1 2025:CGHC:41862 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 672 of 2023 Rambali @ Konda S/o Rajan Ram Gond Aged About 22 Years R/o Village Gopalpur, P.S. Rajpur District - Balrampur - Ramanujganj (C.G.) ... Appellant versus State of Chhattisgarh Through Station House Officer, Police Station - Rajpur, District - Balrampur-Ramanujganj (C.G.) ... Respondent For Appellant : Mr. Sachin Nidhi, Advocate For Respondent/State : Ms. Ankita Shukla, Panel Lawyer. Hon'ble Shri Ramesh Sinha , Chief Justice Order on Board 19.08.2025 1. It transpires that after being released on bail as per order passed by this Court, the appellant’s appearance was marked before the Registry on 11.06.2025, however, thereafter he failed to appear, and even today, the matter has been listed on account of his non- appearance. An application, I.A. No.02, has been filed by the learned counsel for the appellant seeking exemption from his personal appearance. RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN 2 2. However, considering the fact that the appellant has been sentenced to short-term imprisonment, learned counsel for the appellant has submitted that he is ready to argue the matter finally. Accordingly, with the consent of the parties, the Court proceeds to hear the case finally. 3. This criminal appeal is directed against the judgment of conviction and order of sentence dated 02.03.2023 passed by learned Additional Sessions Judge, Fast Tract Special Court (POCSO Act), Ramanujganj, District Balrampur-Ramanujganj (C.G.), in Special Sessions Trial (POCSO) Case No. 34/2021, whereby the appellant has been convicted and sentenced in the following manner: Sentence Conviction Under Section 354 of the Indian Penal Code. Rigorous Imprisonment for 01 year with fine amount of Rs. 2000/-, in default of payment of fine further RI for 01 month. Under Section 8 of POCSO Act, 2012 Rigorous Imprisonment for 03 years with fine amount of Rs. 2000/-, in default of payment of fine further RI for 01 month. (Both the sentences will run concurrently) 4. Judgment of conviction is challenged on the ground that without there being any clinching and reliable evidence against the appellant, the trial Court has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. 3 5. Case of the prosecution, in brief, is that on 13.05.2021, the victim (PW-1) lodged a written complaint (Ex.-1) at Police Station Rajpur, stating that on 10.05.2021, her parents had gone to another village to procure rice and stayed there overnight, leaving her alone at home. On the following day, i.e., 11.05.2021, at about 5:00 p.m., she went alone to take a bath in the bathroom situated inside the boundary of Gopalpur High School. At that time, the accused Ram Bali Gond came there, caught hold of her with ill intention and started molesting her. When she raised an alarm, he gagged her mouth with her dupatta and threw her to the ground. Somehow she managed to free herself from the accused, raised alarm, upon which her landlady reached the spot, and in the meantime, the accused fled. Thereafter, when her parents returned home, she narrated the incident to them. 6. On the basis of said complaint, Crime No. 92/2021 was registered at Police Station Rajpur under Section 354 IPC and Section 8 of the POCSO Act against the accused Ram Bali Gond by A.S.I. Kalpana Nikunj (PW-5). During investigation, S.I./I.O. Akhilesh Singh (PW-7) visited the spot as pointed out by the victim (PW-1), prepared spot map (Ex.-3). To ascertain the age of the victim, the verified copy of the Dakhil Kharij Register of Primary School, Gopalpur was seized through seizure memo (Ex.-6) from the Headmaster. 7. Statements of witnesses were recorded. The statement of the victim under Section 164 Cr.P.C. was also recorded before the Judicial Magistrate First Class, Rajpur. The accused was arrested. After 4 completion of statutory investigation, charge-sheet was filed against the accused under Section 354 IPC and Section 8 of the POCSO Act. 8. On the basis of charge-sheet, charges under Sections 354 and 506 Part II IPC and Section 8 of the POCSO Act were framed, read over and explained to the accused, to which he abjured guilt and claimed trial. 9. In support of its case, the prosecution examined the victim (PW-1), Headmaster (PW-2), the victim’s mother ‘C’ (PW-3), the victim’s father ‘B’ (PW-4), A.S.I. Kalpana Nikunj (PW-5), Patwari Ashish Kujur (PW-6), and S.I. Akhilesh Singh (PW-7) and exhibited the documents. On the basis of prosecution evidence, the statement of the accused was also recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein he denied the allegations, claimed innocence, and did not lead any defence evidence. 10. After appreciation of evidence available on record, the learned trial Court has convicted the accused/appellant and sentenced him as mentioned in para 3 of the judgment. Hence, this appeal. 11. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence passed by the learned trial court is bad both in law and on facts, inasmuch as the trial Court failed to properly appreciate the material contradictions and omissions appearing in the statements of prosecution witnesses, and has ignored the overall evidence available on record. It is 5 urged that the prosecution has miserably failed to establish the age of the victim beyond reasonable doubt, inasmuch as though the Dakhil Kharij Register was produced, yet the statement of the concerned person maintaining the said register was not recorded, and therefore, the document cannot be said to have been duly proved. In such circumstances, the invocation of the provisions of the POCSO Act against the appellant is wholly misconceived and unsustainable. It is further submitted that the appellant has been in jail from 14.05.2021 to 26.06.2021 i.e. 01 month and 12 days and thereafter, he was on bail till passing of the impugned order of conviction and sentence, which fact was not properly considered by the trial Court. In the alternative, it is contended that even assuming without admitting the prosecution case, the sentence imposed is highly excessive, disproportionate to the facts and circumstances of the case, and therefore deserves to be reduced. 12. On the other hand, learned State Counsel supported the judgment passed by the learned trial Court and submitted that the learned trial Court has passed the impugned order based on the materials available on record and has right convicted and sentenced the appellant, in which no interference is called for. 13. I have heard learned counsel for the parties and perused the judgment impugned as also record of the trial Court. 14. In order to consider the age of the victim, I have examined the evidence available on record produced by the prosecution. 6 15. First question for consideration would be whether the learned trial Court has rightly held that on the date of incident, the victim was minor ? 16. The prosecution relied upon the School admission and discharge register, which is sought to be proved by PW-2, Sunil Kumar Dubey (PW-2), who was posted as Head Teacher at Primary School, Gopalpur from the year 1988 till October 2021, who has stated that in connection with Crime No. 92/2021 registered at Police Station Rajpur, on being asked by the police, he provided a certified copy of the Dakhil Kharij register relating to the victim. He deposed that on 01.06.2021, he handed over to the police the certified copy of the admission and withdrawal register showing the date of birth of the victim as 04.11.2005, which was seized under seizure memo Ex.P-6 bearing his signatures. He further stated that the original register (Ex. P-7) and its certified copy (Ex. P-7C) also contain the name of the victim and her parents with the recorded date of birth, and both documents bear his signatures. 17. In cross-examination, he admitted that he himself had not made the entry at the time of admission of the victim in Class-I as the same was done by another teacher, and that the Dakhil Kharij does not record whether a birth certificate or affidavit was produced at the time of admission. He denied the suggestion that the date of birth was entered on the basis of assumption by the teacher, clarifying that a declaration regarding date of birth is normally taken from the guardian at the time of admission. 7 18. Thus, it is clear that at the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her father and on the oral information given by father of the victim the entry was made in the School admission and discharge register. Moreover, PW-3, mother of the victim and PW-4, father of the victim have stated that they do not know the date of birth of the victim. Except Dakhil Kharij Register (Ex.P- 7C) no other evidence such as birth certificate, Kotwari register or ossification report are produced by the prosecution to prove the actual age of the victim. 19. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school admission and discharge register it would not be safe to hold that the victim was minor on the date of incident. 20. In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, 8 register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 21. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. It was observed as under “40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as 9 well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 22. In the matter of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. 10 XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 11 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11 Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 23. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official 12 (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the 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. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in 13 the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 24. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident yet the trial court in the impugned judgment has held her minor, hence, we set aside the finding given by the trail Court that on the date of incident the victim was minor. 14 25. The next question for consideration would be whether the learned trial Court was justified in convicting the appellant for the offence punishable under Section 8 of the POCSO Act or not ? 26. In this regard, the prosecution has relied upon the statements of various prosecution witnesses, including the victim (PW-1). 27. The victim (PW-1) has deposed that she was acquainted with the accused Ram Bali and that on 11.05.2021 at about 5:00 p.m., while she had gone to bath in the hostel bathroom at Gopalpur, the accused entered the bathroom with his face coloured so that she could not identify him, tied her hands and mouth with a dupatta, dragged her inside, pushed her to the ground and attempted to commit rape by touching her chest with ill-intention. She resisted, struggled for about 10–20 meters, managed to free herself, and thereafter informed her landlady and later her parents, on whose arrival she lodged a written complaint at P.S. Rajpur. She identified her complaint (Ex. P-1), FIR (Ex. P-2), site maps (Ex. P-3 & P-4), and her statement under Section 164 CrPC (Ex. P-5) bearing her signatures. 28. In cross-examination, she admitted that no physical injury was caused to her, she was not taken for medical examination, and that in her written complaint and police statement the facts of the accused colouring his face and tying her hands were not mentioned. She further admitted that the accused did not succeed in removing her clothes though he had opened his own, as she continuously resisted. She denied the defence suggestion that no such incident 15 took place and asserted that the accused had attempted to outrage her modesty with intent to commit rape. 29. Section 8 of the POCSO Act reads as under :- “8. Punishment for sexual assault.- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.” 30. From perusal of the evidence of the victim, it transpires that she, in her statement before the Court, has alleged that on the date of the incident the accused entered the hostel bathroom, gagged her with a dupatta, dragged her inside, threw her on the ground, and attempted to outrage her modesty by touching her chest with sexual intent. However, it is also admitted by her that she did not receive any injury, was not medically examined, and that certain material facts such as the accused having applied colour on his face and tying her hands were not mentioned either in the written complaint or in her statement recorded by the police. These omissions amount to material contradictions, which create doubt regarding the veracity of her testimony. 31. Considering the above facts and circumstances, it is evident that the testimony of PW-1 suffers from material omissions and inconsistencies, and in absence of medical corroboration and independent witnesses, the sole testimony of the victim does not inspire confidence to bring home the charge under Section 8 of the POCSO Act. Further, the evidence of PW-2 regarding age is also 16 unreliable, thereby failing to establish the minority of the victim beyond reasonable doubt. In such circumstances, the prosecution has failed to prove the charge under Section 8 of the POCSO Act against the appellant beyond all reasonable doubt. 32. Accordingly, the conviction and sentence imposed upon the appellant under Section 8 of the POCSO Act by the learned trial Court cannot be sustained in the eyes of law and are liable to be set aside. The appellant is therefore acquitted of the charge under Section 8 of the POCSO Act. However, considering the evidence available on record, it appears that the trial Court has rightly convicted and sentenced the appellant for offence under Section 354 of the IPC. 33. For the foregoing reasons, the criminal appeal is partly allowed. The conviction and sentence of the appellant under Section 8 of the POCSO Act are hereby set aside. However, the conviction of the appellant under Section 354 of the IPC is maintained. Considering the fact that the appellant has already undergone custody of 01 month and 12 days, as stated by learned counsel for the appellant, I deem it appropriate to alter the substantive sentence under Section 354 IPC to the period already undergone by him by enhancing the fine amount to Rs. 25,000/-. It is ordered accordingly. 34. It is stated that the fine amount awarded by the learned trial Court has already been deposited. In default of payment of fine amount enhanced by this Court within a period of one month from today, the appellant shall undergo rigorous imprisonment for a period of three 17 months. The said enhanced fine amount, upon realization, shall be paid to the victim as compensation. 35. The appellant is reported to be on bail. However, his bail bonds are not discharged at this stage and shall remain operative for a further period of six months in view of Section 437-A of the Cr.P.C. (481 of Bhartiya Nagrik Suraksha Sanhita (BNSS). 36. Registrar (Judicial) is directed to transmit the original record to the concerned trial Court within a week from today for necessary information and follow up action. Sd/- (Ramesh Sinha) Chief Justice Rahul Dewangan