Page No.1 of 14 IN CRA-1917-2022 & CRA-864-2023 2025:CGHC:31424 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR [Arising out of common judgment dated 26.11.2022, passed in Special Sessions Case No.109 of 2021 (State of Chhattisgarh v. Antram & 04 others) by the Special Judge (POCSO Act), Janjgir-Champa (CG)] CRA No. 864 of 2023 Gangaram @ Gangasingh Saini, S/o Sher Singh Saini, aged about 30 years, Resident of Bilia-Basti No.06, Ward No.16, Police Station Bilasibasti, District Badau (UP), presently R/o Mubarkpur, PGS Itabhata, Police Station & District Mubarkpur (Punjab) --- Appellant (In Jail) Versus State of Chhattisgarh, through Police Station Shivrinarayan, District Janjgir Champa (Chhattisgarh) --- Respondent [Cause-titles taken from Case Information System (CIS)] --------------------------------------------------------------------------------------------- For Appellant : Mr. Rishi Rahul Soni, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer ---------------------------------------------------------------------------------------------- WITH CRA No. 1917 of 2022 Smt. Teras Bai, D/o Sukhilal Sahis, aged about 30 years, Resident of Village Navagarh, Police Station Navagarh, District Janjgir Champa (Chhattisgarh) --- Appellant (On Bail) Versus State of Chhattisgarh Through Police Station Shivrinarayan, District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh SAIFAN KHAN Digitally signed by SAIFAN KHAN Page No.2 of 14 IN CRA-1917-2022 & CRA-864-2023 --- Respondent [Cause-titles taken from Case Information System (CIS)] --------------------------------------------------------------------------------------------- For Appellant : Mr. Ishwar Jaiswal, Advocate For Respondent : Mr. Pankaj Singh, Panel Lawyer ---------------------------------------------------------------------------------------------- Single Bench: Hon'ble Mr. Justice Sanjay K. Agrawal (Judgment on Board) 08 . 07 .202 5 (1) Regard being had to the similitude of the questions of fact and law involved and being arising out of a common impugned judgment dated 26.11.2022, on the joint request of learned counsel for the parties, both these appeals are clubbed together, heard together and are being decided by this common judgment. (2) In these criminal appeals filed under Section 374(2) of CrPC, to accused/appellants- Smt. Teras Bai (A-2) and Gangaram @ Gangasingh Saini (A-5) are calling in question the legality, validity and correctness common impugned judgment of conviction and order of sentence dated 26.11.2022, passed in Special Sessions Case No.109 of 2021 (State of Chhattisgarh v. Antram & 04 others) by the Special Judge, constituted under the provisions of the Protection of Children from Sexual Offence Act, 2012 (for short the “POCSO Act”), Janjgir-Champa (CG), whereby they have been convicted and sentenced as under: As regards Smt. Teras Bai (A-2): Page No.3 of 14 IN CRA-1917-2022 & CRA-864-2023 Conviction Sentence U/s. 363 of IPC Rigorous imprisonment for 03 years with fine of Rs.500/- and, in default of payment of fine amount, additional simple imprisonment for 10 days. U/s. 366-A of IPC Rigorous imprisonment for 05 years with fine of Rs.1,000/- and, in default of payment of fine amount, additional simple imprisonment for 20 days. [Both the sentences are directed to run concurrently] Whereas, as regards Gangaram @ Gangasingh Saini (A-5): Conviction Sentence U/s. 06 of POCSO Act r/w S.376(2)(n) of POCSO Act [However, in light of S.42 of POCSO Act, punished only U/s. 06 of POCSO Act] Rigorous imprisonment for 10 years with fine of Rs.5,000/- and, in default of payment of fine amount, additional simple imprisonment for 100 days. (3) The case of the prosecution, in short, in that on 08.05.2015, at about 03:00 PM, accused/appellant- Smt. Teras Bai (A-2) with the aid and assistance of other acquitted co-accused, namely, Antaram (A-1), Hariom (A-3) & Smt. Ganga Bai (A-4) took the minor victim (PW-01), from lawful guardianship of her parents and taken her to Inta Bhatti, Bhalpur (HP), where accused/appellant- Gangaram @ Gangasingh Saini (A-5) on the pretext of solemnizing marriage, committed sexual intercourse with her against her will and consent and, thereby, the appellants are said to have Page No.4 of 14 IN CRA-1917-2022 & CRA-864-2023 committed the aforesaid offences. (4) The further case of the prosecution is that when matter was reported to the police, FIR (Ex.P/05) was registered and wheels of investigation started running, in which, nazari naksha and panchnama were prepared vide Ex.P/08 & Ex.P/09. On 31.07.2015, when search was made at Inta Bhatti, Bhalpur (HP) vide Ex.P/19, the victim (PW-01) was recovered in a hut and recovery panchnama to that effect was prepared vide Ex.P/01. Site map was also prepared vide Ex.P/08. After obtaining necessary consent, the victim (PW-01) was subjected to medical examination, which was conducted by Dr. Anvita Dhruw (PW-06) and, as per her MLC report (Ex.P/13) it has been opined that no injury were found over the body of the victim (PW-01) and no definite opinion regarding recent intercourse can be given. However, vaginal slide of the victim (PW-01) was prepared and handed over to the police for analysis, which was seized vide Ex.P/20. Thereafter, all the accused persons were arrested vide Ex.P/17, Ex.P/21 to Ex.P/24. Appellant- Gangaram @ Gangasingh Saini (A-5) was subjected to medical examination and his MLC report is Ex.P/14. Further, appellant’s- Gangaram @ Gangasingh Saini (A-5) undergarment was also seized vide Ex.P/16. Thereafter, the seized articles were sent for chemical examination and as per FSL report (Ex.P/25) it has been opined that stains of human sperm/semen were found in Page No.5 of 14 IN CRA-1917-2022 & CRA-864-2023 the vaginal slide of the victim as well as in the undergarment of the appellant. Further, in order to ascertain the correct age of the victim (PW-01), copy of her Dakhila Kharij Register (Ex.P/04C) was obtained/seized, wherein victim’s date of birth has been mentioned as 10.05.2000, meaning thereby, the victim (PW-01) was minor aged about 14 years (i.e. below 16 years) on the date of offence. Thereafter, statement of witnesses were recorded and, after due investigation, the accused/appellants were 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. (5) The prosecution in order to prove its case examined as many as 10 witnesses and exhibited 27 documents, whereas the appellant in support of his defence, neither examined any witness nor exhibited any document. (6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the accused/appellants- Smt. Teras Bai (A-2) for offence punishable under Section 363 & 366A of IPC and Gangaram @ Gangasingh Saini (A-5) for offence punishable under Sections 376(2)(n) of IPC as also under Section 06 of the POCSO Act and sentenced them as Page No.6 of 14 IN CRA-1917-2022 & CRA-864-2023 mentioned in Paragraph-02 of this judgment, against which these two appeals have been preferred by the appellants-accused questioning the impugned judgment of conviction and order of sentence. (7) Mr. Rishi Rahul Soni and Mr. Ishwar Jaiswal, learned counsel for the appellants jointly submit that the learned trial Court is absolutely unjustified in convicting both the appellants for the aforesaid offences. In view of questions framed and answers given by the victim (PW-01) in her statements before the Court, the learned trial Court has erred in law while holding the appellants guilty for the offences in question. There is a delay of 12 days in lodging the FIR, which has not been explained by the prosecution at any point of time. Learned counsel vehemently argued that the testimony of the victim (PW-01) was not of sterling quality and, therefore, cannot be relied upon to hold the appellants guilty for the offences in question. So far as appellant- Smt. Teras Bai (A-2) is concerned, she has not abducted minor victim (PW-01), indeed, the victim (PW-01) on her own will and volition has gone to HP and where she lived from 08.05.2015 to 31.07.2015 (i.e. for 03 months) and did not made any hue and cry during said period, which clearly suggest that the victim (PW-01) was the consenting party. Further, the medical evidence does not support the case of the prosecution. Though, the FSL report (Ex.P/25) is found positive Page No.7 of 14 IN CRA-1917-2022 & CRA-864-2023 in the present case, but a bare perusal of the said FSL report (Ex.P/25) would show that the seized articles i.e. vaginal slide of the victim was seized on 05.08.2015 vide Ex.P/20 and same was sent for chemical examination to FSL, Bilaspur on 23.12.2020, which were received therein on 24.12.2020, i.e. after about more than 05 years and there is no evidence on record to show that the said articles was kept in safe custody for the said period, as such, chances of manipulation and tempering with the said seized articles is on higher side and, therefore, it creates a doubt on the credibility and authenticity of the FSL report (Ex.P/25). Hence, both the appeals be allowed and the appellants be acquitted from the charges in question. (8) 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 appellants for the offence mentioned herein-above. Therefore, the present appeals are liable to be dismissed. (9) I have heard learned counsel for the parties, considered their Page No.8 of 14 IN CRA-1917-2022 & CRA-864-2023 rival submissions made herein-above and went through the records with utmost circumspection. Age of the victim (PW-01): (10) In the instant case, so far as age of the victim (PW-01) is concerned, copy of victim’s Dakhila Kharij Register (Ex.P/04C) is relied upon, which has duly been proved by Head Master of the school, namely, Thakur Ram Nishad (PW-03) and, in the said Dakhila Kharij Register, the date of birth of the victim (PW-01) has been mentioned as 10.05.2000, meaning thereby, the victim (PW- 01) was minor aged about 14 years (i.e. below 16 years) on the date of offence. As such, the age of the victim (PW-01) to be minor on the date and time of the offence had duly been proved beyond reasonable doubt on the basis of said document and the learned trial Court is absolutely justified in relying upon the same. It is held accordingly. Medical Evidence: (11) After obtaining necessary consent and