1 CRA No.993 of 2023 2025:CGHC:15951 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 993 of 2023 {Arising out of judgment dated 23.02.2023 passed by the Special Judge (POCSO Act), Balod, District Balod, Chhattisgarh, in Special Sessions Case (POCSO) No. 65/2020} • Neeraj Yadav S/o Rampratap Yadav, aged about 24 years R/o Ward No. 04, Eklavya Nagar, Tayubalar Set Rajhara, P.S. Rajhara, District Balod, Chhattisgarh. ... Appellant versus • State of Chhattisgarh, through Police Station Rajhara, District, Balod, Chhattisgarh. ... Respondent For Appellant :- Ms. Aditi Singhvi, Advocate For State-Respondent :- Mr. Sharad Mishra, Panel Lawyer and Dr. Surendra Kumar Dewangan, Panel Lawyer Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 04/04/2025 1. This criminal appeal is directed against the impugned judgment of conviction and order of sentence dated 23.02.2023, passed by the Special Judge (POCSO Act), ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.04.15 10:42:01 +0530 2 CRA No.993 of 2023 Balod, District Balod, Chhattisgarh, in Special Sessions Case (POCSO) No. 65/2020, by which the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 376 of the IPC and Section 4 of the POCSO Act, 2012. [However, the appellant has only awarded sentence for offence under Section 376 of the IPC as the same is higher in degree to that of Section 4 of the POCSO Act, by virtue of Section 42 of the POCSO Act.] Rigorous imprisonment for 10 years with fine of 3,000/-; ₹ in default of payment of fine amount the appellant has to undergo additional imprisonment for three months. Prosecution story:- 2. The case of the prosecution, in brief, is that in the month of March, 2019; on 21st May, 2019 and on 28.06.2020 the appellant, herein, committed sexual intercourse with minor victim (PW-1) against her wishes and thereby committed the aforesaid offence. On the written complaint of victim’s mother (PW-4) vide Ex.P/10, FIR was lodged vide Ex. P/11 on 29.06.2020. Thereafter, the victim (PW-1) was subjected to medial examination by Dr. Megha Jha (PW-05), who prepared the medical report of the victim vide Ex.P/13. As per medical report of the victim, proved by Dr. Megha Jha (PW-05), no external and internal injuries were found over 3 CRA No.993 of 2023 the body of the victim and also no recent sign of sexual intercourse was found except one abrasion on left hand wrist of the victim (PW-1). Slides of the victim were prepared. Crime details form was prepared vide Ex.P/2. As per the dakhil khariz register (Ex.P/7-C) which was seized vide Ex.P/3, the date of birth of the victim is mentioned as 23.01.2006 which is proved by Shrawan Kumar Sahu (PW- 02). Other articles were also seized and the seized articles were sent to FSL. As per FSL report (Ex.P/27) on victim’s slide (article ‘B’) 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 10 witnesses and exhibited 27 documents, whereas, the present appellant in defence has examined 3 witnesses and exhibited 1 document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the 4 CRA No.993 of 2023 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, convicted the appellant for the offences as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the parties:- 6. Ms. Aditi Singhvi, learned counsel for the appellant, would submit that the appellant has falsely been implicated in the crime in question. She would also submit that the age of the victim has not been proved to be less than 18 years on the date and time of offence, as Mr. Shrawan Kumar Sahu, Principal in-charge (PW-02) of the victim’s school is not the author of dakhil kharij (Ex.P/7-C) and furthermore, the ossification test of the victim was also carried out vide Ex.P/4, wherein the age of the victim was found to be 17 to 19 years. As such the prosecution has failed to establish that the victim was minor at the time of offence. She would further submit that though in the forensic evidence on the 5 CRA No.993 of 2023 victim’s slide (article ‘B’) stains of semen and human sperm were found, but there was no matching of semen or DNA report has been brought on record by the prosecution to prove its case and on this particular ground, she relied upon the decision of the Supreme Court in the matter of Krishan Kumar Malik Versus State of Haryana 1 . She would further submit that there is a delay of about one year and three months in lodging the report which has not been satisfactorily explained by the prosecution. She would further submit that in absence of other evidence to base the conviction of the appellant the statement of the victim (PW- 01) 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) 2 followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar 3 . Therefore, the appellant is entitled for acquittal on the basis of principles of benefit of doubt and the appeal deserves to be allowed. 7. Mr. Sharad Mishra and Dr. S.K. Dewangan, learned State counsel, would submit that the prosecution has been able to bring home the offence beyond reasonable doubt and the 1 (2011) 7 SCC 130 2 (2012) 8 SCC 21 3 (2020) 3 SCC 443 6 CRA No.993 of 2023 trial Court has rightly convicted the appellant for offence in question as the the victim (PW-01) has clearly implicated the appellant in crime in question and, therefore, the 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 minutely. Discussion and analysis:- 9. Age of the victim:- The trial Court has held the age of the victim was less than 18 years at the time of offence relying upon the dakhil kharij register (Ex.P/7-C) proved by Shrawan Kumar Sahu (PW-2) and on the radiologist report (Ex.P/4). However, Shrawan Kumar Sahu (PW-02) has not supported the dakhil kharij register (Ex.P/7-C) as in the cross examination he has categorically stated that he has not made any entry in the register as he was not posted in the school at that time and he does not know on what basis such entry was made. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana 4 , has reiterated the law laid down by it in the matter of Birad Mal 4 2023 SCC Online SC 1397 7 CRA No.993 of 2023 Singhvi vs. Anand Purohit 5 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 the same, cannot be relied upon. Similarly, their Lordships of the Supreme Court in the matter of P. Yuvaprakash v. State Represented by Inspector of Police 6 have held that 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 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. 10. The trial Court has further relied upon the radiologist report (Ex.P/4) in which the age of the victim at the time of 5 1988 (Supl.) SCC 604 6 2023 SCC OnLine Sc 846 8 CRA No.993 of 2023 offence was opined to be between 17-19 years. However, their Lordships of the Supreme Court in the matter of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others 7 , have held that margin of error in age ascertained by radiological examination is two years on either side, therefore, in the instant case, the age of the victim could be between 19 to 21 years. As such, on that basis of radiologist report (Ex.P/4), the age of victim is more than 18 years on the date of offence. In view of the above, I hereby reject the finding of the Special Court that the victim was minor at the time of offence. 11. Medical Evidence:- The victim (PW-01) was medically examined by Dr. Megha Jha (PW-05), who prepared the medical report of the victim vide Ex.P/13 in which no external and internal injuries were found over the body of the victim and also no sign of recent sexual intercourse was found except one abrasion on wrist of the victim. As such, medical evidence is of no use to the prosecution as the case of the prosecution is not supported by the medical evidence. 7 AIR 1982 SC 1297 9 CRA No.993 of 2023 12. Forensic Evidence :- The Special Court has relied upon the FSL report (Ex.P/27) to base the conviction of the appellant. Though in the FSL report (Ex.P/27), stains of semen and human sperm were found on victim’s slide, but the matching of semen was not done to find out that it was of the appellant herein which is required in light of the decision of the Supreme Court in the matter of Krishan Kumar Malik (supra) in which their Lordships of the Supreme Court have held in para 44 as under:- “44. Now, after the incorporation of Section 52-B in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the learned counsel for the Sate, 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 fact the consequences.” 13. Coming to the facts of the present case in light of principles of law laid down by their Lordships of the Suprem Court in the above stated decision, it is quite vivid that the prosecution did not go for matching of semen to prove that it is of the appellant’s semen which is necessary 10 CRA No.993 of 2023 for the prosecution to make a foolproof case. As such, the forensic evidence is also of no use to the prosecution. 14. Lastly, 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 appears to be absolutely trustworthy, unblemished and whether it is of sterling quality? 15. 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 11 CRA No.993 of 2023 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 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.” 16. The victim (PW-01) in her statement before the Court has stated that the accused shifted to victim’s neighborhood 12 CRA No.993 of 2023 about 6-7 months prior to the incident where she came to know the present appellant. She (PW-1) has further stated that few days prior to Holi festival, the appellant had confessed his feelings to her, and wanted to marry. On the festival of Holi, the accused called her (PW-1) to his rented house, where he committed sexual intercourse with her against her wishes and thereafter, on 21.05. 2019, he again committed sexual intercourse with her. She (PW-1) has further stated that lastly, on 28.06.2020, the appellant invited her to his house to discuss about his upcoming birthday, and despite her refusal, he again committed sexual intercourse with her against her wishes. However, till June 29, 2020, she neither informed about the incident to her parents nor she made any complaint/report to the police and, therefore, the delay of about more than one year has occurred, which has not been duly explained by the prosecution. Further as per the statement of victim’s father (PW-3), the victim had informed him that the appellant committed sexual intercourse with her in the toilet which is situated at the back side of the house however, as per the statement of the victim the appellant committed sexual intercourse at the rented house in which the appellant used to live. As such, considering the delay in lodging the FIR 13 CRA No.993 of 2023 and firstly she did not report such an act of the accused to her parents or either of her close friend, I am of the considered opinion that statement of the victim 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), and therefore, it would be unsafe to base the conviction of the appellant on the basis of the statement of the victim (PW-1). 17. Accordingly, the prosecution has not been able to bring home the offence as I have already discussed in the foregoing paragraphs that she neither informed about the incident to her parents nor she made any complaint/report to the police for one year and the same has not been duly explained as to why she has not reported about the incident for one year to anyone and also the statement of the victim (PW-01) is not of “sterling quality” as she fails to pass any of the tests of “sterling witness”. Further, the medical evidence as well as the forensic evidence are of no use to the prosecution and also the prosecution has failed to prove that the victim was minor at the relevant time of offence. As such, it would be absolutely unsafe to maintain 14 CRA No.993 of 2023 the conviction of the appellant for offence in question, and, therefore, he is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 18. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 23.02.2023 passed by the learned Special Court is liable to be and is hereby set aside. The appellant stands acquitted of the charges for offence in question. He is stated to be in jail since 30.06.2020. I direct him to be set at liberty forthwith, if his detention is not required in any other offence. 19. This criminal appeal is allowed. 20. 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 Saxena/Ankit