Nafr High Court
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.04.03 14:28:20 +0530 2025:CGHC:15559 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 166 of 2022 {Arising out of judgment dated 28.09.2021 passed in Special Criminal Case No. 38/2019 by the learned Special Judge (F.T.S.C.) Sakti, District Janjgir-Champa} Sunil Sone, S/o. Late Deendayal Sone, Aged About 20 Years, R/o. Medhapali, Police Station Dabhra, District Janjgir Champa, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through The Station House Officer, Police Station Dabhra, District Janjgir Champa, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Anand Kumar Gupta, Advocate For Respondent
Legal Reasoning
: Mr. Sharad Mishra, Panel Lawyer (Single Bench) Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board (02.04.2025) 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 28.09.2021, passed by the learned Special Judge (F.T.S.C.) Sakti, District Janjgir-Champa in Special Criminal Case No.38/2019, by which the appellant herein has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 6 of POCSO Act, 2012. U/s. 506 Part-II of I.P.C. : Rigorous imprisonment for 10 years and fine of Rs.10,000/-, in default of payment of fine, 6 months’ additional rigorous imprisonment. : Rigorous imprisonment for 6 months and fine of Rs.500/-, in default of payment of fine, 1 month’s additional rigorous imprisonment. Both the sentence to run concurrently. 2. Case of the prosecution, in brief, is that on 22.04.2019, 28.04.2019 & 30.04.2019, the appellant herein, on the pretext of marriage, committed sexual intercourse with the minor victim (PW-2) and threatened her to kill and thereby, committed the offence. The victim (PW-2) made a written 3 report vide Ex.P-4, pursuant to which, FIR was registered vide Ex.P-5, Consent letter was taken vide Ex.P-7 & Ex.P-8, MLC of the victim was conducted vide Ex.P-20 by Dr. Shalini Kurre (PW-4), in which no external and internal injury was found on the body of the victim. The age of the victim was less than 18 years as per the Dakhil Khariz Register (Ex.P-11-C). The undergarments of the victim & appellant along-with slides of the victim & appellant were sent for chemical examination to FSL and as per the FSL report (Ex.P-18), stains of human sperm was found only on the slide of the appellant i.e. Article F. After due investigation, the appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. During the course of trial, in order to bring home the offences, prosecution has examined as many as 11 witnesses and exhibited 25 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4 4. The learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant for the aforesaid offences as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Anand Kumar Gupta, learned counsel for the appellant, would submit that neither the medical evidence nor the forensic evidence supported the case of the prosecution and the age of the victim is also not proved to be less than 18 years on the date of offence. He would further submit that the case of the prosecution is only based on the sole testimony of the victim (PW-2), which is not of sterling quality, as there is delay of four months in lodging the FIR and there is ample evidence on record that on account of previous enmity, the appellant has been falsely implicated; therefore, the appellant is entitled for acquittal and the appeal deserves to be allowed. 6. Mr. Sharad Mishra, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the 5 aforesaid offences. Therefore, the appeal deserves to be dismissed. 7. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. It is the case of the prosecution that, on the pretext of marriage, the appellant has committed sexual intercourse with the minor victim (PW-2) on 22.04.2019, 28.04.2019 & 30.04.2019; however, the FIR (Ex.P-5) was lodged on 17.08.2019 on the basis of written report (Ex.P-4) with a delay of about 4 months. The victim was subjected to medical examination by Dr. Shalini Kurre (PW-4) and as per the medical report, no sign of external and internal injury was found on the body of the victim. As such, the medical evidence did not support the case of the prosecution. Similarly, the slides of the victim & appellant along-with their undergarments were sent for chemical examination to FSL and as per the FSL report (Ex.P-18), stains of human sperm was found only on the slide of the accused i.e. Article ‘F’ and no semen and human sperm was found on the other seized 6 articles. As such, the forensic evidence is also not supported the case of the prosecution. 9. The age of the victim (PW-2) to be less than 18 years, on the date of offence, has been found proved by the trial Court on the basis of statement of Ramkumar (PW-5), Headmaster, who has proved the Dakhil Khariz Register (Ex.P-11/C), but Ramkumar (PW-5) has clearly stated in his statement that he is not the author of Dakhil Khariz Register (Ex.P-11/C). 10. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana 1 , has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit 2 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:- “14 This Court in Birad Mal Singhvi v. Anand 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 7 Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. “14…. The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value.” 15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 8 11. In the case of P. Yuvaprakash versus State Rep. By Inspector of Police 3 , the Hon'ble Supreme Court observed in para 13 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: from (i) the date of birth certificate from the school, or the matriculation or the certificate equivalent concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 12. In light of the aforesaid decisions of the Supreme Court, I am of the considered opinion that, in the present case, there is no such clinching and legally admissible evidence brought on 3 AIR 2023 SC 3525 9 record by the prosecution to prove the fact that the victim was minor on the date of offence and as per Headmaster, Ramkumar (PW-5), entry of the date of birth in Dakhil Khariz Register (Ex.P-11/C) has not been made by him and the author of the document has not been examined, therefore, the finding recorded by the trial Court that the victim was minor on the date of offence is not in accordance with law. 13. Now, the conviction is solely based on the statement of the statement of the victim, therefore, it must be of sterling quality as held by the Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi) 4 wherein it has been observed that who can be said to be a “sterling witness” and which has been recently followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar 5 . Their Lordship of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) have held in paragraph No.22 as under:- “22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of 4 (2012) 8 SCC 21 5 (2020) 2 S.C.R. 798 10 the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other 11 attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. 14. Coming to the facts of the case in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that the date of offence is 22.04.2019, 28.04.2019 & 30.04.2019; however, as per the statement of the victim (PW-2) herself, her mother (PW-1) and her father (PW-3) came back to home after five days of the incident, but surprisingly the report was lodged on 17.08.2019 with a delay of around 3 months & 25 days and as per the written report (Ex.P-4) the explanation offered for delay is that after consultation with the family, the report was made. However, such an explanation is not acceptable for delay of more than 3 months in lodging the FIR and more particularly, the case of the prosecution is not supported by the medical and forensic evidence. Furthermore, as per the statement of the victim (PW-2), there was quarrel took place between the appellant’s mother and her mother & father, for which the appellant’s mother has reported the matter to the Police Station- Dabhra. Similar statement has 12 been made by father of the victim (PW-3) and for which village panchayat was also convened. As such, from the aforesaid statements, it is quite vivid that the age of the victim has not been established to be less than 18 years on the date of offence, the case of the prosecution has not been supported by medical and forensic evidence, there is delay of more than 3 months in lodging the FIR and furthermore, there is previous enmity already existing between the two families and therefore, the chances of false implication cannot be ruled out, as victim fails to pass any of the tests of “sterling witness” as held by their Lordships of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra). In that view of the matter, it would be absolutely risky to maintain the conviction of the appellant and, therefore, he is entitled for acquittal on the basis of benefit of doubt. 15.
Decision
In view of the above, the impugned judgment of conviction and order of sentence dated 28.09.2021 is hereby set aside. Consequently, the appeal is allowed. The appellant stands acquitted of the charge framed against him for offences under Section 6 of the POCSO Act and under Section 506 Part-II of I.P.C. The appellant is in jail since 19.08.2019, he be released forthwith, if his detention is not required in any other offence. 13 16. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. Sd/- Ashok Sd/- (Sanjay K. Agrawal) Judge