Page No.1 of 11 IN CRA-1806-2022 2025:CGHC:20050 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1806 of 2022 [Arising out of judgment dated 22.09.2022, passed in Special Sessions Case (POCSO) No.08 of 2020 (State of Chhattisgarh v. Premlal Yadav and another) by the Additional District and Sessions Judge/Special Judge (FTSC), District Balod (CG)] Premlal Yadav, S/o Lalit Yadav, aged about 26 years, R/o Village- Pirda, Police Station Vidhansabha, District- Raipur, (Chhattisgarh) ... Appellant (In Jail) Versus State of Chhattisgarh, through Station House Officer, Police Station Suregaon, District- Balod, (Chhattisgarh) ... Respondent [Cause-title taken from Case Information System (CIS)] --------------------------------------------------------------------------------------------- For Appellant : Mr. Virendra Kumar Janardhan, Advocate For Respondent: Mr. Afroz Khan, Panel Lawyer --------------------------------------------------------------------------------------------- Single Bench: Hon'ble Shri Justice Sanjay K. Agrawal (Judgment on Board) 01 . 05 .202 5 (1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 22.09.2022, passed in Special Sessions Case (POCSO) No.08 of 2020 (State of Chhattisgarh v. Premlal Yadav and another) by the Additional District and Sessions Judge/Special Judge (FTSC), District Balod (CG), whereby he has been convicted and sentenced as under: Conviction Sentence SAIFAN KHAN Digitally signed by SAIFAN KHAN Date: 2025.05.09 10:40:43 +0530 Page No.2 of 11 IN CRA-1806-2022 U/s. 04 of the POCSO Act R/w S.376 of IPC [However, in light of S. 42 of the POCSO Act, punished only under S. 04 of the POCSO Act] Rigorous imprisonment for 10 years with fine of Rs.3,000/- and, in default of payment of fine, additional simple imprisonment for 03 months. (2) The case of the prosecution, in short, is that between 04.12.2019 to 12.12.2019, the accused-appellant (A-1) herein alongwith acquitted co-accused, namely, Neha Thakur (A-2) firstly abducted minor victim (PW-01), who was less than 18 years of age, from lawful guardianship of her parents on the pretext of marriage and, thereafter, in a Toilet, situated in front of the house of appellant’s aunt at Jora, Raipur (CG), committed sexual intercourse with her and, thereby, said to have committed the aforesaid offences. (3) The further case of the prosecution is that when father of the victim (PW-02) reported the matter to the police by lodging written complaint (Ex.P/06), FIR (Ex.P/07) was registered by the police against the appellant and wheels of investigation started running, in which, nazri naksha and panchnama were prepared vide Ex.P/08 & Ex.P/04 respectively. The victim was recovered vide Ex.P/01 and her statement under Section 164 of CrPC was recorded vide Ex.P/05. After obtaining necessary consent vide Ex.P/9, the victim (PW-01) was subjected to medical examination, which was conducted by Dr. Sujata (PW-07) and, as per her MLC report Page No.3 of 11 IN CRA-1806-2022 (Ex.P/24), it has been mentioned that no internal or external injury were found over the body of the deceased and no exact opinion regarding offence in question can be given. Further, victim's vaginal slides were prepared and handed over to the police for chemical examination, which were seized vide Ex.P/28. The accused- appellant was arrested vide Ex.P/16 and sent for medical examination. Appellant’s MLC report is Ex.P/23 and his pubic hairs were also seized vide Ex.P/29. The seized articles were sent for chemical examination and, as per FSL report (Ex.P/37), it has been opined that stains of human sperm/semen were found on the slide of the victim (PW-01). Further, in order to ascertain correct age of the victim (PW-01), copies of her school progress report (Ex.P/11C), mark-sheet (Ex.P/12C), admit card (Ex.P/13C) and dakhila kharij register (Ex.P/20C) were obtained/seized and, in all the said documents, the date of birth of the victim (PW-01) has been recorded as 04.04.2002, meaning thereby, the victim (PW-01) was minor aged about 17 years 08 months on the date and time of the offence. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. Page No.4 of 11 IN CRA-1806-2022 (4) The prosecution in order to prove its case examined as many as 11 witnesses and exhibited 37 documents, whereas the appellant in support of his defence though not examined any witness, but exhibited 01 document. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 376 of IPC and under Section 04 of the POCSO Act, 2012 and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Virendra Kumar Janardhan, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence. The age of the victim to be minor on the date and time of the offence has not been established beyond reasonable doubt. The medical evidence does not support the case of the prosecution, as no internal or external injury were found over the body of the victim (PW-01). Furthermore, though in the FSL report (Ex.P/37) stains of human sperm/semen were found on the slide of the victim (PW-01), but in light of the decision of the Supreme Court in the matter of Krishna Kumar Malik v. State of Haryana 1 , in absence of semen 1 (2011) 7 SCC 130 Page No.5 of 11 IN CRA-1806-2022 matching or DNA profiling, the same is of no use to the prosecution. Even, the statement of the victim (PW-01) is not of sterlling quality. Learned counsel vehemently argued that in the present case, initially the FIR (Ex.P/07) was lodged only against co-accused- Neha Thakur (A-2), who has been acquitted by the learned trial Court. The name of the present appellant was mentioned in the FIR (Ex.P/07) and, only after medical examination of the victim, the name of the present appellant has been been arrayed as an accused in the instant case. Hence, the present appeal be allowed and the appellant be acquitted from the charges in question. (7) Per-contra, learned State counsel would submit that the prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-01), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question, coupled with other evidence available on record, the trial Court has rightly convicted the appellant for the offence mentioned herein-above. Therefore, the present appeal is liable to be dismissed. (8) I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. Age of the victim (PW-01): Page No.6 