1 CRA No.1259 of 2024 2025:CGHC:26256-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1259 of 2024 1 - Chudamani Alias Churamn Sahu S/o Shri Tukaram Sahu Aged About 24 Years R/o Bana, P.S.- Kharora, District : Raipur, Chhattisgarh Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, P.S.- Arand, District : Raipur, Chhattisgarh Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. A.V. Shridhar, Advocate For Respondent(s) : Mr. Hariom Rai, PL Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per, Bibhu Datta Guru, Judge 20/06/2025 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 18/08/2023 passed in Special Criminal Case (POCSO) No. 54/2019 by the learned Additional Sessions Judge, Fast Track Special Court, Raipur, RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.06.24 10:28:50 +0530 2 CRA No.1259 of 2024 District Raipur (C.G.), whereby the appellant has been convicted under Section 376 (3) of the IPC and Section 4 of the POCSO Act. However, the appellant has been sentenced as under:- Conviction Sentence U/s 4 of the POCSO Act. Rigorous imprisonment for 20 years along with fine of Rs. 1000/- with default stipulation 2. Case of the prosecution in brief is that on 13/02/2019, the Victim (PW1) lodged a reported at Police Station- Aarang, Raipur inter-alia that on 12/02/2019, at about 07:00 pm, when she was going to her friend’s house, the appellant who was sitting hidden in a Biara, suddenly came and caught hold her hand, dragged her towards the Paravat, where, he after removing her knicker, forcibly committed rape with her. She further alleged that when she tried to scream, the appellant had gagged her mouth by hand, but she any how made a scream to her mother and, subsequently her mother (PW2) came to the spot. The Victim alleged that her mother caught hold the appellant, but he fled away from there. Her father had also come to the Biara and, thereafter her mother narrated the incident to her father. Based on the above report, offence under Section 376 of the IPC and Section 4 of the POCSO Act was registered against the appellant. During the course of investigation, spot map was prepared. Dakhil Kharij Register (Ex.P/9C) was seized in order to ascertain the date of birth of the Victim. Statement of the witnesses were recorded. After completion of investigation, a charge-sheet was filed before 3 CRA No.1259 of 2024 the concerned Court. 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 08 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. In defence, one witness has been examined as DW1. 3. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 18/08/2023 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 4. Mr. A.V. Shridhar, learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. The prosecution has failed to prove the fact that on the date of incident, the Victim was minor as the author of the Dakhil Kharij Register (Ex.P/9C) relied by the prosecution, has not been examined. He would further submit that there is material contradictions in the statement of the Victim. Therefore, the conviction of the appellant cannot be sustained. 5. Mr. Hariom Rai, learned Panel Lawyer 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 4 CRA No.1259 of 2024 prosecutrix, therefore, this appeal deserves to be dismissed. 6. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 7. The first question arises before this Court whether the victim was minor on the date of incident or not?. 8. The Victim (PW1) in her deposition has stated that she is aged about 16 years and her date of birth is 16/02/2005. In her cross-examination, when suggestion was put to her that she has narrated her date of birth as 16/12/2005 in her 164 Cr.P.C statement (EX.P6) and she in her court statement has narrated that her date of birth is 16/02/2005, which one is correct?. Replying to the same, the Victim (PW1) has stated that she did not remember her date of birth and her parents would have remember her date of birth. This witness has further admitted that there are different date of birth registered in her Aadhar Card and Mark-sheet. 9. Mother (PW2) of the Victim has deposed in her statement that the Victim is presently aged about 16 years and her birth year is 2005. In cross- examination, she admitted that she has narrated the year of birth of the Victim after guessing. She also admitted that there is no birth certificate of the Victim. 10. Teacher (PW3) of the Victim’s school in his statement has deposed that as per the entry made in Dakhil Kharij Register (Ex.P/9C) at serial No. 3860, the date of birth of the Victim has been mentioned as 16/02/2005. 5 CRA No.1259 of 2024 In cross-examination, he has admitted that he has not made such entry in the Dakhil Kharij Register. He has also admitted that he cannot state on what basis such entry was made in the said register as he was not posted in the School at the relevant time. No author regarding the said entry has been examined by the prosecution. 11. Perusal of the aforesaid evidence 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. 12. 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:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made 6 CRA No.1259 of 2024 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. 48. We may further notice that even with reference to Section 7 CRA No.1259 of 2024 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." 13. 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 (2) of section 94 of the JJ Act, 2015 would have 8 CRA No.1259 of 2024 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. 33.6. That it is neither feasible nor desirable to 9 CRA No.1259 of 2024 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 adopted solely on the basis of medical opinion by 10 CRA No.1259 of 2024 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." 14. 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 11 CRA No.1259 of 2024 commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 12 CRA No.1259 of 2024 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." 15. 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. 