1 2025:CGHC:20008 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 454 of 2016 Dinesh Kodaku S/o Visheshar Kodaku Aged About 21 Years R/o Village Sardapur, Bhanwardand, P.S. Chalgali, District Balrampur-Ramanujganj Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Police Station Chalgali, District Balrampur-Ramanujganj Chhattisgarh. ---- Respondent ----------------------------------------------------------------------------------------- For Appellant : Ms. Hamida Siddiqui, Advocate For Respondent-State : Mr. Jitendra Shrivastava, Govt. Advocate ----------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 01.05.2025 1. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 14.08.2015 (Annexure A-1) passed by the Additional Sessions Judge (F.T.C.) (Special Judge- Protection of Children from Sexual Offences Act, 2012), Surguja (Ambikapur), (C.G.) in Sessions Trial No.03/2013, whereby the 2 appellant has been convicted and sentenced as under :- Conviction Sentence In Default of Payment of Fine Under Section 363 of the IPC RI for 05 years and fine amount of Rs.1,000/- Additional RI for 01 month Under Section 366 of the IPC RI for 07 years and fine amount of Rs.1,000/- Additional RI for 01 month Under Section 376(1) of the IPC RI for 10 years and fine amount of Rs.1,000/- Additional RI for 01 month Under Section 3(A)/04 of the POCSO Act RI for 10 years and fine amount of Rs.1,000/- Additional RI for 01 month Under Section 5(L)/06 of the POCSO Act RI for 10 years and fine amount of Rs.1,000/- Additional RI for 01 month (All sentences shall run concurrently) 2. Case of the prosecution in brief is that on 29.04.2013 at about 05:00 AM, the prosecutrix was abducted by the appellant from lawful guardianship of her parents and further raped on several occasions by taking her to different places. At the time of incident, the prosecutrix was aged about 17 years as per the transfer certificate (Ex.P-3). 3. The police has registered the case and after investigation, the charge sheet was filed under Sections 363, 366, 376 of IPC. After committal, the learned Court framed the charges under Sections 363, 366, 376 (1) of IPC and Sections 3(A)/04 and 5(L)/06 of the POCSO Act, 2012. 4. In order to prove the charges against the appellant (accused), prosecution 3 examined as many as 06 witnesses. Statement of appellant was also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. 5. After appreciation of evidence available on record, learned trial Court has convicted and sentenced the appellant as described in para one of this judgment. Hence, this appeal. 6. Learned counsel appearing for the appellant contended that the learned trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellant. She further contended that the learned trial Court failed to appreciate the evidence recorded in the case in its true and correct perspective and succumbed to conjectures and surmises in convicting and sentencing the appellant. She further contended that the learned trial court has committed grave error of law by ignoring the clear evidence of consent between the accused and prosecutrix. The learned trial court failed to appreciate the fact that the age of prosecutrix has not been proved by prosecution. It is, therefore, prayed that this Court may kindly be pleased to set-aside the impugned judgment dated 14-08-2015 (Annexure A-1) and acquit the appellant from the charges imposed upon him. 4 7. Per contra, learned counsel for the State/respondent opposes the argument raised by counsel for the appellant, supported the impugned judgment and submits that sentence awarded by the trial Court is just and proper and requires no interference. 8. I have heard learned counsel appearing for the respective parties and perused the record of the trial Court and other material available on record with utmost circumspection. 9. In order to consider the age of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the transfer certificate (Ex.P-3) of the prosecutrix, wherein date of birth of prosecutrix is mentioned as 10.05.1996. Father of the prosecutrix (PW-1) has stated in her deposition that at the time of incident, age of the prosecutrix was about 16 years. 10. Prosecutrix (PW-5) has stated in her deposition (para-5) that at the time of incident, her age was about 17-18 years and her date of birth is 10.05.1996. 11. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age.— (1) 5 Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the 6 Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 12. There is no any documentary evidence available on record that on what basis date of birth of prosecutrix 10.05.1996 is mentioned and also no birth certificate issued by the Corporation or Panchayat has been produced regarding date of birth of prosecutrix. Copy of Kotwari Register is also not produced with regard to age of the prosecutrix. Even the ossification test of the prosecutrix has not been conducted. There is no legally admissible evidence with regard to age of prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. 13. In case of Alamelu and Another Vs. State, represented by Inspector of 7 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. 14. 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 8 of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person,who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth 9 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". 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says 10 nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the 11 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.” 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 12 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. 16. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors., 2022 (8) SCC 602, 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. 13 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.” 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 14 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.Now, considering the fact of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix was minor and less than 18 years of age on the date of incident. Accordingly, I set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. 18. In order to consider the medical report of prosecutrix, I have to examine the evidence available on record produced by the prosecution. 19. Dr. J.P. Sahu (PW-2) has stated that he was working as a Medical Officer 15 in District Hospital Balrampur since January 2014. On 10.5.2013 at 3.15 pm constable Vijay number-670 of Police Station-Chalgali, District- Balrampur brought the prosecutrix for examination. He further stated that her physical examination was normal and there were no signs of injury. Her internal examination was done in the presence of Sister Saumin and Ward Aaya Tara. Her secondary sexual characteristics were normally developed and there were no signs of injury. On separating the Levia Minora, the hymen membrane was old and torn. Two slides were prepared from her vaginal discharge and sealed and handed over to the same constable with the advice of chemical examination. He opined that since the hymen membrane was torn earlier, therefore, she must have had intercourse, but for a definite opinion of the present intercourse, an opinion can be given only after chemical tests. For a definite opinion regarding her age, the opinion was to be given by the radiologist advising her to get an X-ray of her wrist, elbow and knee. His report is Ex.P-4. 20. The fact of commission of rape stated by the prosecutrix (PW-5) in para- 1 that the incident took place about two years ago. She had gone to see the Nagpur District Korea with the accused, she had told this to her parents. When she returned with the appellant from there, her parents reported that the accused had kidnapped her and as soon as they returned from the Nagpur, the police caught her and the appellant and took them to the police station. 16 21. In Para-4, prosecutrix stated that she had gone to collect Mahua in the forest about two years ago. Then appellant told her that he would marry her and keep her as his wife. Then he took her towards Nala after saying that he would marry her and did wrong act with her. The accused took her to the forest and raped her. After that he took her to Nagpur by bus and there also he did rape her in the same way as he did in the forest. She further stated that the appellant took her to his village Shardapur and she stayed there with the accused at night. There also he did rape twice. Then she came home and told her father that the accused made her his wife and did wrong act with her. 22. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has committed rape, therefore, it appears that it is a case of elopement. 23. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, I am of the opinion that the age of the prosecutrix is not verified and it is a case of elopement. It is considered opinion of this Court, the prosecutrix is a consenting party, therefore, in the above facts and circumstances of the case, offence under Sections 363, 366 & 376(1) of IPC and Sections 3(A)/04 & 5(L)/06 of the POCSO Act would not be made out against the appellant. 17 24. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 14.08.2015 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. It is reported that the appellant is on bail. His bail bonds are not discharged at that stage and the same shall remain operative for a further period of six months in light of Section 437-A of the Cr.P.C. 25. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) Judge Vasant