1 2025:CGHC:2434-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1575 of 2022 1 - Kamlesh Sahu S/o Gopalram Sahu Aged About 21 Years R/o Village Chaal Police Station Nawagarh, District : Bemetara, Chhattisgarh ... Appellant versus 1 - State of Chhattisgarh Through District Magistrate, Bemetara, Chhattisgarh ... Respondent(s) For Appellant : Shri Awadh Tripathi and Ms. Sareena Khan, Advocates. For State : Shri Swajeet Ubeja, Panel Lawyer. For Complainant : Shri Anchal Kumar Matre, Advocate. Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 15.01.2025 Per, Ravindra Kumar Agrawal, J. 1. The present appeal was listed for hearing on IA Nos.3&4, application for change of counsel, however, in presence and with the consent of both the counsel, the matter is heard finally. 2. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 19.09.2022 passed by the Additional Sessions Judge FTSC (POCSO Act), Bemetara, in Sessions Case No. 11 of 2021 whereby the appellant has been convicted and sentenced in the following manner: Digitally signed by INDRAJEET SAHU Date: 2025.01.25 14:40:14 +0530 2 Offence Sentence 363 IPC RI for 4 years and fine of Rs.500/-, in default of payment of fine, additional RI for two months. 366 IPC RI for 7 years and fine of Rs.500/-, in default of payment of fine, additional RI for two months. 376(2)(j)(n) and 376(3) IPC and Section 6 of POCSO Act RI for 20 years and fine of Rs.1000/-, in default of payment of fine, additional RI for two months. 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Life Imprisonment and fine of Rs.500/-, in default of payment of fine, additional RI for two months. All the sentences were directed to run concurrently. 3. Brief facts of the case are that, on 06.08.2021 the father of victim PW- 4, lodged a missing report that his minor daughter is missing since 01.08.2021 and her whereabouts could not be traced out despite her search in nearby places and relatives house. The police registered an FIR, Ex.P/5, for the offence under Section 363 IPC. During investigation, the victim was recovered on 17.08.2021 from the possession of appellant and recovery Panchnama Ex.P/1 was prepared in presence of witnesses. She was sent for medical examination to Community Health Centre, Nawagarh, where PW-3 Dr. Yashika Thawre medically examined her and gave report Ex.P/3, according to which, no injuries were found on the body of victim and she was found to be sexually matured and no sign of forceful intercourse seen on her body. Two slides of her vaginal swab were prepared, sealed and handed it over to the police for chemical examination. The mark sheet of Class 8th of the victim was seized vide seizure memo Ex.P/7. Spot map Ex.P/6 was prepared by the police 3 whereas Ex.P/39 was prepared by the Patwari. The appellant was arrested on 19.08.2021 and he too was sent for his medical examination to Community Health Centre, Nawagarh where PW-5 Dr. Mohd. Mubasir Raza medically examined him and gave report Ex.P/12. According to medical report of appellant, he was found to be capable to perform sexual intercourse. One motorcycle was seized from the appellant vide seizure memo Ex.P/10. His memorandum statement Ex.P/19 was recorded. Blood samples of both appellant as well as victim was collected for DNA test. 4. The statement of witnesses were recorded under Section 161 CrPC. The statement of victim 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 363, 366,376(2)(n), 376(3) IPC, Section 6 of the POCSO Act and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989. The trial court has framed charge for the offence under Section 363, 366, 376 (2)(j) (n), 376(3) IPC, Section 5(l)/6 of the POCSO Act and Section 3(2)(v) of SC&ST Act. The appellant abjured his guilt and claimed trial. 5. To prove the guilt of accused, the prosecution has examined 9 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 6. 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. Mark sheet of Class 8th of victim has not been duly proved. Therefore, the same cannot be taken into consideration for determination of the age of victim. 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 long relationship and she has not raised any objection at any point of time while making physical relation with the appellant. The conduct of victim itself is suspicious and being a major girl having consensual physical relation with the appellant, no offence of either kidnapping or rape is made out against the appellant and he is entitled for acquittal. 7. 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. From the mark sheet of class 8th her date of birth is 14.10.2005 and she was found to be minor on the date of incident. 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. 8. We have heard the counsel for the parties and perused the records of the case. 5 9. The first and foremost question arises for consideration would be the age and date of birth of the victim as to whether on the date of incident she was minor or not ? 10. The prosecution has mainly relied upon marksheet of Class 8th of victim, Article-A/1, which is sought to be proved by PW-4, the father of victim. He stated in his evidence that date of birth of victim is 14.10.2005 and she studied up to Class 9th. He has stated that victim was born from his second wife. He married in the year 1993 on the first occasion and his first wife resided with him for about 7 years. His first wife left him and thereafter he performed second marriage from whom five children were born by the gap of one year. He voluntarily stated that from his second marriage, his son was born first and thereafter the victim born. He further states that he got informed birth of his all children to village Kotwar and it was also recorded in Angan Badi register. He admits that he is not having any documents with respect to date of birth of victim and has not given it to the police. He himself has got her admitted in the school, but he did not tell as to who was the teacher in the school who recorded her date of birth. 