1 2025:CGHC:11728-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 892 of 2023 1 - Ramnaresh Urf Rakesh S/o Shree Ram Panika Aged About 32 Years Cast - Panika, R/o Village Tanjra, Police Station Sonhat, District : Koriya (Baikunthpur), Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh Through Police Station Ajak Thana Baikunthpur, District : Koriya (Baikunthpur), Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Ritesh Giri, Advocate. For Respondent(s) : Mr. N. K. Jaiswal, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 10/03/2025 1. The present criminal appeal has been filed under Section 14(A)(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (in short 'SC/ST' Act) against the impugned judgment of conviction and sentence dated 24.02.2023 passed by Learned Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Baikunthpur, District Koriya in Special (Atrocities) Case No.15/2020, whereby the appellant has been convicted and sentenced in the following manner: 2 Conviction Sentence Under Section 450 of IPC RI for 07 years and fine amount of Rs. 200/- in default of payment of fine further 01 month simple imprisonment. Under Section 376(1) of IPC RI for 10 years and fine amount of Rs. 200/- in default of payment of fine further 01 month. Under Section 3(2)(v) Atrocities Act. RI for life and fine amount of Rs. 200/- in default of payment of fine further 01 months S.I. 2. The brief facts of the case are that on 05.03.2020 a written complaint Ex.-P/1 was given by the victim (PW-1) to the Police Station Sonhat, District Koriya alleging in it that on 04.03.2020 in the noon when she was sleeping in her house, the appellant entered into her house and committed rape upon her. After hearing hue and cry her brother-in-law and nephew came there and after seeing them, the appellant tried to hide himself but he was caught by her brother-in-law and nephew but he fled away from the place. Based on the written complaint Ex.-P/1, the unnumbered FIR Ex.-P/2 has been registered for the offence under Section 450, 376 of IPC and 3(2)(v) of Scheduled Casts and Scheduled Tribes (Prevention of Atrocities Act) 1989 (SC/ST Act). The victim was being sent for her medical examination to District Hospital Baikunthpur, District Koriya where she was being medically examined by Dr. Aarti Kumari (PW-7) who after her examination gave report Ex.-P/12 while medically examined the victim no external injuries have been found on her body and she opined on the point asked by the police officer that no signs of injuries over vaginal and perineum, no injuries noted over back, elbow, abdomen, knee, legs, hands, face or chest. She advised for UPT, HIV, VDRL, HBSAG tests. Two slides of her vaginal swab were prepared, sealed and handed over to the police for its chemical examination. 3. The numbered FIR Ex.-P/9 was registered at Police Station AJK, Baikunthpur, District Koriya. Spot map Ex.-P/4 was prepared by the police 3 and Ex.-P/13 was prepared by the Patwari. With respect to the social status of the victim her social status certificate Ex.-P/6 was seized vide seizure memo Ex.-P/5. The underwear of the victim her pubic hair and vaginal slides were seized vide seizure memo Ex.-P/8. The appellant was arrested on 16.09.2020 and he too was sent for his medical examination to District Hospital, Baikunthpur where he was being medically examined by PW-5 Dr. G. S. Paikara who gave his report Ex.-P/11 and opined that there is nothing to suggest that the person is unable to perform sexual intercourse. The vaginal slides, public hair and underwear of the victim was sent for its chemical examination to regional FSL Surguja, place Ambikapur from where FSL report Ex.-P/25 was received and semen and sperms were found on the sent articles. 4. Statement of the witnesses under Section 161 of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed before the learned trial Court for the offence under Sections 450 and 376 of IPC and Section Section 3 (2)(v) of the SC/ST Act. 5. The learned trial Court has framed charge against the appellant for the offence under Section 450 and 376 of I.P.C. and Section 3 (2)(v) of SC/ST Act. The appellant denied the charge and claimed trial. 6. In order to prove the charge against the appellant, the prosecution has examined as many as 13 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and have submitted that he has been falsely implicated in the offence. 7. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in earlier part of this judgment. Hence this appeal. 8. Learned counsel for the appellant would submit that the prosecution has 4 failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the offence in question. The victim was a married lady, her husband was having extra marital affair and to eliminate the victim from his extra marital relationship, he made all the instances and alleged that the appellant committed rape upon her. She was the victim of rape, therefore, he left her. He would further submits that in cross-examination the victim has admitted that her husband has left her and performed another marriage. Therefore, there is evidence that the appellant has falsely been implicated in the case. No injuries have been found on the body of the victim and there is no evidence that she raise any alarm or protested when she allegedly subjected to sexual intercourse by the appellant. She is the married lady and presence of sperm on her vaginal slides is quite natural which cannot be taken as a circumstance against the appellant. There is no cogent and clinching evidence against the appellant to convict him in the offence in question and he is entitled for acquittal. 