1 2025:CGHC:2201-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 971 of 2021 Sonadhar Nag S/o Late Lakhmu Nag, Aged About 26 Years R/o Permaras, Police Station Tongpal, District Sukma (Chhattisgarh), District : Sukuma, Chhattisgarh ... Appellant versus State of Chhattisgarh Through Station House Officer, Police Station Tongpal, District Sukma Chhattisgarh, District : Sukuma, Chhattisgarh ... Respondent(s) For Appellant : Mr. Praveen K. Dhurandhar, Advocate For Respondent/State : Mr. Shakib Ahmed, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal , Judge P er Ramesh Sinha, CJ 14.01.2025 1. This appeal arise out of the judgment of conviction and order of sentence dated 31.07.2021 passed by the learned learned Additional Sessions Judge (F.T.C.), Dantewada (C.G.) in Special Sessions Case No.06/2017, whereby the appellant has been convicted and sentenced with a direction to run all the sentences concurrently in the following manner : ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.01.15 17:48:43 +0530 2 Sl.No. Conviction Sentence 1. Under Section 363 of the IPC R.I. for 02 years and fine of Rs.500/-, in default of payment of fine, additional RI for 01 month. 2. Under Section 366-A of the IPC R.I. for 07 years and fine of Rs.500/-, in default of payment of fine, additional RI for 01 month. 3. Under Section 376(2)(n) of IPC RI for life (meaning thereby the imprisonment for the rest natural life of the appellant) and fine of Rs. 500/-, in default of payment of fine, additional RI for one month. 2. Learned State counsel submitted that notice issued to the complainant / informant of the present case has already been served to grandfather of the victim, but none has appeared on his behalf to contest the present appeal. 3. Case of the prosecution, in brief, is that the complainant (grandfather of the victim) Pardesh Ram Sahu (PW-2) lodged a report in Tongpal police station that, on 13.09.2016 when he put his granddaughter victim on Deepak bus at about 08:30 am to go to Geedam to her aunt (bua) and came back home, on the same date in the afternoon his daughter called from Geedam and informed that the victim had not yet reached, on getting said information he went to Geedam to look for the victim by finding her whereabouts at her friends' and relatives' places, but even after searching, he could not find the victim. On the basis of written complaint( Ex.P.4) that some person has lured and taken 3 away (kidnapped) his granddaughter victim somewhere, First Information Report Ex.P.5 under Section 363 IPC was registered in Police Station Tongpal under Crime No. 24/2016. 4. During the investigation, it was found that the accused lured the victim and took her with him to different places and during this time he had physical relations with the victim and committed rape. During the investigation the victim was recovered as per Ex.P.15. The spot map of the incident was prepared as per Ex.P.6 and the site map as per Ex.P.11. After obtaining consent from the victim as per Ex.P.9 and from her grandfather as per Ex.P.16, medical examination of the victim was conducted by a lady medical officer in District Hospital Sukma as per Ex.P.13. The dakhil kharij register Ex.P.2C related to the date of birth of the victim in which the date of birth of the victim is mentioned was seized as per seizure memo Ex.P.1 and a seizure memo was prepared. Regarding the date of birth of the victim, the date of birth certificate Ex.P.3 was obtained from the Head Teacher. Two sealed vaginal smears of the victim were seized by the lady constable on being given by the doctor of District Hospital Sukma and seizure memo Ex.P.19 was prepared. In this case, the seized exhibits were sent to Regional Forensic Science Laboratory, Jagdalpur for chemical examination. During investigation, statements of witnesses were recorded under section 161 Cr.P.C. and after other necessary proceedings of investigation, a chargesheet was presented before the Court of Additional 4 Sessions Judge (FTC), Dantewada against the accused under Sections 363, 366, 376, 506 of IPC and Sections 4, 6 of Protection of Children from Sexual Offences Act, 2012. 5. When charges were framed against accused Sonadhar Nag under sections 363, 366-A, 376(2)(n) of the IPC and sections 5, 6 of the POCSO Act and were read out and explained to him, he denied the charges and claimed trial. When his statement was recorded under section 313 CrPC, he declared himself innocent and that he has been falsely implicated and got the statements of Mrs. Shanti Devi (DW-1), Ms. Kanak Nag (DW-2), Mrs. Milki Baghel (DW-3) recorded on his defence. 6. So as to prove the complicity of the accused/appellant in the crime in question, prosecution has examined as many as 14 witnesses and exhibited 23 documents in support of its case. 7. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 31.07.2021 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by the appellant calling in question the impugned judgment. 8. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the 5 age of the victim that on the date of the incident she was minor and less than 18 years of age. In absence of examination of any supporting document so as to prove the entry made in the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the victim. Admission and discharge register is a weak type of evidence. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the victim that on the date of incident she was below 18 years of age. There is no legally admissible and convincing evidence available on record to establish that the victim was minor on the date of incident. Learned counsel further argued that the victim is a consenting party and she herself had established physical relations with the appellant knowing that he was already a married person and having kids and she went alongwith the appellant on his motorcycle to Sukma, where she resided for two days in her friends house and thereafter, she herself came back to Jagdalpur and again she went along with appellant to village Siragpal, where they stayed for whole night and thereafter, came back to Jagdalpur from where she went along with appellant to Bhadrachalam, Vijaywada and lastly to Chennai, wherein she resided with the appellant for two months, but she never tried to flee nor she had never raised any alarm. Therefore, the alleged offences of the IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal. 6 9. On the other hand, learned counsel for the State opposes and contends that the victim was a minor and below 18 years of age at the time of incident which is proved by the School admission and discharge register Ex. P-2C which contains the date of birth of the victim as 01.07.1999. The school register is admissible piece of evidence to determine the age of the victim. Therefore there is no legality or infirmity in the findings of the learned trial court. The victim was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her. As such, the impugned judgment of conviction and sentence needs no interference. 10. We have heard the learned counsel for the parties and peruse the record with utmost circumstance. 11. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School admission and discharge register Ex. P/2C which is sought to be proved by PW-1 Smt. Lalita Rao, Assistant Teacher of the concerned school, who has stated that the police had seized from her the admission register of the District Primary School Leda, in which the entry regarding the victim is recorded at serial number 1178, in which the birth date of the victim is recorded as 01.07.1999 and she was admitted in class 1 on 01.07.2005, which is Ex.P.1. She further 7 stated that she had brought the original Dakhil Kharij Register with her, the original Dakhil Kharij Register is Ex.P.-1 and the photocopy of Dakhil Kharij Register attached in the record is Ex.P.2C. The original was returned after examining the Dakhil Kharij Register. On being asked for it from Tongpal Police Station, she had prepared the birth date certificate of the victim, as per the school Dakhil Kharij Register as 01.07.1999 which is mentioned in Dakhil Kharij No. 1178, which is Ex.P.3. In cross examination this witness has denied the suggestion that the date of birth of the victim written in the Dakhal Kharij Register Ex.P.2C No. 1178 has been tampered with by her. In her statement, she has not stated anything that on what basis the date of birth of the victim has been recorded in the said Dakhil Kharij Register (Ex.P-2C). 12. Thus, it is clear that at the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her grand father and on the basis of oral information given by grand father of the victim the entry was made in the School admission and discharge register. Except dakhil kharij register (Ex.P-2C) no other evidence such as birth certificate, Kotwari register or ossification report are produced by the prosecution to prove the actual age of the victim. 13. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence 8 with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school admission and discharge register it would not be safe to hold that the victim was minor on the date of incident. 14. In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 15. In the matter 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 9 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. It was observed as under “40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.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 10 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." 16. In the matter 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 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. 11 Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a 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 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 17. Recently, in the matter 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 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 13 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 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 14 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.” 18. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident yet the trial court in the impugned judgment has held her minor, hence, we set aside the finding given by the trail Court that on the date of incident the victim was minor. 19. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, we have carefully perused the statement of the victim recorded under Section 164 CrPC. In her 164 CrPC statement, the victim has stated that she knew the accused, who is a driver, since 01 year, they like each other since 01 year. When her parents came to know about the said fact, they leave her studies and were sending her to live with her aunt in Bailadila. So on 13.09.2016, she was put on a bus from Tongpal bus stand to go to Bailadila. After the bus went about 01 km, the accused Sonadhar Nag called her and said that he wanted to talk 15 to her for 02 minutes. She get down near Tahakwada, then she got down near Tahakwada, Sonadhar Nag came there with his friend on a motorcycle. Then he said that if she stay in Bailadila, then he will be stopped meeting her. So let's both run away. After that they came to Sukma by bus where she stayed with her friend for 02 days. She further stated that the accused came to meet her there one day and on the third day when she called Sonadhar Nag, his mobile was switched off. Then on the third day, she left home to go to Bailadila and when she reached near Darbha, Sonadhar's call came that her to go to Jagdalpur and he is also coming there. When she reached Jagdalpur, Sonadhar's friend was standing with a bike and Sonadhar Nag came there, then all three went to Sargipal at Sonadhar Nag's sister's house by bike. Then they stayed at his sister's house the whole night. Then on the next day, they came to Jagdalpur and from there went to Vijayawada by bus. Then from Vijayawada, they went to Chennai by train, where they stayed at his sister's house for two months, there Sonadhar Nag did wrong things with her by saying that he will marry her. Later she came to know that her grandfather had lodged a missing report, then she went back to Vijayawada by train and went to Bailadila by bus and Sonadhar Nag went to Tongpal. In her 164 CrPC statement, she has not stated that the appellant allured or threaten her or used any force while travelling along with him and while making physical relationship with her against her will or consent. In para 27 of her cross-examination, 16 the victim has admitted that the accused is a married person and has small children. On close scrutiny of the evidence of the victim, it is clear that the victim was a consenting party. 20. 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 reasonable doubt, which the prosecution has failed to do in the instant case. 21. Considering the entire evidence available on record and the conduct of the victim, we are of the opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 363, 366, 376(2)(n) of the IPC would not be made out against the appellant. 22. For the foregoing reasons, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 31.07.2021 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail. He be released forthwith if not required in any other case. 17 23. Keeping in view of the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bond in terms of from No.45 prescribed in the Code of Criminal Procedure for a sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court. 24. The Trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra