1 2025:CGHC:3771 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1465 of 2019 1 - Panchanan Singh @ Pachchu S/o Timali Singh Khairwar, Aged About 19 Years R/o Village Chaki, Magratola, Police Station Ramanujganj, District Balrampur Ramanujganj Chhattisgarh ...Appellant versus 1 - State Of Chhattisgarh Through Station House OfÏcer Of Police Station Ramanujganj, Outpost Vijay Nagar, Distt. Balrampur Ramanujganj Chhattisgarh. ... Respondent For Appellant : Mr. Roop Naik, Advocate For Res./State : Mr. Shailendra Sharma, Panel Lawyer Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 21.01.2025 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 06.08.2019 passed by learned Additional Sessions Judge Ramanujganj, District- Balrampur-Ramanujganj (C.G.) in Special Session Case (POCSO) No. 03/2017 whereby the appellant has been convicted and sentenced as under: Conviction U/S Sentence Fine In default of payment of Fine 2 Under Section 363 of Indian Penal Code Rigorous imprisonment for 7 years Rs. 200/- R.I. for 2 months Under Section 366 of Indian Penal Code Rigorous imprisonment for 7 years Rs. 200/- R.I. for 02 months Under Section 5(B)/6 of the Protection of Children from Sexual Offences Act, 2012 Rigorous imprisonment for 10 years Rs. 500/- Rigorous imprisonment for 06 months Under Section 506 of Indian Penal Code Rigorous imprisonment for 2 years Rs. 100/- R. I. For 01 month All the sentences have been directed to run concurrently. 2. Case of the prosecution, in brief, is that the victim (PW01) lodged a report against the present appellant on 29.11.2016, with the allegation that on 5.11.2016 when she was standing on the road, the appellant came there at about 6.00pm, took her to field and after removing her clothes committed rape upon her. He detained her up to 3.00 am in the night and thereafter fled away and during that period he committed rape upon her on four times. Thereafter, in the morning at about 8.00am, she had gone to her friend’s house and on the same the morning at about 8.00am her parents came to the house of her friend in search of her and then she disclosed the incident to them and lodged the report. On the report of the victim(PW01), the police has registered the FIR Ex. P/1 for the offence under Section 363, 366, 376(2)(n), and 506 of the Indian Penal Code (in short IPC) and Section 5(B)/6 of the Protection of Children from Sexual Offences Act, 2012 (in short”POCSO Act, 2012) against the appellant. The victim was sent for her medical examination to Community Health Centre, Wadrafnagar where Dr. Smita Jakariya (PW- 3 15) has medically examined her and gave report Ex. P/24. While medically examined the victim, the doctor has not found any external injuries on her body and has opined that there are no signs of use of force and final opinion is pending for FSL report. Sexual violence cannot be ruled out. She advised for her UPT, HIV, PEP, HbSAg, VDRL and USG tests. Two slides of her vaginal swab were prepared, sealed and handed it over to police for its chemical examination. With respect to age and date of birth of the victim, the police has seized the school register from Government Primary School, Mangratoli vide seizure memo Ex. P/10 and after retaining the attested true copy of School register Ex. P/9C, the original Register Ex.P/9 was returned back to the School. The spot map (Ex. P/4) was prepared by the Police and spot map (Ex.P/5) was prepared by the Patwari. The appellant was arrested on 01.12.2016 and he too was sent for medical examination to Community Health Centre, Ramanujganj where Dr. A. K. Jaiswal (PW10) has medically examined him and gave his report Ex. P/12. After examination of the appellant, the doctor has opined that the appellant is able to perform sexual intercourse. Vaginal slides, pubic hair and underwear of the victim as well underwear of the appellant were sent for chemical examination to Regional FSL, Ambikapur, from where FSL report Ex.P/22 was received and according to the FSL report, underwear of the victim as well as underwear of the appellant were found to be stained with semen and sperm however, no semen and sperm were found on the vaginal slides and pubic hair of the victim. 3. The statement of witnesses were recorded under section 161 of Cr.P.C. and Statement of the victim under Section 164 of Cr.P.C. have also been recorded. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 363, 366, 376(2)(n) 4 and 506 of IPC and Section 5(B)/6 POCSO Act, 2012 before the learned trial Court. 4. The Trial Court has framed charges against the appellant namely- Panchanan Singh @ Pachchu for the offences under Section 363, 366, 376(2)(n) and 506 of IPC and Section 5(B)/6 POCSO Act, 2012. The accused/appellant denied the charges and claimed trial. 5. In order to establish the charges against the accused, the prosecution has examined as many as 15 witnesses. The statement of accused was also recorded under section 313 of Cr.P.C. in which he denied the material appearing against him, plead innocence and submitted that he is innocent and has falsely been implicated in the case. 6. After appreciation of oral as well as documentary evidence led by the prosecution, learned trial court has convicted and sentenced the present appellant as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant would argue that the prosecution has failed to prove its case against the appellant beyond reasonable doubts. There are material omission and contradiction in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. There is no cogent and clinching evidence with respect to the age and date of birth of the victim to prove that she was minor on the date of incident. The School record produced by the prosecution has not been proved