9. On the other hand, learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions and contradictions, the evidence of prosecution witnesses are fully reliable. The appellant was caught red handed when he entered into the house of the victim and he was caught by her brother-in-law and nephew but he somehow fled away from the spot. Although no injuries have been found on the body of the victim but that itself is not sufficient to hold that entire case of the prosecution is doubtful. Had the victim been having any extra marital affair, he may eliminate the victim by some other reason and would not have concocted the story that she was subjected to rape by the appellant and upon her hue and cry her brother-in-law and nephew came there and caught the appellant on the spot. Therefore, there are sufficient evidence against the appellant to convict him for the offence in 5 question which the learned trial Court has rightly appreciated and passed the impugned judgment which needs no interference. 10. We have heard learned counsel for the parties and perused the record of the case. 11. PW-1, is the victim has stated in her evidence that on the date of incident her husband had gone to village Madhaura in a marriage function and she was alone in her house. At about 02:00 p.m. the appellant entered into her house and committed rape upon her. After hearing the hue and cry, her brother-in- law and nephew came there and at that time the appellant tried to hide himself under the cot who was caught by her brother-in-law and nephew but somehow he fled away from the spot. When her husband came back from the marriage function, she disclosed the incident to him also and they went to police station to lodge the report. In cross-examination she admitted that presently her husband is thrown her out from his house, therefore, she is residing at her parent's house. She also admitted that her husband has left her on the ground that she is having relation with other person and he has not provided any maintenance to her. She also admitted that after throwing her out from his house, her husband performed second marriage and kept her with him. She further admitted that when she was residing with her husband in her matrimonial house her husband was intended to keep another lady with him and on that issue there was a quarrel between them. During her stay with her husband, he was having extra martial affair with another lady but her brother-in-law and nephew were collided with her husband. Her husband had also beaten her 1 - 2 times which she informed to her parents. She also admitted that she and the appellant are the resident of the same vicinity, therefore, they regularly used to come to house of each other. She further admitted that her two sister-in-law and grand daughter were knocking the door from outside at the time of incident but she has not opened the door and they opened the door themselves by inserting their 6 hand by the slit of the door. When her husband came there, he scolded and after hearing complaint of her sister-in-law he started abusing her, she was being taken to police station by her husband and she signed in the papers which her husband and her brother-in-law have prepared. 12. From the evidence of this witness, it is quite vivid that on the date of incident the appellant came inside her house and made physical relation with her. From the cross-examination of this witness, it is apparent that when the appellant entered into her house, they bolted the door from inside and despite knocking the door by her two sister-in-law and grand daughter, she had not opened the door and somehow they could open the door. Though she stated that upon hearing her hue and cry, her brother-in-law and nephew came there but in view of cross-examination, i.e. the door was bolted from inside and she and appellant were there, it clearly suggests that both of them were engaged in making consensual physical relation. Though she has stated in her evidence that she tried to stop the appellant committing rape upon her but there is no evidence that she tried to push the appellant away from her or given any nail scratch mark or teeth bite on his body or even kicked him. It is also there that when the brother-in-law and nephew of the victim came there the appellant tried to hide himself under the cot and he immediately did not tried to flee from the place. Further she also admitted that her husband was raising suspicion upon her that she is having relation with another man and ultimately left her on that ground which also corroborate with the allegation that she engaged in making consensual physical relation with the appellant. The houses of both i.e. victim as well as appellant are situated in the same locality and they used to visit to the house of each other frequently. All that circumstances clearly shows that she was consenting party in making physical relation with the appellant. 