Page No.1 of 11 IN CRA-1179-2023 2025:CGHC:17734 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1179 of 2023 [Arising out of judgment dated 27.01.2023, passed in Special Sessions Case No.89 of 2020 (State of Chhattisgarh v. Kamlesh Sahu) by the Additional Sessions Judge, 1st FTSC (POCSO), Bilaspur (CG)] Kamlesh Sahu @ Hari Sahu S/o Ramchand Sahu Aged About 23 Years R/o Chatona, P.S. Chakarbhata, District : Bilaspur, Chhattisgarh ... Appellant (In Jail) Versus State of Chhattisgarh, through the Police Station - Chakarbhata, District : Bilaspur, (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] --------------------------------------------------------------------------------------------- For Appellant : Mr. Bharat Lal Dembra, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer --------------------------------------------------------------------------------------------- Single Bench: Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 17 . 04 .202 5 (1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 27.01.2023, passed in Special Sessions Case No.89 of 2020 (State of Chhattisgarh v. Kamlesh Sahu) by the Additional Sessions Judge, 1st FTSC (POCSO), Bilaspur (CG), whereby he has been convicted and sentenced as under: SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.04.22 16:38:05 +0530 Page No.2 of 11 IN CRA-1179-2023 Conviction Sentence U/s. 04 of the POCSO Act R/w S.376 of IPC [However, in light of S. 42 of the POCSO Act, punished only under S. 04 of the POCSO Act] Rigorous imprisonment for 10 years with fine of Rs.1,000/- and, in default of payment of fine, additional simple imprisonment for 02 months. (2) The case of the prosecution, in short, is that on 01.10.2019, at the place mentioned in the FIR (Ex.P/11), which comes within the ambit of Police Station Chakarbhata, District Bilaspur (CG), the accused-appellant committed sexual assault on the minor victim (PW-02), who was aged about 16 years 10 days and, thereby, said to have committed the aforesaid offences. (3) The further case of the prosecution is that when father of the victim (PW-04) reported the matter to the police by lodging written complaint (Ex.P/10), FIR (Ex.P/11) was registered by the police against the appellant and wheels of investigation started running, in which, nazri naksha was prepared vide Ex.P/22. Victim’s statement under Section 164 of CrPC were recorded vide Ex.P/04. After obtaining necessary consent and permission, the victim (PW-02) was subjected to medical examination, which was conducted by Dr. Manjulata Verma (PW-11) and, as per her MLC report (Ex.P/23), it has been mentioned that no internal or external injury were found, victim’s hymen was absent, no exact opinion regarding recent sexual intercourse can be given, but the victim (PW-02) was found to be habitual to intercourse. Further, victim's vaginal slides were Page No.3 of 11 IN CRA-1179-2023 prepared and handed over to the police alongwith her undergarment for analysis for chemical examination, which were seized vide Ex.P/24. The accused-appellant was arrested and sent for medical examination. Appellant’s MLC report is Ex.P/16 and his undergarment was also seized vide Ex.P/25. The seized articles were sent for chemical examination and, as per FSL report (Ex.P/31), it has been opined that stains of human sperm/semen were found only on the undergarment of the victim (PW-02). In order to ascertain correct age of the victim (PW-02), copy of her school admission register (Ex.P/19) and Class 10th mark-sheet (Ex.P/03) were obtained/seized, wherein the date of birth of the victim (PW- 02) has been mentioned as 21.09.2003, meaning thereby, the victim (PW-02) was minor aged about 16 years on the date and time of the offence. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 18 witnesses and exhibited 34 documents, whereas the appellant in support of his defence neither examined any witness nor exhibited any document. Page No.4 of 11 IN CRA-1179-2023 (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 376 of IPC read with Section 04 of the POCSO Act, 2012 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Bharat Lal Dembra, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence. The age of the victim to minor on the date and time of the offence has not been established beyond reasonable doubt. The medical evidence does not support the case of the prosecution, as no internal or external injury were found over the body of the victim (PW-02). Furthermore, though in the FSL report (Ex.P/31) stains of human sperm/semen were found on the undergarment of the victim (PW-02), but in light of the decision of the Supreme Court in the matter of Krishna Kumar Malik v. State of Haryana 1 , in absence of semen matching or DNA profiling, the same is of no use to the prosecution. Even otherwise, there is delay of 08 months in lodging the FIR and the victim (PW-02) was the consenting party. Learned counsel vehemently argued that the testimony of the victim was not of 1 (2011) 7 SCC 130 Page No.5 of 11 IN CRA-1179-2023 sterling quality and, therefore, cannot be relied upon to hold the appellant guilty for the offences in question. Jhuniya Sahu (PW-05), with whom the victim has gone to the marked on the date and time of the offence, has clearly turned hostile and not supported the case of the prosecution. Moreover, Pappu Kaushik, who is said to have seen the victim alongwith the appellant on the date and time of the offence has also not been examined. Hence, the present appeal be allowed and the appellant be acquitted from the charges in question. (7) Per-contra, learned State counsel would submit that the prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-02), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question, coupled with other evidence available on record, the trial Court has rightly convicted the appellant for the offence mentioned herein-above. Therefore, the present appeal is liable to be dismissed. (8) I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. Age of the victim (PW-02): Page No.6 of 11 IN CRA-1179-2023 (9) In the instant case, so far as age of the victim (PW-02) is concerned, copy of victim’s school admission register (Ex.P/19) and Class 10th mark-sheet (Ex.P/03) are relied upon, wherein the date of birth of the victim (PW-02) has been mentioned as 21.09.2003, meaning thereby, the victim (PW-02) was minor aged about 16 years on the date and time of the offence. However, Kamlesh Kaushik (PW-09), who is Incharge Head Master of the victim’s School, has clearly stated that the entries with regard to date of birth of the victim (PW-02) in school admission register (Ex.P/19) were not made by him and he is also not aware as to on what basis the said entry in the school record were made. As such, the age of the victim (PW- 02) to be minor on the date and time of the offence is not proved beyond reasonable doubt either on the basis of school admission register (Ex.P/19) nor on the basis of Class 10th mark-sheet (Ex.P/03), as the same has been seized at the instance of the victim (PW-02). It is held accordingly. Medical Evidence: (10) After obtaining necessary consent and permission, the victim (PW-02) was subjected to medical examination, which was conducted by Dr. Manjulata Verma (PW-11) and, as per her MLC report (Ex.P/23), it has been mentioned that no internal or external injury were found on the body of the victim. Though victim’s hymen was absent, but no exact opinion regarding recent sexual intercourse can be given, which is duly proved by the statement of Page No.7 of 11 IN CRA-1179-2023 Dr. Manjulata Verma (PW-11). As such, the medical evidence also does not support the case of the prosecution and cannot be relied upon to convict the appellant for the offences in question. It is held accordingly. Forensic Evidence: (11) In the present case, as per FSL report (Ex.P/31), it has been opined that stains of human sperm/semen were found on the undergarment of the victim (PW-02) seized vide Ex.P/24. However, no DNA profiling or matching of semen of the appellant with that found on the undergarment of the victim (PW-02) was conducted in the present case. In Krishan Kumar Malik (supra), their Lordships of the Supreme Court have clearly held that it has become necessary for the prosecution to get in for DNA test in such types of cases, facilitating the prosecution to prove its case against the accused. It has also been held that the prosecution could have resorted to the procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarment of the prosecutrix to make a foolproof case, but they did not do so, thus, they must face the consequence. As such, in light of the above legal position, though in the FSL report (Ex.P/31) it has been opined that stains of human sperm/semen were found on the undergarment of the victim (PW-02), but since the prosecution has failed to conduct any DNA profiling or matching of semen of the appellant with that found on the undergarment of the Page No.8 of 11 IN CRA-1179-2023 victim (PW-02), the forensic evidence is also of no help to the prosecution in the present case. It is held accordingly. Testimony of the victim (PW-02) and other prosecution witnesses: (12) Lastly, to base the conviction of the appellant for offence in question, the statement of the victim (PW-02) should be of “sterling quality”. Now, the question for consideration would be whether the statement of victim inspires confidence and appears to be absolutely trustworthy, unblemished and whether it is of sterling quality? (13) As this stage, it would be appropriate to notice the judgment of the Supreme Court in the matter of Rai Sandeep alias Deepu v. State of (NCT of Delhi) 2 in which their Lordships of the Supreme Court have observed that who can be said to be a “sterling witness” and which has been followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar 3 . 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 2 (2012) 8 SCC 21 3 (2020) 3 SCC 443 Page No.9 of 11 IN CRA-1179-2023 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 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.” (14) Coming back to the facts of the present case, in light of the principles of law laid down by their Lordships of the Supreme Court in above-quoted judgments, it is quite vivid that date of offence is 01.10.2019 and FIR (Ex.P/06) has been lodged on 19.06.2020 i.e. Page No.10 of 11 IN CRA-1179-2023 after a delay of 08 months, which has also not be explained satisfactorily by the prosecution at any point of time. Furthermore, as per the case of the prosecution, on the date of offence, the victim (PW-02) had gone to the market for stitching work alongwith her friend- Jhuniya Sahu (PW-05), but Jhuniya Sahu (PW-05) has completely turned hostile and not supported the case of the prosecution. It is also the case of the prosecution that on the date and time of the offence, one Pappu Kaushik has seen the appellant and the victim (PW-02) together and further informed the incident to the parents of the victim. However, said Pappu Kaushik has neither been cited as a witness nor brought to the witness-box to be examined before the Court for the reasons best known to the prosecution. Moreover, the victim (PW-02) in Para-13 of her cross- examination has clearly stated that immediately after the incident, panchayat meeting was convened, wherein it was resolved that due to caste difference of the appellant to that of the victim (PW-02), their marriage could not be solemnized. As such, considering the aforesaid, though the victim (PW-02) in her statement before the Court has narranted the incident and implicated the appellant herein to be the author of the crime in question, but I am of the considered opinion that statement of the victim (PW-02) 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 Page No.11 of 11 IN CRA-1179-2023 (supra) followed in the matter of Santosh Prasad alias Santosh Kumar (supra) and, therefore, it would be unsafe to base the conviction of the appellant on the basis of the statement of the victim (PW-02). It is also held accordingly. (15) In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 27.01.2023, passed by the learned trial Court, whereby he has been convicted and sentenced for offence under Section 376 of IPC read with Section 04 of the POCSO Act, is liable to be and is hereby set aside. The appellant stands acquitted of the said charges on the basis of benefit of doubt. He is stated to be in jail since 20.06.2020, therefore, it is directed that he to be set at liberty forthwith, if his detention is not required in any other offence. (16) This criminal appeal is allowed. (17) 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/- Sd/- (Sanjay K. Agrawal) Judge s@if