1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 89 of 2018 1 - Pyarelal Yadav S/o Chahura Ram Yadav Aged About 19 Years R/o Village Chandupara, Champa, Police Station Champa, District Champa, Chhattisgarh. ... Appellant Versus 1 - State of Chhattisgarh Through The Police Station Champa, District Janjgir- Champa, Chhattisgarh. ... Respondent(s) For Appellant : Shri Ajay Kumar Chandra, Advocate. For State : Shri Atanu Ghosh, Dy. Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on board 03.01.2025 1. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 30.08.2017 passed by the Additional Sessions Judge, (FTC) Janjgir, in Sessions Case No.56 of 2016 whereby the appellant has been convicted and sentenced as under : Conviction U/s Sentence 363 IPC RI for three years with fine of Rs.5000/-,in default of payment of fine amount, further RI for six months. 366 IPC RI for five years with fine of Rs.5000/-,in default of payment of fine amount, further RI for six months. 6 of POCSO Act RI for ten years with fine of Rs.20,000/-,in default of payment of fine amount, further RI for six months. All the sentences are directed to run concurrently. Digitally signed by INDRAJEET SAHU Date: 2025.01.06 16:38:02 +0530 2 2. Brief facts of the case are that, on 05.10.2016 the father of victim lodged a missing report Ex.P/6 that his minor daughter is missing since 04.10.2016. She had gone to her school, but could not return back. In evening the villagers have informed him that at the time when his daughter was coming from school, on the way, the appellant allured and kidnapped her. The police registered an offence under Section 363 IPC and started investigation. During investigation, on 07.11.2016 she was recovered from the possession of appellant and recovery Panchnama Ex.P/1 was prepared. She was sent for her medical examination to Govt. BDM Hospital Champa where she was medically examined by PW-5 Dr. Anita Shrivastava who gave report Ex.P/11. While examining the victim, the doctor has not noticed any external injuries over her body. She was further referred for X-ray examination for determination of her age. Two slides of vaginal smear of victim was prepared, sealed and handed over to the police for its chemical examination. Spot Map Ex.P/7 was prepared by the police whereas Ex.P/8 was prepared by the Patwari. With respect to age and date of birth of the victim, the police seized school admission and discharge register from Navoday Vidya Niketan, Bhojpur, Champa and after retaining the attested true copy of the same, the original was returned back. As per said school record, her date of birth is 08.12.2000. Her progress card of primary school was also seized by the police. The appellant was arrested on 09.11.2016 and he too was sent for his medical examination to Govt. BDM Hospital Champa where PW-8 Dr. Manish Shrivastava medically examined the appellant and found him capable to perform sexual intercourse. Vaginal smear slides of victim, 3 her underwear and underwear of appellant were sent for chemical examination to FSL Raipur from where report Ex.P/20 was received according to which no semen or sperms were found in the sent articles. 3. The statement of witnesses were recorded under Section 161 CrPC. The statement of prosecutrix 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 Sections 363, 366, 376 IPC and Section 6 of the POCSO Act. The trial court has framed charge for the offence under Sections 363, 366 IPC, Section 6 of POCSO Act, in alternative Section 376(2)(n) IPC. The appellant abjured his guilt and claimed trial. 4. To prove the guilt of accused, the prosecution has examined 11 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. 5. 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. School register Ex.P/10- C has not been proved by its author in accordance with law. Therefore, the same cannot be taken into consideration for determination of the 4 age of prosecutrix. Despite having referred for her x-ray examination, the prosecution has not conducted the same for her age determination, yet the Trial court held her minor. Further, no birth certificate or Kotwari register or even ossification test report has been filed by the prosecution with that respect. The prosecutrix is a major girl having love affair with the appellant and had gone with him on her own free will and resided with him for a considerable period. She has not raised any objection while she was allegedly kidnapped by the appellant or keeping with him and making sexual relation with her. Had she been kidnapped or subjected to rape by the appellant, she definitely would have raised her objection, but she did nothing. The conduct of victim itself is suspicious and being a major girl having consensual physical relation with the appellant, no offence either kidnapping a minor girl for illicit intercourse or for the offence of rape are made out against the appellant and he is entitled for acquittal. 6. On the other hand, the counsel for the State opposes the submissions and have submitted that but for minor omissions or contradictions, the evidence of victim as well as other witnesses are fully reliable and conviction can be made on the basis of evidence come on record. PW- 3, who is Headmaster of the school, have proved the school register Ex.P/10-C and from the school record it is proved that victim was minor and less than 18 years of age. The minor victim was kidnapped and kept away from lawful guardianship by the appellant and made physical relation with her which amounts to offence of rape and therefore, the Trial court after minutely examining the evidence 5 available on record has rightly convicted and sentenced the appellant which is absolutely justified and needs no interference. 7. I have heard the counsel for the parties and perused the records of the case. 8. The first and foremost question arises for consideration would be the age and date of birth of the prosecutrix as to whether on the date of incident she was minor or not ? 9. The prosecution has mainly relied upon the school register Ex.P/10-C which is sought to be proved by PW-3, the Headmaster of School. He has stated in his evidence that he is posted as Headmaster at Navoday Vidya Niketan Bhopjpur, Champa, since 2000. He brought original register with him, according to which date of birth of victim is 08.12.2000. Attested true copy of register was retained as Ex.P/10-C. In cross examination, he has stated that he is the author of school register. He denied that he endorsed the date of birth of victim after reducing her actual date. He voluntarily stated that he has made entry with respect to date of birth of victim on the basis of her berth certificate. He admits that birth certificate of victim is not annexed with the school register. 10. PW-1, the prosecutrix, have stated that her date of birth is 08.12.2000. In cross examination, she admits that she is disclosing her date of birth on the basis of school marksheet. 11. PW-2, the father of the victim have also stated date of birth of victim to be 08.12.2000. In cross examination he denied that he has got recorded the date of birth of his daughter on assumption. In his 6 evidence also, he has not stated that at the time of her admission in the school any birth certificate of victim was produced by him. 12. PW-6, the mother of victim, have not disclosed any date of birth of her daughter and have stated that she could not remember her date of birth. 13. 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 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..… 7 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.” 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: 33.2.2. 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 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 8 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 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.” 9 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. From the evidence led by the prosecution in the present case as well as in view of the law laid down by the Supreme Court in the above referred cases, it is quite vivid that birth certificate of victim in which the entries of her date of birth is made in the school register have not been produced, even no any kotwari register or any documentary evidence is being produced by the prosecution on the basis of which the relevant entries have been made in the school register. Even the victim has not been radiologically examined to determine her age. Except school register and oral evidence, there is no cogent and clinching evidence upon which the age of victim can be determined unerringly. The victim herself have stated that she disclosed her date of birth on the basis of school marksheet whereas, her father have not stated anything about the basis of which he made entry with regard to date of birth of his 10 daughter. Therefore, it is very difficult for this court to affirm the findings of trial court that victim was minor or less than 18 years of age on the date of incident. 17. So far as the offence of kidnapping a minor girl for illicit intercourse and the offence of rape is concerned, this court is again examining the evidence of victim and other witnesses. 18. The victim PW-1, have stated in her evidence that when she was returning from her school, on the way, the appellant met her and he took her to Champa railway station. When they missed the train, they had gone up to Saragaon station by walking on the side of railway track. Since it was dark night, they stayed at Saragaon railway station for whole night and in next morning they had gone to Baradwar railway station by walk and ultimately reached at Raigarh railway station. They again stayed in the night at Raigarh railway station and in the next morning they had gone to Belpahar and in the second next day Jharsuguda by walking. From Jharsuguda, they went to Sambalpur by train. They stayed at Sambalpur railway station for three days. At Sambalpur Mandir, the appellant applied vermilion on her head and thereafter they had gone to Tata by train. They stayed there for about three days at station. Thereafter they came to village Sarvani where the maternal uncle of appellant was residing. At village Sarvani, the appellant committed rape upon her for about three days and then her parents came there and recovered her. In cross examination, she has stated that at the time of incident, number of persons were present at railway gate of Barpali. She admits that up to reaching at Sambalpur, the appellant has not committed any wrong with her. She reaffirm the 11 fact that appellant applied vermilion on her head. She also admits that at village Sarvani in the house of maternal uncle of appellant, his wife and children were also residing and she along with the appellant stayed in separate room. She has not made any complaint to anywhere up to Sambalpur and Sarvani. Even she has not made any complaint to the maternal uncle of the appellant that he kidnapped her. 19. PW-2, the father of victim, have stated in his evidence that when he returned back from his work, the persons of the vicinity informed him that his daughter has been kidnapped by the appellant and other persons have seen them together. His daughter was being recovered from the possession of appellant and then the police has proceeded for her medical examination. In cross examination, he states that he did not disclose before the police that his daughter has informed him that she was being kidnapped by the appellant and made forcible sexual intercourse with her. 20. PW-5 Dr. Anita Shrivastava who medically examined the victim, did not find any external injuries on her body and opined that she is habitual to sexual intercourse. Even in the FSL report Ex.P/20, no sperm or semen were found on the vaginal smear of the victim. 21. PW-4 is the witness of recovery Panchnama. He has stated in his evidence that the victim has informed him that the appellant took her with him on the pretext of marriage and made physical relation with her. In cross examination, he admits that after the incident he came to know that there was love affair between the appellant and prosecutrix. 22. PW-6, the mother of victim, have stated that when her daughter came back to her house, she informed that appellant has taken her with him 12 on the pretext of marriage and made physical relation with her. She further states that the persons of vicinity have informed her that her daughter is being kidnapped by the appellant and if it is not there in her police statement Ex.D/1, she could not tell the reason. 23. PW-7 is the witness who have seen the victim along with appellant when she was being allegedly kidnapped by the appellant. He stats that after seeing them together, he informed the family members of the victim. In cross examination, he admits that he did not hear any noise of the victim. 24. From the aforesaid evidences, it cannot be said that the prosecution witnesses are having that starling quality required for conviction of a person in any offence. When the age of prosecutrix has not been proved by the prosecution and she appears to be major on the date of incident, her conduct is relevant here that while going with the appellant she has not made any complaint to anyone and has not raised any alarm. Even she has not protested and tried to save herself despite presence of other persons throughout from the village up to Sambalpur. There is absolutely no evidence that at any point of time she resisted in any manner. Even while making physical relation with the appellant, she has not tried to save herself by giving nail scratch mark or teeth biting on the body of the appellant. Even she has not informed the maternal uncle of the appellant where she stayed in the night and made physical relation with appellant. 25. The evidence led by the prosecution against the appellant is not sufficient to hold him guilty for the alleged offence. Therefore, this court 13 is of the opinion that conviction and sentence of the appellant is erroneous. 26. In the result, the appeal filed by the appellant is allowed. The impugned judgment of conviction and order of sentence dated 30.08.2017 is hereby set aside. The appellant is acquitted from the alleged offences. The appellant is reported to be in jail since 10.11.2016. He be released forthwith, if not required in any other case. 27. Record of trial court be sent back along with copy of this judgment for necessary compliance. Sd/- (Ravindra Kumar Agrawal) Judge inder