1 (CRA No. 557 of 2023) 2025:CGHC:14329 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 557 of 2023 [Arising out of judgment dated 15.2.2023 passed in Special Sessions Case (POCSO) No.35/2021 by the Additional District & Sessions Judge (FTSC) & Special Judge (POCSO Act), Balod, Chhattisgarh] • Sourav Savita S/o Rameshwar Dayal, aged about 21 years, R/o Ward No.16 Sanjay Nagar, Police Station Jaura, District : Morena, Madhya Pradesh --- Appellant versus • The State of Chhattisgarh through Station House Officer, Police Station Deori, District : Balod, Chhattisgarh --- Respondent (Cause-title taken from the Case Information System) ------------------------------------------------------------------------------------------ For Appellant :- Ms. Shivali Dubey, Advocate For Respondent-State :- Dr. Surendra Kumar Dewangan, Panel Lawyer ------------------------------------------------------------------------------------------ SB - Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 25.03.2025 1. This criminal appeal filed by the appellant under Section 374(2) of CrPC, is directed against the impugned judgment of ADITI DIWAN KAIWART Digitally signed by ADITI DIWAN KAIWART Date: 2025.04.03 16:41:50 +0530 2 (CRA No. 557 of 2023) conviction and order of sentence dated 15.02.2023, passed by learned Additional District & Sessions Judge (FTSC) & Special Judge (POCSO Act), Balod (C.G) in Special Sessions Case (POCSO) No.35/2021 (State of Chhattisgarh v. Sourav Savita and Others), whereby the Special Court while acquitting the two other co-accused persons namely Devendra @ Debu Savita and Phoolsingh @ Phoola has convicted and sentenced the appellant as under :- Conviction Sentence U/s 363 of the IPC R.I. for 3 years with fine of Rs. 500/- and, in default of payment of fine, additional S.I. for one month. U/s 366 of the IPC R.I. for 5 years with fine of Rs.1,000/- and, in default of payment of fine, additional S.I. for two months. U/s 04 of the POCSO Act R.I. for 10 years with fine of Rs. 2,000/- and, in default of payment of fine, additional S.I. for four months. All the sentences are 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 09.03.2021 at 3 (CRA No. 557 of 2023) about 7:00 AM, at village Marri, Bangla within the ambit of Police Station Devri, District Balod, Chhattisgarh, the appellant abducted the minor victim (PW-01), who was less than 18 years of age at that time, from lawful guardianship of her parents and took her to Bhopal, Gwalior, Village Jaura, Muraina, M.P. and also committed sexual intercourse with her and, thereby, said to have committed the aforesaid offences. 3. The further case of the prosecution is that the said incident was reported to the Police by the father of the victim (PW-02), pursuant to which FIR was registered on 09.03.2021 at 04:15 P.M. vide Ex.P/6. The victim was recovered on 15.03.2021 from Police Station Jaura vide Bramandagi Panchnama (Ex. P/1). The victim’s statement was recorded under Section 161 of CrPC vide Ex.P/4 and under Section 164 of CrPC vide Ex.P/5. Crime details form was prepared vide Ex.P/8. The victim (PW-01) was medically examined by Dr. Sonam Netam (PW-04) vide Ex.P/2, who prepared the medical report of the victim vide Ex.P/15. As per medical report of the victim (Ex.P/15), no external or internal injuries were found over the body of the victim and also no recent sign of sexual intercourse was found. Also, vaginal slides of the victim were 4 (CRA No. 557 of 2023) examined vide Ex.P/29, in which no stains of semen and human sperm were found. Dakhil Kharij register was recovered from the Head Master of her school on 16.03.2021 vide Ex.P/11 in order to ascertain her age and as per the dakhil khariz register (Ex.P/11) the date of birth of the victim is 10.02.2008 meaning thereby the victim (PW-01) was aged about 13 years 01 month. 4. The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 29 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any 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, proceeded to convict the appellant for offences under Sections 363 & 366 of the IPC and also under Section 04 of the POCSO Act and sentenced him as mentioned in the opening paragraph of this 5 (CRA No. 557 of 2023) judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. 6. Ms. Shivali Dubey, learned counsel appearing for the appellant, would submit that the foundational facts for attracting Section 29 of the POCSO Act have not been established. She would also submit that the medical evidence as well as the forensic evidence have not supported the case of the prosecution. She would further submit that on the date and time of offence, the victim (PW-01) was major and even the victim has not supported the case of the prosecution. Also the victim’s statement recorded under Section 161 of CrPC is not a statement made in the Court and, therefore, it cannot be relied upon to hold the appellant guilty, as such, the appellant is entitled for acquittal and the appeal deserves to be allowed. 7. Per-contra, Dr. S.K. Dewangan, learned State counsel, would support the impugned judgment of conviction and order of sentence and submit that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He would also submit that in light of 6 (CRA No. 557 of 2023) statement of the victim (PW-01) coupled with other evidences available on record, the learned trial Court has rightly convicted the appellant under Section 04 of the POCSO Act. As such, the present appeal deserves to be dismissed and the appellant is not entitled for acquittal. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. Discussion and analysis:- 9. Age of the victim:- The Special Court has held the age of the victim was around 13 years and 29 days on the date and time of offence in paragraph No.13 of the impugned judgment relying upon the Dakhil kharij register (Article A-C) recovered vide Ex.P/11-A, proved by the Headmaster – Ved Prakash Sharma (PW-03), in which the date of birth of the victim is recorded to be 10.02.2008. However, the Headmaster – Ved Prakash Sharma (PW-03) has not supported the Dakhil kharij register (Article A-C) and in the cross examination he has categorically stated that the entry in the register has not been made by him and it is not his 7 (CRA No. 557 of 2023) signature in Article A. As such, the person who has made entry in the Dakhil-Kharij Register has not been examined. Even otherwise, the Special Court in the impugned judgment at paragraph No.14 has held that as per the oral statement made by the victim (PW-01) and her father (PW-02), the age of the victim on the date and time of offence was around or more than 16 years but less than 18 years. Thus, the father of the victim has not clearly spelt out the date of birth of the victim and has only stated that on the date and time of incident his daughter was aged about 16 years and there is no other evidence brought on the record to establish that the victim was less than 18 years of age on the date of offence. However, in light of the decision of the Supreme Court, in the matter of P. Yuvaprakash v. State Represented by Inspector of Police 1 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 given by a corporation or a municipal authority or a panchayat and only in absence of 1 2023 SCC OnLine SC 846 8 (CRA No. 557 of 2023) 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. Similarly, in the matter of Ravinder Singh Gorkhi v. State of Uttar Pradesh 2 , their Lordships of the Supreme Court have held that if a judgment of the conviction is recorded on the basis of the entries made in the register maintained by the school, 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. In the instant case, only dakhil kharij register was produced by the prosecution vide Artice A-C, proved by the Headmaster – Ved Prakash Sharma (PW-03), however, the said document has not been supported by the Headmaster – Ved Prakash Sharma (PW-03), as he turned hostile. As such, the prosecution has failed to prove the fact that the victim was minor on the date of offence. 10. Medical Evidence:- The victim (PW-01) was medically examined by Dr. Sonam Netam (PW-04) who prepared the medical report of the victim vide Ex.P/15. As per the victim’s medical report (Ex.P/15), no external and internal injuries 2 (2006) 5 SCC 584 9 (CRA No. 557 of 2023) were found over the body of the victim and no opinion has been given by the doctor (PW-04) that the victim (PW-01) 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, in the FSL report (Ex.P/29), 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, the case of the prosecution is totally based on the statement of the victim and, therefore, to base the conviction of the appellant the learned trial Court has invoked Section 29 of the POCSO Act, which is a presumption for offences under Sections 3, 5, 7 & 9 of the POCSO Act. It is well settled that the Court conducting the trial of offences under the POCSO Act can resort to the presumptions incorporated under the POCSO Act and they are contained in Sections 29 & 30 of the POCSO Act. The relevant Section 29 of the POCSO 10 (CRA No. 557 of 2023) Act is reproduced as under :- “29. Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5,7 and section 9 of this Act, the Special Court shall presume, that such has committed or abetted or attempted to commit the offence, as the case may person be, unless the contrary is proved.” 13. In the present case, while arriving at the guilt of the accused, the trial Court has invoked presumption under Section 29 of the POCSO Act in paragraph 37 of the impugned judgment holding that the prosecution has successfully proved its case against the appellant. The presumption under Sections 29 & 30 of the POCSO Act has come up for consideration before the Supreme Court in the matter of Sambhubhai Raisangbhai Padhiyar v. State of Gujarat 3 , wherein it has been held that the prosecution is required to prove the foundational facts for any presumption under Section 29 & 30 of the POCSO Act. 14. Similarly, the Bombay High Court in the matter of Deelip Tatoba Raje v. the State of Maharashtra 4 has held that the presumption under Section 29 of the POCSO Act will come into play only when the foundational facts are established. 3 (2025) 2 SCC 399 4 2024:BHC-AS:21684 (CRA No.990/2019 decided on 09.05.2024) 11 (CRA No. 557 of 2023) That is to say, age of the victim, either of the acts prescribed under Sections 3, 5, 7 & 9 of the POCSO Act are committed. If the foundational facts are not established, it would not attract Section 29 of the POCSO Act. 15. Coming to the facts of the present case in light of principles of law laid down in the above stated judgments, it is quite vivid that the victim (PW-01) has not principally supported the case of the prosecution and she has turned hostile. The victim (PW-01) in her Court’s statement while answering the leading question at paragraph No.6 has stated that the appellant had made sexual intercourse with her first time in the house of acquitted co-accused Phool Singh and not in Bhopal or Gwalior. However, in her police statement recorded under Section 161 (Ex.P/4) she has stated that the appellant has committed forceful sexual intercourse with her first time in Bhopal on 