of 11 IN CRA-1806-2022 (9) In the instant case, so far as age of the victim (PW-01) is concerned, copies of her school progress report (Ex.P/11C), mark- sheet (Ex.P/12C), admit card (Ex.P/13C) and dakhila kharij register (Ex.P/20C) were obtained/seized and, in all the aforesaid documents, the date of birth of the victim (PW-01) has been recorded as 04.04.2002, meaning thereby, the victim (PW-01) was minor aged about 17 years 08 months on the date and time of the offence. Further, Vishnulal Nirmalkar (PW-04), who is Head Master of the victim’s School, has clearly supported and proved the date of birth of the victim (PW-01) to be 04.04.2002, recorded in dakhila kharij register (Ex.P/20C). As such, the age of the victim (PW-01) to be minor on the date and time of the offence is clearly established beyond all reasonable doubt on the basis of aforesaid evidence and the finding recorded by the learned trial Court in this regard is also a correct finding of fact based on evidence and same is neither perverse nor contrary to the record. I hereby affirm the said finding. Medical Evidence: (10) After obtaining necessary consent vide Ex.P/09, the victim (PW-01) was subjected to medical examination, which was conducted by Dr. Sujata (PW-07) and, as per her MLC report (Ex.P/24), it has clearly been mentioned that no internal or external injury were found on the body of the victim. Though victim’s hymen was found ruptured, but no exact opinion regarding alleged incident was given, which is duly proved by the statement of Dr. Sujata (PW- Page No.7 of 11 IN CRA-1806-2022 07). As such, the medical evidence also does not support the case of the prosecution and cannot be relied upon to convict the appellant for the offences in question. It is held accordingly. Forensic Evidence: (11) In the present case, as per FSL report (Ex.P/37), it has been opined that stains of human sperm/semen were found on the slide of the victim (PW-01) seized vide Ex.P/28. However, no DNA profiling or matching of semen of the appellant with that found on the slide of the victim (PW-01) was conducted in the present case. In Krishan Kumar Malik (supra), their Lordships of the Supreme Court have clearly held that it has become necessary for the prosecution to get in for DNA test in such types of cases, facilitating the prosecution to prove its case against the accused. It has also been observed therein that the prosecution could have resorted to the procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarment of the prosecutrix to make a foolproof case, but they did not do so, thus, they must face the consequence. As such, in light of the above legal position, though in the FSL report (Ex.P/37) it has been opined that stains of human sperm/semen were found on the slides of the victim (PW-01), but since the prosecution has failed to conduct any DNA profiling or matching of semen of the appellant with that found on the slide of the victim (PW-01), the forensic evidence is also of no help to the prosecution in the present case. It is held accordingly. Page No.8 of 11 IN CRA-1806-2022 Testimony of the victim (PW-01): (12) Lastly, to base the conviction of the appellant for offence in question, the statement of the victim (PW-01) 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? (13) As this stage, it would be appropriate to notice the judgment of the Supreme Court in the matter of Rai Sandeep alias Deepu v. State of (NCT of Delhi) 2 in which their Lordships of the Supreme Court have observed that who can be said to be a “sterling witness” and which has been followed in the matter of Santosh Prasad @ Santosh Kumar v. The State of Bihar 3 . 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. 2 (2012) 8 SCC 21 3 (2020) 3 SCC 443 Page No.9 of 11 IN CRA-1806-2022 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.” (14) Coming back to the facts of the present case, in light of the principles of law laid down by their Lordships of the Supreme Court in above-quoted judgments, it is quite vivid that date of offence is 04.12.2019 and FIR (Ex.P/07) has been lodged on 06.12.2019 by the father of the victim (PW-02) that too only against co-accused- Neha Thakur (A-2), who has already been acquitted by the learned trial Court. The name of the present appellant has not been Page No.10 of 11 IN CRA-1806-2022 mentioned in the FIR (Ex.P/07) and, only after medical examination of the victim (PW-01), on 13.12.2019, the present appellant (A-1) has been arrested and arrayed as an accused in the instant case. Even, as per the statement of the victim (PW-01), firstly in Para-04 of her examination-in-chief she has stated that she used to have conversation with the appellant herein on phone call and, on the request made by the appellant herein, she visited Raipur, where appellant met her and took her to his aunt’s house and where they stayed for a day, wherein the appellant has committed sexual intercourse with her. However, during cross-examination in Para-12 she has stated that the appellant has committed galat kaam with her in a toilet. As such, considering the aforesaid, though the victim (PW-01) in her statement before the Court has narrated the incident and implicated the appellant herein to be the author of the crime in question, but I am of the considered opinion that statement of the victim (PW-01) 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 and risky to base the conviction of the appellant on the basis of the statement of the victim (PW-01). It is also held accordingly. Page No.11 of 11 IN CRA-1806-2022 (15) In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 22.09.2022, passed by the learned trial Court, whereby he has been convicted and sentenced for offence under Section 376 of IPC and Section 04 of the POCSO Act, is liable to be and is hereby set aside. The appellant stands acquitted of the said charges on the basis of benefit of doubt. He is stated to be in jail, therefore, it is directed that he be set at liberty forthwith, if his detention is not required in any other offence. (16) Consequently, this criminal appeal is allowed. (17) Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and also the copy of this judgment be sent to the concerned Superintendent of Jail where the appellant is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) Judge s@if