1 2025:CGHC:16866-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 891 of 2015 {Arising out of judgment dated 21.07.2015 passed in Special Criminal Case No.H-07/2015 by the learned Special Judge (POCSO Act), F.T.C. Mahasamund} Goverdhan Yadav, S/o. Shri Gajendra Yadav, Aged About 21 Years, R/o. Ward No.7, Karrapara, Bagbahra, Police Station Bagbahara, Civil & Revenue Distt. Mahasamund, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through The District Magistrate, Mahasamund, District Mahasamund, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Sunil Sahu, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer (Division Bench) Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board (11.04.2025) ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.04.15 16:18:34 +0530 2 Sanjay K. Agrawal, J. 1. This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 21.07.2015, passed by the learned Special Judge (POCSO Act), F.T.C., Mahasamund in Special Criminal Case No. H-07/2015, by which the appellant herein has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 363 of Indian Penal Code. : Rigorous imprisonment for 4 years and fine of Rs.500/-, in default of payment of fine, 1 month’s additional rigorous imprisonment. U/s. 366-A of Indian Penal Code. : Rigorous imprisonment for 4 years and fine of Rs.500/-, in default of payment of fine, 1 month’s additional rigorous imprisonment. U/s. 6 of Protection of Children from Sexual Offences Act, 2012 : Life imprisonment and fine of Rs.1000/-, in default of payment of fine, 2 months’ additional rigorous imprisonment. All the sentences to run concurrently. 2. Case of the prosecution, in brief, is that on the intervening night of 24-25th December, 2014 at village Karrapara, Police Station- Bagbahara, District Mahasamund, the appellant 3 herein kidnapped the minor victim from lawful guardianship of her parents and committed aggravated penetrative sexual assault and thereby, committed the aforesaid offences. Further case of the prosecution is that the victim was recovered on 03.01.2015 from the possession of the appellant vide Ex.P-1, pursuant to lodging of FIR vide Ex.P-6 by the father of the victim. Thereafter, the victim (PW-1) was medically examined by Dr. Seema Binkar (PW-9) vide Ex.P-15A, in which no internal or external injury was seen over the body of the victim, but her hymen was found ruptured and blood was oozing and the sign of recent sexual intercourse was there. The age of the victim was found to be 17 years, 10 months & 10 days as per the Dakhil Khariz Register (Ex.P-12) proved by Tuleshwar Rathore (PW-4). After due investigation, the appellant was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for trial in accordance with law in which the appellant abjured his guilt and entered into defence stating that he has not committed any offence and he has been falsely implicated. 3. During the course of trial, in order to bring home the offences, prosecution has examined as many as 9 witnesses and 4 exhibited 21 documents and the appellant-accused in support of his defence has neither examined any witness nor exhibited any document. 4. The learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant for the aforesaid offences as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred. 5. Mr. Sunil Sahu, learned counsel for the appellant, would submit that the age of the victim has not been proved to be less than 18 years on the date of offence and there is no forensic evidence available on record. He would further submit that the victim did not make any hue & cry when she was with the appellant from his house for about 7 days and, therefore, she appears to be major and consenting party and her testimony is not of sterling quality to base the conviction; therefore, the appellant is entitled for acquittal and the appeal deserves to be allowed. 6. Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to bring home the offences beyond reasonable doubt and 5 the trial Court has rightly convicted the appellant for the aforesaid offences; therefore, the appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. First of all, the victim has been held to be less than 18 years i.e. 17 years, 10 months & 10 days on the basis of the Dakhil Khariz Register (Ex.P-12) proved by Tuleshwar Rathore (PW- 4), Teacher of the School. PW-4 has stated that as per the Dakhil Khariz Register (Ex.P-12), the date of birth of the victim is shown as 16.02.1997. In the cross-examination, he has clearly stated that he has not entered the date of birth in the Dakhil Khariz Register (Ex.P-12) and he also did not know on what basis the entry has been made. 9. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana 1 , has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit 2 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 6 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 of the same, it cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder:- “14 This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a 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. “14…. The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value.” 15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less 7 than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case.” 10. In the case of P. Yuvaprakash versus State Rep. By Inspector of Police 3 , the Hon'ble Supreme Court observed in para 13 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”. 3 AIR 2023 SC 3525 8 11. In light of the aforesaid decisions of the Supreme Court, I am of the considered opinion that, in the present case, there is no such clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the victim was minor on the date of offence and as per Teacher of the School, Tuleshwar Rathore (PW-3), entry of the date of birth in Dakhil Khariz Register (Ex.P-12) has not been made by him and he also did not know on what basis the entry of date of birth has been recorded. There is no other evidence to prove the date of birth and, as such, the prosecution has failed to prove that the victim was less than 18 years on the date of offence. Therefore, the finding recorded by the trial Court that the victim was minor on the date of offence is not in accordance with law. 12. So far as the medical evidence is concerned, the victim was medically examined by Dr. Seema Binkar (PW-9) vide Ex.P-15 and as per her statement, hymen of the victim was found ruptured and blood was oozing and except this, no any internal or external injury was found over the body of the victim. However, in shape of corroboration, no forensic evidence has been brought on record by the prosecution and, as such, the medical evidence is of no use to the prosecution. 9 13. Now, the case of the prosecution rests on the testimony of the victim (PW-1), therefore, it must be of sterling quality as held by the Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi) 4 wherein it has been 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 v. The State of Bihar 5 . 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 4 (2012) 8 SCC 21 5 (2020) 2 S.C.R. 798 10 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 to the facts of the case in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that 11 as per the statement of the victim (PW-1), on the intervening night of 24-25th December, 2014, when she was sleeping, the appellant came to her house and knocked the door then she opened the door and went along-with the appellant and the appellant developed physical relationship with her in her house itself, which has been shown as place ‘A’ in Nazari Naksha (Ex.P-3) and then he took her in his house. However, the victim (PW-1) did not make any hue & cry for last 7 days when she remained in the custody of the appellant and even she did not inform to her parents who were living at the distance of 50 meters from the house of the appellant and she also did not cry for help. In para 9 of her statement, the victim has admitted that she had love affair with the appellant and that is the reason she went along-with the appellant in the midnight without informing her parents and remained with the appellant for 7 days. As such, the chances of false implication cannot be ruled out, as victim fails 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). In that view of the matter, it would be absolutely risky to maintain the conviction of the appellant and, 12 therefore, he is entitled for acquittal on the basis of benefit of doubt. 15. In view of the above, the impugned judgment of conviction and order of sentence dated 21.07.2015 is hereby set aside. Consequently, the appeal is allowed. The appellant stands acquitted giving him benefit of doubt from the charges framed against him for the offences under Sections 363 & 366-A of I.P.C. and Section 6 of the POCSO Act. The appellant is already on bail, he need not surrender; however, his bail bond shall remain in force for a period of six months in view of the provision contained in Section 437-A of the Cr.P.C. 16. Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ashok