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2022 DIGILAW 5 (CHH)

Ghanshyam v. State of Chhattisgarh

2022-01-04

ARVIND SINGH CHANDEL, RAJENDRA CHANDRA SINGH SAMANT

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JUDGMENT : RAJENDRA CHANDRA SINGH SAMANT, J. 1. This appeal has been preferred by the appellants against the judgment of conviction and order of sentence dated 3.4.2017 passed by the Learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985, Raipur, Chhattisgarh in Special Sessions Case No. 43 of 2014, convicting the appellants for the commission of offence under Section 376(d)/34 of the Indian Penal Code (for short ‘IPC’) and sentencing them to undergo imprisonment for life and fine of Rs. 5,000/- each, in default of payment of fine to further undergo rigorous imprisonment for 6 months to each of the appellant. 2. The case of the prosecution, in brief, is that the prosecutrix is mentally unsound person who was living with her mother Uma Bai (PW-1). On 6.10.2014, the prosecutrix was allegedly gang-raped by the appellants. Uma Bai (PW-1) was informed about the incident, who immediately arrived on the spot and saw the appellants fleeing from the spot. The prosecutrix has narrated about the incident to Uma Bai (PW-1), who then lodged the FIR Ex.P/1. On the basis of which, the case has been investigated and the charge-sheet has been filed. 3. Learned trial Court framed charges against the appellants under Section 376 read with Section 34 of the IPC, Section 376(2)(B)/34 of the IPC and also under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The appellants denied the charges and pleaded innocence and false implication. The prosecution examined as many as 20 witnesses. On completion of prosecution evidence, the appellants/accused persons were examined under Section 313 of the Cr.P.C. in which they denied all the incriminating evidence against them and again pleaded not guilty stating that they have been falsely implicated. No witness has been examined in defence. Learned Special Judge by the impugned judgment has convicted and sentenced the appellants for the offence as mentioned herein-above and acquitted them from the charge under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1985. 4. It is submitted by learned counsel for the appellants that the conviction of the appellants is bad in law as there was no prosecution evidence present to hold the appellants guilty. The statement of the prosecutrix (PW-2) is not reliable. 4. It is submitted by learned counsel for the appellants that the conviction of the appellants is bad in law as there was no prosecution evidence present to hold the appellants guilty. The statement of the prosecutrix (PW-2) is not reliable. Learned trial Court has noted the demeanour of the witness and examined her through her mother even then, the prosecutrix has not replied to a number of questions put to her in cross-examination. Therefore, there was a clear denial to answer the questions by the prosecutrix which should have been taken into consideration by the learned trial Court to disbelieve her. 5. It is submitted that the conviction of the appellants is based only on the evidence of the prosecutrix (PW-2). Dr. Smt. B. Bara (PW-16) has clearly opined that there were no symptoms present on the body of the prosecutrix of any recent intercourse, hence, the conviction against the appellants is not sustainable. Placing reliance on the judgment of the Supreme Court in the case of Sadashiv Ramarao Hadbe vs. State of Maharashtra and Another, (2006) 10 SCC 92 , it is submitted that the testimony of the prosecutrix does not inspire the confidence, therefore, the conviction against the appellants is liable to be set aside and the appeal be allowed. 6. Learned State counsel opposes the submissions made and submits that the prosecutrix (PW-2) has been examined by the Court by taking necessary precautions. Her statement regarding allegation of gang-rape against the appellants has remained un-rebutted in her cross-examination, therefore, there is no ground available to the appellants to pray for acquittal. It is also submitted that although, it was a case from the beginning that the prosecutrix is a person suffering from mental unsoundness, however, Section 118 of the Indian Evidence Act, 1872 does not disqualify a person of unsound mind outrightly. Hence, for the reason that the precautions have been taken while recording the evidence of the prosecutrix, the conviction against the appellants is sustainable. 7. Considered on the submissions. There is no dispute present on this point that the prosecutrix (PW-2) is known to be a person of unsound mind. Section 118 of the Indian Evidence Act, 1872 is reproduced as under: “118. 7. Considered on the submissions. There is no dispute present on this point that the prosecutrix (PW-2) is known to be a person of unsound mind. Section 118 of the Indian Evidence Act, 1872 is reproduced as under: “118. Who may testify - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation: A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.” According to the first paragraph of Section 118 of the Indian Evidence Act, 1872, the disease of mind is also taken into consideration to determine the competency of a witness to testify before the Court, however, the explanation given makes it clear that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. 