1 2025:CGHC:28402-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1025 of 2017 1 - Ramratan Ram S/o Kishun Ram Cherwa, Aged About 25 Years R/o Village Foud, Police Station Rajpur, District Balrampur, Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Station House Officer, Police Of Police Station Pratappur, District Surajpur, Chhattisgarh. ... Respondent(s) For Appellant : Shri Amarnath Pandey, Advocate. For Respondent(s) : Shri Afroj Khan, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (27/06/2025) Deepak Kumar Tiwari, J 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 25.10.2016 passed by the Additional Sessions Judge, Pratappur, District Surajpur in ST No.18/2016 by which the appellant has been convicted and sentenced as under:- Conviction Sentence KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.06.30 14:56:08 +0530 2 Under Section 363 of the IPC RI for 3 years with a fine of Rs.200/-, Under Section 376 (1) of the IPC RI for 10 years with a fine of Rs.300/-, Under Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 RI for 14 years with a fine of Rs.500/-, In default of payment of fine to further undergo Additional RI for 6 months under each section. 2. Case of the prosecution, in brief, is that the victim, a 15 years old girl, has left her studies after she failed in the examination of 9th standard in the year 2015. One day prior to the date of the incident, the parents of the victim scolded her. So, on 16.5.2016, the victim went to the Pratappur market along with (PW-2) ‘J’ and one ‘B’ at about 2 pm and did not return from the said market till the evening. She had gone to the house of her friend at village Khorma. After staying for one night at her friend’s house, on the next day, she went from village Khorma to Pratappur by foot. In Pratappur, she boarded a bus alone for going to Ambikapur. At the Ambikapur Bus Stand, she met with the appellant, who is auto driver and made a call to one of her boyfriend. The mobile was given by the present appellant, but the call could not be connected. The present appellant took the victim to his house and committed rape with her for about one month. On 28.6.2016, the victim (PW-3) was recovered from her native village ‘D’, District Pratappur. 3. After the victim went missing, her father has lodged an FIR (Ex.-P/9) which was registered under Crime No.107/2016 for offence under Section 363 of the IPC. The victim was medically examined vide Ex.- 3 P/19. Her school certificate in which her date of birth has been recorded as 18.4.2002 was seized vide Ex.-P/1. The school register (Ex.-P/5C) was seized from the Headmaster of the School (PW-8) vide Ex.-P/4. Underwear of the victim was seized vide Ex.-P/2. The appellant’s underwear was seized vide Ex.-P/7. 4. Statements of the witnesses were recorded. Crime details form was prepared vide Ex.-P/12. After completion of the investigation, charge sheet was filed before the jurisdictional criminal Court, which in turn committed the case to the Court of Sessions for trial, in which the appellant abjured his guilt and claimed to be tried. 5. In order to bring home the charges, the prosecution examined as many as 15 witnesses and exhibited 19 documents. In the statement recorded under Section 313 of the CrPC, the appellant has stated that he has been falsely implicated and he did not adduce any defence evidence. 6. The trial Court after appreciating the oral and documentary evidence available on record convicted and sentenced the appellant as mentioned above against which this Appeal has been preferred by the appellant. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove that the victim was less than 18 years on the date of offence, and the medical evidence and the FSL report (Ex.-P/16) also do not support the case of the prosecution. He would further submit that the victim herself is not consistent in her statement and in examination-in- chief, she has categorically stated that no wrong has been committed by the appellant. As her statement is not of sterling quality to base the 4 conviction, the appellant is entitled for acquittal and the Appeal deserves to be allowed. 8. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the trial Court is absolutely justified in convicting the appellant for the aforesaid offences. The appellant is not entitled for acquittal and the Appeal deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection. 10. The first question is whether the prosecution has proved the age of the victim to be less than 18 years on the date of offence, for which (PW-8), Headmaster of the school, has stated that on the basis of Transfer Certificate, her name was recorded in the School Register (Ex.-P/5). In cross-examination, she categorically admits that she has not brought the Transfer Certificate on the basis of which date of birth has been recorded. She further admits that entry made in the School Admission Register at Sr. No.85 is not of her handwriting. The victim (PW-3) has stated that at the time of admission, her father (PW-12) has given information about her date of birth. Father of the victim (PW-12) clearly states that the School Teacher after seeing his daughter on the basis of presumption has recorded her date of birth in the school register. As such, we are of the opinion that the prosecution has not clearly proved the age of the victim to be less than 18 years on the date of the incident beyond reasonable doubt, as there is no evidence to hold that the victim 5 was less than 18 years of age and no material document has been brought on record or proved by the prosecution in this regard. 11. In this connection, the Hon’ble Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana1, has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit2 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 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.” 1 2023 SCC Online SC 1397 2 1988 (Supl.) SCC 604 6 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.” 12. In the matter of P. Yuvaprakash versus State Rep. By Inspector of Police3, 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 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.” 13. In light of the aforesaid decisions of the Supreme Court, we are 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. 3 AIR 2023 SC 3525 7 14. Further, the victim (PW-3) herself deposed in examination-in-chief at para-4 that the appellant has not committed any wrong with her. However, when the leading question was put to her by the prosecution, she deviates from her version in examination-in-chief and admits the suggestion of the prosecution that for about one month the appellant has committed rape with her. When the defence again cross-examined her, she again corrected her version to depose that no wrong was committed by the appellant. 15. On close scrutiny of the above evidence, it appears that the statement of victim is not of sterling quality and not fully reliable. 16. In this regard, the Hon’ble Supreme Court in the matter of Rai Sandeep alias Deepu v. State (NCT of Delhi)4 has observed as to 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 Bihar5. 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. The witness should be in a position to 4 (2012) 8 SCC 21 5 (2020) 2 S.C.R. 798 8 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.” 17. Moreover, (PW-15) Dr. Rajni Kishori, who has examined the victim (PW-3) vide Ex.-P/19 has not given any opinion regarding recent sexual intercourse and the FSL report (Ex.-P/16) was also found negative, as no sperm has been found on Article ‘A’ and Article ‘C’ i.e. the underwear of the appellant and the victim. Even on the vaginal slide which was prepared at the time of examination, no human sperm was found. 18. On the basis of aforesaid discussion, we are of the opinion that in the present case the victim has failed to pass any of the tests of “sterling quality”, as has been held in the matter of Raj Sandeep alias Deepu (Supra). Further, the victim has stayed with the appellant for a substantial period and her age has also not been proved to be below 18 9 years on the date of the incident and as such, she appears to be a consenting party, the medical evidence and the FSL report also do not support the prosecution. Therefore, it would be absolutely risky to maintain the conviction of the appellant and thus, he is entitled for acquittal on the basis of benefit of doubt. 19. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Section 363 & 376 (1) of the IPC and under Section 3/4 of the POCSO Act are set aside and he is acquitted of the said charges by extending benefit of doubt. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the CrPC. 20. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve