she has deposed that while medical examination of victim girl, she found that whole vulva was inflamed and redness was present around it. Foul smelling discharge was present there, hymen was swollen and inflamed, but intact. She has opined that the injury to the private parts could be caused by friction with hard and blunt object and all the injuries were in stage of healing. She has also deposed that she prepared two slides with vulva smear and on examination under microscope, no spermatozoa or its content was found. She also prepared another two slides of vulva smear which were sent for further examination, but as per report of chemical examiner Ex. P-24, no spermatozoa was found in it. It is evident from fact of the case that victim girl was medically examined after 18 days of the incident, therefore, finding of spermatozoa in vaginal swab of victim was not supposed to be present there. Deposition of Dr. Neha Gangeshri (P.W. 6) corroborates the statement of victim that act of attempt of forceful penetration had been done in vagina of victim girl and due to that friction, she had sustained aforesaid injury.
15. If the girl is of tender age, then rupture of hymen, in the event of penetration, is not a matter of rule, particularly, in case, where hymen is deep seated. In case of forcible attempt to penetrate also, there are chances that hymen of the victim may not rupture, as has been stated above, when it is deep seated. Presence of redness and inflammation all around over vagina is atleast a sign that either a complete penetration has taken place or a partial penetration has taken place or forcible attempt of penetration was made against the victim girl. In the instant case, presence of aforesaid symptom in and around vagina of victim, as has been mentioned in the medical report of the victim, is suggestive of the fact that forcible attempt to penetrate was made against the victim. The victim girl has denied the suggestion of learned Public Prosecutor that, when accused committed aforesaid act with her and she felt pain, then blood came out from 9 her urinary place, rather, she has stated that white matter had turned out, which seems to be spermatozoa of accused.
16. For commission of offence of rape, penetration is required to any extent, but in this case, it has not been proved from medical report that any penetration was made in private part of the victim. P.W. 6 Dr. Neha Gangeshri has admitted in her cross- examination that if rape is committed with a girl of tender age, then her vagina and anus can be damaged/ruptured, but in the instant case, she has not stated that vagina or anus of the victim girl was found to be ruptured or damaged. Even, victim girl (P.W.
2) has also denied that due to alleged act committed by the accused with her, blood came out from her urinary place/organ. Therefore, statement of victim girl that, accused penetrated/ inserted his urinary organ in her urinary place, is not found to be true. Thus, from aforesaid evidence, it is established that any vaginal penetration could not be done by the accused and erythematous, redness, inflammation and foul smelling discharge proved that accused forcibly attempted to commit rape with the victim and due to force/friction applied by him on private part of victim girl, she had sustained aforesaid injury. Thus, it is not a case of rape, rather, it is a case of attempt to commit rape.
17. So far as age of the victim girl is concerned, as per evidence of her mother (P.W. 1), at the time of incident, age of her daughter/ victim was 8 years. While recording statement of victim girl (P.W. 2), learned ASJ has also noted her apparent age as 8 years. Dr. Neha Gangeshri (P.W. 6) has deposed in her statement that on 6-4-2018 at the time of medical examination, she has assumed and noted 6 years age of victim girl. In view of aforesaid fact and evidence available on record, it is found that trial Court has rightly held that the victim girl was less than 12 years of age at the time of incident and she was subjected to sexual assault by the accused.
1018. Although it is a fact that child witness can be tutored easily about the incident by family members, but in the instant case, statement of victim girl about the incident is not only supported by her mother (P.W. 1) and father (P.W. 4), but it has been corroborated by medical evidence of Dr. Neha Gangeshri (P.W.
6) also. Nothing has been brought in the evidence to believe that accused has been falsely implicated in the instant case, rather, since accused is relative of victim girl, i.e. uncle of victim in relation, therefore, question arises that without any reason, why they will implicate their relative in such a heinous crime of rape, that too, with a tender age girl. Therefore, statement of victim and other witnesses which is well supported by medical evidence, cannot be disbelieved, eve on the ground of delay of 18 days in lodging the FIR.
19. In view of above discussion, conviction of accused under Section 376(2)(च) of the IPC and Section 4 of the POCSO Act is set aside and instead thereof, he is held guilty for the offence under Section 376(2)(च) read with Section 511 of the IPC and Section 4(2) read with Section 18 of the POCSO Act.
20. Resultantly, conviction of accused is upheld with aforesaid modification. However, looking to the age of the accused, which was said to be 22 years at the time of incident and also considering his physical impairment that he is deaf and dumb, I deem it proper to sentence him under Section 4(2) read with Section 18 of the POCSO Act to undergo one half of the imprisonment for life along with fine of Rs. 1,000/-, in default of payment of fine, he shall further undergo RI for 3 months. Since accused has been convicted for the offence under Section 4(2) read with Section 18 of the POCSO Act and same act is also punishable under Section 376(2)(च) read with Section 511 of the IPC , therefore, considering the provisions of Section 42 of the POCSO Act, he is not being awarded sentence separately for this offence.
21. The sentence already undergone by the accused shall be adjusted in the sentence awarded to him.
1122. Order passed by the trial Court in respect of seized article shall remain intact.
23. Instant criminal reference is disposed of on the terms referred hereinabove.
24. Record of Court below be returned forthwith along with the copy of judgment to the trial Court for compliance of the same i.e. preparation of warrant of punishment etc. Sd/-
( N.K. Chandravanshi) JUDGE Pathak