8. In the case of Sharda vs. Dharmpal, AIR 2003 SC 3450 , the Supreme Court has observed in paragraphs 31 and 32, which is as follows: “31. In Halsbury’s Laws of England, Volume 11, 4th Edition, it has been noticed that the mentally retarded persons are incompetent to give evidence. However it is stated: “A person of unsound mind may give evidence if the trial judge is satisfied that he is then of sufficient understanding to give rational evidence his suffering from delusions does not render him incompetent.” 32. In Halsbury’s Laws of England, Volume 17, 4th Edition, the Judge’s duty in this behalf has been summarised stating: “232. Judge’s duty. Questions as to the competency or in-competency of a witness are decided by the judge, generally on a preliminary examination called the voir dire; but if the incompetency of a witness is not discovered until after he is sworn and has given evidence, his evidence may nonetheless be objected to and rejected.” 9. Judge’s duty. Questions as to the competency or in-competency of a witness are decided by the judge, generally on a preliminary examination called the voir dire; but if the incompetency of a witness is not discovered until after he is sworn and has given evidence, his evidence may nonetheless be objected to and rejected.” 9. High Court of Rajasthan, in the case of Kalu Singh vs. State of Rajasthan through P.P. has held that even in case the prosecutrix is found to be a person of unsound mind, it is the duty of the prosecution to present her before the Court and it is for the Court to satisfy itself whether the prosecutrix is competent to give a statement or not, therefore, a person of unsound mind may be a competent witness subject to the satisfaction of the Court. 10. In the case of Shaktiman vs. State of Maharashtra through Police Station Officer, the Bombay High Court has observed that the victim of the case was of mentally retarded category who was examined by the learned Judge of the Court by putting specific questions for his satisfaction and it was also observed that the victim was able to give her evidence. 11. The provision under Section 118 of the Indian Evidence Act, 1872 is very clear that the Court has to consider whether a person is competent to testify or not. There is no question present regarding the unsoundness of the victim of this case, however, her competency to be examined as a witness appears to have not been determined in a proper way by the learned trial Court. The opening note in the deposition of the prosecutrix (PW-2) mentions that the witness was not replying to the questions put to her by the prosecutor because of which, the mother of the victim was asked to assist the examination of the prosecutrix. There is no such observation in this note that as to whether the prosecutrix is competent to be examined or not. Learned Court has further observed in the last sentence of paragraph 9 that the mental condition of the witness does not appear to be good. Apart from that, there is no observation note or any expression of the learned trial Court mentioning that the prosecutrix (PW-2) was a competent witness. 12. Learned Court has further observed in the last sentence of paragraph 9 that the mental condition of the witness does not appear to be good. Apart from that, there is no observation note or any expression of the learned trial Court mentioning that the prosecutrix (PW-2) was a competent witness. 12. According to the observation of the Supreme Court in the case of Sharda vs. Dharmpal (supra), the Rajasthan High Court in the case of Kalu Singh vs. State of Rajasthan through P.P. (supra) and in the case of Shaktiman vs. State of Maharashtra through Police Station Officer (supra), the duty is cast upon the trial Court to consider on the competency of a witness before subjecting into the examination. Such a task can be accomplished by putting specific questions to such a witness to determine whether the witness is prevented from understanding the question put to him or from giving rational answers to such question. The victim in this case is mentally unsound according to the statement of her mother only and there is no medical proof in that regard, however, it is not being disputed. Therefore, accepting this fact, the victim (PW-2) was not a person of having mental soundness, hence, before recording her evidence, her competency was to be examined, which has not been determined by the learned trial Court while examining her as (PW-2). 13. On the basis of the discussions made herein-above and the conclusions drawn, we are of the view that the prosecutrix (PW-2) in this case is required to be re-examined after determining her competence to be examined as a witness. Therefore, only for this technical reason, this appeal is allowed and disposed off with a modification. The impugned judgment of conviction and sentence against the appellants is set aside. The case is remanded to the trial Court with a direction to re-examine the prosecutrix (PW-2) for her competence to be examined as a witness in the trial as per the observations made in this judgment. On completion of such examination of the prosecutrix, the appellants/accused be again examined under Section 313 of the Cr.P.C. on the point of the evidence of the prosecutrix which may be incriminating against them, however, opportunity be given to the appellants for defence and on completion of the same, the case be decided afresh in accordance with law.