1 2025:CGHC:48312 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 110 of 2022 Uday Singh Rajput S/o Shri Jaipal Singh Rajput Aged About 19 Years R/o Village Amlidih, Police Station Saja, Distirct Bemetara Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Saja, Distirct Bemetara Chhattisgarh ... Respondent For Appellant : Mr. Jitendra Shukla, Advocate For State-Respondent : Ms. Prabha Sharma, PL (Hon’ble Shri Justice Naresh Kumar Chandravanshi) Judgment on Board 19/09/2025 1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant challenging judgment of conviction and order of sentence dated 23.12.2021 passed by Fast Track Special Court (POCSO Act, 2012) Bemetara, C.G. (henceforth referred as ‘Special 2 Court’) in Special Session Case No.46/2019, whereby the learned Special Court after holding the appellant guilty, convicted and sentenced him in the following manner:- S. No. Conviction under Section Jail Sentence Fine Sentence Default Stipulation 1. 363 of the I.P.C. R.I for 01 year Rs. 100/- R.I. for 03 months 2. 366 of the I.P.C. R.I. for 03 years Rs.200/- R.I. for 06 months 3. 376(2)(j)(n) of the I.P.C. R.I. for 10 years Rs.1000/- R.I for 03 years 4. 6 of the POCSO Act R.I. for 10 years Rs.1000/- R.I for 03 years All the substantive jail sentences have been directed to run concurrently. 2. Facts of the case, in a nutshell, are that on 03.6.2019, complainant (PW-1 father of victim) lodged the FIR (Ex.P-1) against unknown person in Police Station Saja, District Bemetara (C.G.) stating that his minor daughter (PW-3 victim), aged about 17 years 3 months, without informing anyone has left the house and despite being searched, they could not know whereabouts of the victim. Based on above facts, FIR (Ex. P-1) for the offence under Section 363 of the IPC was registered against unknown person. During the course of investigation, on 04.06.2019, minor victim was recovered vide 3 seizure memo (Ex.P-4) from possession of her mother, who took her to the Police Station. Statement under Section 164, Cr.P.C. of victim was recorded before the JMFC, Bematara (C.G.) and her Police statement under Section 161 of the Cr.P.C. was also recorded, in which, she revealed that since January, 2018 she was in contact with appellant-accused and they used to talk with each other on mobile phone. She has also stated that on various occasions, on being called by appellant, she used to go with him at various places where he used to sexually exploit her under threat. Despite her unwillingness, appellant used to call her which she followed as appellant used to allure as well as threat her. She has further stated that subsequently, after April, 2019, appellant stopped talking to her and also did not receive her phone call, therefore, on the date of incident i.e., on 03.06.2019, she went to the village Mohgaon, where appellant used to work, however, on that date, she could not meet the appellant as appellant was not present there, hence, she went to the house of her friend and stayed there overnight. On next morning i.e., on 04.6.2019, she went to the house of one Hema Sahu, at Kasardih, Durg from where Police along with her father took her to Saja. Based on above facts, apart from offence under Section 363 of the IPC, other offences under Sections 366, 376 of the IPC and Section 3, 4, 5(l) and 6 of the Protection of Children from Sexual Offences, 2012 (for short ‘POCSO Act, 2012’) and Section 67 of the Information Technology Act, 2000 were added. 4 3. Spot maps vide Ex P-2 and Ex P-3 were prepared, recovery memo vide Ex P-4 was prepared, undergarment (panty) of victim was seized vide seizure memo Ex P-6, undergarment of appellant/ accused was seized vide seizure memo Ex P-7. Dakhil Kharij Register pertaining to the victim was seized from Saraswati Gyandeep Mandir School vide seizure memo Ex P-8, notebook of the victim was seized vide Ex P-9, a mobile phone of micromax company was seized from victim vide seizure memo Ex P-10. 4. Medical examination of the victim was conducted by Dr. Neelam Madharia (PW9) vide MLC report (Ex P-30), in which, she opined that though there were simple injury found on the hand of victim, but, it was of 3 to 5 days prior and she has not opined about sexual exploitation / rape of the victim. Seized panty of victim (Article A) and vaginal slide of victim (Article B) were chemically examined vide report Ex P-29 in which, no sperm and human spermatozoa has been reported to be found. However, on undergarment of accused (Article C) in the chemical analysis report (Ex P-29), semen stains and human spermatozoa were found. 5. After investigation, charge-sheet for the aforesaid offences was filed against the appellant. Learned Special Court, framed charges against appellant for the offence under Sections 363, 366A & 376 of the I.P.C. and Sections 5(l) read with Section 6 of the POCSO Act and explained to the appellant, who denied the charges and pleaded innocence seeking trial. 5 6. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 12 witnesses and exhibited 31 documents and Article A-1. Statement of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he denied the incriminating circumstances appearing against him and pleaded innocence. No witnesses have been examined by the appellant-accused. The learned Special Court upon appreciation of oral and documentary evidence available on record, vide its judgment dated 23-12- 2021, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused as mentioned in the opening paragraph, against which, this appeal has been filed. 7. Learned counsel for the appellant submits that as per case of prosecution, victim was minor on the date of incident and her date of birth is said to be 27.2.2002, but, except Dakhil Kharij Register (Ex P-14), no other reliable documents like birth certificate, mark-sheet of matriculation or equivalent certificate have been filed and proved. He further submits that victim (PW-3) and her father (PW-1) have also deposed that date of birth of victim is 27.2.2002, but, no cogent evidence has been adduced by prosecution, therefore, only on the basis of their verbal statement, date of birth of victim registered in Dakhil Kharij Register cannot be held proved beyond reasonable doubt. He next submits that though Article A-1, which is said to be true copy of mark-sheet of class 10th of victim, but, it has not been proved by Investigating 6 Officer S. Kashyap (PW-7) that from whom he had obtained the said mark-sheet and original copy of the same has also not been filed, therefore, learned counsel submits that finding recorded by learned Special Court that victim was minor on the date of incident is perverse and illegal. He also submits that as per the statement recorded under Section 164 of the Cr.P.C. of the victim as well as her deposition before the Court, it is a case of love affair and victim herself accompanied the appellant for about 1 ½ years on various occasions. It has also not been proved that victim was minor on the date and time of incident, as she was on the verge of majority, therefore, he submits that prosecution has failed to prove its case beyond reasonable doubt, hence, the appeal may be allowed by setting aside the impugned judgment passed by the learned Special Court and appellant/ accused may be acquitted of all the charges. 8. Per contra, learned Panel Lawyer, appearing for the respondent/State supports the impugned judgment and submits that date of birth of victim has been proved not only by her father, who is best person to know about the date of birth of his child, rather, date of birth of victim is also proved from the Dakhil Kharij Register (Ex P-14) which has been proved by PW-6 Laxmi Narayan Singh, Principal of Saraswati Gyandeep Mandir High School, Saja, District Bemetara, where victim had been admitted by her father in Class I. She further submits that though victim has admitted that she used to talk with appellant, but, she has also stated that she was sexually 7 exploited by the appellant/ accused on various occasions under threat. Hence, she submits that impugned judgment does not call for any interference. 9. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records precisely. 10.In POCSO cases, the crucial fact to be proved by the prosecution, is the age of the victim on the date of alleged incident and the fact that she was minor. In the instant case, PW-1 father of the victim and PW-3 victim herself have deposed that date of birth of the victim is 27.02.2002. Her father has further stated that he himself had got admitted the victim in school and recorded her date of birth. In cross- examination at paragraph No.10, PW1 has stated that date of birth of his elder daughter is 14.12.1997 and date of birth of his second child (son) is 22.02.1999. Thus, his second child was born after gap of about one year, but as per date of birth of victim she was born on 27.02.2002 i.e. gap between second child and victim is about two years. However, PW-6 Laxmi Narayan Singh, Principal of Saraswati Gyandeep Mandir, High School who has proved Ex P-14 Dakhil Kharij Register, has also admitted in his cross-examination that on oral information given by victim’s father, he has entered the said date of birth of the victim. He has also admitted that birth certificate or any other document were not filed by victim’s father, in respect of date of birth. Thus, from the aforesaid evidence, it is found that date of birth of victim was recorded in the School 8 Record only on the basis of oral information given by PW-1 (victim’s father). Further, though true copy of mark-sheet of Class 10th of victim (Article A-1) was obtained by S. Kashyap (PW-7), Investigating Officer, during the course of investigation, but he has not stated in his deposition that from whom he had obtained the said certificate. Victim and her father have also not stated that it was given by them and also original of Article A-1 has also not been filed, therefore, Article A-1 cannot be relied upon. In view of above, it cannot be held that date of birth of victim i.e., 27.02.2002, can be relied upon beyond any doubt. 11.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." 12. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police & other connected matters, (2011) 2 SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by 9 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. It was observed as under “40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. 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. 31-7-1993. 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 Evidence Act, 1872. 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. 48. We may further notice that even with reference to Section 35 of the 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 Ravinder Singh Gorkhi v. State of U.P. [(2006) 5 SCC 584 : (2006) 2 SCC (Cri) 632] which held as follows: “38. 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 10 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 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 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 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 11 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 criminal court concerned. 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 the 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 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, 12 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.” 14. In the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the 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 13 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 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 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the 14 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 v. State of West Bengal5, 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. Reverting to the facts of the present case, as has been discussed above that to prove the date of birth of the victim, no cogent evidence has been filed as has been contemplated under Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 and judgment rendered by the Hon’ble Apex Court in aforesaid cases. Further as per the case of the prosecution itself, age of the victim (PW3) on the date of incident was more than 17 years, meaning thereby, she was on the verge of majority and in such cases, the prosecution ought to have adduced clinching evidence to prove the date of birth of the victim, which has not been adduced in the instant case and victim (PW3) has been held minor by the trial Court only on the basis of Dakhil Kharij 15 Register, which cannot be relied upon. Mark-sheet of class 10th (Article A1) of victim (PW3) is also not found proved as neither it has been proved that from whom it was seized, no seizure memo etc., has been prepared and original mark-sheet has not been filed. Despite all these infirmities, learned Special Court has held that victim (PW3) was minor on the date of incident which is found to be perverse and illegal, hence, finding given by Special Court that the victim (PW3) was minor, on the date of incident is not sustainable and the same is set-aside. 16. So far as the charges with regard to sexual exploitation of victim (PW3) by the appellant is concerned, the victim herself has deposed that she knew the appellant since January, 2018 and on various occasions, she had gone with the appellant at various places and also made physical relation with him though she has stated that many on occasion the appellant threatened her, but she has not stated that why she did not make any complaint about such act of appellant to her parents or any other person. Further, in the instant case, on the date of incident i.e. 03.6.2019 as per FIR, victim herself had left her house and went to the village Mohgaon where appellant used to work, however, on that date she could not meet the appellant, hence she went to Durg from where she was brought by the Police as stated by her in her police statement, meaning thereby, she was not recovered from the possession of the appellant, even after the present incident. It is also apt to be noted here that as per deposition of doctor (PW-9), in 16 medical examination of victim (PW3), her hymen was found to be intact whereas, if a girl is repeatedly sexually exploited then it is not possible that the hymen of the girl will remain intact. Further, on the undergarment (panty) and vaginal slide of the victim (PW3) no human spermatozoa has been reported to be found in FSL report (Ex P-29), therefore, charge of kidnapping of victim and her sexual exploitation by the appellant/accused is also not found to be proved. Hence, in view of above, I am inclined to allow the present appeal and acquit the appellant. 17. In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 363, 366 and 376(2) (j)(n) of the IPC, Section 6 of the POCSO Act are set-aside and he is acquitted of the said charges granting him benefit of doubt. 18. The appellant is on bail. He need not surrender. The bail bonds furnished by the appellant shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 19. Let a certified copy of this judgment along with original record be transmitted to the trial Court concerned forthwith. 20. The Criminal Appeal is allowed. SD/- (Naresh Kumar Chandravanshi) JUDGE Ayushi AYUSHI SINGH Digitally signed by AYUSHI SINGH Date: 2025.09.25 10:51:25 +0530