{Arising out of judgment dated 15.12.2021 passed in Special Criminal Case No. H-41/2021 by v. State Of Chhattisgarh, Through District Magistrate, District Mahasamund, Chhattisgarh
Case Details
1 ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.03.20 18:33:54 +0530 2025:CGHC:13102 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 46 of 2022 {Arising out of judgment dated 15.12.2021 passed in Special Criminal Case No. H-41/2021 by the learned Special Judge (POCSO Act, 2012) Mahasamund} Dagesh Chakradhari, S/o. Shri Lalit Chakradhari, Aged About 19 Years, R/o. Ward No. 4, Village Khallari, P.S. Khallari, District Mahasamund, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through District Magistrate, District Mahasamund, Chhattisgarh (Cause Title taken from Case Information System) ... Respondent For Appellant : Ms. Ruchi Nagar, Advocate For Respondent : Dr. Surendra Kumar Dewangan, Panel Lawyer (Single Bench)
Legal Reasoning
Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board (19.03.2025) 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 15.12.2021, passed by the learned Special Judge (POCSO Act, 2012) Mahasamund in Special Criminal Case No.H-41/2021, by which the 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. 6 of the POCSO Act, 2012. : Rigorous imprisonment for 3 years and fine of Rs.1000/- in default of payment of fine, 1 month’s additional rigorous imprisonment. : Rigorous imprisonment for 5 years and fine of Rs.2000/-, in default of payment of fine, 2 months’ additional rigorous imprisonment. : Rigorous imprisonment for 10 years and fine of Rs.10,000/-, in default of payment of fine, 6 months’ additional rigorous imprisonment. All the sentence to run concurrently. 2. Case of the prosecution, in brief, is that the appellant herein abducted the minor victim (PW-2) on 15.08.2019 and 3 committed sexual intercourse with her against her wishes and thereby, committed the offence. Further case of the prosecution is that father of the victim (PW-1) reported the matter to the police on 17.08.2019 and thereafter, the victim (PW-2) was recovered on 04.09.2019 vide Ex.P-1. The MLC was conducted by Dr. Karuna Aawde (PW-15) vide Ex.P-21 and no internal and external injury was found on the body of the victim. The undergarments of the appellant and victim were sent for chemical examination to FSL, in which the stains of human sperm was found vide Ex.P-35. The date of birth of the victim was found to be 16 years on the basis of Dakhil Khariz Register (Ex.P-19) proved by Headmaster, Roop Singh Diwan (PW-8). 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 15 witnesses and exhibited 35 documents and the appellant-accused in support 4 of his defence has examined only one witness DW-1 and exhibited the document Ex.D-1. 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. Ms. Ruchi Nagar, learned counsel for the appellant, would submit that the case of the prosecution is not supported by the medical evidence and even the forensic evidence cannot be relied upon and furthermore, the statement of the victim (PW- 2) is not of sterling quality, therefore, the conviction cannot be sustained and is liable to be set aside. 6. Dr. Surendra Kumar Dewangan, 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 aforesaid offences. Therefore, the appeal deserves to be dismissed. 5 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. The victim (PW-2) has been held to be less than 18 years on the date of offence and thereby, Section 6 of the POCSO Act has been invoked by the learned Special Judge. However, the age of the victim has been held to be less than 18 years on the basis of the Dakhil Khariz Register (Ex.P-19) proved by the Headmaster, Roop Singh Diwan (PW-8) wherein the date of birth of the victim has been shown as 13.03.2003. In order to prove the Dakhil Khariz Register (Ex.P-19), Roop Singh Diwan (PW-8) has been examined. In the cross-examination, he has admitted that the entry of date of birth made in Ex.P-19 has not been made by him. He further stated that on the basis of the Class-V transfer certificate, the entry of date of birth has been made. 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 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 6 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 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.” 7 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 the certificate concerned examination Board, if available; and in the absence thereof; from (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; 3 AIR 2023 SC 3525 8 (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, I am 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, as per Headmaster, Roop Singh Diwan (PW-8), entry of the date of birth in Dakhil Khariz Register (Ex.P-19) has not been made by him and, 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, so far as the medical evidence is concerned, the MLC has been conducted by Dr. Karuna Aawde (PW-15) vide Ex.P-21 and she did not find any external and internal injury over the body of the victim and, as such, the medical evidence is not supported the case of the prosecution. The forensic evidence, which has been brought on record vide Ex.P-35, in which, on the undergarments of the victim and appellant, the stains of human sperm were found. However, it would be evident from the FSL report (Ex.P-35) that the undergarments of the victim 9 and appellant were seized on 04.09.2019 and 05.09.2019, whereas it reached to FSL on 11.09.2019 and there is no such material on record whether it was kept in safe custody or not and, as such, the chances of fabrication and manipulation cannot be ruled out. 13. However, the Supreme Court in the matter of Krishan Kumar Malik v. State of Haryana4 has held that matching of semen ought to have been done to make it a foolproof case and held in para 44 as under : “44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23.6.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still resorted to this procedure of getting the DNA test for analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences.” As such, in absence of evidence that whether the undergarments were kept in safe custody from 04.09.2019 & 05.09.2019 till 11.09.2019 and in absence of matching of 4 (2011) 7 SCC 130 10 semen, it could not be proved that the semen found in the undergarments of the victim was that of the appellant and therefore, the forensic evidence is of no use to the prosecution. 14. Now, the conviction is solely based on the quality testimony 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) 5 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 6 . 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 5 (2012) 8 SCC 21 6 (2020) 2 S.C.R. 798 11 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 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 12 for holding the offender guilty of the charge alleged. 15. Coming to the facts of the case and in light of the fact that the prosecution has failed to prove that the victim was minor on the date of offence in preceding paragraph, the appellant had allegedly kidnapped the victim on 15.08.2019 and she was recovered on 04.09.2019 vide Ex.P-1 and three days took in performing journey, but the victim did not make any hue and cry and remained with the appellant for 15-16 days and the statement of victim’s father (PW-1) shows that her father was against the love marriage. The victim (PW-2) has also stated that the appellant had assaulted her, but the said statement is not supported by the medical evidence. Furthermore, the victim remained with the accused for 14 days, but she did not inform to any of the person to whom she came in contact and furthermore, Smt. Santoshi Agrawal, Sub-Inspector (PW-10) has also stated that the victim was in love relation with the accused. Similar statement has been made by the Sher Singh Bande, Inspector (PW-13) and N.K.Suryavanshi, S.D.O.P. (PW- 14). Furthermore, the medical evidence and forensic evidence is not supported the case of the prosecution. Therefore, in my considered opinion, since the prosecution has failed to prove 13 that the victim (PW-2) was minor on the date of offence, she remained with the appellant for 14 days and during that period, she did not make any hue and cry to any one, her statement is not of sterling quality and she appears to be a consenting party. 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. 16.
Decision
Consequently, the appeal is allowed. The impugned judgment conviction and order of sentence dated 15.12.2021 passed by the learned Special Judge is hereby set aside. The appellant stands acquitted of the charges framed against him for offences under Sections 363 & 366 of I.P.C. and under Section 6 of the POCSO Act. The appellant be released forthwith, if his detention is not required in any other offence. 17. 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 14 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