Devnarayan Sahu S/o Arjun Lal Sahu, aged about 30 years, R/o Ganiyari, Police v. State of Chhattisgarh, through Police Station
Case Details
1 CRA No. 925 of 2022 ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.03.25 10:37:33 +0530 2025:CGHC:13670 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 925 of 2022 [Arising out of judgment dated 04.06.2022 passed in Special Sessions Case (POCSO) No.173/2019 by the Additional st Fast Track Court, Special Judge (POCSO Sessions Judge, 1 Act), Durg, District Durg, Chhattisgarh .] Devnarayan Sahu S/o Arjun Lal Sahu, aged about 30 years, R/o Ganiyari, Police Station Pulgaon, District Durg, Chhattisgarh. ... Appellant versus State of Chhattisgarh, through Police Station Pulgaon, District Durg, Chhattisgarh. ... Respondent For Appellant :- Ms. Aditi Singhvi, Advocate. For State-Respondent :- Mr. Sharad Mishra, Panel Lawyer. Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 21/03/2025 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is to the legality, validity and correctness of the judgment dated 2 CRA No. 925 of 2022 04.06.2022 passed by the Additional Sessions Judge, 1st Fast Track Court, Special Judge (POCSO Act), Durg, District Durg, Chhattisgarh, in Special Sessions Case (POCSO) No. 173/2019 by which the appellant herein has been convicted and sentence as under:- Conviction Sentence ₹ Rigorous imprisonment for 10 years 2,000/-; in default of with fine of payment of fine amount the appellant has to undergo additional simple imprisonment for two months. Under Section 376 of the IPC and Section 4 of the POCSO Act [However, the appellant has only awarded sentence for offence under Section 376 of the IPC as the same is higher in degree to that of Section 4 of the POCSO Act, by virtue of Section 42 of the POCSO Act.] Under Section 450 of the IPC Rigorous imprisonment for 3 years with fine of 500/-; in default of payment of fine amount the appellant has to undergo additional simple imprisonment for two months. ₹ Both the sentences are directed to run concurrently. Prosecution story:- 2. The case of the prosecution as projected by the prosecution and accepted by the Special Court is that on 19.08.2019 3 CRA No. 925 of 2022 between 2:00 pm to 2:30 pm the appellant entered into the house of the vcitim (PW-1) in absence of her parents and committed sexual intercourse against her wishes. Against the said incident, written complaint was made by victim’s mother
Facts
(PW-2) on 23.08.2019 vide Ex.P/1, pursuant to which FIR was registered vide Ex.P/2 on 23.08.2019. Crime details form was prepared vide Ex.P/3. Victim (PW-1) was medically examined by Dr. Kalpana Sharma (PW-8), who prepared the medical report of the victim vide Ex.P/14. As per medical report of the victim (Ex.P/14) proved by Dr. Kalpana Sharma (PW-8), no external and internal injuries were found over the body of the victim and also no recent sign of sexual intercourse was found. Slides of the victim were prepared by PW-8. As per the date dakhil khariz register (Ex.P/11-C) the date of birth of the victim is 16.02.2003 meaning thereby the victim (PW-1) was aged about 16 years 6 months. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/22) no stains of semen and human sperm were found. 4 CRA No. 925 of 2022 3. After due investigation, appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 22 documents, whereas, the appellant in defence has examined 2 witnesses and exhibited 1 document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 5. The learned Special Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. 5 CRA No. 925 of 2022 Submission of the parties:-
Legal Reasoning
“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 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 11 CRA No. 925 of 2022 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 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. Though the victim (PW-1) in the examination-in-chief has supported the case of the prosecution, but the facts remains that there is delay in lodging the FIR as the incident has taken place on 19.08.2019 and the FIR was lodged on 23.08.2019 with a delay of 4 days, however the cause shown for the delay in the FIR (Ex.P/2) is that the victim was scared and after making her understand, the report was lodged. Apart from that in the cross examination the victim (PW-1) has stated that the lady commandos of the village had taken her forcefully to 12 CRA No. 925 of 2022 the police station to report matter, but she did not inform anything to the police. Further, there is no evidence brought on record that she made any hue and cry to seek support of anyone as her house is situated in the dense locality and even no external as well as no internal injuries were found over the body of the victim (PW-1) as such she has failed 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) followed in the matter of Santosh Prasad @ Santosh Kumar (supra). 15. Admittedly, it is the case of the appellant that he has falsely been implicated in the crime in question as while examining himself as defence witness he has stated that he has falsely been implicated in the crime in question by lady commondo mother of the victim (PW-2) and other lady commandos of the village namely Rajo Bai (PW-3) & Kunti Yadav (PW-4) as there was a dispute arose between them a week’s before the incident as he was consuming liquor in his field and lady commandos came there and threw his the eatables, on account of which, altercation took place between them due to 13 CRA No. 925 of 2022 which PW-2, PW-3 & PW-4 warned him to send him jail and also reported the matter against the appellant with regard to said dispute. However, victim’s mother (PW-2) in her statement before the Court at paragraph No.15 has stated that she is a member of lady commandos and it is the work of lady commandos of the village to take action against the person who are consuming liquor. She (PW-2) has further stated that there was no dispute arose between the appellant and the lady commondos prior to the FIR was lodged against the appellant for the offence in question. But, Rajo Bai (PW-3) and Kunti Yadav (PW-4) in their statements before the Court have supported the fact stated by the appellant in his defence with regard to the dispute as they have stated that prior to the FIR was lodged in the instant case there was some altercation took place between the appellant and the lady commandos (PW-2, PW-3 & PW-4) as the appellant used to consume liquor. Furthermore, PW-2, PW-3 & PW-4 in their statement before the Court has stated that they had reported the matter against the appellant for the said offence, but after inquiry the police found that no incident has taken place and the appellant was sent back to his home. As such, the theory of defence with 14 CRA No. 925 of 2022 regard to dispute and false implication appears to have been established and also in view of the aforesaid reasons chances of fabrication and manipulation cannot be ruled out. 16. In that view of the matter, prosecution has not been able to bring home the offence as I have already discussed in the foregoing paragraphs that the medical evidence as well as the forensic evidence are of no use to the prosecution and also the statement of the victim (PW-5) is not of “sterling quality” and she is not a “sterling witness” as she fails to pass any of the tests of “sterling witness” in light of the decision of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) followed in the matter of Santosh Prasad alias Santosh Kumar (supra) and further due to discrepancies in the statements of leading prosecution witnesses chances of false implication, fabrication and manipulation cannot be ruled out. As such, it would be absolutely unsafe to maintain the conviction of the appellant for offence in question, and, therefore, he is entitled for acquittal on the basis of benefit of doubt. 15 CRA No. 925 of 2022 Conclusion:- 17. In view of the aforesaid discussion and analysis, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 04.06.2022 passed by the learned Special Court is hereby set aside. The appellant stands acquitted of the charges for offence in question. He is stated to be in jail from 07.12.2019 to 28.05.2021 and since 04.06.2022. I direct him to be set at liberty forthwith, if his detention is not required in any other offence. 18. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and also the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Ankit Sd/- (Sanjay K. Agrawal) Judge
Arguments
6. Ms. Aditi Singhvi, learned counsel for the appellant, would submit that the medical evidence as well as the forensic evidence have not supported the case of the prosecution. She would also submit that on the date and time of offence, the victim (PW-1) was major and even the victim has not supported the case of the prosecution. She would further submit that in absence of other evidence to base the conviction of the appellant the statement of the victim (PW-1) should be of “sterling quality”, but it is not of “sterling quality” in light of the decision of the Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi) 1 followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar 2 . Therefore, the appellant is entitled for acquittal on the basis of principles of benefit of doubt and the appeal deserves to be allowed. 7. Mr. Sharad Mishra, learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the Special Court has rightly 1 (2012) 8 SCC 21 2 (2020) 3 SCC 443 6 CRA No. 925 of 2022 convicted the appellant for offence in question as the the victim (PW-1) has clearly implicated the appellant in crime in question and, therefore, the appeal deserves to be dismissed and the appellant is not entitled for acquittal. 8. I have heard learned counsel, considered their rival submissions made herein-above and gone through the records minutely. Discussion and analysis:- 9. Age of the victim:- The Special Court has held the age of the victim was 16 years 6 months on the date and time of offence in paragraphs No.16 of the impugned judgment relying upon the Dakhil kharij register (Ex.P/11-C) proved by Bhuneshwar Sahu (PW-5). However, Bhuneshwar Sahu (PW-5) have not supported the Dakhil kharij registere (Ex.P/11-C) as in the cross examination he has categorically stated that he has not made any entery in the register as he was not posted in the school at that time and he does not know on what basis such entry was made and also father’s name of the victim as mentioned in Ex.P/11-C is different from those mentioned in 7 CRA No. 925 of 2022 other records. Even otherwise, the Special Court in the impugned judgment as paragraph No.15 has held that as per the radilogist report the age of the victim on the date and time of offence was between 16-17 years, though the said report and the radiologist have not been taken on record. However, if as per the radiologist report the age of the victim between 16 to 17 years, in light of the decision of the Supreme Court in the matter of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others 3 , the age of the victim could be between 18 to 19 years as their Lordships have held that margin of erron in age ascertained by radiological examination is two years on either side and on that basis the appellant could be granted benefit of doubt. In light of the decision of the Supreme Court in the matter of P. Yuvaprakash v. State Represented by Inspector of Police 4 to determine the age of the victim the prosecution must have brought on record the following documents i.e. (i) matriculation or equivalent certificates and in absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate 3 AIR 1982 SC 1297 4 2023 SCC OnLine Sc 846 8 CRA No. 925 of 2022 given by a corporation or a municipal authority or a panchayat and only in absence of either (i), (ii) and (iii), the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. Further, if on the basis of the entries made in the register maintained by the school, a judgment of the conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution of India, as in that case the accused may unjustly be convicted. [See: Ravinder Singh Gorkhi v. State of Uttar Pradesh]. In the instant case, only dakhil kharij register was produced by the prosecution vide Ex.P/11-C proved by Bhuneshwar Sahu (PW-5), however, the said document was not supported by Bhuneshwar Sahu (PW-5) as he turned hostile and also the name of father of the victim as mentioned in Ex.P/11-C is different from other records. As such, the prosecution has failed to proved the fact that the victim was minor on the date of offence. 10. Medical Evidence:- The victim (PW-1) was medically examined by Dr. Kalpana Sharma (PW-8) who prepared the medical report of the victim vide Ex.P/14. As per the victim’s 9 CRA No. 925 of 2022 medical report (Ex.P/14), no external and internal injuries were found over the body of the victim and no opinion has been given by the doctor (PW-8) that the victim (PW-1) has been subjected to recent sexual intercourse. As such, medical evidence is of no use to the prosecution as the case of the prosecution is not supported by the medical evidence. 11. Forensic Evidence :- So far as the forensic evidence is concerned, the slides of the victim were prepared and sent for chemical analysis to FSL. However, as per FSL report (Ex.P/22), on the slides of the victim stains of semen and human sperm were not found. Thus, the forensic evidence does not support the case of the prosecution. 12. As such, to base the conviction of the appellant for offence in question, the statement of the victim should be of “sterling quality”. Now, the question for consideration would be whether the statement of victim inspires confidence and appears to be absolutely trustworthy, unblemished and whether it is of sterling quality? 10 CRA No. 925 of 2022 13. As this stage, it would be appropriate to notice the judgment of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) in which their Lordships of the Supreme Court have 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 (supra). Their Lordship of the Supreme Court in the matter of Rai Sandeep alias Deepu (supra) have held in paragraph No.22 as under:-