1 2025:CGHC:41846 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 995 of 2016 • Shobhnath Nayak S/o Lt. Shri Vashudev Nayak Aged About 59 Years R/o Village Itabhattadafai, Haldibadi, P.S. Chirmiri, District Korea, Chhattisgarh., Chhattisgarh ... Appellant versus • State Of Chhattisgarh Through District Magistrate, District Korea, Chhattisgarh., Chhattisgarh ... Respondent(s) (Cause title taken from CIS) For Appellant : Ms. Anshu Ratre, Advocate appears on behalf of Shri Maneesh Sharma, Advocate. For Respondent/State : Ms. Isha Jajodia, Panel Lawyer. Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 19.08.2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.08.29 10:36:07 +0530 2 of sentence dated 07.07.2016 passed in Special Sessions Trial No. 27/2014 by the learned Special Sessions Judge, (FTC), Baikunthpur, Distt- Korea (C.G.) whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 354 of IPC Rigorous imprisonment for 03 years and fine of Rs. 1,000/- with default stipulation. U/s 354 A of IPC Rigorous imprisonment for 03 years and fine of Rs. 1,000/- with default stipulation. U/s 354 B of IPC Rigorous imprisonment for 03 years and fine of Rs. 1,000/- with default stipulation. U/s 8 of POCSO Act, 2012 Rigorous imprisonment for 03 years and fine of Rs. 1,000/- with default stipulation. All the sentences were directed to run concurrently 2. The case of the prosecution, in brief, is that on 09.09.2014, the prosecutrix was sweeping in front of her house. Her mother had gone out for work, and she was alone at home. At about 5:15 p.m., the accused Sobhnath, who resides in the same locality, came and enquired with regard to whereabouts of her 3 mother. The prosecutrix replied that her mother had gone for work and would inform her mother upon her return that he was looking for her. Thereafter, the accused Sobhnath approached the prosecutrix; caught hold of her hand; and tried to outrage her modesty. When the prosecutrix objected and asked what he was doing, the accused stated that he intended to commit rape. He then attempted to remove her clothes, and on her raising an alarm, he slapped her three to four times and, with the intention of outraging her modesty, tried to take her inside the house. On her loud cries, Ritu, Anjali and others from the neighborhood reached the spot and intervened, whereupon the accused fled from the place. When the mother of the prosecutrix returned from work, the prosecutrix narrated the incident to her as well. 3. On the basis of the said report, an offence was registered at Police Station Chirmiri, and investigation commenced. Upon completion of investigation, charge-sheet was filed against the accused under Sections 354, 354(a), 354(b), 509, and 323 of the Indian Penal Code, 1860, and under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012, before this Court. 4 4. During investigation, Spot Map (Ex.P/15) was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P/8) was seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. 5. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 6. In order to bring home the offence, the prosecution has examined 10 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 7. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 07.07.2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 8. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. She would 5 submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. Learned counsel would submit that the prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident and without there being any evidence with regard to the age of the Victim, the conviction of the appellant is bad in the eyes of law. 9. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 10. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 11. The first question arises before this Court whether the victim was minor on the date of incident or not?. 12. The Victim (PW1) in her deposition has stated that presently she is pursuing her studies in the first year of B.B.A. She 6 further deposed that she had disclosed her age on the basis of the marksheet. She stated that her father had got her admitted in Class I. She admitted that she was unaware of the date of birth mentioned at the time of admission, as the date of birth was entered as 10th January 1997. She further stated that she had no knowledge whether her age was seven years at the time when her father had admitted her in Class I. 13. PW-2 Mother of the victim stated that when she had gone to secure admission of victim in Class I, her age was about 6–7 years. She admitted that she had mentioned the date of birth of victim at the time of admission only on the basis of an approximation. 14. It is observed that in the marksheet of Class VIII and Class X, the date of birth of the prosecutrix has been recorded as 10.01.1997, whereas in the admission register (Exhibit P/8), her date of birth has been mentioned as 04.08.1998. The date of the incident is 09.09.2014. If the date of birth recorded in the marksheets, i.e., 10.01.1997, is taken into consideration, then on the date of the incident, i.e. 09.09.2014, the age of the prosecutrix would be approximately 17 years and 08 months. 15. Ramakant Dwivedi (PW5), In-charge Headmaster of the 7 Primary School has stated in his deposition that he had produced the Dakhal Kharij register related to the age of victim before the police. He has stated that according to the Dakhil Kharij register Ex.P/8, the date of birth of the prosecutrix was recorded as 04.08.1998. He further stated that no declaration or birth certificate has been presented regarding the birth date and they did not mention the certificate or declaration against the birth date mentioned. In the cross-examination, he categorically stated that the entry of victim’s date of birth in the school register was not made by him, and he could not say on what basis or by whom it was recorded. He further admitted that no certificate, affidavit, or declaration regarding her date of birth had ever been submitted in the school. 16. Perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij register, but on what basis, the entry was made, is not mentioned in the register, whatsoever mentioned in the register is ordeal in nature. 17. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented 8 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 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 9 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 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 10 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 judgment of conviction is recorded, the 11 accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 18. 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. 12 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. 