1 2025:CGHC:1943-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1691 of 2021 Devendra Panika S/o Ramkripal Aged About 25 Years R/o Village Ghatai, Police Station Janakpur, District- Koriya (C.G.) ... Appellant versus State Of Chhattisgarh Through- Station House Officer Police Station Janakpur, District- Koriya (C.G.) ... Respondent For Appellant : Mr.Sakti Raj Sinha, Advocate For Respondent : Mr.Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Ravindra Kumar Agrawal , Judge Per Ramesh Sinha, CJ 13.01.2025 1. This criminal appeal arise out of the judgment of conviction and order of sentence dated 10.12.2021 passed by the learned Additional Sessions Judge (F.T.S.C.), POCSO, Manendragarh, District Koriya in Special Criminal Case No.37/2019, whereby the appellant has been convicted and sentenced in the following manner : BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.15 11:13:50 +0530 2 Sl.No. Conviction Sentence 1. Under Section 376(2)(n) of the IPC Rigorous imprisonment for 20 years and fine of Rs.1,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Under Section 6 of the POCSO Act No separate sentence is awarded. 2. Learned State counsel submitted that notice issued to the complainant / father of the victim (PW-2) has been served to him, but none has appeared on his behalf to contest the present appeal. 3. Case of the prosecution, in brief, is that on 3.5.2016 at about 9 P.M. the appellant on the pretext of marriage committed sexual intercourse with the prosecutrix at Sagaon Plantation of village Ghatai and continued to have sexual intercourse with the prosecutrix for almost 4 years because of which the prosecutrix became pregnant. Upon knowing about the pregnancy, the appellant said that he will keep the prosecutrix and also threatened her for not telling the incident to anyone. Thereafter the appellant denied to marry the prosecutrix and also stopped talking with her, therefore, the prosecutrix lodged a written report vide Ex.P-1. On the basis of written report, FIR was registered against the appellant for offence under Section 376(2)(n) of the IPC and Sections 5 & 6 of the POCSO Act vide Ex.P-2. Consent for medical examination was obtained from the prosecutrix and her father vide Ex.P-3. Spot map was prepared by the 3 investigating officer vide Ex.P-4. Dakhil kharij register in which date of birth of the prosecutrix has been mentioned as 8.3.2003 was seized vide Ex.P-5. Patwari also prepared spot map vide Ex.P-6. The prosecutrix and her father denied for DNA vide Ex.P- 7. Certified copy of dakhil kharij register was seized vide Ex.P- 13(c). MLC of the prosecutrix was done by Dr.Archana Kumhare (PW-5) vide Ex.P-16. Slide was seized vide Ex.P-17. The accused was examined by Dr.R.K.Raman (PW-12) vide Ex.P-25. Semen slides and underwear of the prosecutrix were seized vide Ex.P-19. The appellant was arrested on 31.07.19 vide Ex.P-20. Slide seized from the prosecutrix, slide seized from the appellant and underwear of the appellant were sent to FSL for examination and as per FSL report (Ex.P-23), no semen stains and human sperm were found in Articles A, B and C. After completion of investigation, charge sheet was prepared under the above sections in the case and presented before the Court of Special Judge, Manendragarh. 4. Charges were framed against the accused under Sections 376(2) (n) of the IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012. The accused denied the charges and claimed trial. When the accused was examined and his statement was recorded under Section 313 of Criminal Procedure Code, he declared himself innocent and expressed his desire not to give defence evidence in his defence. 4 5. So as to prove the complicity of the accused/appellant in the crime in question, the prosecution has examined as many as 16 witnesses and exhibited 26 documents in support of its case. 6. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 10.12.2021 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by the appellant calling in question the impugned judgment. 7. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the victim that on the date of the incident she was minor and less than 18 years of age. In absence of examination of any supporting document so as to prove the entry made in the school dakhil kharij register, the same cannot be taken into consideration for determination of the age of the victim. Dakhil kharij register is a weak type of evidence. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the victim that on the date of incident she was below 18 years of age. It is further argued by learned counsel for the appellant that the father of the victim has not disclosed date of birth of the victim, as such, there is no legally admissible and 5 convincing evidence available on record to establish that the victim was minor on the date of incident. Learned counsel further argued that the victim is a consenting party. Therefore, the alleged offences of the IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes and contends that the victim was minor and below 18 years of age at the time of incident which is proved by the School admission and discharge register Ex. P-13(C) which contains the date of birth of the victim as 8.3.2003. The school register is admissible piece of evidence to determine the age of the victim. Therefore, there is no illegality or infirmity in the findings of the learned trial court. As such, the impugned judgment of conviction and order of sentence needs no interference. 9. We have heard the learned counsel for the parties and perused the record with utmost circumspection. 10. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School dakhil kharij register Ex. P/13(C) which is sought to be proved by PW-4 Basant Kumar Singh, Headmaster of the concerned school, who has stated in his deposition that from the year 1998 till date, he is posted as Head Master in Government Primary School, Ghatai, Police Station Janakpur, District Korea. The police had sent a memo 6 regarding providing a certified copy of dakhil kharij register related to the victim, which is Ex.P-11. The police had seized from him the certified copy of the dakhil kharij register of the Primary School, Ghatai. The seizure memo is Ex.P-12. In para 4 he has stated that today he has brought with him the dakhil kharij register of the Primary School, Ghatai, in the saral No.577 of dakhil kharij register, date of birth of the victim D/o Ishwardin, R/o village Ghatai, Police Station Janakpur is recorded as 08.03.2003 and date of admission in class 1st in the school is 16.06.2008. Original dakhil kharij register is Ex.P-13 and attested copy of which is Ex.P-13C. In para 5, he has stated that the attested copy of the original dakhil kharij register related to the victim was also given to the police which is attached in the case. In para 6 of his cross- examination, he has admitted that the victim’s parents did not give any documents related to the victim’s date of birth at the time of admission in the school. He voluntarily said that the victim’s parents verbally told the victim’s date of birth and on that basis, he has mentioned the victim’s date of birth in the admission register. He has also admitted in para 7 of his cross-examination that at the time of admission of the victim, no affidavit was taken from the parents of the victim regarding the birth of the victim. 11. Thus, it is clear that at the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her father and on the oral information given by father of the victim the entry was made in the School dakhil kharij 7 register. Moreover, father of the victim (PW-2) has stated that he does not know the actual date of birth of the victim. Except dakhil kharij register Ex.P-13©, no other evidence such as birth certificate, Kotwari register or ossification report are produced by the prosecution to prove the actual age of the victim. 12. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school admission and discharge register it would not be safe to hold that the victim was minor on the date of incident. 13. In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 8 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 14. 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. It was 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. 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 9 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." 15. In the matter 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 XXXX 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 10 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. 11 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.” 16. Recently, in the matter 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. 12 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 13 (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.” 17. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident yet the trial court in the impugned judgment has held her minor, hence, we set aside the finding given by the trail Court that on the date of incident the victim was minor. 18. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, we have carefully perused the statement of the victim recorded before the trial Court. The 14 prosecutrix (PW-1) in para 1 of her examination-in-chief has stated that the accused called her near the plantation area of the Forest Department in Ghatai and raped her forcefully and said that he would marry her. She got pregnant by the accused and she gave birth to a boy on 13th December, 2018. The boy died due to jaundice. In para 2, she has stated that when the accused refused to marry her, she gave a written report to Janakpur Police Station which is Ex.P-1, on the basis of her written report, FIR was registered in Janakpur Police Station which is Ex.P-2. In para 7 of her cross-examination, she has admitted that accused Devendra is from her village and hence, she know him. She has admitted that she used to visit the house of the accused. She has also admitted that she and accused liked each other. She has admitted that at present her age is 19 years. When asked by the Court, her date of birth was stated to be 8.3.2003 and the witness said that her exact date of birth is not known. In para 8 of her cross-examination, she has admitted that they both liked each other and that is why she used to go whenever the accused called her. 19. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the 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 15 prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 20. Considering the entire evidence available on record and the conduct of the victim, we are of the opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act would not be made out against the appellant. 21. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment of conviction and order of sentence dated 10.12.2021 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 31.07.2019. He be released forthwith if not required in any other case. 22. Keeping in view of the provisions of Section 437-A CrPC (now Section 480 of the BNSS), the appellant is directed to furnish a personal bond in terms of from No.45 prescribed in the Code of Criminal Procedure for a sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 16 receipt of notice thereon shall appear before the Hon’ble Supreme Court. 23. The Trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- Sd/-Sd/- Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu