1 CRA No. 420/2016 2025:CGHC:34550 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 420 of 2016 Birendra Kumar Satnami S/o Hemkul Satnami Aged About 26 Years R/o Village - Odadabri, Police Station - Kunda, District - Kabirdham Chhattisgarh At Present Bypass, Kawardha, Police Station - Kawardha, District - Kabirdham Chhattisgarh , Chhattisgarh Appellant versus State Of Chhattisgarh Through The Station House Officer, Police Station - Kawardha, District - Kabirdham Chhattisgarh , Chhattisgarh Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. Goutam Khetrapal and Mr. Rudra Pratap Dubey, Advocate For Respondent(s) : Mr. U.K.S. Chandel, Dy. AG Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 21/07/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 03/03/2016 passed in Special Sessions Case No. 154/2015 by the learned Special Judge, Protection of Children from Sexual Offences Act, 2012 (FTC), Kabirdham (C.G.), whereby the appellant has been convicted and sentenced as under:- RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.07.23 10:18:18 +0530 2 CRA No. 420/2016 Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 04 year along with fine of Rs. 500/- with default stipulation U/s 366 of the IPC Rigorous imprisonment for 04 years along with fine of Rs. 500/- with default stipulation. U/s 6 of the Protection of Children from Sexual Offence Act, 2012 Rigorous imprisonment for 10 years with fine of Rs. 5000/-, with default stipulation. All the sentences were directed to run concurrently. 2. (a) Case of the prosecution in brief is that Father (PW11) of the prosecutrix/Victim lodged a report to the extent that his younger daughter i.e. prosecutrix has been staying with her grandfather at Kawardha for three-four months and studies in class IX. The accused is her brother-in-law and he was also staying with his family in her father Devcharan's house for one year. It was alleged that on 06.08.15, the prosecutrix went to school at 10.30 am to study, but did not return home till 06.00 pm, then her grandfather went to the school to inquire, where teacher and friend of the prosecutrix told that the accused came to the school at about 01.30 pm and informed that the prosecutrix's grandmother was unwell, and he took the prosecutrix away from school on a motorcycle. (b) Subsequently, the prosecutrix was searched in Raipur, Bilaspur, Ojhadabari and Prabhatola and when she was not found, a report was lodged in the Police Station Kawardha, on the basis of which crime 3 CRA No. 420/2016 number 230/15 under section 363 IPC was registered against the accused. During the inquiry, certificates regarding the age of the Victim/prosecutrix were collected; consent for examination of the private parts of the prosecutrix was obtained from the father of the prosecutrix and she was medically examined. The FSL examination of the vaginal slide of the prosecutrix prepared by the doctor was done. A map of the spot was made, statements of witnesses were recorded. (c) After completing other formal proceedings of investigation, the charge sheet was presented before the concerned Court under sections 363, 366, 376 IPC and sections 03, 04 of the Protection of Children from Sexual Offences Act, 2012. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. In order to bring home the offence, the prosecution has examined 14 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. (d) The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30/01/2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 3. Mr. Goutam Khetrapal, learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that from the evidence adduced by the prosecution, it is not 4 CRA No. 420/2016 proved that the prosecutrix was minor on the date of the incident. He would submit that there are material contradictions and omissions in the statement of the witnesses. Even, it is apparent from the statement of the Prosecutrix that rape has not been committed with her, as such, the conviction and sentence is bad in law and requires to be set-aside. 4. Mr. U.K.S. Chandel, learned Dy. Advocate General appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 5. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 6. The first question arises before this Court whether the victim was minor on the date of incident or not?. 7. The Prosecutrix (PW10) in her deposition has stated that she is aged about 13 years but she did not remember her date of birth. Father (PW11) of the Prosecutrix has stated that the age of the prosecutrix was about 14 years, but he did not remember her date of birth. 8. PW3- Bhagwat Prashad Chandravanshi, Head Master of the School has deposed in his statement that as per the serial no. 503 of the Dakhil Kharij Register (Ex.P/2C), the date of birth of the Prosecutrix has been mentioned as 04/01/2000, however, he admitted that he had not made 5 CRA No. 420/2016 such entry in the said register (Ex.P/2C). He also stated that there is no mention in the Dakhil Kharij Register that on what basis, the entry was registered in the same as no document was taken at the time of admission. 9. Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij register, but on what basis, the entry was made, is not mentioned in the register and even the Prosecutrix (PW10) and her father (PW11) have stated that they did not remember the date of birth of the Victim/Prosecutrix. 10. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, 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:- 6 CRA No. 420/2016 "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 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 Jaiswal2, 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. 7 CRA No. 420/2016 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 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." 11. 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. If an application is filed before the Court claiming juvenility, the provision of sub-section 8 CRA No. 420/2016 (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 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. 9 CRA No. 420/2016 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. 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 10 CRA No. 420/2016 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." 12. 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 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. this court outlined the 11 CRA No. 420/2016 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 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 12 CRA No. 420/2016 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." 13. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. 14. PW8- Dr. Usha Suryavanshi had medically examined the prosecutrix. She deposed that while examining the Victim, she found that there were no internal as well as external injury on the body of the victim. Her secondary sexual characteristics were fully developed. Hymen was not ruptured. She opined that no sexual intercourse was done with the victim/prosecutrix. Hence, it is apparent from the statement of Doctor (PW8), wherein she has opined that the rape upon the prosecutrix was not committed. 15. Now the statement under Section 164 of the Cr.P.C and the Court statement can be taken into consideration to see about the charge of Section 6 of the POCSO Act whether it can be made or not?. 16. In her statement under Section 164 of the Cr.P.C recorded before the Judicial Magistrate, I Class, Kawardha, the Victim/Prosecutrix (PW10) 13 CRA No. 420/2016 has categorically stated that the accused had not committed anything with her. She also stated that her father lodged the report, however, she was not willing to initiate any proceeding and even, she is not willing to get convict the appellant. Whereas, in her Court statement, she has deposed that the appellant took her to the house of her relative at Tatiband, Raipur, and locked her in a room and, subsequently raped her by saying that he will marry her. Thus, from aforesaid both the statement of the Victim, it is quite vivid that there are material contradictions and omissions in respect of the commission of offence by the accused. 17. It is the trite law that a statement recorded under Section 164 of the Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. The Supreme Court in the matter of R. Shaji v. State of Kerala1 has held as under:- 18. “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. 19. 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the 1 (2013) 14 SCC 266 14 CRA No. 420/2016 witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence. ” 20. It is a trite law that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be fully relied upon to hold the appellant guilty for the offence of rape. 21. The Supreme Court in the matter of Rai Sandeep @ Deepu v. State (NCT of Delhi), (2012) 8 SCC 21 has held as under at para 32 as under:- “32. In the decision in Krishan Kumar Malik v. State of Haryana in respect of the offence of gang rape under Section 376(2)(g) IPC, it has been held as under in paras 31 and 32: (SCC p. 138) "31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, which have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the appellant guilty of the said offences. 32. Indeed there are several significant variations in material facts in her Section 164 statement, Section 161 statement (CrPC), FIR and deposition in court. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, 15 CRA No. 420/2016 her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. The record shows that Bimla Devi though cited as a witness was not examined and later given up by the Public Prosecutor on the ground that she has been won over by the appellant." (emphasis added) 22. Since, the prosecutrix has not been held minor as discussed above, and has not been subjected to sexual assault and as such, no offence under Section 6 of the POCSO Act is made out against the appellant. 23. Now, the question remains before this Court whether the appellant had committed abduction of the Victim or not?. 24. PW10- Victim/Prosecutrix has deposed in her examination-in-chief that she lives in the house of her grandfather. She knows the accused, he is her real maternal uncle. She stated that on the date of incident, she had gone to school at 10.30 am, and at lunch time the appellant came to the school and told her that her grandmother is unwell and took her to village Prabhatola on his motorcycle. In village Prabhatola, the accused left his motorcycle and took her to the house of her relative at Tatiband, Raipur, and locked her in a room and, subsequently raped her by saying that he will marry her. In her cross-examination, she admitted that the appellant used to come daily for dropping and picking her up from the school. She has categorically deposed that on the date of incident, the appellant had taken her on the motorcycle to his Fufa’s house and thereafter he had taken her to Raipur. 16 CRA No. 420/2016 25. PW3- Friend of the Prosecutrix has deposed that on the date of incident, the Prosecutrix because of illness, after taking leave from the school had gone. 26. PW11- Father of the Prosecturix has deposed that on the date of the incident, when the Prosecutrix did not return from school, then he inquired at School and came to know from her friend that the appellant came at afternoon and the prosecutrix had gone along with him. 27. PW4- Pawan Kuman Pandey, Assistant Teacher has deposed that on the date of incident, After PT, when he went to the class at 1:30 PM, he saw that the Prosecutrix was not in the class. Then he asked the children about the prosecutrix, then the children told him that she had taken leave and gone. Subsequently, on reaching home, grandfather of the Victim called and said that the Prosecutrix has not come home yet. 28. As far as abduction is concerned, from perusal of the above statements of the witnesses, it is apparent that the appellant after abducting the prosecutrix had taken her with him without her consent from the School, which has been corroborated by the evidence of her friend (PW3), father (PW11) and Pawan Kumar Pandey (PW4), hence, it is proved that the appellant had abducted the prosecutrix without her consent. 29. Considering the above evidence available on record, the offence under Section 363 & 364 of the IPC is made out against the appellant. So far as, the sentence part is concerned, considering the entire facts and circumstance of the case, the manner in which the incident occurred, the 17 CRA No. 420/2016 fact that the incident took place around 09 years ago, the age of the appellant at the relevant time i.e. 26 years; he has no criminal antecedent; during pendency of this appeal the appellant was on bail since 2017; and did not misuse the liberty granted to him, and also considering the fact that the appellant and the the appellant and the Victim are relatives; and keeping in view the Judgment of Hon'ble Supreme Court in the matter of George Pon Paul v. Kanagalet, (2009) 13 SCC 478 wherein considering the fact that fine amount has been deposited and paid to the victim as also the long passage of time, the accused was sentenced to the period already undergone, this Court is of the opinion that no fruitful purpose would be served by sending the appellant back to jail at this stage and the ends of justice would be served, if the appellant is sentenced to the period already undergone by him i.e. 1 year 5 months and about 17 days while intacting the fine amount under Section 363 & 366 of the IPC. 30. In the result, the appeal is allowed in part. The appellant is acquitted of the charge under Section 6 of the POCSO Act, while maintaining the conviction of the appellant under Sections 363 & 366 of IPC, his jail sentence is reduced to the period already undergone by him. However, fine sentence awarded under Sections 363 & 366 of the IPC shall remain as it is. If the appellant fails to deposit the said fine amount, he shall suffer additional R.I. for two months. 31. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in 18 CRA No. 420/2016 view of Section 481 of the BNSS. 32. 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/- (Bibhu Datta Guru) Judge Rahul/Gowri