Raipur, Chhattisgarh v. State Of Chhattisgarh, Through Station House Officer Of Police Station Arang, Di
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.07.18 16:25:29 +0530 2025:CGHC:33627-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1402 of 2018 {Arising out of judgment dated 26.06.2018 passed in Special Criminal Case No.75/2017 by the learned Seventh Additional Sessions Judge, Raipur} Kamdev Kandra, S/o. Krishna Kumar, Aged About 24 Years, R/o. Gullu, Police Station- Arang, District- Raipur, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Station House Officer Of Police Station Arang, District - Raipur, Chhattisgarh. ... Respondent For Appellant For Respondent : :
Legal Reasoning
“14 This Court in Birad Mal Singhvi v. Anand 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 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 7 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: “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 3 AIR 2023 SC 3525 8 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 Teacher of the School, Vinod Kumar Sahu (PW-11), entry of the date of birth in Dakhil Khariz Register (Ex.P-24C) has not been made by him and he also did not know on what basis the entry of date of birth has been recorded. 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-2), therefore, it must be of sterling quality as held by the Supreme Court in the matter of Rai Sandeep 9 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 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 4 (2012) 8 SCC 21 5 (2020) 2 S.C.R. 798 10 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 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-2), it appears that she was accompanied with the appellant from village Gullu to Raipur, Raipur to Shirdi, Shirdi to Puna, Puna to Narayangaon and they stayed at Narayangaon and doing labour work and thereafter from Narayangaon to 11 Nasik and from Nasik to Raipur. As such, the victim remained with the appellant for about one month and she did not make any hue & cry for last one month when she remained in the custody of the appellant and even she did not inform to her parents by mobile phone and she also did not cry for help. As such, 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. However, the Sessions Court also did not either direct the sentences to run concurrently or consecutively, it could have been directed to run concurrently as the offences are said to have been committed in single transaction. It has been held by the Supreme Court that when the accused is convicted for two or more offences committed in a single transaction, basic rule of thumb which has evolved is that sentences are to run concurrently. (See: O.M. Cherian Alias Thankachan v. State of Kerala & Others 6 ). 6 (2015) 2 SCC 501 12 15.
Arguments
Mr. Roop Naik, Advocate Mr. Vivek Mishra, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board (17.07.2025) 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 26.06.2018, passed by the learned Seventh Additional Sessions Judge, Raipur in Special Criminal Case No.75/ 2017, by which the sole appellant herein has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 363 of I.P.C. U/s. 366 of I.P.C. U/s. 4 of the of Protection from Children Sexual Offences Act, 2012 : Rigorous imprisonment for 2 years and fine of Rs.500/-, in default of payment of fine amount, 1 month additional rigorous imprisonment. : Rigorous imprisonment for 3 years and fine of Rs.1000/-, in default of payment of fine amount, 2 months additional rigorous imprisonment. : Rigorous imprisonment for 7 years and fine of Rs.2000/-, in default of payment of fine amount, 4 months additional rigorous imprisonment. 2. Case of the prosecution, in short, is that, on 07.02.2017, at about 2:30 P.M., at village Gullu, Police Station- Aarang, 3 District Raipur, the appellant kidnapped the minor victim, aged about 16 years, from the lawful guardianship of her parents and taken her to different places from 08.02.2017 till 05.03.2017 and committed sexual intercourse with her; thereby the aforesaid offences have been committed. The missing report was lodged vide Ex.P-27 and the offence under Section 363 of I.P.C. was registered and the wheels of investigation started running. Thereafter, the victim (PW- 2) was recovered from the house of Kamdev (appellant herein) and she was medically examined by Dr.A.N.Toppo (PW-9) vide Ex.P-15, but no external or internal injury was found on her body. As per the MLC report, her hymen was found ruptured and healed. Three vaginal slides were prepared for chemical examination but the FSL report 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-24C) proved by Vinod Kumar Sahu (PW-11). 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. 4 3. During the course of trial, in order to bring home the offences, prosecution has examined as many as 13 witnesses and exhibited 31 documents and the appellant- accused in support of his defence has neither examined any witness nor exhibited any document. 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. Roop Naik, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offences beyond reasonable doubt. The age of the victim to be less than 18 years has not been proved and there is no forensic and medical evidence available on record. He would further submit that the victim did not make any hue & cry when she was with the appellant for about one month and, therefore, she 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. Vivek Mishra, learned State counsel, would support the impugned judgment and submit that the prosecution has 5 been able to bring home the offences beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences; 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. 8. Admittedly, the date of incident i.e. kidnapping is 07.02.2017 and date of recovery of victim is 05.03.2017. She was subjected to medical examination by Dr. A.N. Toppo (PW-9) and as per the MLC report (Ex.P-15), no external or internal injury was found on her body and there is no sign of recent sexual intercourse was present. Furthermore, no forensic and medical evidence is brought on record and also the age of the victim to be less than 18 years has not been proved, as the Dakhil Khariz Register (Ex.P-24C) proved by Vinod Kumar Sahu (PW-11), in his statement before the Court, has stated that he has not entered the date of birth of victim in the Dakhil Khariz Register and he also did not know on what basis the entry has been made. 6 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 26.06.2018 is hereby set aside. Consequently, the appeal is allowed. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offences under Sections 363 & 366 of I.P.C. and Section 4 of the POCSO 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. 16. 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