16. Now, the questions comes whether the appellant after caught hold her hand and dragging her towards the Biara, committed rape with her or not? 17. The Victim (PW1) in her statement has deposed that when she was going to her friend’s house, the appellant who was sitting hidden in a 13 CRA No.1259 of 2024 Biara, suddenly came and caught hold her hand, dragged her towards the Paravat, where, he after removing her knicker, forcibly committed rape with her. She further deposed that when she get rid of his hand and screamed to her mother, her mother came to the spot and caught hold the appellant, but the appellant fled away from thereafter. She stated that thereafter, they went to the house and narrated the incident to her father. In cross-examination, this witness has categorically stated that there are 4-5 houses near the spot of incident i.e. Biara. She admitted that she has never raised alarm for nearby people, rather she screamed only for mother to rescue. She further admitted that while she was being raped, she did not sustain any injuries. In her cross-examination, when the question was put to her that she has stated in her written complaint Exhibit P-1 and First Information Report Exhibit P-2 that "she removed his (the appellant’s) hand from her mouth and shouted loudly saying Maa-Maa, then hearing her voice her mother came to Paravat" whereas now in para 13 of this statement, she has stated that she shouted many times at the time of the incident but her mother came after the incident". Which of the two statements is correct?”. Replying to the question, she stated that "she shouted many times but her mother came after the incident" is correct one. Further, in cross-examination, this witness has deposed that she has never shouted for help to nearby people and she had not narrated them about the incident too. In cross-examination, when a question was further put to her that “she has stated in her main examination that after the incident she went home and told her father 14 CRA No.1259 of 2024 about the incident, while in her police statement she has stated that on hearing her voice her father reached the place of occurrence, which of the two is correct?”. Replying the same, she stated that ‘it is correct that after the incident she and her mother came home and told her father about the incident. If the police has written in Exhibit D-1 that "her father came to Biara on hearing her voice and then her mother told him about the incident’, then she cannot tell the reason. She stated in her cross-examination that she, after taking permission of her mother, was going to her friends house. 18. Mother (PW2) of the Victim has deposed that on the date of incident, the Victim was going to her friend house, then the appellant, after gagging her mouth, dragged her towards Biara and committed rape with her. Subsequently, she called her husband and lodged the report. In cross- examination, her mother has categorically admitted that on the date of incident, the Victim had not taken any permission from her that she was going to her friend’s house. 19. Dr. Meena Samuel (PW6) has stated that the Victim was brought before her for medical examination on 13/02/2019. On examination, she found that her secondary sexual characteristics was fully developed; there was no external injury on her body; hymen was old ruptured; Livia and vulva was healthy; she had prepared two vaginal slides for chemical examination. She not given any definite opinion regarding recent intercourse. The victim was habitual of sexual intercourse. 20. The FSL report is Ex.P/34. As per the report, there was human sperm 15 CRA No.1259 of 2024 present on Article-A i.e. underwear of the appellant, Article-B i.e. underwear of the Victim and Article-C i.e. vaginal slides. However, the FSL reports suggests that the sperm spot of Article- A and Article-B were not sufficient for Serum examination. 21. After going through the statements of the Victim (PW1), it appears that there are material contradictions in her statement. Somewhere in her statement, she has stated that her mother came after the incident and somewhere in the statement, she stated that her mother came when she shouted for help. In examination-in-chief, she has stated that after the incident her mother had caught hold the appellant, but the appellant after get rid of her mother’s grip, fled away from the spot, whereas, her mother has specifically stated that she reached to the spot after the incident. Further, the Victim stated that her father had also reached to the spot, whereas, she in her examination-in-chief has stated that she along with her mother after the incident went to the house and thereafter narrated the incident to her father. Thus, two types of statements of the Victim creates doubts over credibility of her statement. 22. Apart from this, it is also apparent that during such incident, the Victim did not sustain any injury on her body. It is quite unnatural that the appellant, whose one hand was weak, dragged her towards Biara, gagged her mouth by one hand and removed her knicker and committed rape with her, and the both the appellant and the Victim did not sustain even a single injury like abrasion etc. 16 CRA No.1259 of 2024 23. In view of the above, the act of the Victim and her family members does not inspire the confidence of this Court towards the guilt of the appellant because of the material contradictions in their statements. 24. For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim, rather it appears that the Victim has voluntarily went with the appellant. Since, it has also not proved that at the time of incident the Victim was minor, thus, the Victim was very much capable to give her own consent while going with the appellant, therefore, we are of the view that the appellant is entitled to be acquitted. 25. Accordingly, the Criminal appeal is allowed. The judgment dated 18/08/2023 is set-aside. The accused is acquitted of the charges for which he was tried. It is stated that the appellant is in jail. He shall be released forthwith if no longer required in any other criminal case. 26. Keeping in view the provisions of Section 437-A of the CrPC, the accused-appellant, is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with two reliable sureties 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. 17 CRA No.1259 of 2024 27. 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/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Rahul/Gowri