in accordance with law by examining its author and also the basis on which the date of birth of the victim has been recorded in the school register, has not been produced. Even no Kotwari register has been produced and ossification test has not been conducted to prove the age of the victim. It is further contended that the victim is a major girl and she on her own free will, has made physical relation with the 5 appellant. It is only when their relation came into knowledge of her parents, she lodged the report. He would further that the incident is alleged to be occurred on 25.11.2016 whereas the FIR has been lodged on 29.11.2016 i.e. delay of four days and there is no explanation of delay in lodging the report. No injuries have been found on the body of the victim. He would further submits that had the appellant been kidnapped the victim or dragged to some distance, she must have protested and received injuries on her body but no injuries were there when she was medically examined by the doctor. The place of alleged incident is also a busy road so it cannot be possible that anyone kidnapped the victim and committed rape upon her. The evidence made by the victim itself shows that she is the consenting party to the act of the appellant. It has not been reflected from her evidence that she raised any alarm or she protested the act of the appellant . She being the consenting party, no offence either of the IPC or under the POCSO act is made out against the appellant therefore, he is entitled for acquittal. 8. On the other hand, learned counsel for the State while opposing the arguments advanced by the counsel for the appellant contended that the prosecution has proved its case beyond reasonable doubt. The victim is proved to be minor by the school record which is proved by the Head-Mistress of the school and victim being a minor girl, cannot give her consent to make physical relation with the appellant. He would further submit that the appellant failed to prove his probable defence as to why the victim implicated him falsely in the case, even if no injuries have been found on the body of the victim that itself does not make the prosecution case doubtful because it is not necessary in every case where victim must have received injuries on her body and it depends upon facts of the each case. The learned trial Court has adverted the 6 entire facts and circumstance of the case as well as the evidence available on record and has come into conclusion that the appellant is guilty for the alleged offences and by the impugned judgment has rightly convicted and sentenced the appellant which is absolutely justified and needs no interference. 9. I have heard the counsel for the parties and perused the material available on record. 10. The first and foremost question arises for consideration would be the age of the victim as to whether on the date of incident she was minor or not. The prosecution has mainly relied upon the school Register Ex. P/9C, which is sought to be proved by PW-7, who was the Headmistress of the school. She stated in her deposition that she is posted as Headmistress in the Primary School, Mangratoli since 06.07.2006. The police has seized the School Register with respect to the date of birth of the victim vide seizure memo Ex. P/10. After retaining the attested true copy of the School register Ex. P/9C, original School Register (Ex.P-9) was returned to the school. As per entries made in the School Register, the date of birth of the victim is mentioned as 05.06.2000. In cross- examination, she admitted that she is the author of the school register. She further admitted that at the time of admission of the victim in the school, her birth certificate or any other documents with respect to the date of birth of the victim have not been produced by her parents. From the evidence of this witness, it only appears that she is the author of the school register but the basis on which the date of birth was recorded in the school register has not been proved. 11. The Hon’ble Supreme Court has considered the utmost condition to prove the school registered that are the author should have been 7 examined and the basis on which the entries have been made in the school register. 12. The admissibility and evidencery value of the School Register has been considered by the Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, in which the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P-16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the 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." 8 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 13. 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 9 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. 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 10 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 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." 14. 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 11 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 thedescription 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." 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 12 only in the event of the certificate not being available that the date of birth certificate fromthe 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." 15. Reverting to the facts of the present case except the school Register, there is no other documentary evidence produced by the prosecution to prove the age of the victim. 16. The victim (PW01) has stated in her evidence that her date of birth is 05.06.2000. In cross-examination, she stated that they are having four brothers and sisters. The age difference between her and her elder brother is 8 to 10 years. Her elder sister has already got married and she also has one daughter. Her youngest brother is aged about 18 to 19 years. 17. PW02, who is the mother of the victim, has stated that her daughter is aged about 16 years but she did not disclose her date of birth. In cross- examination, she too stated the age difference between her children and has stated that her youngest son is aged about 18 to 19 years. She admitted that in the school register, the teacher has got recorded the date of birth of the victim and she did not disclose the age at the time of her admission in class-I. Except this evidence, no other evidences have been produced by the prosecution to prove the age of the victim and in the evidence produced by the prosecution, it cannot be conclusively held that the victim was minor and less than 18 years of age at the time of incident yet the learned trial Court has held her minor. 13 18. So far as the offence of kidnapping and rape is concerned, I again examined the evidence of the victim and other witnesses. 19. The victim (PW01) has stated in her evidence that on the date of incident, when she was standing on the road the appellant came from her back side, took her to some distance by lifting her and under the Mahuaa tree, he removed her clothes and committed rape upon her three-four times and in the morning she had gone to her friend's house. At about 8.00am when her family members came to her friend's house in her search then they took her back. She disclosed the incident to her family members and a panchayat meeting was convened but they denied thereafter, report was lodged. In her cross-examination, she admitted that the place where she was standing at the time of incident the persons were roaming, it was a busy road. She stated further that when the appellant committed rape upon her she received injuries on her back. Though she denied the quarrel took place between her family and the appellant’s family on the issue of agricultural field yet she could not give any concrete evidence that the appellant had committed forcefully rape upon her or kidnapped her. 20. Under the facts and circumstances of the case, the place from which she was being allegedly taken by the appellant, her conduct and also no injuries found on her back as stated by her evidence, she stayed with the appellant up to 3.00am in the night under the Mahuaa tree where the alleged incident have taken place and also her subsequent conduct that in the morning, she had gone to her friend’s house in spite of her own house. Further her conduct that she has not stated anything in her evidence that she raised alarm or shouted when the appellant allegedly taken her to the place of incident and particularly when the appellant committed repeated act of sexual intercourse in the same night till that 14 time she had not protested even she had not tired to save herself by giving nail stretch mark or teeth bite on his body and it is only when in the next morning her family members came to her friend’s house for her search she disclosed the incident to them. Further they immediately not lodged the report but it has been lodged after three-four days, therefore, this Court is of the considered opinion that there is no sufÏcient evidence against the appellant that he kidnapped the victim and committed rape upon her against her will. Rather the evidence suggests that she on her own will established physical relation with the appellant without raising any alarm. 21. The version of the victim commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the victim’s evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim and her parents. The law is well settled that in 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 the victim must inspire confidence. Even though the testimony of victim is not required to be corroborated, if her statement is not believable then the accused cannot be convicted. The prosecution has to bring home charges levelled against the appellant beyond any reasonable doubt, which prosecution has failed to do in the instant case. 22. The appellant is also charged for threatening the victim but from her evidence, it is not proved by the victim herself that she was being threatened by the appellant “not to disclose the incident to anyone or she will face dire consequence”. Therefore, no offence of threatening or criminal intimidation is also made out against the appellant. 15 23. The evidence of the mother of the victim (PW02), it has stated whatever disclosed by the victim to her. She stated in her evidence that after the incident the father of the appellant were called in the village and they asked him to take the victim with them after getting marriage in between the victim and the appellant but the father of the appellant denied for marriage of the appellant and victim thereafter, they lodged the report. 24. From the evidence of PW15, Dr. Smita Jakariya, who medically examined the victim it has been stated that no external injuries found on the body of the victim, she opined that no sign of use of force and final report is pending for FSL report. In the FSL report, no semen and sperm were found in the vaginal swab of the victim and therefore, the prosecution cannot be benefited even if no injuries have been found on the body of the victim. 25. In view of the aforesaid reasons this Court does not find sufÏcient evidence to afÏrm the conviction and sentence of the appellant therefore, the appeal filed by the appellant is allowed. The appellant is acquitted from the alleged offences. The impugned judgment of conviction and sentences are hereby set aside. 26. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) Judge amita Digitally signed by AMITA DUBEY Date: 2025.02.25 16:16:29 +0530