13. PW-2, is the nephew of the victim who stated in his evidence that at the time of incident the door of the victim was closed and at that time her sister-in-law 7 came there and informed that the appellant is inside her house and both of them bolted the door from inside. When they opened the door from the slit, they saw that the appellant hide himself under the cot and they took him out from the room. The victim had not disclosed any incident to them. At this stage this witness have declared hostile. 14. In cross-examination he stated that the fact that sister-in-law of the victim informed that the appellant is inside the room of the victim, when they opened the door from slit they found that the appellant hide himself under the cot and the victim has not disclosed any incident to them, have been disclosed by him in his police statement Ex.-P/7 but if it is not there he could not tell the reason. 15. In cross-examination he stated that the victim has not disclosed any incident to him. Just outside of the house of the victim, they were sitting since a long time and at that time they have not seen any person entering into the house of the victim. He further admitted that at the time of incident three ladies came there and knocked the door of the house of the victim despite that she had not opened the door, thereafter, they could have open the door from its slit. When they open the door, the victim came forward and when she was being asked as to why she has not opened the door she has not disclosed anything and when the appellant tried to flee from the place they caught him and beaten him. 16. PW-3, is the husband of the victim who was being informed by the victim when he came back from marriage function and then he had taken the victim to police station for lodging of the report. 17. In cross-examination he admitted that he left his wife and performed second marriage. He also admitted that his wife is having illicit relation with the appellant. The victim was being taken by her parents and he had not tried to bring her back. He denied that appellant has falsely been implicated in the case. 8 18. PW-4, is the brother-in-law of the victim. He too have stated that when they had gone to the house of the victim they found the appellant hide himself under the cot and he was being taken out by them. Thereafter, he fled away from the place. When the victim was being asked, she informed that the appellant committed rape upon her, therefore, she shouted and then they informed her husband by mobile phone. 19. In cross-examination he also stated that three ladies have came to the house of the victim they knock the door but she had not opened the door. Somehow they opened the door from its split and saw that the appellant was inside the room. 20. PW-7, Dr. Aarti Kumari, who medically examined the victim have not found any external injuries on her body and no sign of any struggle were found. 21. From these evidences, it is quite clear that at the time when the appellant entered into the house of the victim, she bolted the door from inside and despite knocking the door by the three ladies, she had not opened the door and when they somehow succeed to open the door by its slit, they saw the appellant inside the room, they caught him and beaten him, but somehow he could fled away from the place. The conduct of the victim itself shows that she was the consenting party in making physical relation with the appellant. Further she admitted that her husband was having suspicion upon her that she is having illicit relation with some other person. No any sign of struggle or injuries found on the body of the victim. All these circumstances clearly shows that she was the consenting party in making physical relation with the appellant. Therefore, it is very difficult for this Court to sustain the conviction of the appellant for the offence in question. 22. By giving the appellant the benefit of doubt, he has been acquitted from the offence of Section 450 and 376(1) of IPC and the sentence awarded for the said offence are also set aside. 23. So far as the conviction and sentence under Section 3(2)(v) of SC/ST Act is 9 concerned, the accused can be convicted for the offence under Section 3(2) (v) of the SC/ST Act only when he committed any offence under the Indian Penal Code or punishable with imprisonment for a term of 10 years or more against the person. Section 3(2)(v) of SC/ST Act is re-produced hereinbelow: 3. Punishment for offences of atrocities. - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe. XXX XXX XXX (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribes. XXX XXX XXX (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine; 24. From perusal of the aforesaid evidence 3(2)(v) of the SC/ST Act and also in the facts and circumstances when no offence under the Indian Penal Code is found proved against the appellant, he cannot be convicted for the offence under the SC/ST Act, therefore, his conviction under Section 3(2)(v) of the SC/ST Act is also not liable to be sustained. 25. In the result the appeal filed by the appellant succeeds and hereby allowed. The impugned judgment of conviction and sentence is hereby set aside and the appellant is acquitted from alleged offence. The appellant is reported to be on bail. His bail bond shall continue for further period of 6 months as provided under Section 481 of B.N.S.S., 2023. 26. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.03.24 19:23:37 +0530