10.03.2021, second time in Gwalior on 11.03.2021 and then he took her to his friend Phool Singh’s (acquitted co-accused) house on 12.03.2021, where they had dinner at 08:00 PM and after that she fell asleep and whereas, in her statement recorded under Section 164 of the CrPC (Ex.P/5) while answering the leading question at para 5 she 12 (CRA No. 557 of 2023) has stated that the appellant and other two acquitted co- accused had made sexual intercourse with her at the house of appellant’s friend. Thus, there are discrepancies in the victim’s statements (Court’s statement, statement recorded under Sections 161 & 164 of the CrPC), while answering the leading questions and even the fact that the appellant has made relationship with her forcefully is missing in her Court’s statement. As such, except that there is no such evidence available on the record to attract the ingredients under Section 4 of the POCSO Act. However, the Special Court has relied upon the statement of the victim recorded under Section 164 of the CrPC to base the conviction of the appellant. 16. Now, the question for consideration would be whether to base the conviction of the appellant, the Special Court has rightly relied upon the victim’s statement recorded under Section 164 of the CrPC? 17. In this regard, the decision of the Supreme Court in the matter of George and others v. State of Kerala and another 5 may be notice herein, in which their Lordships of the 5 (1998) 4 SCC 605 13 (CRA No. 557 of 2023) Supreme Court have considered the issue as to whether the statement recorded under Section 164 CrPC constitutes substantial evidence and held that a statement of a witness recorded under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating the maker of such statement. 18. Similarly, in the matter of Somasundaram alias Somu v. State represented by the Deputy Commissioner of Police 6 , a three Judge Bench of the Supreme Court considered the purport and value of Section 164 CrPC and further considered the issue which is similar to the issue in hand before us as to what would be the position if the person giving the statement resiles from the same completely when he is examined as a witness and, it has been held in Para-81 to 84 by observing as under :- "81. Section 164 CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement or confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have 6 (2020) 7 SCC 722 14 (CRA No. 557 of 2023) custody of the person. Though Section 164 ensure that the does provide for safeguards to statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time. 82. As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only advert to the following judgment i.e. in George v. State of Kerala [George v. State of Kerala, (1998) 4 SCC 605 : 1998 SCC (Cri) 1232 : AIR 1998 SC 1376] : (SCC p. 624, para 36) “36. … In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 CrPC, cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him.” 83. What is the object of recording the statement, ordinarily of witnesses under Section 164 has been expounded by this Court in R. Shaji v. State of Kerala [R. Shaji v. State of Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185] : (SCC p. 279, paras 27-28) “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa [Jogendra Nahak v. State of Orissa, (2000) 1 SCC 272 : 2000 SCC (Cri) 210] and CCE v. Duncan Agro Industries Ltd. [CCE v. Duncan Agro Industries Ltd., (2000) 7 SCC 53 : 2000 SCC (Cri) 1275] ) 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC, can be 15 (CRA No. 557 of 2023) relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence.” 84. Thus, in a case where a witness, in his statement under Section 164 CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164." 19. In light of principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that the statement of a person/witness under Section 164 of CrPC is not an evidence, much less, substantial evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (for short the “IEA”) and it can be used only for the purpose of corroboration or contradiction. In absence of any other legally admissible evidence corroborating the evidence under Section 164 of CrPC no conviction can be recorded on the basis of statement under Section 164 of Cr.P.C. Therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. 16 (CRA No. 557 of 2023) 20. In view of the aforesaid discussion and analysis, prosecution has not been able to bring home the offence beyond reasonable doubt, as I have already discussed in the foregoing paragraphs that the medical evidence (Ex.P/15) proved by Dr. Sonam Netam (PW-04) as well as the forensic evidence (Ex.P/29) are of no use to the prosecution and also the prosecution has failed to proved the fact that the victim was minor on the date of offence. Furthermore, there are discrepancies in the statements of victim as well as in the statements of leading prosecution witnesses, therefore, 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 in absence of foundational facts and, therefore, the same is liable to be set aside. 21. In view of the aforesaid discussion and analysis, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 15.02.2023 passed by the learned Special Court is hereby set aside. The appellant stands acquitted of the charges for offences in question on the basis of principles of benefit of doubt. He is stated to be in jail since 29.03.2021. I direct him to be set at liberty forthwith, if his detention is not required in any other offence. 17 (CRA No. 557 of 2023) 22. 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/- (Sanjay K. Agrawal) Judge @d!t!