1 CRA No. 668 of 2022 2025:CGHC:13107 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 668 of 2022 [Arising out of judgment dated 16.03.2022 passed in Special Sessions (Atrocities) Case No.06/2001 by the Special Judge (Atrocities), Surguja (Ambikapur) , Chhattisgarh .]  Santosh Kumar Chhipi S/o Shri Satyanarayan Chhipi, aged about 43 years, R/o Village Sayar Rayee, Police Station Ambikapur, District Surguja Chhattisgarh. --- Appellant versus  State of Chhattisgarh, through the Station House Officer, Police Station AJAK, Ambikapur, District Surguja Chhattisgarh. --- Respondent For Appellant :- Mr. Neeraj Mehta, Advocate. For State-Respondent :- Mr. Ashutosh Shukla, Panel Lawyer. Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 18/03/2025 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the sole appellant-accused, is ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.03.20 17:38:32 +0530 2 CRA No. 668 of 2022 to the legality, validity and correctness of the judgment dated 16.03.2022 passed by the Special Judge (Atrocities), Surguja (Ambikapur), Chhattisgarh, in Special Sessions (Atrocities) Case No. 06/2001 by which the appellant herein has been convicted for offence under Section 376 of the IPC and sentenced thereunder to go rigorous imprisonment for 10 years with fine of 3,000/-; in default of payment of fine ₹ amount the appellant has to undergo additional rigorous imprisonment for one year while acquitting him from offence under Sections 3(2)(5) and 3(1)(12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Prosecution story:- 2. The case of the prosecution as projected by the prosecution and accepted by the trial Court is that the victim’s mother (PW-2) had gone to the house of one of her relatives at Lundra since 13.06.2000 and on the date of incident i.e. 15.06.2000, when the victim (PW-5) was alone at her home as on 15.06.2000, her father (PW-6) had gone for some work since morning to Ambikapur and her younger brother (not examined) went to play outside, then at about 9:30 am the 3 CRA No. 668 of 2022 appellant herein entered into her house and forcefully committed sexual intercourse with her against her wishes and thereby committed the offence. Immediately, after the incident on the oral report of the victim (PW-5), FIR (Ex.P/7) was registered on the same day i.e. 15.06.2000 at about 12:30 pm. Crime details form was prepared vide Ex.P/2. Victim (PW-5) was medically examined by Dr. Kiran Bhajgawali (PW-8) who prepared the medical report of the victim vide Ex.P/14A. In the victim’s medical report (Ex.P/14A) proved by Dr. Kiran Bhajgawali (PW-8) victim was found habitual in sexual intercourse and no definite opinion has been given by the doctor with regard to recent sexual intercourse and no external injuries were found over the body of the victim. As per the x-ray/radiologist report (Ex.P/6) proved by Dr. M.K. Jain (PW-4), the age of the victim was found to be between 14-16 years. Slides of the victim were prepared. Undergarments of the victim was seized vide Ex.P/9. Other articles were also seized. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/4) on the underwear of the victim (article A) and the 4 CRA No. 668 of 2022 slides of the victim (articles B1 & B2) stains of semen and human sperm were found. 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 8 witnesses and exhibited 15 documents, whereas, the appellant in defence has examined one witness, but 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 trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has 5 CRA No. 668 of 2022 been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the parties:- 6. Mr. Neeraj Mehta, 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. He would also submit that on the date and time of offence, the victim (PW-5) was major and even the victim has not supported the case of the prosecution. He would further submit that in absence of other evidence to base the conviction of the appellant the statement of the victim (PW-5) 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. 1 (2012) 8 SCC 21 2 (2020) 3 SCC 443 6 CRA No. 668 of 2022 7. Mr. Ashutosh Shukla, 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 convicted the appellant for offence in question. He would further submit that the complaint was made by the vicitim (PW-5) immediately after the incident i.e. within 3 hours of the incident and even the forensic report (Ex.P/4) has supported the case of the prosecution 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 14 years 7 months on the date and time of offence in paragraphs No.18 & 19 of the impugned judgment relying upon the radiologist report (Ex.P/6) proved by Dr. M.K. Jain (PW-4) and other evidence available on record. However, the 7 CRA No. 668 of 2022 Supreme Court in the matter of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others 3 has held that margin of erron in age ascertained by radiological examination is two years on either side. Accordingly, the age of the victim has wrongly been held by the Special Court to be 14 years 7 months as it can also be held that the age of the victim was between 16 to 17 years on the date and time of offence, in light of the aforesaid decision of the Supreme Court by giving the error of margin of two years. Furthermore, as per the porvisions of Section 375 of the IPC, Sixthly prior to 03.02.2013, a man is guilty of the offence of rape who commits sexual intercouse with or without consent of the prosecutrix who is under 16 years of age and after amendement which came into force on 03.02.2013 by the Criminal Law (Amendemnt) Act, 2013, a man is guilty of the offence of rape who commits sexual intercouse with or without consent of the prosecutrix who is under 18 years of age. Admittedly, prior to the amendment a man is guilty of the offence of rape who commits sexual intercouse with or without consent of the prosecutrix who is under 16 years of age and in the instant case the incident has taken place on 3 AIR 1982 SC 1297 8 CRA No. 668 of 2022 15.06.2000, and at that time the victim was major in light of the decision of the Supreme Court in the matter of Jaya Mala (supra) by giving the error of margin of two years. As such, the victim was major on the date and time of offence as the incident has taken place on 15.06.2000 prior to date of amendement i.e. 03.02.2013. 