1 2025:CGHC:20299 NAFR HIGH COURT OF CHHA TTISGARH, BILASPUR CRA No. 855 of 2016 Laxmi Narayan S/o Govind Ram Aged About 29 Years R/o Faguram, Police Station Dabhara, Civil And Revenue District Janjgir Champa, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Police Of Police Station Dabhara, District Janjgir Champa, Chhattisgarh. ---- Respondent ___________________________________________________________ For Appellant : Ms. Sameeksha Gupta, Advocate (through Legal Aid) For State/Respondent : Mr. Shailendra Sharma, PL ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 02/05/2025 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant I, therefore, requested for assistance from a Counsel of the High Court Legal Aid Services Committee, Ms. 2 Sameeksha 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. Sameeksha Gupta through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) 14 SCC 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. The appellant has been filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 28.03.2016 passed by the First Additional Sessions Judge, Sakti, District Janjgir-Champa (C.G.) in Special Sessions Case No.10/2014, whereby the appellant has been convicted for the offence punishable under Section 8 of the Protection of Children from Sexual Offences Act (in short 'the POCSO Act'), 2012 and sentenced to rigorous imprisonment for 03 years and fine amount of Rs.2,000/-, in default of payment of fine amount additional RI for 06 months. 4. Case of prosecution in brief is that on the date of the incident, ie, 24.06.2014, the prosecutrix had gone to Firoza shop to buy potatoes. At the same time, while returning home, the accused Laxminarayan, 3 who lives in the same locality of the prosecutrix, attacked her with bad intentions and started touching her brests. At that time, there was no one in the street. The prosecutrix somehow freed herself and came home and told her mother and sister about the incident. The prosecutrix felt very bad and was also mentally hurt by the said act of the accused. When the prosecutrix informed the police station Dabhra about the incident, the police station Dabhra registered the first information report of Ex.P.-1 and took the case into investigation. 5. During investigation, statements of witnesses were recorded, spot map was prepared Ex.P.-2, admission certificate obtained from Government Higher Secondary School, Faguram on 21/07/2014 was seized and seizure memo Ex.P.-3 was prepared. 6. Statement of the prosecutrix was recorded in Judicial Magistrate First Class, Sakti under Section 164 Cr.P.C. The accused was arrested and his arrest memo Ex.P.-5 was prepared. Thereafter, after completion of investigation, when evidence of crime was found against the accused, the charge sheet was filed before the trial courtt. 7. In order to bring home the offence, the prosecution examined as many as 05 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he pleaded innocence and false implication. However, no defence witness was 4 examined by the appellant. 8. On completion of the trial, the trial Court convicted and sentenced the appellant as mentioned in paragraph 03 of this judgment. Hence, this appeal. 9. Learned counsel appearing for the appellant contended that the trial Court has wrongly been convicted and sentenced the appellant without there being any sufficient evidence available on record. She further contended that the statement of the witnesses does not help to the prosecution, therefore, the appellant ought to have been acquitted. The mother of the prosecutrx namely Samari Bai P.W.2 has admitted in her deposition that she is hearsay witness and she is not witness of alleged incident. She further contended that the prosecution has also failed to prove that the accused /appellant have committed the offences. The alleged incident was taken place at the open and rush place and time of incident was 9 am, therefore, it can't be said that at that time no body was there. She admitted in her deposition that she did not inform any body about the alleged incident. The most of the witnesses have been declared hostile and they have not supported the case of the prosecution, as far as seizure witnesses are concerned, they have also not supported the case of the prosecution. The prosecution has failed to prove the age of the prosecutix by producing reliable and cogent evidence. Therefore, it is prayed that the impugned judgment 5 dated 28.03.2016 may be set aside and the appellant may be acquitted from the charge levelled against him. 10. On the other hand, learned Counsel appearing for the State opposed the arguments advanced by learned Counsel for the appellant and submitted that on appreciation of the evidence available on record, the trial Court has rightly convicted and sentenced the appellant. Hence, the judgment passed by the learned trial Court needs no interference. 11. I have heard learned counsel appearing for the respective parties and perused the record of the trial Court and other material available on record with utmost circumspection. 12. In order to consider the age of the prosecutrix, I have to examine the evidence available on record produced by the prosecution. The prosecution has mainly relied upon the Admission/Discharge Register of Class 9th (Article A-1), wherein date of birth of the prosecutrix is mentioned as 04.07.1997, but the prosecution has not been examined the author of admission/discharge register. 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. There is no any Kotwari Register or ossification report, produced by the prosecutrix to determine her actual age on the date of 6 incident, that she was below 18 years of age. Neither prosecutrix has stated anything regarding her age nor her father stated about age of the prosecutrix that at the time of incident, prosecutrix was below 18 years. Sister of the prosecutrix (PW-4) also has not disclosed about date of birth of the prosecutrix. 13. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age.— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age 7 determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 14. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by Government 8 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. 15. 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.- 9 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those 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 10 Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the 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 11 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.” 16. From perusal of the evidence of the father, prosecutrix and prosecutrix’s sister, it reveals that there is no any documentary evidence available on record that on what basis date of birth of prosecutrix 04.07.1997 is recorded in the admission-discharge register and also no birth certificate issued by the Nagar Panchayat has been produced. Merely on the basis of the Article A-1 (admission discharge register of Class 9th), it could not have been relied upon to hold that the prosecutrix was below 18 years at the time of commission of the offence. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration 12 to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. There is no any Kotwari Register or Ossification report, produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. 17. Now, reverting to the facts of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the victim was minor and less than 18 years of age on the date of incident, despite the fact that the trial court in the impugned judgment has held the prosecutrix minor. Accordingly, I 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. Therefore, the offence under Section 8 of POCSO Act is not made out against the appellant. 18. In order to consider the fact that the offence has been committed by the appellant, I have to examine the statement of the prosecutrix. 19. Prosecutrix (PW-1) has stated that on the date of the incident, while she was returning her home from the shop, on the way, accused- appellant, who lives in her locality, touched her breasts. At that time, 13 there was no one in the street. She somehow freed herself from the appellant and came her home and narrated the incident to her mother and sister. 20. Considering the facts of the case, statement of the prosecutrix, it is crystal clear that the appellant touched the prosecutrix inappropriately just to outrage her modesty. 21. Section 354 of the Indian Penal Code, 1860 provides as under : “354. Assault or criminal force to woman with intent to outrage her modesty.— Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.” 22. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age of the prosecutrix, I am of the opinion that the age of the prosecutrix is not verified/proved, therefore, in the above facts and circumstances of the case, offence punishable under Section 8 of POCSO Act would not be made out against the appellant. However, prosecution is able to prove 14 that the accused has assaulted to the victim with intent to outrage her modesty. 23. Accordingly, conviction of the appellant under Section 8 of the POCSO Act is altered to the offence under Section 354 of IPC, sentenced to rigorous imprisonment for one year and the fine sentence shall remain intact. 24. In the result, the instant criminal appeal is allowed in part to the extent indicated herein-above. 25. The appellant is on bail. His bail bonds shall remain operative for a period of six months in view of Section 481 of BNSS. 26. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary action, if any. Sd/- (Arvind Kumar Verma) Judge Vasant