1 CRA No. 1286 of 2018 2025:CGHC:33626-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1286 of 2018 [Arising out of judgment dated 08.02.2016 passed in Special Sessions Trial No.50/2014 by the Additional Sessions Judge, Fast Track Court, Raigarh, Chhattisgarh.]  Laxmi Sarthi @ Chhote S/o Sukhlal Sarthi, aged about 20 years, R/o Village Nawapara (Tendra) Dhanwarpara, Police Station Gharghoda District Raigarh, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Station House Officer, Police of Police Station Gharghoda, District Raigarh, Chhattisgarh. ... Respondent For Appellant :- Mr. Rishi Rahul Soni, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Services Committee. For State-Respondent :- Mr. Ashutosh Shukla, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board (17.07.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein is to the legality, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.07.22 13:26:02 +0530 2 CRA No. 1286 of 2018 validity and correctness of the judgment dated 08.02.2016 passed by the Additional Sessions Judge, Fast Track Court, Raigarh, Chhattisgarh, in Special Sessions Trial No. 50/2014, by which the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 4 of the POCSO Act Imprisonment for life and to pay fine of ₹ 2,000/-, in default of payment of fine, to further undergo RI for 4 months. Under Section 363 of the IPC Rigorous imprisonment for 3 years and to pay fine of ₹ 200/-, in default of payment of fine, to further undergo RI for 2 months. Under Section 366 of the IPC Rigorous imprisonment for 5 years and to pay fine of ₹ 500/-, in default of payment of fine, to further undergo RI for 3 months. All the sentences are directed to run concurrently. Prosecution Case:- 2. The case of the prosecution as projected and accepted by the trial Court is that on 09.04.2014 at about 12:00 noon the appellant kidnapped minor victim (PW-1), less than 18 years of 3 CRA No. 1286 of 2018 age at the time of incident, from lawful custody of her guardian and took her to the house of his grand-mother at village Kachkobar, Police Station Tamnara,. Thereafter, from 09.04.2014 to 12.04.2014, on the pretext of marriage, the appellant committed sexual intercourse upon the victim against her wishes and thereby committed the offences in question. 3. It is further case of the prosecution that on 09.04.2014, when victim’s mother (PW-3) had gone to the field for some agricultural work, the appellant came to her house and took the minor victim (PW-1) with him which was seen by Dilmat Bai (not examined), who used to live in the locality of the victim. When victim’s mother (PW-3) came back her house, Dilmat Bai (not examined) informed her that the appellant took her daughter (PW-1) with him. PW-3 reported the matter to the police pursuant to which FIR (Ex.P/3) was registered. On 13.04.2014, the victim was recovered along with the appellant vide Ex.P/1. Wheels of investigation started running and the appellant was arrested. Minor victim (PW-1) was medically examined by Dr. N. Lakara (PW-6) who prepared the victim’s medical report vide Ex.P/9. In the victim’s medical report (Ex.P/9), no external injuries were 4 CRA No. 1286 of 2018 found over the body of the victim, however, in the internal examination hymen was found old ruptured and it was opined by doctor (PW-6) that it might be possible that the victim passed through the sexual intercourse and with regard to age determination, the doctor (PW-6) referred to radiologist. As per the radiologist/X-Ray report (Ex.P/10) proved by Dr. R. Jeetpure (PW-9), the age of the victim (PW-1) was between 15 to 17 years at the time of incident, however, as per the dakhil kharij register (Ex.P/20-C) date of birth of the victim is 03.03.1998 meaning thereby on the date and time of incident i.e. 09.04.2014 to 12.04.2014, the victim was aged about 16 years one month. Slides of the victim and other articles were sent for chemical analysis to FSL, but the FSL report has not been brought on record for the reason best known to the prosecution. 4. After due investigation, appellant herein was charge-sheeted for the aforesaid offence 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. 5. In order to bring home the offence, prosecution has examined as many as 14 witnesses and exhibited 20 documents and defence 5 CRA No. 1286 of 2018 in support of its case has not examined any witness, but exhibited 2 documents. 6. The learned Special Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused 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:- 7. Mr. Rishi Rahul Soni, learned counsel for the appellant, would submit that the appellant has falsely been implicated in the crime in question. He 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 Ms. Amrita Khakha (PW-14), Head Master of the victim’s school, is not the author of dakhil kharij (Ex.P/20- C) and she also does not know on what basis the entry was made and furthermore, the ossification test of the victim was also carried out vide Ex.P/10, wherein the age of the victim was found to be 15 to 17 years which is of no use to the prosecution in light of the decision of the Supreme Court in the matter of Jaya Mala 6 CRA No. 1286 of 2018 v. Home Secretary, Government of Jammu and Kashmir and others 1 . He would further submit that the victim was consenting party and in her cross examination she has clearly stated that the appellant did not make any physical relation with her and after being tutored by the police, she implicated the appellant in crime in question, as such, to base the conviction of the appellant the statement of the victim (PW-1) 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. 