1 2025:CGHC:9448 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1410 of 2019 Kailash Ram S/o Sundro Ram Aged About 20 Years R/o Vill. Korwatoli, Devari, P S Kansabel, District Jashpur, Chhattisgarh, ... Appellant versus State Of Chhattisgarh Through - Station House Officer, Police Station - Kansabel, District - Jashpur, Chhattisgarh, ... Respondent For Appellant : Mr. Gajendra Sahu, Advocate (through legal aid) For Respondent/State : Mr. Atnu Ghosh, Dy.G.A. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 24/02/2025 1. The present appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure 1973, against the impugned judgment of conviction and sentence dated 29.08.2019 passed by learned Special Judge, (Protection of Children form Sexual Offenses Act, 2012), Jashpur in Special Criminal Case under the POCSO Act, VAIBHAV SINGH Digitally signed by VAIBHAV SINGH Date: 2025.03.17 13:07:03 +0530 2 No.39 of 2018, whereby the appellant has been convicted and sentenced in the following manner:- Conviction Sentence Under Section 363 of IPC : R.I. for 2 years and fine of Rs. 500/- in default of payment of fine amount further R.I. for 1 month. Under Section 366 of IPC : R.I. for 3 years and fine of Rs. 1,000/- in default of payment of fine amount further R.I. for 3 months. Under Section 376(2) (I) &(n) of IPC : R.I. for 10 years and fine of Rs. 1,000/- in default of payment of fine amount R.I. for 3 months. (All the sentences are directed to run concurrently.) 2. The brief facts of the case are that on 29.09.2018 a missing report lodged by the father of the victim PW-5 that his minor daughter is missing since 11.09.2018 and her whereabouts could not be traced out despite her search in her relatives house and nearby places. The police has registered the offence Under Section 363 of IPC vide F.I.R. Ex.P/6. During the investigation the victim was taken back by the friend of the appellant from Kerala and then her father took her to police station on 15.10.2018 where the recovery panchanama Ex.P/1 was prepared in presence of the witnesses. The victim was sent for her medical examination to Community Health Center, Kansabel, where PW-7, Dr. Rosha Toppo, has medically examined her and gave report Ex.P/9. During her medical examination doctor has not noticed any external injuries on her body and opined that she was suffered 3 from sexual intercourse and for her age confirmation she was referred for x-ray examination. Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. With respect to the age and date of birth of the victim the police has seized the class VIII mark-sheet of the victim vide seizure memo Ex.P/11 and school register from primary school, Kachhawakani vide seizure memo Ex.P/21, and after retaining the attested true copy of the school register Ex.P/31-C, the original register was return back to the school. The spot map Ex.P/2 was prepared by the Patwari and Ex.P/13 was prepared by the police. The appellant was arrested on 16.10.2018 and he too was sent for medical examination to Primary Health center, Dokada where PW-12 Dr. Nilesh Kumar has medically examined him and gave his report Ex.P/30. After medically examined him the doctor found him capable to perform sexual intercourse. The vaginal slides of the victim was sent for its chemical examination to Regional FSL, Ambikapur from where report Ex.P/26 was received and according to the FSL report, semen and sperm were found on the vaginal slide of the victim.. 3. Statement of the witnesses under Section 161 of Cr.P.C. and Statement under Section 164 of the Cr.P.C. of the victim has also been recorded and after completion of usual investigation, charge- sheet was filed against the appellant for the offence under Sections 363, 366 &, 376 of I.P.C. and Sections 4 & 6 of POCSO Act, before the learned trial Court. 4 4. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 366 & 376(2)(i)(n) of I.P.C. and Section 6 of POCSO Act, the appellant abjured his guilt and claimed trial. 5. In order to prove the charge against the appellant, the prosecution has examined as many as 14 witnesses. The statement of the appellant under Section 313 of Cr.P.C. has been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 6. After appreciation of the oral as well as documentary evidence produced by the prosecution, the learned trial court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses. Which cannot made basis to convict him for the offence in question. The school record has not been proved in accordance with law and the author of the school record has also not been examined nor the basis on which the entries have been made in it have been produced by the prosecution. No any birth certificate or ossification test report has been filed by the prosecution to determine the age of the victim. He would further submit that the victim is a major girl and she herself had gone along with the appellant without raising any objection, the victim has traveled up to Kerala along with the appellant without raising any objection or complained to anyone during her travel. Even, while residing with the appellant at Kerala and making 5 physical relation with him she has not raised any objection and has not made any complained to any one of the vicinity where she was residing with him. Therefore, the victim was a consenting party in eloping with the appellant and making physical relation with him and no offence against the appellant either kidnapping or procuring a minor girl for illicit intercourse or for the offence of rape was made out against him and he is entitled for acquittal. 8. On the other hand learned counsel for the State opposes and have submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omission or contradictions their evidence are fully reliable to convict the appellant in the offence in question. From the school record, the victim was found to be minor on the date of incident and she was being kidnapped and subjected to sexual intercourse by the appellant for which the learned trial Court has rightly considered the evidence available on record and convicted and sentenced him which need no interference. 9. I have heard learned counsel for the parties and perused the record of the case. 10. The first and foremost question arises for consideration would be the age of the victim as to whether the victim was minor on the date of incident or not. The prosecution has mainly relied upon the school register Ex.P/31-C which is sought to be proved by PW-14, who is the headmaster of the school. He stated in his evidence that he is posted as headmaster at Government primary School, Khachhwakani, since 2002. The police has seized the school register from him vide seizure memo is Ex.P/21 and after retaining the attested true copy of the 6 school register Ex.P/31-C, the original register was return back to the school. According to the school register, the date of birth of the victim is 24.03.2003. In cross-examination, he stated that the date of birth of the victim is recorded in the school register on the basis of the information supplied by Anganwadi. He admitted that he is the author the school register and himself had made entry in the school register, his father has got admitted her in the school. From perusal of the school register Ex.P/31-C it is no where mentioned that the date of birth of the victim is recorded on the basis of the information supplied from Anganwadi center and there is no any document with that respect that any information was supplied by the Anganwadi center. Although, from the evidence of PW-14, it appears that he is the author of the school register but there is lack of evidence with respect to the basis on which the entries have been made in the school register. 