1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1341 of 2024 1 - Umesh Kumar Sahu S/o. Devaram Sahu Aged About 23 Years R/o. Village Uparwara, Shanti Nagar, P.S. Rakhi, Dist. Raipur (C.G.) ... Appellant versus 1 - State of Chhattisgarh Through Police Of Police Station Rakhi, Dist. Raipur (C.G.) ... Respondent(s) For Appellant : Shri Pragalbha Sharma, Advocate. For State : Shri Nitansh Jaiswal, Panel Lawyer. For Complainant : Shri Aditya Tiwari, Advocate. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 0 3.01.2025 Per, Ravindra Kumar Agrawal, J. 1. Shri Aditya Tiwari, Advocate, appears for complainant/victim and raised objection in granting bail to the appellant. Since, the matter is heard finally with the consent of the parties, IA No.01/2024, an application for suspension of sentence and grant of bail stands disposed of. 2. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 08.07.2024 passed by the Additional Sessions Judge Second (POCSO) FTSC, Raipur, in Sessions Case No. 11 of 2019 whereby the appellant has been convicted and sentenced for the offence under Section 376(2) IPC and Digitally signed by INDRAJEET SAHU Date: 2025.01.08 17:47:16 +0530 2 sentenced to undergo RI for life till natural death with fine of Rs. 2000/-, in default of payment of fine, further RI for one month. 3. The appellant has also been convicted for the offence under Section 376(2)(n) IPC and Section 5(l)/6, 5(j)(ii)/6 of POCSO Act. However, no separate sentence was awarded to him for the said offences as he has already been sentenced for the offence under Section 376(2) IPC. 4. Brief facts of the case are that, on 13.12.2018 the father of victim PW- 2, lodged a report with the allegation that on 11.12.2018 at about 6 PM his daughter was feeling abdominal pain and after sometime she delivered a female child in the house. On account of some complication, she was taken to Abhanpur Hospital. On being asked, she disclosed that when she was going to her work at IIM College, she introduced with the appellant and on the pretext of marriage he made physical relation with her repeatedly by which she conceived pregnancy. The police recorded Dehati Nalisi Ex.P/7 for the offence under Section 376 IPC and Section 6 of POCSO Act and started investigation. She was sent for her medical examination to Community Health Centre, Abhanpur where she was medically examined by PW-8 Dr. Shakuntala Bariha who gave report Ex.P/20. In the MLC report, the doctor opined that victim has delivered a child in her house on 11.12.2018 and there are symptoms of delivery of child. She was referred for X-ray examination for determination of her age. FIR Ex.P/21 was registered on 13.12.2018. Spot Map Ex.P/3 was prepared by the police whereas Ex.P/2 was prepared by the Patwari. With respect to age and date of birth of the victim, the police seized school admission and discharge register from Govt. Primary School, Kharkharadih vide seizure memo Ex.P/17 and after retaining attested 3 true copy of the same vide Ex.P/16-C, the original was returned back. Her progress report card of Class 5th Article-A, was also seized by the police vide Ex.P/8 and according to school register and Class 5th marksheet, her date of birth is 14.05.2001. The appellant was arrested on 14.12.2018 and he too was sent for his medical examination at Community Health Centre, Rakhi where PW-3 Dr. G.R. Agrawal medically examined the appellant and gave report Ex.P/11 and found him capable to perform sexual intercourse. The blood samples of the victim, the appellant as well as their infant child were taken for DNA test and sent it to the FSL (DNA Unit), Raipur, from where DNA report Ex.P/31 was received, according to which, the appellant as well as the victim were found to be the biological parents of infant child. 5. The statement of witnesses were recorded under Section 161 CrPC. The statement of prosecutrix under Section 164 CrPC was also recorded and after completion of usual investigation charge sheet was filed before the trial court for the offence under Section 376 IPC and Section 6 of the POCSO Act. The trial court has framed charge for the offence under Section 376 (2)(n) IPC and Section 6, 5(j)(ii) of POCSO Act. The appellant abjured his guilt and claimed trial. 6. To prove the guilt of accused, the prosecution has examined 10 witnesses. The statement of accused under Section 313 CrPC was recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence. After appreciation of oral as well as documentary evidence, the Trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence this appeal. 4 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of the prosecution witnesses. There is no cogent and clinching evidence with respect to age and date of birth of victim that she was minor on the date of incident and less than 18 years of age. School register Ex.P/16- C has not been proved by its author in accordance with law. Therefore, the same cannot be taken into consideration for determination of the age of prosecutrix. Despite having referred for her x-ray examination, the prosecution has not conducted the same for her age determination, yet the Trial court held her minor. Further, no birth certificate or Kotwari register or even ossification test report has been filed by the prosecution with that respect. The victim was a major girl having love affair with the appellant and engaged in making consensual physical relation with the appellant. They engaged in loge relationship and she has not raised any objection at any point of time while making physical relation with the appellant. Even she has not disclosed her pregnancy to her parents or anyone in her family. The conduct of victim itself is suspicious and being a major girl having consensual physical relation with the appellant, no offence of rape is made out against the appellant and he is entitled for acquittal. 