1 / 20 2025:CGHC:18548-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 810 of 2024 1 - Siyambar Lal Yadav S/o Samaylal Yadav Aged About 23 Years R/o Tendutola Pateratola, Thana Jaitpur, District Shahdol, M.P. ... Appellant versus 1 - State of Chhattisgarh Through- Police Station Janakpur, District Korea, Currently District M.C.B. (Manendragarh-Chirmiri-Bharatpur), C.G. ... Respondent For Appellant : Mr. Hemant Kumar Agrawal, Advocate For State : Mr. Nitansh Jaiswal, Panel Lawyer Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Arvind Kumar Verma, Judge Judgment on Board Per, Ramesh Sinha, C.J. 24/04/2025 1. Heard Mr. Hemant Kumar Agrawal, learned counsel for the appellant and also heard Mr. Nitansh Jaiswal, learned Panel Lawyer for the State. 2. The appellant has filed the instant criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 questioning the ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.04.26 12:03:04 +0530 2 / 20 judgment of conviction and order of sentence dated 27/02/2024 passed by the Additional Sessions Judge, FTC (POCSO), Manendragarh (C.G.) in S.T. No.56/2020, whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 363 of IPC R.I. for 02 years, and fine amount of Rs.500/-, in default of payment of fine amount additional R.I. for 01 month. Under Section 366 of IPC R.I. for 05 years, and fine amount of Rs.500/-, in default of payment of fine amount additional R.I. for 1 month. Under Section 6 of POCSO Act R.I. for 20 years and fine amount of Rs.500/- and in default of payment of fine amount additional R.I. for 01 year. All sentences to run concurrently. 3. The case of the prosecution in brief is that the accused used to visit the house of the victim and he told her that he loves her and wants to marry her, the victim rejected the said proposal on the ground that the accused was a married and had children. In January 2020, the accused called the victim to meet him near the field behind her house at around 8 pm and saying that he loves her and wants to marry her, forcefully took her to the field and raped her. The victim 3 / 20 did not tell her parents about the same out of fear. When the victim's parents were not at home, the accused used to come to the victim's house and used to rape her. On 27.09.2020, the accused made a phone call to the victim and called her outside the house and said that he had come to pick her up and would marry her. He took her to his house on foot through the road and forest to his house in village Pateratola, Police Station Jaitpur, Shahdol, where he raped the victim. Thereafter, the accused kept the victim in the forest of village Khetauli, Police Station Janakpur for 4 days. From there, he again took her to his house and kept her for 3 days. Thereafter, on 09.10.2020, at dawn, he took her from village Pateratola to Jhik Bijuri on foot and from there he took a bus to Bijuri there he rented the house of one Ashish Kumar Mishra and kept her there and continued to rape the victim. On the basis of complaint by the victim's father, Police Station-Janakpur registered a First Information Report under Section 363 IPC bearing Crime No. 134/2020 and completed the investigation and during the investigation, the appellant was arrested. Thereafter, a charge-sheet under Sections 363, 366, 376(2) (d) IPC and Sections 4, 6 of the Act prepared and filed in the court. 4. When the charges under Sections 363, 366, 376 (2) (n) IPC and Section 6 of the Act were read out to the accused, the accused denied his crime and sought trial. During the trial under Section 313 CrPC, the accused said that he is innocent and has been falsely implicated. No defence evidence has been presented by the accused in his defence. 4 / 20 5. Statements of the victim and other witnesses were recorded under Section 161 of the Cr.P.C. On completion of investigation, a charge- sheet was filed against the appellant. 6. In order to bring home the offence, the prosecution examined as many as 14 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he pleaded innocence and false implication. 7. After appreciation of oral as well as documentary evidence produced by the prosecution the learned trial Court has convicted the appellant sentenced him as mentioned in para -2 of this judgment, hence, this appeal. 8. Learned counsel appearing for the appellant would submit that the prosecutrix is a major lady and the prosecution has failed to prove the age of the victim to be below 18 years because the documents on which the prosecution has relied are suspicious. He would next contend that the prosecutrix is a consenting party as there was love affair in between the appellant and the prosecutrix. He would next contend that the fact of consensual relationship is evident from the medical report as no external or internal injury was found on the body of the prosecutrix. He would next contend that the important prosecution witnesses have turned hostile. It is, therefore, contended that the prosecution has failed to prove their case beyond reasonable doubt and conviction of the appellant is contrary to the rule of prudence and in the light of the evidence available on record 5 / 20 conviction of the appellant is bad in the eye of law. It is, therefore most humbly and respectfully prayed that this Court may kindly be pleased to allow this appeal and set aside the conviction passed by the learned trial court and the appellant may kindly be acquitted from the charges. 9. On the other hand, learned counsel for the State opposes the submission advanced by learned counsel for the appellant and submit that on the date of incident the victim was minor and below 18 years of age which is proved by the Dakhilkharij Register in which the date of birth of the victim is recorded as 04/03/2005. She being the minor girl was kidnapped by the appellant and kept away from the lawful guardianship of the parents and sexual intercourse was committed by the appellant with her, thereby committed offence of rape defined under the provisions of POCSO Act. Therefore, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 10. No one appeared on behalf of the prosecutrix despite service of notice. 11. We have heard learned counsel appearing for the respective parties and perused the record of the trial Court and other material available on record with utmost circumspection. 12. In order to consider the age of prosecutrix, we have to examine the evidence/material placed on record by the 6 / 20 prosecution. The prosecution has mainly relied upon the Admission Discharge Register of Ex. P-12C, wherein date of birth of prosecutrix is mentioned as 04/03/2005. 13. The prosecutrix (PW-1) has stated in her cross-examination in para 5 that she disclosed her date of birth on the basis of the date of birth recorded by her father. Father of the prosecutrix PW-02 in his examination-in-chief in para -1 has stated that he do not remember the date of birth of her daughter. Mother of the prosecutrix has been examined as PW-03 she in her examination-in-chief in para 1 has stated that she also do not know the date of birth of her daughter. 