11. The admissibility and evidentiary value of the school register has been considered by the Hon’ble Supreme Court in the matter 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 7 evidentiary value unless the person who made the entry or who gave the date of birth is examined. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), 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 Purohit, 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." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, 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"." 8 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 cannot 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. 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 accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 12. 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 9 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 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 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, 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 10 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.” 13. 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, concernedly, 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 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.” 14. PW-1 the victim has not disclosed her date of birth even she has not disclosed that she was minor or not on the date of incident. She remain silent on her age and date of birth. PW-2 is the mother of the victim, who also did not disclose her date of birth rather in cross- examination she admitted that she could not know the date of birth of her daughter. She or her husband have not gone to school for her admission. 15. PW-5 who is the father of the victim has also not disclosed her date of birth and has turned hostile and not supported the prosecution’s case. He admitted in his cross-examination that he has not gone to school for her admission. From the aforesaid evidence there is no cogent and clinching evidence either orally or documentary to determine the age of the victim that she was minor on the date of incident yet the learned trial Court has held her minor. 12 16. So far as the evidence of kidnapping and rape are concerned, I again examined the evidence of the victim PW-1. She stated in her evidence that the house of the appellant is situated nearby her school and she used to met with him. 6 – 7 months back, the appellant took her to Rajnandgaon, from where he took her to Kerala to visit places along with them her friend was also there with them. They stayed about 16 – 17 days at Kerala, she had gone to Kerala without informing to her family members. She stayed with the appellant in a common room and her friend was stayed with the friend of the appellant, who has already went there earlier. During her stay at Kerala, the appellant has made physical relation with her and it is the friend of the appellant who took them back from Kerala. In cross-examination, she admitted that when she was going to the Kerala along with the appellant, she has not made any complaint to anyone on the way nor any report has been made by her in any police station. She has not made any compliant to any one of the vicinity where she was residing or she was working. It is also not the case of the victim that when the appellant has made physical relation with her she protested or raised her alarm. Even when the appellant made physical relation with her she has not informed the incident to anyone of the vicinity and has not tried to came out from the clutches of the appellant. Traveling from her village up to Kerala by various means of travel, residing with the appellant and engaged in making physical relation with him clearly spells that she was consenting party in eloping with the appellant and making physical relation with him. 13 17. PW-3, mother of the victim and PW-5 father of the victim have turned hostile and have not supported the prosecution’s case. 18. PW-7 Dr. Rosha Toppo who medically examined the victim has also not found any external injuries on her body and no sign of any protest has been found on her. Although, in FSL report semen and sperm were found on the vaginal slide but in the fact that she was the consenting party in making physical relation with the appellant, the presence of semen and sperm in her vaginal slides does not have any importance. In view of the fact that she was consensually made physical relation with the appellant. 19. The taking any enticing has been considered by In the matter of S. Varadarajan Vs. State of Madras, reported in AIR1965 SC 942, the Hon'ble Supreme Court has considered distinction between 'taking' and allowing a minor to accompany a person and 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 14 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 fulfillment 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”. 20. The version of the victim commands great respect and acceptability, but if there are some circumstances which cost some doubt in the mind of the Court on the veracity of the victim evidence, then it will not be safe to rely on the said version of the victim. The law is well-settled that in a case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to being home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed in the instant case. This Court is conscious of the sensitivity with which heinous offence under Section 376 I.P.C. has to be treated 15 but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. 21. For the forgoing reasons it is very difficult for this Court to uphold the conviction and sentence of the appellant as has been awarded by the learned trial Court. In the result the appeal filed by the appellant is allowed the impugned judgment of conviction and sentence is hereby set aside, the appellant is acquitted from all the offences. The appellant is reported to be in jail since 17.10.2018, he be released forthwith if not required in any other case. 22. Keeping in view, the provisions of Section 481 of B.N.S.S., the appellant is directed to furnish a personal bond for sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of 6 months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof she appeared before the Hon’ble Supreme Court. 23. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav