1 2025:CGHC:4694 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 646 of 2022 Navin Kumar Sahu, S/o Jageshwar Sahu, aged about 25 years, R/o Shankarpur, Police Station Chikhli, District Rajnandgaon (C.G.) ... Appellant Versus State of Chhattisgarh, through Police Station Balod, District- Balod (C.G.) ... Respondent For Appellant : Ms. Aditi Singhvi, Advocate. For Respondent : Mr. Devesh G. Kela, Advocate. Hon'ble Smt. Justice Rajani Dubey Judgment on Board 27.01.2025 1. This appeal is preferred against the judgment of conviction dated 30.03.2022 passed by the learned Additional Sessions Judge Fast Track Special Court and Special Judge (Prevention of Children from Sexual Offences Act, 2012) Balod (C.G.) in Special Sessions Case No. 12/2019, whereby the learned trial Court convicted and 2 sentenced the appellant as under:- Conviction Sentence U/S 363 of IPC R.I for 03 years with fine amount of Rs. 1000/-, in default of payment of fine to undergo additional R.I. for 01 month. U/S 366 of IPC R.I for 05 years with fine amount of Rs. 2000/-, in default of payment of fine to undergo additional R.I. for 02 months. U/S 06 Prevention of Children from Sexual Offences Act, 2012 R.I for 10 years with fine amount of Rs. 5000/-, in default of payment of fine to undergo additional R.I. for 06 months. (All sentences are directed to run concurrently.) 2. The case of the prosecution, in brief, is that the complainant is the father of the prosecutrix/victim, he lives in village Nipani with his family and he has three children, in which one is his son and the rest two are his daughters. The prosecutrix/victim is his eldest daughter. The complainant made a complaint before the police that the prosecutrix/victim, at around 3:00 pm on 23.11.2018 without intimating anyone, left the house and she did not return home. Despite several efforts of finding her, the complainant along with his children did not find the prosecutrix/victim. After that F.I.R was lodged at Police Station Balod, against unknown person who allured and took her 3 daughter away. During investigation, it was found that she was in custody of the appellant in Hyderabad and it was found that the appellant had committed the offence and filed a charge sheet before the learned trial Court. 3. After completion of due and necessary investigation, the charge- sheet was filed against the accused person/appellant bearing Crime No. 457/2018 under Sections 363, 366 and 376(2) (n) of IPC and Section 5 (l)/6 of POCSO Act, 2012 before the concerned Judicial Magistrate, who committed the matter before the learned Additional Sessions Judge Fast Track Special Court and Special Judge (Prevention of Children from Sexual Offences Act, 2012) Balod (C.G.), to which the accused person/appellant abjured his guilt and prayed for trial. 4. 4. In order to bring home the charge, the prosecution has examined as many as 06 witnesses. The statement of the accused person/appellant was also recorded under Section 313 of CrPC in which he denied all the inculpatory circumstances appearing against him in the prosecution case and pleaded his ingenuousness and false entailment in the case. 5. The learned trial Court after appreciation of oral and documentary evidence convicted the appellant under Sections 363 of IPC, 366 of IPC and under Section 06 of Prevention of Children from Sexual Offences Act, 2012 and sentenced him as 4 mentioned in the inaugural paragraph of this judgment. Hence, this appeal filed by the appellant. 6. Learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubt, there is no cogent and legally admissible evidence available on record to hold the conviction of the appellant for the offence under Section POCSO. The age of the prosecutrix/victim was not proved by the prosecution by cogent and clinching evidence and it was also not proved whether she was a minor at the date of incidence or not. The Admission Register was also not duly proved to prove the age of the prosecutrix and looking to the statement of the prosecutrix, it is clear that she is having love affair with the appellant, but the learned trial Court did not appreciate the oral and documentary evidence and gave perverse finding and thereby wrongly convicted the appellant. The prosecution has utterly failed to prove its case against the appellant and the same does not establish the charges leveled against him, the impugned judgment passed by the learned trial Court is illegal, erroneous and contrary to law. As such, the impugned judgment of conviction and sentence is liable to be set aside and the appellant deserves to be acquitted. 7. Reliance has been placed on this Court’s order dated 03.01.2025 passed in the decision of Rishbhdev v. State of Chhattisgarh reported in CRA No. 1698 of 2024. 5 8. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that the prosecution successfully proved its case against the appellant and from the school record it has duly been proved that the victim was minor on the date of incident and she cannot give her consent in making physical relation with the appellant. So, this appeal is being devoid of any merit is liable to be dismissed. 9. I have heard learned counsel for the appellant and perused the material available on record of the learned trial Court. 10. From bare perusal of the record of the learned trial Court it is clear that the learned trial Court has framed charges under Sections 363, 366, 376(2) (n) of IPC and Section 5(l)/6 of POCSO Act, 2012 and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellant under Sections 363, 366 and Section 6 of POCSO Act, 2012. 11. As per prosecution, date of birth of the prosecutrix is 12.10.2001. Smt. Jyoti Shakya In Charge Principal (PW-03) stated that during investigation, police seized Dakhil Kharij Register Ex. P/10 and prepared seizure memo Ex. P/11 and she admitted her signature on A to A part. The Dakhil Kharij Register is article A and certified copy of the Register is article AC and as per the Register, the Date of Birth of the prosecutrix is 12.10.2001 and she was admitted in Class I on 16.06.2007. In her cross-examination she admitted that 6 in School Register, neither the signature, nor the name of the prosecutrix/victim was mentioned and also on what basis the Date of Birth of the prosecutrix/victim was registered is not clear from the Article A. She further admits that in the School Register, the Date of Birth of the victim is not in her handwriting. 