1 2025:CGHC:17344 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 11 of 2016 Premlal Verma S/o S/o Ransingh Verma Aged About 22 Years Occ. Tiles Mistri R/o Shakti Nagar, Ward No. 17, P.S. Mohan Nagar, District Durg Chhattisgarh , Chhattisgarh ... Appellant versus State Of Chhattisgarh Through P.S. Bemetara District Bemetara Chhattisgarh , Chhattisgarh ... Respondent For Appellant : Ms. Samiksha Gupta, Advocate For State : Mr. Jitendra Shrivastava, Dy. Govt. Advocate Hon'ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board (15.04.2025) 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant, therefore, requested for assistance from a counsel of the High Court Legal Aid Services Committee, Ms. Samiksha Gupta, Advocate has been nominated to assist the Court. 2. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate, Ms. Samiksha Gupta, through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) 14 SCC 2 222 (Surya Baksh Singh V. State of Uttar Pradesh), I do not consider it necessary to adjourn this case and issue fresh notice to the appellant as his interest has been duly taken care of by nominating another counsel from the High Court Legal Services Committee. 3. This appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short CrPC) has been preferred by the appellants (in jail) being aggrieved by the judgment of conviction and order of sentence dated 02.01.2016 passed by A.S.J. Bemetara, Chhattisgarh in S.T. no. 90/2014, whereby the appellant has been convicted and sentenced as under:- Conviction Sentences Under Section 363 of Indian Penal Code Rigorous Imprisonment for 01 years and fine amount of Rs. 500/-, in default of fine amount additional rigorous imprisonment for one month. Under Section 366 of Indian Penal Code Rigorous Imprisonment for 03 years and fine amount of Rs. 1000/-, in default of fine amount additional rigorous imprisonment for two month. Under Section 06 of POCSO Act, 2012 Rigorous Imprisonment for 10 years and fine amount of Rs. 2,000/-, in default of fine amount additional rigorous imprisonment for 03 months. All the sentence will run concurrently. 4. Brief facts of the case are such that, PW-01/complainant Geeta Bai, grandmother of the victim lodged an FIR against the 3 accused appellant wherein she stated that her grand daughter who is about 15 years old used to live and study with her mother and father at Durg, Chhattisgarh. The victim in order to get treatment came to her grand parents home. On 23.09.2014 the accused appellant who is said to be the cousin of the victim came to the house and stayed for a night. In the morning when the grand mother and grand father of the victim went to the field, at that time the accused allured her grand daughter in the pretext of marriage took her to Durg, Chhattisgarh. Upon which the grand mother of the victim lodged an FIR against the present appellant. 5. After due investigation and after completion of remaining formal proceedings, charge sheet was filed against the present accused appellant, wherein the appellant was held accused for the offence punishable under Section 363, 366 and 376 of the Indian Penal Code and Section 04 of the POCSO Act, 2012. 6. To prove the guilt of the accused/appellants, the prosecution has examined as many as 16 witnesses. Statements of the appellant under Section 313 of the Cr.P.C. was recorded, wherein accused/appellant has pleaded their innocence and false implication in the matter. After completion of trial, the trial Court convicted and sentenced the appellant as mentioned in para one of this judgment. Hence, this appeal. 7. Learned counsel appearing for the appellant submits that conviction and sentence of the appellant is bad and illegal. PW-15 Rajshir Devdhar, stated in his cross examination that the age of the prosecutrix is 17 years with variation of two years age of both side, that she give advise for detraction of age referred for conducting Radiological examination, before the radiologist. However, prosecution did not got her radiological examination 4 hence it can be said that the prosecution has failed to establish the age of the prosecutrix. Moreover he stated that there was no external and internal injury found on the body of the prosecutrix. He also stated that according to the statement of PW—13 she herself left the house with the appellant and appellant has not forced her to come with him and she did not raised any alarm while the appellant was taking her with him. Hence on the above mentioned ground the he prays for allowing the instant appeal and the appellant be acquitted from all the charges leveled against him in the interest of justice. 8. Per contra, learned counsel appearing for the State/respondent opposes the argument raised by counsel for the appellant and supported the impugned judgment passed by the Trial Court. He stated that after due diligence and consideration the trial court has convicted the present appellant under the said sections. Hence interference to the judgment so passed by the concerned trial court would largely affect the justice of the victim. 9. I have heard learned counsel appearing on behalf of the parties and perused entire evidence adduced by the complainant and gone through the evidence available on record with utmost circumspection. 10. Whenever the conviction is under the POCSO Act, proving the age of the victim is of utmost importance. And in order to prove the age of the victim, statements of the examined witnesses relating to the age of the witnesses as well as the documentary evidences are to be seen with due diligence. 11. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption 5 and determination of age. The same reads as under : “94. Presumption and determination of age- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the 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 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 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 above, age shall be determined by an ossification test or any other latest medical age determination test conduct on the orders of the Committee or the Board: Provided such age determination test conducted on the order 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. 12. 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 6 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. In paragraphs 40,42,43,44 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. 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 7 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 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:- 8 "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.” 13. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Kotwari Register which has been authored by PW-09 Pawan Singh. The date of birth as mentioned in the Kotwari Register on the basis of the information given by the father of the prosecutrix. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School admission and discharge register is a weak type of evidence. 9 14. Prosecutrix PW-13 in her deposition has stated in para 10 that her grand mother has filed the FIR against the appellant and stated her age as 14 years. However, she stated her age to be 16 years to the concerned Police and to the Doctor who examined her. 15. In the ossification test, conducted by PW-15 it has been mentioned that the age of the prosecutrix would be around 17 years with variation of 02 years age of both side. 16. From the perusal of the statements of prosecutrix , and after considering the evidence collected by the prosecution, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix 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, this Court finds it appropriate to 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. 17. Therefore, the conviction of the appellant under Section 04 of the POCSO Act, 2012 stands set aside as the age of the victim/prosecutrix has not been determined. This court finds that the impugned judgment passed by the learned trial court, convicting the present appellant under the section 04 of POCSO is illegal, perverse and contains jurisdictional error. 10 18. Now coming to the conviction of appellant under Section 363 and 366 of the Indian Penal Code. Section 363 of the Indian Penal Code deals with the offense of kidnapping from India or from lawful guardianship. It specifies that anyone who takes or abducts someone from India or from the custody of their lawful guardian without their consent, or in the case of a minor without the consent of their guardian, commits kidnapping. Whereas Section 366 of the Indian Penal Code deals with whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment. 19. However PW-13 the prosecutrix in para 06 of her deposition clearly stated that she by her own free will went with the accused appellant. He did not used any forceful action to take her with him. She also stated that when the accused appellant was taking her with him in the bus she did not resisted and did not told anyone that the appellant is forcefully taking her with him or abducting her. Further in para 08 of her deposition she stated that when the appellant was committing the offence with her, she did not raised any voice against that but tried to stop him. 11 20. PW-15 Dr. Rajshee Devdhar has examined the prosecutrix and stated in her deposition that there were no internal or external injury found on the body of the prosecturix. She was physically active. The hymen was completely ruptured. She stated that nothing could be ascertained with regard to the rape committed on her or not. 21. Thus from the bare perusal of the deposition of the prosecutrix it is crystal clear that the prosecutrix with her own consent went with the accused appellant and after going with him she did not raised her objection. Therefore, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, this Court is of the opinion that the age of the prosecutrix is not verified and not proved by the prosecution that prosecutrix was minor at the time of incident and she was a consenting party and also it is a case of elopement. Therefore, in the above facts and circumstances of the case, aforementioned sections would not be made out against the appellant. 22. Consequently, the appeal is allowed . The conviction of the appellants under Section 04of the POCSO Act, 2012 as well as Section 363 and 366 of the Indian Penal Code is set aside. The impugned judgment dated 02.01.2016 passed by A.S.J. Bemetra, Chhattisgarh is hereby set aside. The appellant is acquitted from all the charges leveled against them. 12 23. The appellant is reported to be in jail. He be released forthwith, if not needed in any other case. 24. Keeping in view the provisions of Section 437-A CrPC, 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. 5,000/- 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 even 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. 25. The Trial Court Record (TCR) along with a copy of this judgment be sent back immediately to the trial concerned for compliance and necessary action. sd/- (Arvind Kumar Verma) Judge alfiza