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 13 hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole 14 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." 19. 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 15 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 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 16 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 17 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." 20. 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, in absence of proof regarding the date of birth of the victim, the finding of the learned trial Court that the victim was a minor on the date of incident cannot be acceptable. Therefore, the conviction and sentence imposed upon the appellant under Section 8 of the POCSO Act is not made out. 18 21. The next question for consideration would be whether the appellant has tried to outrage the modesty of the victim with intent to commit rape ? 22.PW/2 is the mother of the victim stated that upon being asked, her daughter informed her that the accused had come to the house abusing. She further stated that the victim told the accused that she would inform her mother after returning and requested him not to assault her, the accused pulled her clothes, as a result of which they were torn. She further informed that the accused attempted to remove her clothes, but on the arrival of neighbouring persons, the accused fled. Thereafter, she along with the victim went to the police station and lodged the report. Mother of the prosecutrix stated that she was informed by one neighbour, Patelini Chachi, that a quarrel had taken place outside the house between the accused and the prosecutrix, during which some scuffle occurred and in the course of falling, the accused caught hold of the kurti of the prosecutrix, causing it to tear. She admitted that thereafter she had taken her daughter to the police station and lodged a 19 report of the quarrel and assault. 23. PW-6 in her deposition has stated she knew the accused as well as the prosecutrix. She deposed that on the date of incident, at around 5 to 5:30 p.m. while she was returning home from the market, she noticed a crowd gathered near the house of Prosecutrix. On inquiring from prosecutrix as to why she was crying, she informed her that the accused had abused and assaulted her. The witness further stated that when she asked prosecutrix whether she had done anything, prosecutrix replied that she had also slapped accused a few times and abused him. In cross examination, this witness has admitted that she had not herself seen the incident taking place. She further admitted that at the time when she spoke to prosecutrix, all her clothes were intact. 24. PW/1 victim in her deposition has stated that on the date of the incident she was alone at her house, as her mother had gone out for work. While she was sweeping in front of her house, the accused came there and inquired wih regard to whereabouts of her mother. When she informed him that her 20 mother was not at home, the accused allegedly caught hold of her hand and touched her inappropriately. When she resisted, he assaulted her by slapping on the face and also pulled her kurta, as a result of which it was torn. On raising alarm, neighbours arrived at the spot, upon which the accused fled from there. Thereafter, when her mother returned home, she narrated the incident to her, and subsequently, they went to the police station and lodged the report. In her cross-examination, the witness admitted that there was mutual dispute and animosity between her family and the accused. She further stated that due to such dispute and enmity, the accused might have been angry. However, she expressed her inability to state whether the incident narrated by her occurred as a result of the said dispute and animosity. 25. Upon a careful appraisal of the testimonies of the prosecutrix, her mother (PW-2) and independent witness PW-6, it is clear that there are material contradictions and omissions in the prosecution case. The prosecutrix alleged that the accused caught her hand, touched her chest, and tore her kurta; however, no other witness has corroborated the allegation of indecent touch, her testimony is not of a sterling nature. The 21 mother of the prosecutrix admitted that the police had not made any inquiry from her and that her statement before the Court was being narrated for the first time. Her deposition also reflects material improvements, casting doubt on its reliability. Independent witness Pushpa did not witness the incident, and in fact admitted that when she saw the prosecutrix immediately thereafter, her clothes were intact. She further stated that the prosecutrix herself admitted to having slapped and abused the accused, suggesting a mutual quarrel. Moreover, the mother admitted that according to a neighbour, the tearing of the kurta occurred during a scuffle when the accused fell down. The admitted animosity between the families further weakens the prosecution version and makes the possibility of false implication plausible. In such circumstances the testimony of the prosecutrix does not inspire the confidence of the Court and cannot be treated as that of a sterling witness so as to form the sole basis of conviction. 26. As far as the conviction and sentence under Section 354, 354A and 354B of IPC is concerned, a charge under Section 354 is one which is very easy to make and is very difficult to rebut. A 22 careful approach has to be adopted by the Court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are (i) that the person assaulted must be a women; (ii) that the accused must have used criminal force on her; and (iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty. (See: Vidyadharan Vs. State of Kerala, reported in 2004 (1) SCC 215). 27. In the case at hand, the prosecution failed to prove that the criminal force has been used by the appellant on the victim intending to outrage her modesty. Therefore, the conviction and sentence under Section 354, 354A and 354B of IPC is bad in law. 28. In view of these inconsistencies, lack of corroboration, and improvements, the testimony of the prosecutrix does not inspire confidence to hold the accused guilty beyond reasonable doubt. The benefit of doubt, therefore, must go to the accused 29. For the foregoing reasons, the prosecution has not proved that the appellant had tried to outrage the modesty of the victim and from the evidence of the victim the same creates 23 doubt and also the fact that since, it has also not proved that at the time of incident the Victim was minor, therefore, I am of the view that the appellant is entitled to be acquitted. 30. 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 Appeal is allowed. 31. 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 Shoaib