12. (PW-01) victim stated in para 1 of her examination-in-chief that her date of birth is 12.01.2001 and in para 08 of her cross-examination she admitted that now she is 18 years of old and date of birth is on the basis of the certificate. (PW-02) father of the victim stated in his cross-examination that his marriage year is 1997 and after two years of marriage, his first child was born and victim is his first child. So, as per the statement of father of the prosecutrix/victim, the age of the victim was more than 18 years on the date of incident and as per statement of (PW-03), it is clear that she did not make entry in school register. 13. This Court in the case of Rishabhdev (supra) held in paragraphs 15, 16, 17 & 18 which reads as under:- “15. The admissibility, and relevancy of the school admission and discharge register came up for hearing before the Hon’ble Supreme Court in the case of Alamelu and Another v. State, represented by Inspector of Police, reported in 2011(2) SCC 385, in which the Hon’ble Supreme Court has held that the Transfer Certificate which is issued by the Government School, and is duly signed by the Head Master, would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, admissibility of such a document would be of not much evidentiary value to 7 prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. 16. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the Supreme Court has 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 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. held as follows:- “38.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 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 8 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.” 17. in case 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. 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 9 age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the 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 hypothetical 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. 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 10 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.” 18. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, reported in 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. 11 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 (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. C1 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., 2021 (12) SCR 502 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 equivalent 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 12 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., (2019) 9 SCR 735 that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in 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.” 14. In the light of above judgments and in the present case also, 13 except the School Register Article A1, there is no other evidence produced by the prosecution for determination of the age of the victim. Therefore, it is very difficult to rely upon the said school register Article A1 as an authentic document to determine the age of the victim as to decide that on the date of incident, she was minor i.e., less than 18 years of age. 15. From the statement of other witnesses, it is clear that the prosecutrix/victim is in love affair with the appellant. (PW-01) stated that since 2017 she was talking to the appellant on phone and the appellant used to tell her that he will marry her and she got convinced by it and one year ago when she came to Balod, the accused/appellant also came to Balod and he took me to Hyderabad by bus and train. The accused/appellant kept her in a hut in Hyderabad for about two and a half months, and he had physical relation with her despite her resistance. The police personnel of Balod Police Station recovered the prosecutrix/victim from the custody of the accused/appellant at Hyderabad where she stayed and had prepared the recovery panchnama in front of witnesses, the recovery panchnama is Ex. P/01, the signature of the prosecutrix is on A to A part. 16. In cross-examination, she admitted that they both were in love affair with each other. In para 11 she admitted that the appellant did not make her travel forcibly in bus and train. She also admitted in para 12 that many people were there in the bus and train and 14 despite that she did not shout at all. 17. So, it is clear from statement of the victim (PW-01) that she was in love affair with the appellant and she went with him with her own free will and it is also clear that she was in love affair with the appellant since 2017. The prosecution has failed to prove this fact that on the date of incident, she was minor. So, it is clear that she is major on the date of incident and when she herself went with the appellant, so no offence of kidnapping is made out against the appellant. It is also clear that she was a consenting party in making physical relation with the appellant which does not come within the definition of “rape” and the appellant is entitled for “benefit of doubt”. 18. From the aforesaid discussions, this Court is unable to upheld the conviction of the appellant for the alleged offence, and consequently, by giving benefit of doubt, the appeal filed by the appellant is allowed. The impugned judgment of conviction and order of sentence is set aside, and the appellant is acquitted of all the alleged offences. 19. Appellant is reported to be in jail since 03.03.2022. He be set at liberty forthwith, if not required in any other case. 20. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 15 25,000/- in the like amount before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 21. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Uttej