8. On the other hand, the counsel for the State opposes the submissions and have submitted that there are sufficient evidence against the appellant that he committed rape upon the minor girl by which she conceived pregnancy and ultimately delivered a female child. The appellant kept her under assurance that he will marry her. He obtained consent of victim for sexual intercourse on the pretext of marriage, but 5 later her refused to marry her. From the school record as well as mark sheet of class 5th her date of birth is 14.05.2001 and as per school records, she was found to be minor on the date of incident. School record was proved by PW-6, Ramkumar Deshlahre, who is Incharge Headmaster of the school. Considering the entire evidence available on record as well as law applicable to the case, the Trial court has convicted the appellant and sentenced him which is strictly in accordance with law and the appeal is liable to be dismissed. 9. We have heard the counsel for the parties and perused the records of the case. 10. The first and foremost question arises for consideration would be the age and date of birth of the prosecutrix as to whether on the date of incident she was minor or not ? 11. The prosecution has mainly relied upon the school register Ex.P/16-C which is sought to be proved by PW-6, Ramkumar Deshlahre, who is the incharge Headmaster of Govt. Primary School Kharkharadih, and her progress report card of Class 5th. He has stated in his evidence that he brought the original school register with him, according to which date of birth of victim is 14.05.2001. Attested true copy of register was retained as Ex.P/16-C. In cross examination, he admits that on 26.06.2007 when the victim was admitted in the school, he was not posted in the school. Who has made entry in the school register, he did not know. He also did not tell as to what documents were produced by her parents at the time of her admission. He also did not know as to whether the date of birth of victim recorded in the school register is correct or not. In the school register Ex.P/16-C, he has not recorded 6 her date of birth and on what basis her date of birth was recorded in it, he did not know. 12. Although, in the progress card of Class 5th Article-A, the date of birth of victim was recorded as 14.05.2001, but it appears that the same was recorded on the basis of entries made in the school register, however, the prosecution has not produced the basis on which the date of birth of victim was recorded in the school register. Even the author of school register has not been examined. 13. PW-1, the victim, have stated in her evidence that she could not remember her date of birth, but she was working in a Hostel from the age of 18 years. In the year, 2017, she was aged about 19 years. When leading question was asked by the prosecution, she denied her date of birth to be 14.05.2001. She voluntarily stated that since the school management refused for her admission, her date of birth was recorded after reducing 2 years of her actual age. In cross examination, she states that her elder sister is aged about 19 years and she is one year younger than her elder sister. She admits that she has not seen any document of her date of birth. 14. PW-2, the father of victim, have stated that he could not remember her date of birth, but at the time of incident his daughter was aged about 20 years. When he was asked leading question, he admits that when his daughter delivered a female child, she was aged about 17 years. He further admits that date of birth of his daughter is 14.05.2001. In cross examination, he further states that the age of victim disclosed by him in his chief examination as 20 years is her correct age. He admits that only to prepare a case against the appellant, the police has written the date of birth of his daughter as 17 years whereas on the date of 7 incident his daughter was 20 years old. He admits that he has not recorded date of birth of any of children with the Kotwari register. He also admits that he disclosed the date of birth of his daughter as 14.05.2001 on the basis of school record. At the time of her admission in the school, he has not taken any document with respect to her date of birth and at the time of admission in the school, on the instance of teacher, he has recorded her date of birth after reducing two years from her actual age. 15. PW-4, the mother of victim, have stated in her evidence that at the time of incident her daughter was aged about 16 years. She could not remember her date of birth. In cross examination, she admits that her elder daughter was 28 years old, second daughter was aged about 25 years and the third daughter/victim is 1½ -2 years younger than her second daughter. 16. 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 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 paragraph 38 & 40 of said judgment it was held as under : 8 “38. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex. P/16 and the certificate issued by PW-8 Dr. Gunasekaran, Radiologist, Ex. P/4 and Ex. P/5. 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..… 40. 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.” 17. 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: 33.2.2. 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 XXX 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. XXXX XXXX XXX 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 9 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.” 18. 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 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 10 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 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.” 19. Reverting to the facts of the present case, except the school register Ex.P/16-C and progress report Card of Class-5th Article-A, there is no other documentary evidence led by the prosecution. 