Chattisgarh High Court

Rajesh Ratnakar vs State Of C.G on 7 September, 2022

                                   1

                                                                  NAFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                Judgment reserved on : 29-06-2022

               Judgment delivered on : 07-09-2022

                        CRA No. 251 of 2002

    Rajesh Ratnakar, son of Bajrangi Ratnakar, age 21 years,
     resident of Village Pangaon, Police Station Pamgarh, Distt.
     Janjgir (Chhattisgarh)

                                                         ---- Appellant

                                                                  In Jail

                                Versus

    State of Chhattisgarh, Through District Magistrate, Janjgir (CG)

                                                       ---- Respondent

For Appellant           :      Shri Parag Kotecha, Advocate.
For Respondent/State    :      Shri Lalit Jangde, Dy. GA


                   Hon'ble Smt. Rajani Dubey, J

                            C A V JUDGMENT

This appeal is filed against the judgment of conviction and order

of sentence dated 19.2.2002 passed by the Additional Sessions Judge,

Janjgir, Distt. Bilaspur (CG), in ST No.54/2000 whereby the appellant

stands convicted and sentenced as under:

Conviction Sentence

Under Section 450 of Indian Penal RI for five years, fine of Rs.100/-

Code.                               and in default, to undergo RI for
                                    one month.

Under Section 376(1) of Indian RI        for   seven   years,   fine    of
Penal Code.                         Rs.100/- and in default, to undergo


                                    RI for one month.

Under Section 306 of Indian Penal RI for five years, fine of Rs.100/-

Code.                               and in default, to undergo RI for
                                    one month.

All the sentences were directed to run concurrently.

02. Case of the prosecution, in brief, is that on 20.11.1999 the

parents of the deceased and her sister had gone to Bhatagaon for

harvesting paddy, at that time the brother of the deceased Navdha

Kumar informed them that the accused/appellant entered their house

and committed rape with the deceased and as she felt a sharp pang of

remorse over this incident, she consumed pesticide. She was taken to

hospital at Pamgarh for treatment where she died.

03. During investigation, inquest Ex.P/13 was prepared; the bottle of

pesticide was seized from the spot vide Ex.P/7; postmortem on the

dead body was conducted vide Ex.P/11 by PW-11 Dr. DC Choudhary.

The autopsy surgeon noticed no bodily injury on the person of the

deceased and in his opinion the cause of death was asphyxia due to

suspected poisoning. Viscera was preserved for chemical examination.

However, the doctor did not give any definite opinion regarding rape as

the deceased was habitual to intercourse. As per Ex.P/8, the appellant

was medically examined and found to be capable of performing sexual

intercourse. After completing usual investigation, charge sheet was

filed against the accused/appellant under Sections 450, 376 and 306 of

IPC followed by framing of charges accordingly by the trial Court, which

were denied by the accused.

04. In order to prove its case, the prosecution examined as many as

17 witnesses. Thereafter, statement under Section 313 of CrPC of the

accused/appellant was recorded in which he denied the incriminating

circumstances appearing against him in the prosecution case, pleaded

innocence and false implication. He also examined one Madanlal as

DW-1.

05. The trial Court after appreciation of the overall oral and

documentary evidence available on record, by the impugned judgment

convicted and sentenced the appellant as mentioned in para-1 of this

judgment.

06. Learned counsel for the appellant would submit that the

impugned judgment is per se contrary to law and facts available on

record. The evidence of the prosecution witnesses suffers from the vice

of contradiction and omissions rendering it unreliable. No independent

witness was examined by the prosecution. Statement of Navdha

Kumar is full of material contradictions and omissions. The autopsy

surgeon PW-11 Dr. DC Choudhary did not opine about rape and age of

the deceased but the trial Court did not appreciate this fact. The

ingredients necessary for attracting the offence under Section 306 of

IPC are extremely missing in this case. Being so, the impugned

judgment of the trial Court is liable to be set aside and consequently,

the appellant deserves to be acquitted of all the charges.

Reliance has been placed on the decisions in the matters of

Sudhakar and another Vs. State of Maharashtra, AIR 2000 SC

2602; Bhagwan Chintaman Thakre Vs. State of Maharashtra, 2015

SCC Online Bom 6064; State of Maharashtra Vs. Amit Dhanraj

Kadamdhad and another, 2018 SCC Online Bom 343 and State of

Madhya Pradesh Vs. Rajaram, AIR Online 2018 SC 686.

07. Per contra, learned State counsel supporting the impugned

judgment submitted that the trial Court having regard to all the relevant

aspects of the matter in light of the evidence adduced by the

prosecution, was fully justified in convicting and sentencing the

appellant by the impugned judgment which warrants no interference by

this Court.

08. Heard learned counsel for the parties and perused the material

available on record including the impugned judgment.

09. PW-11 Dr. DC Choudhary conducted postmortem on the body of

the deceased and opined that the cause of death was asphyxia due to

suspected poisoning and sent the viscera for chemical examination.

However, the doctor did not give any definite opinion regarding rape as

the deceased was habitual to intercourse. In cross-examination, he

states that he did not examine about the age of the deceased and that

she may be more than 13 years. As per FSL report, on the articles A1,

A2, A3, A4 i.e. clothes of the deceased; article B vaginal slide of the

deceased and article D underwear of the appellant sperm like stains

were found. As per medical report, the offence of commission of rape is

not proved against the appellant beyond all reasonable doubt.

10. According to the prosecution case, when brother of the

deceased Navdha Kumar (PW-3) returned home, he found the door of

the house bolted from inside, he heard the scream of his

sister/deceased and on being called, his sister opened the door and

she was weeping. On being asked, she told that the appellant entered

the house forcibly and committed rape with her. When he asked about

the appellant, she told that he has hidden himself under the cot and

then he took out the appellant.

11. PW-5 Gopal also states that the deceased told him that the

appellant committed rape with her and next day he came to know that

she committed suicide by consuming poison. The appellant was

present in the house of the deceased. PW-6 Budgaram and PW-8

Dhanbai also state that the deceased consumed poison and told them

about the incident of rape by the appellant. PW-9 Satyanarayan states

that he saw the appellant in the house of the deceased, at that time the

deceased was weeping and told that the appellant committed rape with

her. Thus, it is clear from the evidence of PW-3, 5 & 9 that they saw the

appellant in the house of the deceased on the date of incident. PW-3

admitted in para-10 that there is no passage to enter the house

through badi and that his sister/deceased opened the door after about

a minute of his knocking the door. In his examination-in-chief he states

that he heard the screams of his sister when he reached the house.

12. The Hon'ble Apex Court in the matter of Rajaram (supra) in para

12 held as under:

"12. In the instant case, except the evidence of PW3 and

PW4, there is no other material or medical evidence to support

or substantiate the case of prosecution. In a case of acquittal by

the High Court, the State has to make out a strong case to

interfere with the impugned order. Until and unless, there is

some perversity or non consideration to the material facts, it is

not proper to interfere with the order of acquittal passed by the

High Court. Similar view was taken by this Court in the case of

State of Kerala and Anr. Vs. C.P. Rao (2011) 6 SCC 450.

13. Likewise, in the matter of Sudhakar and another (supra) the

Hon'ble Supreme Court held in para 10-11 as under:

"10-11 There is no legal evidence on record that the prosecutrix

at or about the time of making the statement had disclosed her

mind for committing suicide allegedly on account of the

humiliation to which she was subjected to on account of rape

committed on her person. The prosecution evidence does not

even disclose the cause of death of the deceased..."

14. On close scrutiny of the entire evidence it is clear that except

PW-3 Nadha Kumar, PW-5 Gopal and PW-9 Satyanarayan, nobody

saw the appellant in the house of the deceased and apart from these

witnesses, nobody states that the deceased told them about

commission of rape by the appellant. The medical report does not

support the prosecution case as no definite opinion regarding

commission of rape was given by the autopsy surgeon. The conduct of

the deceased also appears doubtful as PW-3 Navdha Kumar admits

that when he knocked at the door, his sister opened the door after

some time. There is no clinching evidence to support the case of the

prosecution. The prosecution has failed to prove beyond all reasonable

doubt that it is the appellant who subjected the deceased to forcible