1 CRA No. 868 of 2016 2025:CGHC:60172-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 868 of 2016 [Arising out of judgment dated 17.03.2016 passed in Special Sessions Trial No.93/2015 by the Additional Special Sessions Judge, Bhanupratappur, District North Baster Kanker, Chhattisgarh.]  Sujan Haldar S/o Niranjan Haldar, Aged About 25 Years, R/o P.V. 23, Police Station Pakhanjur, District North Baster Kanker, Chhattisgarh. ... Appellant versus  The State of Chhattisgarh, Through Station House Officer, Police Station Pakhanjur, District North Bastar Kanker, Chhattisgarh. ... Respondent For Appellant :- Mr. Rajkumar Pali, Advocate. For Respondent-State :- Dr. Surendra Kumar Dewangan, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Sachin Singh Rajput Judgment On Board (11.12.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellant herein, is to the legality, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.12.12 10:59:05 +0530 2 CRA No. 868 of 2016 validity and correctness of the judgment dated 17.03.2016 passed by the Additional Special Sessions Judge, Bhanupratappur, District North Baster Kanker, Chhattisgarh, in Special Sessions Trial No.93/2015, by which the appellant herein has been convicted and sentenced as under:- Conviction Sentence Under Section 450of the IPC Rigorous imprisonment for 10 years with fine of 10,000/-; in default of payment of ₹ fine amount, he has to undergo additional rigorous imprisonment for 2 months. Under Section 376(2)(i) of the IPC read with Sections 5 & 6 of the POCSO Act, 2012 Imprisonment for life till natural death with fine of ₹1,50,000/-; in default of payment of fine, he has to undergo additional rigorous imprisonment for 3 months. Prosecution story:- 2. The case projected by the prosecution and accepted by the Special Court is that one month prior to 13.08.2015, the appellant trespassed into the house of the minor victim (PW-2), and committed sexual intercourse against her wishes and thereby committed the offences in question. Against the said act of the appellant, FIR was registered by the minor victim on 14.08.2015 vide Ex.P/2. Nazari naksha and crime details form were prepared vide Exs.P/1 & P/3, respectively. Victim (PW-2) was 3 CRA No. 868 of 2016 subjected to medical examination by Dr. Sarita (PW-7), who prepared the victim’s medical report vide Ex.P/9. As per the victim’s medical report (Ex.P/9), hymen was found old and ruptured and though it has been opined that the sexual intercourse might be possible, but no external injuries were found over the body of the victim and also with regard to age determination suggestion has been given to go to the radiologist. As per the dakhil khariz register (Ex.P/8C), date of birth of the victim is 10.02.1999, meaning thereby, at the time of incident, the victim was aged about more than 16 years 6 moths. Slides of the victim were prepared. Undergarment of the victim was seized and semen slide of the appellant was also prepared. Other articles were also seized. Slides of the victim, semen slide of the appellant and undergarment of the victim were sent for chemical analysis to FSL. As the FSL report (Ex.P/15) on the slide of the victim (Article B1) & semen slide of the appellant (Article C) human sperm was found and on the slide of the appellant (Article C) stains of semen and human sperm were found. 3. After due investigation, appellant herein was charge-sheeted for the aforesaid offences and the case was committed to the Court of Sessions for Special in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4 CRA No. 868 of 2016 4. In order to bring home the offence, prosecution has examined as many as 11 witnesses and exhibited 16 documents, whereas, defence, in support of its case, has neither examined any witness nor exhibited any document. 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. 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. Rajkumar Pali, learned counsel for the appellant, would submit that the Special Court is absolutely unjustified in convicting appellant for offences in question. He would also submit that age of the victim has not been established to be less than 18 years at the time of incident and even otherwise, she was a consenting party. He would further submit that the statement 5 CRA No. 868 of 2016 of the victim is not of sterling quality and, therefore, the appeal deserves to be allowed and the appellant is entitled for acquittal. 7. Dr. Surendra Kumar Dewangan, learned State counsel, would oppose the prayer made by learned counsel for the appellant and submit that the Special Court has rightly convicted the appellant for the offences in question. He would also submit that as per the dakhil khariz register, age of the victim was less than 18 years at the time of the incident and also the medical report and FSL report are found to be positive. Thus, the appeal deserves to be dismissed. 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:- The Special Court has held that the age of the victim was less than 18 years at the time of incident relying upon the dakhil khariz register (Ex.P/8C) proved by Sapan Kumar Vishwas (PW-6). However, considering the statement of Sapan Kumar Vishwas (PW-6) in which he has clearly stated that only on the basis of mark-sheet of Class V of the victim, he entered her date of birth 10.02.1999 and no other relevant document was 6 CRA No. 868 of 2016 produced by the victim or her parents and even he did not ask for the birth certificate of the victim while admitting her in Class VI. 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. 10.Similarly, their Lordships of the Supreme Court in the matter of P. Yuvaprakash v. State Represented by Inspector of Police 3 have held that to determine the age of the victim the prosecution must have brought on record the following documents i.e. (i) matriculation or equivalent certificates and in absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat and only in absence of either (i), (ii) and (iii), the 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 3 2023 SCC OnLine Sc 846 7 CRA No. 868 of 2016 medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. 11.In view of the aforesaid principles of law laid down by their Lordships in the aforesaid decisions/judgments, dakhil khariz register (Ex.P/8C) is of no use to the prosecution to hold the victim to the less than 18 years of age at the time of incident, even otherwise, victim was referred to the radiologist for age determination, but the same has not been done for the reason best known to the prosecution. As such, in absence of unauthenticated document, it cannot be said that the age of the victim less than 18 yeas on the date and time of the incident. 12.Medical Evidence:- The victim (PW-2) was medically examined by Dr. Sarita (PW-7), who prepared the victim’s medical report vide Ex.P/9, in which hymen was found old and ruptured and sexual intercourse may be possible, however, no external or internal injuries were found over the body of the victim. As such, medical evidence has not supported the case of the prosecution and the same is of no use to the prosecution and even it is case of the defense that the victim was the consenting party. 13.Forensic evidence:- The Special Court has relied upon the FSL report (Ex.P/15) to base the conviction of the appellant for the offence in question. However a careful perusal of the FSL report 8 CRA No. 868 of 2016 (Ex.P/15) would show that vaginal slides of the victim were seized on 17.08.2015 and semen slide of the appellant was seized on 24.08.2015, however, the same was received by the Regional Forensic Science Laboratory, Jagdalpur, on 10.11.2015 with a delay of almost 3 months and no explanation has been given by the prosecution that the said articles were kept in a safe custody, between the date on which articles were seized i.e. 17.08.2015 & 24.08.2015 and the date on which articles were received i.e. 10.11.2015, therefore, in absence of evidence that the said articles were kept in safe custody, chances of fabrication and manipulation cannot be ruled out. Furthermore, though in the FSL report (Ex.P/15) human sperm or semen was found on the victim’s slide, but the matching of semen was not done to find out that it was of the appellant herein which is required in light of the decision of the Supreme Court in the matter of Krishan Kumar Malik Versus State of Haryana 4 in which their Lordships of the Supreme Court have held in para 44 as under:- “44. Now, after the incorporation of Section 52-B in the Criminal Procedure Code w.e.f. 23-6-2006, brought to our notice by the learned counsel for the Sate, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in CrPC the prosecution could have still resorted to this procedure of getting the DNA 4 (2011) 7 SCC 130 9 CRA No. 868 of 2016 test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must fact the consequences.” 14.Coming to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above stated decision, it is quite vivid that the prosecution did not go for matching of semen to prove that it is of the appellant’s semen which is necessary for the prosecution to make a foolproof case. As such, the forensic evidence is also of no use to the prosecution. 15.Lastly, to base the conviction of the appellant for offence in question, the statement of the victim 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? 16.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 (NCT of Delhi) 5 in which their Lordships of the Supreme Court have 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 6 . Their 5 (2012) 8 SCC 21 6 (2020) 3 SCC 443 10 CRA No. 868 of 2016 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. 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, 11 CRA No. 868 of 2016 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.” 17.First of all, as per the prosecution case, date of incident is one month prior to 13.08.2015, against which FIR was lodged on 14.08.2015 by the victim (PW-2) and no explanation has been given by the prosecution for the delay of one month. In the FIR (Ex.P/2), she (PW-2) has only stated that when the appellant was going outside, villagers saw him, however in the statement before the Court she has stated that when she was shouting, the appellant started running and then villagers saw him. Moreover, as per the statement of victim’s father (PW-3) when he reached to the house on the next day, he got the information about the incident from the villagers and the villagers lodged the report against the appellant, however, the same was lodged by the victim. Furthermore, it is the case of the defense that victim has falsely implicated the appellant and as per the prosecution, the incident is one month prior to 13.08.2015 and between that period, the victim did not tell anyone about the incident, so possibility of false implication cannot be ruled out. Moreover, as per the statement of the victim (PW-2), the appellant trespassed into her house and entered in her room by breaking the door. However, 12 CRA No. 868 of 2016 the said door has not been seized by the police and also the said fact of the broken door is not mentioned in the nazari naksh as well as in the spot map (Exs.P/1 & P/3, respectively). Except the aforesaid facts, the victim in para 3 of cross-examination of her statement before the Court has admitted that before the incident, quarrel took place between her and the appellant, though she did not lodge the report about the aforesaid quarrel, but thereafter, she reported the matter about the offences in question against the appellant. As such, fact of chances of false implication of the appellant in the offences in question cannot be ruled out. In that view of the matter, we are of the considered opinion that statement of the victim 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 to base the conviction of the appellant on the basis of the statement of the victim (PW-2). Conclusion:- 18. In view of the aforesaid discussion and analysis, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 17.03.2016 passed by the Special Court convicting 13 CRA No. 868 of 2016 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 benefit of doubt as the prosecution has failed to bring home the offence beyond reasonable doubt. Since the 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. 19. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned, forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sachin Singh Rajput) Judge Judge Ankit