20. From the evidence led by the prosecution in the present case as well as in view of the law laid down by the Supreme Court in the above referred cases, it cannot be said that the prosecution has proved the fact that victim was minor on the date of incident when the prosecutrix herself have stated that at the time of incident she was 19 years of age and her date of birth was recorded in the school register after reducing 11 two years of her age. The said statement of victim of corroborated by the evidence of her father PW-2, who also stated that her date of birth was recorded in the school after reducing two years of age and she was 20 years at the time of incident. Further, from the date evidence of her mother PW-4, it appears that her middle daughter was 25 years and 1 ½ -2 years younger the victim is. Therefore all these quality of evidence clearly demonstrate that the victim was major on the date of incident and her date of birth was wrongly recorded in the school register after reducing two years from her actual age. Therefore, there is discrepancy in the evidence of documentary evidence of school register Ex.P/16-C and class 5th marksheet Article-A with that of oral evidence led by the prosecution and it is very difficult for this court to affirm the findings of trial court that victim was minor or less than 18 years of age on the date of incident. 21. So far as the offence of rape is concerned, we again examine the evidence of victim PW-1. 22. She has stated in her evidence that when she was working in the Hostel at the age of her 18 years, the appellant was also working there and both of them were entangled and made physical relation consensually. She was engaged in making physical relation with him since 2017. She was acquainted that the appellant was married, yet they entangled with each other and made consensual physical relation. She came to know in the month of May, 2018 that she is carrying five month’s pregnancy. When she informed her pregnancy to the appellant, they decided that they will reside together and keep the child with them. She delivered a female child on 18.12.2018. Her parents have also given their consent that if she wanted to reside with the 12 appellant, she may reside with him. DNA test was also conducted. She further states that appellant shown his intimacy with her and proposed her for marriage. She admits that they have made physical relation in the hostel building and she denied that appellant has sexually exploited her or made any coercion. She also denied any threatening given by appellant. She voluntarily states that since the appellant was already married, their parents have lodged a report. In cross examination, she further states that when she came to know about her pregnancy of five month, she disclosed to same to her parents and her parents were having no objection in per pregnancy. 23. PW-2, the father of victim, have stated in his evidence that when he came back to his house after his work, his daughter had already delivered a child and till that time he was not in knowledge that she was carrying pregnancy. On being asked, she disclosed that the child is from the appellant side. Thereafter, he took his daughter to the hospital on account of certain complications after delivery. Since unmarried daughter delivered a child, he lodged a report to the police. He further states that appellant denied to accept his daughter, and therefore he lodged the report. He admits in his cross examination that his daughter informed him that due to their love affair, they made physical relation with each other on her own will and no forceful sexual intercourse have been done by the appellant with her. 24. PW-4, the mother of victim, have stated in her evidence that she did not know about the incident. Her daughter delivered a child and since certain complications were arises, she was being taken to hospital. She further states that on 11.12.2018 her daughter informed her that she was feeling abdominal pain. Her daughter informed that child is 13 from the appellant side. She also informed her that at the time when she was going to her work, intimacy developed between them and the appellant made physical relation on the pretext of marriage. She admitted in her evidence that the appellant is still ready to marry with the victim. 25. From the aforesaid evidences, it clearly spells out that at the time of incident, the victim was major and when she was working in an under construction hostel building, she met with the appellant, they entangled and made consensual physical relation repeatedly by which she conceived pregnancy. From the evidence of victim and her parents, it also comes that they were having knowledge of five months pregnancy of their daughter. When the victim herself have stated that the appellant has not given any threatening and she made physical relation consensually, it cannot be said that any offence of rape has been committed by the appellant. There is specific evidence of the victim that she engaged in making consensual physical relation with the appellant and no force have been applied by the appellant while making physical relation with her. 26. In the given facts and circumstances of the case and the evidence available on record, no offence of rape appears to be made out against the appellant. Though DNA report is found positive, but it can safely be held that it is the result of consensual physical relation between the appellant and the victim, PW-1. 27. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and order of sentence dated 08.07.2024 is hereby set aside. The appellant is acquitted from all the 14 charges. He is reported to be in jail since 14.12.2018. He be released forthwith, if not required in any other case. 28. Keeping in view the provisions of section 481 of BNSS, 2023, the appellant is directed to forthwith furnish a personal bond of some of Rs. 25,000/- 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 judgement or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 29. The lower court records along with a copy of this judgement be sent back immediately to the trial court, concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder