1 2025:CGHC:16563 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1586 of 2022 {Arising out of judgment dated 24.09.2022 passed in Special Sessions (POCSO) Case No.101/2019 by the learned Additional Sessions Judge (Fast Track Special Court) & Special Judge (POCSO Act, 2012) Balod, District Balod} Domen @ Domendra Mahla, S/o. Paltu Ram Mahla, Aged About 19 Years, R/o. Village Firtutola, Police Station Mangchuwa, District : Balod, Chhattisgarh. ... Appellant versus State Of Chhattisgarh, Through Police Station Mangchuwa, District : Balod, Chhattisgarh. ... Respondent (Cause Title taken from Case Information System) For Appellant : Mr. Vikram Pratap & Mr. Veer Verma, Advocates For Respondent : Mr. Rahul Tamaskar, Govt. Advocate & 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: 2025.04.11 13:17:20 +0530 2 (08.04.2025) 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 24.09.2022, passed by the learned Additional Sessions Judge (Fast Track Special Court) & Special Judge (POCSO Act, 2012) Balod, District Balod, in Special Sessions (POCSO) Case No.101/2019, by which the appellant herein has been convicted and sentenced as under : CONVICTION SENTENCE U/s. 363 of Indian Penal Code. : Rigorous imprisonment for 3 years and fine of Rs.1000/-, in default of payment of fine, 1 month’s additional imprisonment. U/s. 366 of Indian Penal Code. : Rigorous imprisonment for 5 years and fine of Rs.2000/-, in default of payment of fine, 2 months’ additional imprisonment. U/s. 6 of Protection of Children from Sexual Offences Act, 2012 : Rigorous imprisonment for 10 years and fine of Rs.3000/-, in default of payment of fine, 3 months’ additional imprisonment. All the sentences to run concurrently. 3 2. Case of the prosecution, in brief, is that the appellant herein has committed aggravated penetrative sexual assault on the minor victim from 11.01.2019 till October, 2019, who was less than 18 years on the date of offence and thereby, committed the aforesaid offences. Mother of the victim (PW-2) had lodged written report vide Ex.P-4, pursuant to which, FIR was registered vide Ex.P-5 and the victim (PW-1) was medically examined by Dr. Megha Jha (PW-4) vide Ex.P-11, in which no internal or external injury was seen over the body of the victim and she was found pregnant carrying pregnancy of 32- 34 weeks. The blood sample of the appellant and newly born male baby were taken on 14.11.2019 for DNA test and as per the DNA Test Report (Ex.P-17), the appellant has been found to be biological father of the newly born baby. The age of the victim was less than 18 years as per the Dakhil Khariz Register (Article A/C) proved by Mahendra Kumar Khare (PW-3). 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 8 witnesses and exhibited 29 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. Vikram Pratap & Mr. Veer Verma, learned counsels 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 medical evidence except DNA Test Report (Ex.P-17) in which the appellant has been found to be biological father of the newly born baby who born on 07.11.2019. As such, mainly on the basis of DNA Test Report, the appellant could not have been convicted in absence of proof that the victim was minor on the date of offence; therefore, the appellant is entitled for acquittal and the appeal deserves to be allowed. 5 6. Mr. Rahul Tamaskar & 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 as the DNA Test Report is conclusive; 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 : The age of the victim (PW-1) to be less than 18 years on the date of offence has been found proved by the learned trial Court only on the basis of the statement of Mahendra Kumar Khare (PW-3), Incharge Headmaster of Govt. Primary School. As per his statement, the victim’s date of birth as mentioned in the Dakhil Khariz Register (Article A/C) is 07.02.2003 and she was admitted in Class-I on 22.06.2009. However, in the cross-examination, he has clearly stated that at the time of admission of the victim in Class-I, he was not posted there and he is not the author of the said document and he also did not know that who has 6 entered the date of birth in Article A/C and on what basis the entry has been made and, as such, 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 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 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 7 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 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 3 AIR 2023 SC 3525 8 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”. 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 Incharge Headmaster, Mahendra Kumar Khare (PW-3), entry of the date of birth in Dakhil Khariz Register (Article A/C) has not been made by him; therefore, the finding recorded by the trial 9 Court that the victim was minor on the date of offence is not in accordance with law. 12. Medical Evidence : The victim (PW-1) was medically examined by Dr. Megha Jha (PW-4) and she was found to be pregnant carrying pregnancy of 32-34 weeks and no any visible internal or external injury was found on her body. However, the victim, in her statement before the Court, has supported the case of the prosecution and stated that on 11.01.2019 first time the appellant had made physical relationship with her and thereafter, time to time he used to have physical relationship with her and ultimately, the FIR was lodged on 05.11.2019 vide Ex.P-5. The act of the victim in not reporting the matter to the police for 10 months is untrustworthy, particularly when it has not been proved that she was minor, less than 18 years, on the date of offence. The conviction of the appellant is solely based on DNA test report, in which the appellant has been found to be biological father of the baby of the victim. 13. In this regard, the Supreme Court in the matter of Pattu Rajan v. State of Tamil Nadu 4 considered the evidentiary value of DNA test and held as under : 4 (2019) 4 SCC 771 10 “52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary to corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.” 14. Recently, in the matter of Manoj v. State of Madhya Pradesh 5 their Lordships of the Supreme Court held as under: “158. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case.” 15. Reverting to the facts of the present case, the blood sample of newly born male baby and the blood sample of appellant were taken for DNA test on 14.11.2019, but it was received to the 5 (2023) 2 SCC 353 11 FSL on 18.11.2019 and there is no evidence available on record that from 14.11.2019 till 18.11.2019 whether it was kept in safe custody or not? Similarly, the blood sample of the victim was collected on 12.02.2020 and sent to FSL on 14.02.2020 as per Ex.P-17 and there is also no evidence on record as to whether it was kept in safe custody or not. As such, the chances of manipulation and fabrication cannot be ruled out. 16. In the present case, no evidence has been presented by the prosecution regarding when, where and how the blood samples were kept in safe custody from the date of collection on 14.11.2019 till the date of deposition to the Laboratory on 18.11.2019 and on 12.02.2020 to 14.02.2020. No satisfactory explanation has been brought on record for the delay of 3-4 days from the time of taking the samples to depositing the same in the laboratory. The person who took the said samples has also not been examined by the prosecution so that it can be ascertained whether he had properly taken the samples and sealed it as per the rules or not. In such a situation, in the light of aforesaid judgments, the DNA Test Report (Ex.P-17) cannot be accepted as valid piece of evidence as the possibility 12 of tampering with the samples cannot be ruled out. Thus, the conviction on the basis of the DNA test report cannot be said to be justified. 17. On the basis of the above analysis, I find that the age of the victim to be less than 18 years on the date of offence has not been proved, there is delay of 10 months in lodging the FIR and the victim did not report the matter to her family members or the police for last 10 months. Furthermore, there is delay in sending the blood samples for DNA test to FSL and in such a situation, the judgment in question is not found to be sustainable. 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. 18. In view of the above, the impugned judgment of conviction and order of sentence dated 24.09.2022 is hereby set aside. Consequently, the appeal is allowed. The appellant stands acquitted of the charges framed against him for offences under Sections 363 & 366 of I.P.C. and Section 6 of the POCSO Act. The appellant is in jail since 07.11.2019, he be 13 released forthwith, if his detention is not required in any other offence. 19. 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