1 CRA No. 1537 of 2016 2025:CGHC:55049-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1537 of 2016 [Arising out of judgment dated 28.11.2016 passed in Special Sessions Trial No.390/2014 by the Additional Sessions Judge (F.T.C.), Bilaspur, Chhattisgarh.]  Surendra Jaiswal S/o Johanram Jaiswal, aged about 22 years, R/o Village Dhuma Chowki Junapara Police Station Takhatpur Revenue and Civil District Bilaspur, Chhattisgarh. ... Appellant versus  State of Chhattisgarh through Police Station Takhatpur, District Bilaspur, Chhattisgarh. ... Respondent For Appellant :- Mr. P.K. Tulsyan, Advocate. For State-Respondent :- Mr. Vivek Mishra, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board (12.11.2025) Sanjay K. Agrawal, J 1.Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.11.13 11:01:17 +0530 2 CRA No. 1537 of 2016 the appellant herein, is to the legality, validity and correctness of the judgment dated 28.11.2016 passed by the Additional Sessions Judge (F.T.C.), Bilaspur, Chhattisgarh, in Special Sessions Trial No.390/2014, by which the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Sections 376 & 354 of the IPC read with Section 4 of the POCSO Act, 2012 [However, by virtue of Section 42 of the POCSO Act, the appellant has been sentenced under Section 4 of the POCSO Act.] Imprisonment for life with fine of 1,000/-; ₹ in default of payment of fine, the appellant has to undergo additional rigorous imprisonment for three months. Under Section 12 of the POCSO Act, 2012 Rigorous imprisonment for 3 years with fine of 1,000/-; in ₹ default of payment of fine he has to undergo additional rigorous imprisonment for three years. All sentences are directed to run concurrently. Prosecution story:- 2.Case of the prosecution in nutshell is that 20- 25 days prior to 04.10.2014, the appellant outraged the modesty of the victim (PW-1) and 3 CRA No. 1537 of 2016 also committed sexual intercourse against her wishes and on 04.10.2014 the appellant again tried to outrage her modesty against which she (PW-1) made written complaint vide Ex.P/1 pursuant to which FIR was registered vide Ex.P/2. Nazari naksha was prepared vide Ex.P/7. Victim was medically examined by Dr. Smt. M.T. Minj (PW-5) and in the medical report (Ex.P/12) victim was found to be accustomed for sexual intercourse, however, no external or internal injuries were found over the body of the victim and. As per the X-ray report (Ex.P/25) proved by Radiologist Dr. G.S. Kanwar (PW- 8), the age of the victim at the time of incident was between 15 to 17 years. As per dakhil kharij register (Ex.P/9C), proved by Kumari Purnima Baghel (PW-2) date of birth of the victim is 02.07.1999, meaning thereby, at the time of incident the age of the victim was more than 15 years. Slides and undergarments of the victim as well as undergarments of the appellant and other articles were seized. Seized articles were sent for chemical analysis 4 CRA No. 1537 of 2016 to FSL. As per FSL report (Ex.P/20) on the slide of the victim (Article A), undergarments of the victim as well as the appellant (Articles B & C) stains of semen and human sperm were not found. 3.After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4.In order to bring home the offence, prosecution has examined as many as 12 witnesses and exhibited 25 documents, whereas, defence, in support of its case, has not examined any witness, but exhibited 6 documents. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 5 CRA No. 1537 of 2016 5.The learned Special Court after appreciating the oral and documentary evidence available on record, convicted the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which the instant appeal has been preferred by the appellant herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 6.Mr. P.K., Tulsyan, learned counsel for the appellant, would submit that the Special Court is absolutely unjustified on convicting appellant for offences in question as the age of the victim has not been proved to be less than 18 years. He would also submit that the author of the the dakhil kharij register (Ex.P/9C) has not been examined and also as per the X-Ray report (Ex.P/25), proved by Dr. G.S. Kawar (PW- 8), age of the victim at the time of incident was between 15 to 17 years and the margin of error in age ascertained by radiological examination is two years on either side in light 6 CRA No. 1537 of 2016 of decision of the Supreme Court in the matter of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others 1 . He would further submit medial report as well as the forensic report have not supported the case of the prosecution. Furthermore, there is a delay of 20-25 days in lodging the written complaint and FIR which has not been satisfactorily explained by the prosecution and also the victim appears to be a consenting party in light of the documents Ex.D/1 to D/5. Therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. Thus, the appeal deserves to be allowed. 