1 2025:CGHC:25015 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 264 of 2016 1 - Khemlal @ Kheduram Patel S/o Dhayanik Ram Patel Aged About 48 Years R/o Village Achanakpur, Post Office And Police Station Tumgaon, District Mahasamund, Chhattisgarh., Chhattisgarh Appellant(s) versus 1 - State Of Chhattisgarh Through The District Magistrate, Mahasamund, District Mahasamund, Chhattisgarh., Chhattisgarh Respondent(s) (Cause-title taken from Case Information System) For Appellant Mr. Shivendu Pandya, Advocate For Respondent/State Mr. R.C.S. Deo, Panel Lawyer Hon'ble Shri Justice Bibhu Datta Guru, Judgment on Board 17/06/2025 1. This appeal has been preferred by the appellant being aggrieved by the judgment of conviction and order of sentence dated 11/02/2016 passed by the learned Additional Sessions Judge FTC/Special Court (Under the POCSO Act, 2012), Mahasamund, District Mahasamund (C.G.) in Special Criminal Case No. H-44/2015, whereby the trial Court has convicted the appellant under Section 8 of the Protection of the Children from sexual RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.06.18 17:28:30 +0530 2 Offences Act, 2012 and sentenced to undergo RI for 03 years with fine of Rs. 500/- with default stipulation. 2. Facts of the case, in brief, are that the Prosecutrix made a written report in police station Pithora inter alia that on 26/07/2015, when she was selling vegetables with her aunt in the market Pithora, at around 7 o'clock, the appellant- Khemlal Patel of her village came and told her that he will drop her to her aunt's house. Subsequently, the prosecutrix went with the accused on a motorcycle. When she went to her aunt’s house, the accused locked the door from inside and molested her by holding her arm. Subsequently, after get rid of him, she ran to the market and informed her aunt about the incident. On the above written report of the complainant/prosecutrix, Crime No. 129/2015 was registered under section 354 IPC and section 12 of Protection of Children from Sexual Offences Act 2012 against the appellant at Pithora police station. During the investigation, the Prosecutrix was examined; her statement was recorded under section 164 CrPC; a site map of the incident was prepared; statements of witnesses were taken; the Kotwari register regarding the birth of the complainant was seized; and the accused was arrested. On completion of investigation, a charge-sheet has been filed against the accused under Section 354 IPC and Section 08 of Protection of Children from Sexual Offences Act 2012. The trial Court has framed the charges against the appellant for the aforementioned offences and the appellant abjured his guilt and pleaded innocence. 3. In order to establish the charge against the appellant, the prosecution examined 8 witnesses. The Statement of the appellant under Section 313 of 3 CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. 4. After appreciation of the evidence available on record, the learned trial Court has convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Thus, this appeal. 5. Learned counsel appearing for the appellant would submit that the appellant has been falsely implicated. The prosecution has failed to prove its case beyond reasonable doubt. The learned trial Court has not properly examined the evidence with respect to the age of the Prosecutrix. According to the learned counsel there are material contradictions and omissions in the 164 and in the Court statement of the Prosecutrix. Therefore, the conviction of the appellant is not sustainable. 6. On the other hand, learned counsel for the State would oppose the aforesaid submission of the appellant and would submit that after appreciating the entire facts and circumstances of the case in its true perspective, the learned trial Court has rightly convicted the appellant. 7. I have heard learned Counsel appearing for the parties, perused the order impugned including the evidence adduced by the prosecution before the Trial Court with utmost circumspection. 8. The first question arise before this Court whether the prosecutrix was 18 years of age or below at the time of incident. 9. In this regard, the prosecutrix (PW3) in her statement has deposed that she is aged about 17 years and her birth year is 2001, however, she was not remembering the date of birth. 4 10. Brother (PW5) of the Prosecutrix has deposed in his statement that he is aged about 23 years and the prosecutrix is about 2-3 years younger to him. 11. Nepal Singh (PW4) Village Kotwar, in his deposition has stated that in Article-A i.e. Kotwar Register, the date of birth of the prosecutrix has been recorded as 22/05/1998. However, he denied the fact that he has not recorded the said entry in the Kotwar Register (Article-A). He also admitted the fact that the laborers who go outside of town to earn their bread and butter, often does not register the date of birth of their children in the Kotwar Register, rather after 2-3 years they register the date of birth. He also admitted that in such situation, often the parents registers the date of birth of their children after guessing the date of birth. 12. Perusal of the aforesaid statements of the witnesses would show that the prosecutrix did not remember the actual date of birth; her brother states that on the date of incident, he was about 23 years of age and her daughter i.e. Prosecutrix is 2-3 years younger to him; the Village Kotwar (PW4) though has stated the date of birth of the prosecutrix (PW3) registered in Kotwar Register (Article-A) as 22/05/1998. However, he denied the fact that he has not recorded the said entry in the Kotwar Register (Article-A). Even no author has been examined who have recorded such entry in the Village Kotwar Register (Article-A). 13. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be 5 above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made 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." 6 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a 7 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." 14. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have 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 8 an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to 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 9 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." 15. 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 10 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 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." 11 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." 16. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. Hence, the conviction under the POCSO Act is not sustainable. 12 17. Apart from above all, the Prosecutrix (PW3) in her statement recorded under Section 164 of the Cr.P.C has stated that on the date of incident i.e. 26/07/2015, she had gone along with her aunt to the market for selling the vegetables. At that time, the appellant, who is also of her village, came there and asked her that he wants to eat meal made of her hand, thereafter, the prosecutrix after asking her aunt went to the house of her aunt along with the accused/appellant, where, the appellant closed the door from inside and tried to outrage her modesty. However, in her court statement, the Prosecutrix (PW3) has categorically deposed that on the date of incident, she was with her aunt in the market for selling the vegetables. The appellant came there and she along with him went to the house of her aunt for preparing food. She further deposed that when she litting up the fire for preparing the food, the wind was blowing, due to which, the door closed itself and when she went there, she slipped herself, then the appellant helped her. She has categorically stated that the appellant had not committed any obscene act with her. 18. Bare perusal of the above statements of the Prosecutrix, it is quite vivid that there are material contradictions and omissions in the 164 statement and in her Court statement because in the Court statement this witness has stated that the appellant had not done anything with her, even the door was closed itself by wind, whereas, in her 164 statement, she stated that the appellant, after closing the door, tried to outrage her modesty. 19. Upon considering the entire evidence available on record, this Court found that there are major contradictions and omissions in the statement of the Prosecutrix, which does not inspire confidence over the credibility of her 13 statement because she had given statement under Section 164 Cr.P.C contradictory to her statement given before the trial Court, which in the opinion of this Court, seems unreliable. 20. It is the trite law that a statement recorded under Section 164 of the Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. The Supreme Court in the matter of R. Shaji v. State of Kerala1 has held as under:- “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence. ” 21. For the foregoing reasons, the accused is acquitted of the charges for which he was tried. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal 1 (2013) 14 SCC 266 14 appeal is allowed. 22. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. SD/- (Bibhu Datta Guru) Judge Rahul/Gowri