8. On the other hand, Mr. Ashutosh Shukla, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence against the appellant beyond reasonable doubt and the trial Court has rightly convicted the appellant for the aforesaid offences. He would also submit that in the medical report (Ex.P/9) has supported the 1 AIR 1982 SC 1297 2 (2012) 8 SCC 21 3 (2020) 3 SCC 443 7 CRA No. 1286 of 2018 case of the prosecution. Therefore, the present appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records meticulously. Discussion & Analysis:- 10. 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/20-C) proved by Amrita Khakha (PW- 14) and on the radiologist report (Ex.P/10). However, Amrita Khakha (PW-14) has not supported the dakhil kharij register (Ex.P/20-C) as in the cross examination she has categorically stated that she has not made any entry in the register and she does not know on what basis such entry was made. As such, the dakhil kharij register (Ex.P/20-C) is of no use to the prosecution. 11. The trial Court has further relied upon the radiologist/X-Ray report (Ex.P/10) in which the age of the victim at the time of offence was opined to be between 15-17 years. However, their Lordships of the Supreme Court in the matter of Jaya Mala v. 8 CRA No. 1286 of 2018 Home Secretary, Government of Jammu and Kashmir and others 4 , 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 17 to 19 years. As such, on that basis of radiologist report (Ex.P/10), the age of victim may be 18 years or more than 18 years on the date of offence. In view of the above, we hereby reject the finding of the Special Court that the victim was less than 18 years of age on the date and time of offence. 12.Medical Evidence:- The victim (PW-01) was medically examined by Dr. N. Lakara (PW-06), who prepared the medical report of the victim vide Ex.P/19 in which though it was opined by the doctor that the victim might have been subjected to intercourse, but no external injuries were found over the body of the victim and it is the case of the defence that the victim was the consenting party. However, no definite opinion has been given by the doctor with regard to recent sexual intercourse and even victim (PW-1) in her statement herself has stated that the appellant did not make any physical relation with her, as such, medical evidence is of no use to the prosecution. Even 4 AIR 1982 SC 1297 9 CRA No. 1286 of 2018 otherwise, to corroborate the medical evidence against the appellant no forensic evidence has been brought on record by the prosecution though the slides and undergarment of the victim were sent for the chemical analysis. 13.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? 14.At 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 10 CRA No. 1286 of 2018 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 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.” 11 CRA No. 1286 of 2018 15.Considering the statement of the victim (PW-1) in which at paragraph No.7, she has clearly stated that while making her statement before the Magistrate, she had stated that the appellant did not make any physical relationship with her and further at paragraph No.8 of her statement before the Court, she has stated that on being tutored by the police she implicated the appellant in crime in question. Though, in the examination-in- chief the victim (PW-1) has implicated the appellant in crime in question, but in the cross examination, she appears to be a tutored witness and not supported the case of the prosecution. In that view of the matter, we are 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). 16.Accordingly, the prosecution has not been able to bring home the offence as we have already discussed in the foregoing paragraphs 12 CRA No. 1286 of 2018 the statement of the victim (PW-1) is not of “sterling quality” as she fails to pass any of the tests of “sterling witness”. Further, the medical evidence is of no use to the prosecution as it is the case of the defence that the victim was the consenting party and even the victim herself has denied the fact of committing sexual intercourse by the appellant 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 the conviction of the appellant for offences in question, 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 impugned judgment of conviction and order of sentence dated 08.02.2016 passed by the learned Special Court is liable to be and is hereby set aside. Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437- A of the CrPC. 18.This criminal appeal is allowed. 13 CRA No. 1286 of 2018 19.Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ankit