14. Alpana Tiwari (PW-08), stated (in Para-1) that from the year 2017 till date she is posted as In-charge Headmaster in Government Primary School Banhidol, Police Station Jankapur. She further in para -2 has stated that at the serial No.73 of Dakhil Kharij Register, date of birth of the prosecutrix is mentioned as 04/03/2005. In her cross- examination (Para-3), she has stated that the details of the prosecutrix in the Dakhil Kharij Register has not been entered by her and she do not know as to who has made the said entry and on what basis the date of birth of the prosecutrix has been recorded in the Dakhil Kharij Register she cannot state. 15. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : 7 / 20 “94. Presumption and determination of age.— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (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 8 / 20 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: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 16. In case 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. The Hon'ble Supreme court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. 17. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu 9 / 20 (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. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person,who made the entry or who gave the date of birth is examined.- 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those 10 / 20 persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 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.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 11 / 20 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.” 18. In case of Rishipal Singh Solanki Vs. 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 XXXX 12 / 20 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 scrutinized 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 courtshould lean in favour of 13 / 20 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 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.” 19. Recently, in case 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 14 / 20 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 (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. the 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, 15 / 20 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 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. 16 / 20 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.” 20. Now, reverting to the facts of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, we find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the victim was minor and less than 18 years of age on the date of incident, despite the fact that the trial court in the impugned judgment has held the prosecutrix minor. Accordingly, we set aside the findings given by the trial court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. 21. In order to consider the consent of prosecutrix, we have to examine the evidence/material placed on record by the prosecution. 22. The prosecutrix (PW-1) has stated in her examination in chief that the in-laws of the accused lived in her neighbourhood, the accused along with his family was living in his in-laws' house and used to tell her that he loves her and wants to marry her but she refused. The victim has also said that the accused called her to the farm and did wrong things with her. The victim has also said 17 / 20 that the accused took her to his house in Tendutoala and raped her by promising to marry her. The victim has also said that the accused raped her by keeping her in the jungle of Baharansi and in a rented room in Bijuri. During the cross-examination of the victim, the defence suggested that the accused did not take her to his house at Tendutola and rape her, but the victim rejected that suggestion. The victim also rejected the defence's suggestion that the accused did not take her to the jungle and rape her. During the same cross-examination, the defence suggested that the accused did not take the victim to Bijuri and keep her in a rented room and rape her, but the victim rejected that suggestion as well. 23. Father of the victim (PW-2) and and her mother (PW-3) have stated in their respective examination-in-chief that the police had brought the victim to the police station. The victim had told them that the accused had lured her and taken her to his village. On being suggested by the prosecution, the victim's father has accepted the fact that the victim had told him about the accused luring her and taking her away and raping her. During his cross- examination, this witness has denied the suggestion put forward by the defence that the victim had not told him about the incident. 24. PW-5, the Doctor who has medically examined the victim has stated that the prosecutrix was habituated to the sexual intercourse. No injury was found in her private part and no external or internal injury was found on her body. In her cross- 18 / 20 examination she has stated that no sign of forceful sexual intercourse were present. 25. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the Court on the veracity of the victim’s evidence, then it will not be safe to rely on the said version of the victim. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 26. Even there is no evidence that she raised any alarm or have shouted when she was allegedly subjected to forceful sexual intercourse by the appellant. Close scrutiny of the evidence makes it clear that the victim was not kidnapped by the appellant, she herself accompanied the appellant on her own will and consent. 27. Thus, considering the entire facts and circumstances of the case particularly the evidence with regard to the age and conduct of the prosecutrix, her evidence, absence of any injury over her body as 19 / 20 also the evidence that she was in love affair with the appellant, we are of the the opinion that the prosecutrix was more than 18 years of age at the time of incident and she was a consenting party, she has not been kidnapped by the appellant and has not been taken by force and she herself eloped with him and made physical relation with him. Therefore, in the above facts and circumstances of the case, offence as alleged against the appellant would not be made out. 28. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 27/02/2024 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be in jail. He be released forthwith, if not required in any other case. 29. Keeping in view the provisions of Section 437-A CrPC (now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023), the appellant is directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.10,000/- with one reliable surety in the like amount before the Court concerned 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. 20 / 20 30. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. SD/- SD/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice ashu