10. Medical Evidence:- The victim (PW-5) was medically examined on 15.06.2000 immediately after the incident by Dr. Kiran Bhajgawali (PW-8) who prepared the medical report of the victim vide Ex.P/14A. As per the victim’s medical report (Ex.P/14A), she was found to be habitual in sexual intercourse and no definit opinion was given by the doctor with regard to recent sexual intercourse. Even Dr. Kiran Bhajgawali (PW-8) in her statement has stated that no external injuries were found over the body of the victim and also no injuries were found on the private part of the victim though, it has been stated by the victim (PW-5) that she has suffered injury on the back side of her head. As such, the case of the prosecution is not supported by the medical evidence. 9 CRA No. 668 of 2022 11. Forensic Evidence :- So far as the forensic evidence is concerned, the slides of the victim were prepared on 15.06.2000, however as per FSL report (Ex.P/4), the seized articles (seized on 15.06.2000) and slides of the victim were received by the forensic laboratory on 23.03.2001 with a delay of more than 9 months and no evidence has been brought on record by the prosecution that the said articles were kept in a safe custody, between the date on which articles were seized i.e. 15.06.2000 and the date on which articles were received i.e. 23.03.2001, therefore, in absence of evidence that the said articles were kept in safe custody, chances of fabrication and manipulation cannot be ruled out. Apart from that though in the FSL report (Ex.P./4) on the victim’s underwear (article A) and victim’s slides (articles B1 & B2) stains of semen and human sperm were found, but there is no matchinig of semen of the appellant with that found on the underwear and slides of the victim to make it foolproof case as held by the Supreme Court in the matter of Krishan Kumar Malik v. State of Haryana 4 . Their Lordships of the Supreme Court in the matter of Krishan Kumar Malik (supra) has held as under:- 4 (2011) 7 SCC 130 10 CRA No. 668 of 2022 “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 or 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.” 12. Coming to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in the matter of Krishan Kumar Malik (supra), it is quite clear that forensic evidence is of no use to the prosecution in absence of matching of semen and further considering the time gap of more than 9 months between the articles were seized and the articles were received by the forensic laboratory due to which chances of fabrication and manipulation cannot be ruled out. 13. 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 11 CRA No. 668 of 2022 appears to be absolutely trustworthy, unblemished and whether it is of sterling quality? 14. 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:- “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 12 CRA No. 668 of 2022 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 for holding the offender guilty of the charge alleged.” 15. The victim (PW-5) in her statement before the Court has stated that on the date of offence i.e. 15.06.2000, the appellant all of sudden entered into her house and finding no one in the house forcefully committed sexual intercourse with her and after hearing her cry her aunt [बुआ (not examined on account of her death)] came in her kitchen and saw the 13 CRA No. 668 of 2022 appellant while absconding and at that time her mother (PW- 2) also came. However, 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. Apart from that she (PW-5) has stated that the appellant had used filthy language with regard to her caste and also abused her, but the Special Court has acquitted the appellant herein from the offence under Sections 3(2)5) and 3(1)(12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Furthermore, the victim (PW-5) at paragraph No.11 of her statement before the Court has stated that during the incident she had suffered injury on her head which has been rejected by the Dr. Kiran Bhajgawali (PW-8) who medically examined the victim and prepared her report vide Ex.P/14. Doctor (PW-8) in her statement before the Court at paragraph No.2 has categorically stated that no external injuries were found over the body of the victim and also at paragraph No.7 she has stated that no injuries were found on the private part of the victim. Moreover, victim (PW- 5) at paragraph No.2 in her statement before the Court has stated that her aunt [बुआ (not examined on account of her 14 CRA No. 668 of 2022 death)] and her mother had seen the appellant while absconding, however, in the cross examination at paragraph No.7, victim’s mother (PW-2) has stated that at the time of incident she was in Lundra at the house of her sister. Further, defence witness Gangaram (DW-1) in his statement before the Court has stated that the appellant and the victim are known to each other and also used to visit each other’s houses. He (DW-1) at paragraph No. 3 of his statement has stated that the appellant used to visit to the house of the victim in absence of victim’s father. In that view of the matter, the victim (PW-1) 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). 16. Admittedly, it is case of the appellant that the victim was a consenting party and considering the fact that the victim has held to be major on the date and time of offence and also in the preceding paragraph I have already discussed that the medical evidence as well as the forensic evidence are of no use to the prosecution and further the statement of the victim 15 CRA No. 668 of 2022 (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). In that view of the matter, it would be absolutely unsafe to maintain the conviction of the appellant, and, therefore, he is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 17. In view of the aforesaid discussion and analysis, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 16.03.2022 passed by the learned Special Court is hereby set aside. The appellant stands acquitted of the charges for offence under Section 376 of the IPC. He is stated to be in jail since 16.03.2021. 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 16 CRA No. 668 of 2022 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/- Sd/- (Sanjay K. Agrawal) Judge Ankit