7.Mr. Vivek Mishra, learned State counsel, would oppose the prayer made learned counsel for appellant and support the impugned judgment. He would also submit that the Special Court has rightly convicted the appellant for the offence in question. Therefore, the present appeal deserves to be dismissed. 1 AIR 1982 SC 1297 7 CRA No. 1537 of 2016 8.We have heard learned counsel for the parties, considered their rival submission made herein above and gone through the records precisely. Discussion & Analysis:- 9.Age of the victim:- To base the conviction of the appellant for the offence in question the Special Court has relied upon dakhil kharij register (Ex.P/9C) and X-Ray report. However, the author of the dakhil kharij register (Ex.P/9C) has not been examined and Purnima Baghel (PW-2) who proved the dakhil kharij registered (Ex.P/9C) in her statement before the Court has clearly stated that she has not made any entry in the register and also she does not know on what basis such entry was made in the said register. As such, it is of no use to the prosecution. 10.Furthermore, the Special Court has relied upon the X-Ray report (Ex.P/25) in which the age of the victim at the time of offence was opined to be between 15-17 years. However, their 8 CRA No. 1537 of 2016 Lordships of the Supreme Court in the matter of Jaya Mala (supra), have held that margin of error in age ascertained by radiological examination is two years on either side, therefore, in the instant case, the age of the victim could be between 17 to 19 years. As such, on that basis of radiologist report (Ex.P/10), the age of victim may be 18 years or more than 18 years on the date of offence. In view of the above, we hereby set aside the finding of the Special Court that the victim was less than 18 years of age on the date and time of offence. 11.Medical & Forensic evidence:- The Special Court has relied upon the medical evidence to base the conviction of the appellant. In the medical report (Ex.P/12) proved by Dr. Smt. M.T. Minj (PW-5) the victim (PW-1) was found to be accustomed for sexual intercourse. However, external and internal injuries were not found over the body of the victim and also the FSL report (Ex.P/20) has not supported the case of 9 CRA No. 1537 of 2016 the prosecution as stains of semen and human sperm were not found on the aricles and, therefore, medical evidence and FSL report are of no use to the prosecution. 12.It the case of the appellant that the victim (PW-1) was the consenting party and also there is delay in lodging the FIR (Ex.P/2). As per the statement of PW-1, the appellant had committed the offence 20-25 days prior to 04.10.2014, the date of lodging of written complaint (Ex.P/1) and FIR (Ex.P/2), however the delay of 20-25 days has not been satisfactorily explained by the prosecution. Furthermore, the victim (PW-1) in her statement before the Court though she has supported the case of the prosecution, but while confronting with the documents vide Exs.D/1 to D/5 which are the greeting card and love letters, she has admitted that she had given the letters to the appellant and also there was love affairs between her and the appellant for a fairly long time. She has also stated that the appellant had given her 10 CRA No. 1537 of 2016 cell phone which she had returned. Moreover, it appears from the evidence of PW-1 that on the date of report i.e. 04.10.2014, meeting of the appellant and the victim was seen by one of her family member and, therefore, victim’s family have assaulted the appellant’s mother Kevara Bai due to which she reported the matter to the police and which is pending consideration. In that view of the matter, the victim (PW-1) appears to be a consenting party and the case of the prosecution is not supported either by the medical evidence or by the forensic evidence. Accordingly, the appellant is entitled for acquittal on the basis of benefit of doubt. Conclusion:- 13. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 28.11.2016 passed by the Special Court convicting and sentencing the appellant for the offences in question, is hereby set aside and the appellant is entitled for acquittal on the basis of principle of 11 CRA No. 1537 of 2016 benefit of doubt. Appellant is stated to be on bail. He need not surrender. However, his bail bond shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 14. Let a certified copy of this judgment along with the original record be transmitted to the trial/Special Court concerned, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Ankit