permission, the victim (PW-01) was subjected to medical examination, which was conducted by Dr. Anvita Dhruw (PW-06) and, as per her MLC report (Ex.P/13) it has been opined that no injury were found over the body of the victim (PW-01) and no definite opinion regarding recent intercourse can be given, which is duly proved by the Page No.9 of 14 IN CRA-1917-2022 & CRA-864-2023 statement of Dr. Anvita Dhruw (PW-06). As such, the medical evidence does not support the case of the prosecution at all and cannot be relied upon to convict the appellants for the offences in question. It is held accordingly. Forensic Evidence: (12) In the present case, as per FSL report (Ex.P/25), it has been opined that stains of human sperm/semen were found on the vaginal slides of the victim as also on the undergarment of the appellant. However, a bare perusal of the said FSL report (Ex.P/25) show that the seized articles i.e. vaginal slide of the victim was seized on 05.08.2015 vide Ex.P/20 and same was sent for chemical examination to FSL, Bilaspur on 23.12.2020, which were received therein on 24.12.2020, i.e. after about more than 05 years and there is no evidence on record to show that the said articles was kept in safe custody for the said period, as such, chances of manipulation and tempering with the said seized articles is on higher side and, therefore, it creates a doubt on the credibility and authenticity of the FSL report (Ex.P/25). Therefore, in light of the decision of the Supreme Court in the matter of Santa Singh v. State of Punjab 1 , wherein it has been held that if there exists a suspicious delay in sending the sealed parcel to the expert, the result is vitiated, the opinion of the FSL report (Ex.P/25) pales 1 AIR 1956 SC 526 Page No.10 of 14 IN CRA-1917-2022 & CRA-864-2023 into insignificance and cannot be relied upon to convict the appellants herein for the offence in question. It is held accordingly. Testimony of the victim (PW-01): (13) Lastly, to base the conviction of the appellants 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 (PW-01) inspires confidence and appears to be absolutely trustworthy, unblemished and whether it is of sterling quality? (14) 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 2 (2012) 8 SCC 21 3 (2020) 3 SCC 443 Page No.11 of 14 IN CRA-1917-2022 & CRA-864-2023 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.” (15) Coming back to the facts of the present case, in light of the Page No.12 of 14 IN CRA-1917-2022 & CRA-864-2023 principles of law laid down by their Lordships of the Supreme Court in above-quoted judgments, it is quite vivid that date of offence i.e. the date when the victim (PW-01) first went missing is 08.05.2015 and FIR (Ex.P/05) has been lodged on 20.05.2015 i.e. after a delay of 12 days, which has also not be explained satisfactorily by the prosecution at any point of time. Furthermore, a careful perusal of the statement of the victim (PW-01) would show that firstly she went alongwith Smt. Teras Bai (A-2) to different places and ultimately stayed at Inta Bhatti, Bhalpur (HP) alongwith accused/appellant- Gangaram @ Gangasingh Saini (A-5), where the alleged incident of intercourse took place. However, as per Para-06 of her statement, alongwith appellant- Gangaram @ Gangasingh Saini (A-5), his grand-father and grand-mother also used to reside with him, but she did not make any complaint to them regarding intercourse. Even otherwise, the victim (PW-01) went missing on 08.05.2015 and was recovered on 31.07.2015 (i.e. after 03 months) and, during the said period, she did not make any hue and cry or reported the matter to anyone. As such, considering the aforesaid, though the victim (PW-01) in her statement before the Court has stated the incident and implicated the appellants herein to be the authors 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 Page No.13 of 14 IN CRA-1917-2022 & CRA-864-2023 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-01) that too in absence of medical evidence. It is also held accordingly. (16) In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 26.11.2022, passed by the learned trial Court, whereby accused/appellants- Smt. Teras Bai (A-2) has been convicted and sentenced for offence under Section 363 & 366A of IPC and, Gangaram @ Gangasingh Saini (A-5) has been convicted and sentenced for offence under Sections 376(2)(n) of IPC as also under Section 06 of the POCSO Act, is liable to be and is hereby set aside. Both the appellants stands acquitted of the said charges on the basis of benefit of doubt. Gangaram @ Gangasingh Saini (A-5) 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, whereas Smt. Teras Bai (A-2) is reported to be on bail, therefore, she need not to surrender, but her bail bonds shall remain in force for a further period of 06 months in light of Section 437-A of CrPC. (17) Both the criminal appeals are allowed. Page No.14 of 14 IN CRA-1917-2022 & CRA-864-2023 (18) 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- Gangaram @ Gangasingh Saini (A-5) is lodged and suffering jail sentence, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) Judge s@if