1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 969 of 2018 1 - Vishnu @ Vishram Sahu S/o Hemlal Sahu Aged About 21 Years R/o- Pahariya Ward No. 15, P.S. Baloda, District- Janjgir-Champa, Chhattisgarh. ... Appellant versus 1 - State of Chhattisgarh Through- The Station House Officer, Police Station Baloda, District- Janjgir-Champa, Chhattisgarh. ... Respondent(s) For Appellant : Shri Vijay Kumar Sahu, Advocate. For Respondent : Ms. Isha Jajodiya, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 16.01 .202 5 1. The present appeal under Section 374(2) CrPC has been filed against the impugned judgment of conviction and sentence dated 08.12.2017 passed by the Special Judge (POCSO) Janjgir, District Janjgir Champa, in Special Criminal Case No.18 of 2017 whereby the appellant has been convicted for the offence under Section 5(m)/6 of the POCSO Act and Section 366 of IPC and sentenced to undergo RI for 10 year and fine of Rs.20000/-, in default of payment of fine, additional RI for six moths, and RI for 5 years and fine of Rs. 5000/-, in default of payment of fine, additional RI for six months respectively. 2. Brief facts of the case are that, on 03.03.2017 the mother of victim, lodged a written complaint Ex.P/4 to the police with the allegation that on the date of lodging of complaint itself, at about 6-7 PM, the Digitally signed by INDRAJEET SAHU Date: 2025.01.20 17:16:59 +0530 2 appellant had taken her minor daughter towards kitchen garden and after about half an hour her daughter came to her house and informed that the appellant has committed rape upon her. On seeing blood on her underwear, she informed the Kotwar and Sarpanch of village and lodged the report. On the basis of her written complaint, an FIR Ex.P/5 was registered against the appellant for the offence under Section 376(2)(i) and 366 IPC. The victim was sent for her medical examination to District Hospital, Janjgir where PW-5 Dr. Mamta Jagat medically examined her and gave report Ex. P/12. While examining the victim, the doctor found redness of vagina and abrasion present over right side of vaginal wall, blood was oozing, semen like liquid was present on the vagina and upper part of clitoris and opined that sign of recent sexual assault is present. Two slides of vaginal swab of the victim was prepared, sealed and handed it over to the police for chemical examination. With respect to age and date of birth of the victim, the police seized school admission and discharge register from Vidya Bharti Higher Secondary School, Pahariya and after retaining attested true copy of the same vide Ex.P/11-C, the original was returned back. Vide seizure memo Ex.P/14 certain plums were seized from community building Pahariya. Spot Map Ex.P/2 was prepared by the police whereas Ex.P/3 was prepared by the Patwari. The appellant was arrested on 04.03.2017 and he too was sent for his medical examination to Community Health Centre, Baloda, where PW-6, Dr. S.S. Tomar medically examined the appellant and gave report Ex.P/13 and found him capable to perform sexual intercourse. The semen slide of victim, her cloth and clothes of appellant were sent for chemical examination to FSL Bilaspur from where FSL report Ex.P/23 was 3 received. As per FSL report, sperms and semen were found present in the clothes of victim, her vaginal slide as also in the underwear of the appellant. 3. The statement under Section 161 CrPC of the witnesses was recorded. The statement of victim under Section 164 CrPC was also recorded and after completion of usual investigation charge sheet was filed before the trial court for the offence under Section 376(2)(i) and 366 IPC. The trial court has framed charge against the appellant for the offence under Section 366 IPC and Section 5(m)/6 of POCSO Act, in alternative 376(2)(i) of IPC has been framed. The appellant denied the charge and claimed trial. 4. On 04.12.2017 the trial court has amended the charge and instead of alternative charge of 376(2)(i), the charge of Section 376(2)(f) was framed, however, the charge again was amended on 24.05.2017 and earlier charge of Section 5(m)/6 of POCSO Act have been deleted and instead thereof, charge of Section 6(m) of POCSO Act has been framed. 5. To prove the guilt of appellant, the prosecution has examined 10 witnesses. The statement of appellant under Section 313 CrPC was recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence due to dispute of money transaction. 6. After appreciation of oral as well as documentary evidence, the Trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel appearing for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. 4 There are material omissions and contradictions in the evidence of the prosecution witnesses which cannot be made basis for conviction of the appellant. The victim was not consistence in her evidence. Her evidence is not corroborated with the other witnesses. Due to personal grievance with the mother of victim, she made the victim instrumental to settle her score. On the basis of uncorroborated statement of the witnesses, the appellant cannot be convicted. There is no cogent and clinching evidence with respect to age and date of birth of the victim. School register has not been proved by its author in accordance with law. The appellant is entitled for benefit of doubt and he may be acquitted. 8. On the other hand, the counsel for the State opposes the submissions of appellant and have submitted that there is overwhelming evidence against the appellant that he committed the offence. The victim PW-1 has duly supported her case which is corroborated by the evidence of her mother PW-2. While she was examined by the doctor, injuries were found on her body and in her vaginal swab as well as vaginal slide and in clothes semen and sperms were found which further corroborates that she was being subjected to sexual intercourse by the appellant. The report was lodged immediately and there is no inconsistency in the evidence of witnesses. Even if school record could not be proved by the prosecution by examining its author, but that itself does not sufficient to dilute the prosecution case and to hold the victim major. On the date of incident she was only about six years. In that condition, she cannot be considered to be major or more than 18 years of age. Therefore, there is sufficient evidence in the record which has rightly 5 been considered by the trial court which needs no interference and appeal is liable to be dismissed. 9. I have heard the counsel for the parties and perused the records of the case. 10. The first and foremost question arises for consideration would be the age of the victim as to whether the prosecution is able to prove her age that she was aged about 6 years on the date of incident or not? 11. The age of victim has not been specifically challenged by the defence that she was not aged about 6 years. Even if it is found that certain suggestions have been given in the cross examination of PW-2, the mother of victim, it cannot be presumed that she is more than 18 years of age and in the facts and circumstances of the case, the proof of age does not have much relevance because from the evidence of victim, her mother and doctor who medically examined her, it can be considered that victim was minor and aged about 6 years of age on the date of incident. 12. The prosecution has relied upon school register Ex.P/11-C which is sought to be proved by PW-4, Gulab Chand Banjare, who is the Headmaster of school. He has stated in his evidence that police has seized school register and after retaining the attested true copy vide Ex.P/11-C, the original was returned back. According to school register, her date of birth is recorded as 12.12.2010. In cross examination, though he admits that he has not made entry of date of birth of victim in the school register and on what basis her date of birth was recorded in the school register, however, since her age was mentioned in her MLC report Ex.P/12 as 5 years, while recording her evidence the trial court 6 has also observed that she is aged about 5 years which is mentioned in her deposition sheet. 13. Further, the evidence of her mother PW-2 also with respect to age of victim has not been specifically challenged by the defence. Therefore, this court is also in agreement with the findings recorded by the trial court with respect to age of the victim that she was minor and aged about 6 years of age on the date of incident. 14. So far as the offence of rape against the appellant is concerned, PW-1, the victim, have stated in her evidence that on the date of incident her parents were in the hotel and she was playing in the courtyard. At that time, the appellant came there and under pretext of giving chocolate he took her towards kitchen garden and after removing her clothes he committed rape upon her by which blood was coming out from her private part. After committing the offence of rape, he asked her not to disclosed anyone about the incident. When she came to her house, her mother asked her about the incident after seeing blood like stains on her legging. Thereafter, her mother took her to the police station. In cross examination, she states that the appellant is her uncle in relation and he used to come to her hotel as also in her house. Although, she admits that there was a quarrel between appellant and her parents, but it is not specified as to whether quarrel took place prior to or after the incident of rape. She clearly denied that the appellant has not committed any bad work with her. She also denied the suggestion of the defence that she deposed on the instructions of her mother. The victim remain firm in saying that appellant has committed rape upon her. 7 15. PW-2, the mother of victim, have stated that on the date of incident the appellant left her daughter in her courtyard. On seeing blood like stains on her legging, she asked her daughter and thereafter she disclosed that appellant has committed rape upon her. She saw her private part from where blood was coming out and then she informed the Sarpanch and Kotwar of village and lodged the report. She too remain firm in cross examination that on the date of incident she asked from her daughter and she disclosed the entire incident and thereafter they lodged the report. 16. Likewise, PW-3, the father of victim, have also given the same evidence as PW-2, the mother of victim, has given and nothing could be extracted from cross examination of this witnesses to disbelieve their evidence. 17. PW-5 Dr. Mamta Jagat, while medically examining the victim found injuries on her private part and blood was oozing out from it. Two slides of her vaginal swab were prepared and sent it for chemical examination. In her cross examination, though suggestion was given that victim received injuries by falling on a pointed object, but she denied. 18. From the evidence of doctor, it has clearly been established that injuries found on the body of victim was as a result of rape committed by the appellant. Further, as per FSL report Ex.P/23, semen and sperms were found in the vaginal swab of the victim as well as in her underwear as also in the underwear of appellant which further corroborates the allegation levelled by the victim against the appellant. 19. In the facts and circumstances of the case as well as the evidence given by the victim, she can be considered to be the sterling witness 8 upon which conviction can safely be made as held by the Supreme Court in the matter of Santosh Prasad @ Santosh Kumar Vs. State of Bihar, 2020 (3) SSC 443, in which it was observed as under: “5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held 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 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 every one 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 such similar 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.” 20. For the foregoing reasons, I do not find any illegality or perversity in the judgment of conviction passed by the trial court against the appellant for the alleged offence. 21. In the result, the appeal fails and is dismissed. The appellant is stated to be in jail. He shall serve out the sentence awarded by the trial court 9 by means of impugned judgment of conviction and order of sentenced passed by the trial court. 22. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 23. The records of the case along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge inder