Nafr High Court
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.07.22 10:50:04 +0530 2025:CGHC:33993-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 153 of 2016 {Arising out of judgment dated 29.01.2016 passed in Sessions Trial No. 179/2013 by the learned Additional Sessions Judge (F.T.C.) Raigarh} Rakesh Roshan Lakda, S/o. Thadyus Lakda, Aged About 23 Years, R/o. Village Chikatwani, Thana Dharamjaygarh, Civil & Revenue District Raigarh, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through The District Magistrate Raigarh, District Raigarh, Chhattisgarh. ... Respondent For Appellant
Legal Reasoning
“14 This Court in Birad Mal Singhvi v. Anand 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 6 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.” 10. 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: 3 AIR 2023 SC 3525 7 “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: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the 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”. 11. In light of the aforesaid decisions of the Supreme Court, we are of the considered opinion that, in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the victim was minor on the date of offence and as per the statement of Teacher of the School, Kumari Sewati Beck (PW-12), entry of the date of birth in the Dakhil Khariz Register (Ex.P-8) has not been made by her and she also 8 did not know on what basis the entry of date of birth has been made. There is no other evidence to prove the date of birth and, as such, the prosecution has failed to prove that the victim was less than 18 years on the date of offence. Therefore, the finding recorded by the trial Court that the victim was minor on the date of offence is not in accordance with law. 12. Now, the case of the prosecution rests on the testimony of the victim (PW-1), 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 the witness would be 4 (2012) 8 SCC 21 5 (2020) 2 S.C.R. 798 9 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 attendant materials, namely, oral, documentary and material objects should 10 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. 13. Coming to the facts of the present case in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that as per the statement of the victim (PW-1), it appears that she had developed love relation with the appellant and both wanted to marry and they have made physical relationship in the night in the forest. The victim (PW-1) in para 12 of her statement has stated that appellant has stopped to make physical relation with her and therefore, she became angry and reported the matter to the police. As such, the victim is a consenting party and 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. 14.
Arguments
: Mr. Sunil Sahu, Advocate For Respondent : Mr. Afroz Khan, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (18.07.2025) 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 of conviction and order of sentence dated 29.01.2016, passed by the learned Additional Sessions Judge (F.T.C.) Raigarh in Sessions Trial No.179/2013, by which the appellant herein has been convicted for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to undergo life imprisonment and fine of Rs.5000/- in default of payment of fine, additional rigorous imprisonment for 6 months. 2. Case of the prosecution, in short, is that, three years prior to the date of FIR i.e. 04.06.2013 at village Chikatwani, Police Station Dharamjaigarh, District Raigarh, the appellant herein, on the pretext of marriage, committed sexual intercourse with the victim (PW-1) against her wish and thereby committed the aforesaid offence. The FIR was lodged vide Ex.P-1. Thereafter, the victim was medically examined by Dr. D.K.Toppo (PW-7) vide Ex.P-6 and as per the MLC report (Ex.P-6), no external or internal injury was found on her body and no evidence of recent sexual intercourse was seen. The vaginal slide was prepared and sent for chemical examination to FSL, but the FSL report 3 has not been brought on record. The age of the victim was found to be less than 18 years as per the Dakhil Khariz Register (Ex.P-8) proved by Kumari Sewati Beck (PW-12). After due investigation, the appellant was charge-sheeted for the aforesaid offence 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 offence, prosecution has examined as many as 14 witnesses and exhibited 16 documents and the appellant- accused in support of his defence has not examined any witness but has exhibited the documents Ex.D-1 to Ex.D-4. 4. The learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant for the aforesaid offence as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Sunil Sahu, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. The age of the victim to be less than 18 years has not been proved as per 4 Dakhil Khariz Register (Ex.P-8) proved by Kumari Sewati Beck (PW-12) as she stated in her statement that she did not know on what basis the entry of date of birth has been made in the Dakhil Khariz Register and who had made the entry. He would further submit that the Radiologist report has also not been brought on record to prove the date of birth of the victim to be less than 18 years and further there is no forensic and medical evidence available on record. He would next submit that the victim appears to be major and consenting party and her testimony is not of sterling quality to base the conviction; therefore, the appellant is entitled for acquittal and the appeal deserves to be allowed. 6. Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offence; therefore, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 5 8. In order to prove the Dakhil Khariz Register (Ex.P-8), Kumari Sewati Beck (PW-12) has been examined, who was posted as Assistant Teacher in the School from 2012. She in her statement before the Court has stated that she did not know how and on what basis the entry of date of birth of the victim as 18.12.1995 has been made. Despite the suggestion by Dr. D.K.Toppo (PW-7), the victim was not subjected to radiology test for age determination. As such, the age of the victim to be less than 18 years on the date of offence has not been proved. 9. 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 of the same, it cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:-
Decision
In view of the above, the impugned judgment of conviction and order of sentence dated 29.01.2016 is hereby set aside. Consequently, the appeal is allowed. The appellant stands 11 acquitted giving him benefit of doubt from the charge framed against him for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 15. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. Sd/- Sd/- (Sanjay K. Agrawal) Judge (Sachin Singh Rajput) Judge Ashok