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CRL. APPEAL @ SLP(CRL.)NO.2172 OF 2014

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1820     of 2017 (Arising out of SLP(Crl.)No.2172 of 2014)

THE STATE OF MAHARASHTRA                      Appellant(s)

VERSUS

BANDU @ DAULAT                              Respondent(s)

O R D E R

1. Leave granted.  We have heard learned counsel for the

parties and perused the record.

2. The  respondent  was  tried  and  convicted  under  Section

376  I.P.C.  by  the  trial  court  for  the  alleged  offence  of  rape

committed on 29th June, 2008 but has been acquitted by the

High Court.   

3. The victim is deaf and dumb and mentally challenged to

some  extent.  Main  evidence  on  record  is  of  PW-1,  Asha

Ramratan Bangar @ Asha Panchu Dhurve, the mother of the

victim.  She lodged FIR on the next day i.e. 30th June, 2008 to

the effect that the accused was the landlord of the house in

which  they  were  living.   The  victim was  lured  away by  the

accused by offering some sweet meat and was taken to the

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CRL. APPEAL @ SLP(CRL.)NO.2172 OF 2014

market.  She did not return home and it was at 9.30 p.m. in the

night that two boys brought her home.  The victim explained to

her mother by gesture as to what happened.  On this version,

FIR was registered and investigation was carried out.  Medical

examination of the victim confirmed the commission of rape.

The age of  the victim at the time of  the commission of  the

offence was about 14 years.

4. The High Court held that since the victim herself was not

examined, the factum of rape and involvement of the accused

could not be held to have been proved.  This is the basis of the

order of the High Court.

5. Mr.  Nishant  R.  Katneshwarkar,  learned  counsel  for  the

State, submitted that even though the victim may be the best

witness to establish the charge of rape, having regard to the

fact that the victim in the present case was deaf and dumb and

mentally retarded, even in absence of her being examined as a

witness, there was sufficient evidence warranting conviction of

the accused.   

6. Though  respondent  was  served,  he  has  not  put  in

appearance in this Court.  We requested Ms. Shirin Khajuria,

Advocate,  to  assist  the  Court  as  Amicus.   Accordingly  Ms.

Khajuria assisted the Court after  thorough preparation.  We

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CRL. APPEAL @ SLP(CRL.)NO.2172 OF 2014

record  our  appreciation  for  Ms.  Khajuria  for  painstaking

assistance.   

7. The evidence of the mother of the victim clearly shows

that it was the respondent-accused who took away the victim.

The  victim  and  the  accused  were  seen  together  by  PW-2,

Gajanan Marutrao Sonule on the date of commission of offence.

The victim immediately after the occurrence narrated the same

to her mother as to what happened as reflected in the FIR and

the version of the PW-1.  Rape has been confirmed by medical

evidence.   Identity  of  accused  is  not  in  dispute.   In  these

circumstances the trial court having convicted the respondent,

the High Court was not justified in setting aside the conviction.

8. Accordingly,  we  restore  conviction  of  the  respondent

under Section 376 IPC and sentence him to undergo rigorous

imprisonment for seven years.  He may be taken into custody

to serve out the remaining sentence.

9. The appeal is accordingly allowed.

10. Before  parting  with  this  order  we  may  deal  with  the

suggestion  of  learned  amicus  that  there  should  be  special

centres  for  examination  of  vulnerable  witnesses  in  criminal

cases in the interest of conducive environment in Court so as to

encourage  a  vulnerable  victim  to  make  a  statement.  Such

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CRL. APPEAL @ SLP(CRL.)NO.2172 OF 2014

centres ought to be set up with all necessary safeguards. Our

attention  has  been  drawn to  guidelines  issued  by  the  Delhi

High Court for recording evidence of  vulnerable witnesses in

criminal  matters  and  also  the  fact  that  four  special  centres

have been set up at Delhi for the purpose.

11. We find merit  in  the above suggestion.   In  Sakshi  v.

Union of India and Ors (2004) 5 SCC 518 this Court, after

due  consideration  of  the  above  issue,  issued  following

directions:  

“(1) The provisions of sub-section (2) of Section 327 Cr.PC shall, in addition to the offences mentioned in the  sub-section,  also  apply  in  inquiry  or  trial  of offences under Sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, insofar as they relate directly  to  the  incident,  should  be  given  in writing  to  the  presiding  officer  of  the  court who may put them to the victim or witnesses in  a  language  which  is  clear  and  is  not embarrassing;

(iii)  the victim of  child  abuse or  rape,  while giving testimony in court, should be allowed sufficient breaks as and when required.

These directions are in addition to those given in State  of  Punjab   v.   Gurmit  Singh  (1996)  2  SCC 384.”

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CRL. APPEAL @ SLP(CRL.)NO.2172 OF 2014

12. The  directions  of  Delhi  High  Court  and  setting  up  of

special  centres  for  vulnerable  witnesses  as  noted  above are

consistent with the decision of this Court and supplement the

same.  We are of the view that all High Courts can adopt such

guidelines if  the same have not yet been adopted with such

modifications as may be deemed necessary. Setting up of one

centre  for  vulnerable  witnesses  may  be  perhaps  required

almost in every district   in the country.  All the High Courts may

take appropriate steps in this direction in due course in phases.

At least two such centres in the jurisdiction of each High Court

may be set  up within three months  from today.   Thereafter,

more such centres may be set up as per decision of the High

Courts.   

A copy of  this  order be sent  to all  the High Courts for

necessary action.  

………..........................J.                    (ADARSH KUMAR GOEL)

….............................J.  (UDAY UMESH LALIT)

New Delhi, October 24, 2017.