11. PW-1, the mother of victim have also stated that date of birth of victim is 14.10.2005 whereas in her cross examination she states that she herself could not remember her date of birth. She got married at the age of 16 years. She admits that at the time of birth of victim she was not married. When she got married, the victim was 10 years old. She disclosed the date of birth of victim on assumption. 12. PW-2, the victim also states that her date of birth is 14.10.2005, but she admits in her cross examination that she disclosed her date of birth on the basis of school record. 6 13. Although, in class 8th marksheet Article-A, the date of birth of victim was recorded as 14.10.2005, 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 record. There is no other evidence in the case like Kotwari register or ossification test report. Even the school record have not been seized by the police to prove the date of birth of victim. There is no evidence also that in the initial schooling of victim what was her date of birth recorded there. 14. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government 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 : “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 7 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.” 15. 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 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 8 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.” 16. 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 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 9 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.” 17. Reverting to the facts of the present case, the marksheet of Class 8th of victim alone is not sufficient to determine the age of victim in absence of any cogent and clinching evidence. Therefore, we are unable to hold that prosecution has proved the fact that victim was minor on the date of incident. 18. So far as the offence of rape is concerned, we again examine the evidence of victim PW-2. 19. She has stated in her evidence that during her schooling she introduced with the appellant. On the date of incident, when she was sleeping in the night at about 11 PM the appellant entered in to her room and on the point of knife he took her with him by his motorcycle. They went to her maternal grandmother’s house at village Kosma. After 10 staying about 1-2 hours, they proceeded towards Karaunda, Madhya Pradesh and stayed in the house of appellant’s friend for a day and thereafter further proceeded to Jabalpur by Bus and ultimately went to Hyderabad where her mother was working as labourer. They stayed in her mother’s house at Hyderabad for 15 days and made physical relation with each other regularly. On 17.08.2021 her father and police persons came and took them back. In cross examination, she states that she disclosed in her police statement that on the date of incident at at about 11 PM in the night the appellant kidnapped on the point of knife and if it is not there in her police statement, she does not tell the reason. She admits that before reaching to her maternal grand- mothers house, on the way, number of persons were there, but she did not raise any alarm. Even from the house of her maternal grand- mothers house up to Hyderabad via Jabalpur and Nagpur by bus, she met with number of passengers but did not make any complaint to them also. She admits that at Hyderabad they were residing in the house of her mother which was adjoining to other house, however, she did not inform either to her mother or anyone of the vicinity about the incident or for that matter physical relation made by the appellant. 20. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond 11 reasonable doubt, which the prosecution has failed to do in the instant case. 21. In the matter of S. Varadarajan Vs. State of Madras, reported in AIR 1965 SC 942, the Hon'ble Supreme Court has held in para 9 and 10 of the judgment as follows:- “9. It must however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.” 22. From the evidence of victim it cannot be said that she was subjected to forceful sexual intercourse or kidnapped by the appellant. From her village up to Hyderabad she visited various places and met with number of persons but she did not make any complaint to any fellow passenger. Even she did not make any complaint to her own mother at Hyderabad also which shows that she made physical relation consensually and it cannot be said that any offence of rape has been 12 committed by the appellant. She herself eloped with the appellant and engaged in making consensual physical relationship with the appellant. 23. So far as offence under Section 3(2)(v) of SC&ST Act is concerned, since the appellant is not found guilty for the offence under IPC, he cannot be convicted for the offence under SC&ST Act. Section 3(2)(v) of the SC&ST Act reads as under: “v. Commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.” 24. The pre condition to convict the appellant for the offence under Section 3(2)(v) of the Act is that the accused must have committed offence under IPC punishable with imprisonment for 10 years or more. As in the present case, the appellant is not found guilty under IPC, he cannot be convicted under the SC&ST Act and as such no any offence is made out against the appellant. 25. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and order of sentence dated 19.09.2022 is hereby set aside. The appellant is acquitted from all the charges. He is reported to be in jail since 19.08.2021. He be released forthwith, if not required in any other case. 26. 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 13 appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 27. The trial court records along with a copy of this judgement be sent back immediately for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder