1 2025:CGHC:15773 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1608 of 2022 {Arising out of judgment dated 24.06.2022 passed in Special Criminal Case (POCSO Act) No. 03/2020 by the learned Special Judge (POCSO Act, 2012) Bhanupratappur, District North Bastar Kaner} Subrat Mandal, S/o. Satish Mandal, Aged About 23 Years, R/o. Village- P.V.-70, Shantinagar, Police Station - Pakhanjur, District - North Bastar Kanker, Chhattisgarh ... Appellant versus State Of Chhattisgarh, Through The Station House Officer, Police Station - Pakhanjur, District - North Bastar Kanker, Chhattisgarh ... Respondent (Cause Title taken from Case Information System) For Appellant : Mrs. Savita Tiwari, Advocate For Respondent : Mr. Sharad Mishra, Panel Lawyer (Single Bench) Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board ASHOK SAHU Digitally signed by ASHOK SAHU Date: 2025.04.04 16:03:43 +0530 2 (03.04.2025) 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 24.06.2022, passed by the learned Special Judge (POCSO Act, 2012) Bhanupratappur, District North Bastar Kanker in Special Criminal Case (POCSO Act) No.03/2020, by which the appellant herein has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 376(2)(n) of I.P.C. : Rigorous imprisonment for 10 years and fine of Rs.1000/-, in default of payment of fine, 6 months’ additional rigorous imprisonment. U/s. 506 (Part-II) of I.P.C. : Rigorous imprisonment for 3 years and fine of Rs.500/-, in default of payment of fine, 3 month’s additional rigorous imprisonment. Both the sentence to run concurrently. 2. Case of the prosecution, in brief, is that from May, 2017 to 20.01.2018 at village P.V.-60, Police Station- Pakhanjur, the appellant herein committed sexual intercourse with the minor 3 victim, aged about 14 years and thereby, committed the offence. The victim (PW-1) lodged an FIR vide Ex.P-1 & Ex.P- 14 on 19.01.2018 & 20.01.2018 and her statement under Section 164 of Cr.P.C. was recorded vide Ex.P-3, Crime details form was prepared vide Ex.P-5, MLC of the appellant was conducted by Dr. Piyush Singh (PW-3) vide Ex.P-6 wherein he opined that appellant is able to perform penetrative sexual intercourse. The Dakhil Khariz Register i.e. Article A-1/C was seized vide Ex.P-8 wherein the date of birth of the victim was recorded as 06.01.2005 proved by Manimohan Rai (PW-5), Headmaster of Tulshi Shishu Mandir School. MLC of the victim (PW-1) was conducted by Dr. Seema Singh (PW-9) vide Ex.P-13, in which she found that the victim was carrying pregnancy of 8-9 months. Ex.P-14 is the discharge ticket of Govt. Komal Deo District Hospital Kanker where the victim had given birth to a child on 31.01.2018, which has been proved by Dr. H.Sahu (PW-14). 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. 4 3. During the course of trial, in order to bring home the offences, prosecution has examined as many as 16 witnesses and exhibited 22 documents. 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. Mrs. Savita Tiwari, learned counsel for the appellant, would submit that the age of the victim to be less than 18 years on the date of offence has not been proved, as the date of birth as per the Dakhil Khariz Register (Article A-1/C), proved by Manimoham Rai (PW-5), Headmaster of the School, has clearly stated in his statement that he is not the author of the document, therefore, the prosecution has failed to prove that the victim was less than 18 years on the date of offence. The forensic evidence is missing, as the victim was found pregnant, carrying pregnancy of 9 months, as per the MLC report (Ex.P-13) proved by Dr. Seema Singh (PW-9) and she had given birth of a child on 31.01.2018, but no DNA test has been conducted that the born baby was son of the appellant. 5 Furthermore, there is inordinate delay in lodging the FIR from May, 2017 to 20.01.2018, but there is no explanation and more particularly, the appellant was residing with the victim and her parents in the same house; therefore, the appellant is entitled for acquittal and the appeal deserves to be allowed. 6. Mr. Sharad Mishra, 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 the trial Court has rightly convicted the appellant for the aforesaid offences. Therefore, the appeal deserves to be dismissed. 7. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. Age of the victim : In order to prove the age of the victim (PW-1), the prosecution has examined Manimohan Rai (PW- 5), Headmaster of Tulshi Shishu Mandir School, who has proved the Dakhil Khariz Register (Article A-1/C) but, in the statement before the Court, he has clearly stated that he is not the author of the said document and he is unable to state that who has entered the date of birth in Article A-1/C and in what 6 basis the entry has been made and there is no other evidence to establish the fact that the victim was less than 18 years on the date of offence. 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 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. 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. 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 7 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 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 3 AIR 2023 SC 3525 8 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”. 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 the Headmaster of the School, Manimohan Rai (PW-5), the entry of date of birth of the victim in Dakhil Khariz Register (Article A-1/C) has not been made by him, therefore, the finding recorded by the trial Court that the victim was minor on the date of offence is not in accordance with law. 9 12. Forensic Evidence : The victim (PW-1) was medically examined by Dr. Seema Singh (PW-9) and she was found carrying pregnancy of 9 months vide Ex.P-13 and she had given birth of a male child on 31.01.2019. However, no DNA test was conducted to hold that the baby was son of the appellant herein and, as such, there is complete absence of forensic evidence. 13. As such, to base the conviction of the appellant for offences in question, the statement of the victim should be of “sterling quality”. Now, the question for consideration would be whether the statement of the 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 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 4 (2012) 8 SCC 21 5 (2020) 2 S.C.R. 798 10 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 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 11 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. 15. Coming to the facts of the case in light of the aforesaid decisions rendered by the Supreme Court, it is quite vivid that the victim (PW-1) has clearly stated that the appellant was suffering from brain malaria and for treatment, he was staying with her family and taking advantage of her aloneness, as her parents had gone to agricultural field, the appellant had committed sexual intercourse with her and threatened her to kill her family and when she became pregnant and carrying pregnancy of 8 months, then she informed her mother about the incident. Then the victim was taken to C.W.C. Kanker and from where she was admitted to District Hospital Kanker for 12 delivery and she had given birth of a male child on 31.01.2018. However, in the cross-examination, she has stated that she did not inform about the incident to anyone either to her parents or any other family members because of the threat given by the appellant. The victim’s father (PW-2) has stated that when the victim became pregnant and carrying pregnancy of 8 months then she informed about the incident to his wife and the matter was reported to the police. As such, there is huge delay in lodging of FIR and more particularly, the appellant was staying with the victim and her family, but the victim did not inform to anyone or report the matter to the police. As such, in absence of medical evidence, forensic evidence, DNA report and in absence of proof that the victim was less than 18 years on the date of offence, I am unable to hold that the statement of the victim is of sterling quality, as 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, therefore, he is entitled for acquittal on the basis of benefit of doubt. 13 16. In view of the above, the impugned judgment of conviction and order of sentence dated 24.06.2022 is hereby set aside. Consequently, the appeal is allowed. The appellant stands acquitted of the charge framed against him for offences under Sections 376(2)(n) & 506 (Part-II) of I.P.C. The appellant is in jail since 16.12.2019, he be released forthwith, if his detention is not required in any other offence. 17. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court for necessary information and action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. Sd/- Sd/- (Sanjay K. Agrawal) Judge Ashok