1 CRA No. 839 of 2016 2025:CGHC:52501 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 839 of 2016 Radheshyam Yadav S/o Naresh Yadav Aged About 19 Years Occupation Agriculturist, R/o Village Bhima Tikarapara, Bhutbeda, P.S. Shobha, District Gariyaband, Chhattisgarh., Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Police Station Shobha, District Gariyaband, Chhattisgarh., Chhattisgarh Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. C. R. Sahu, Advocate For Respondent(s) : Ms. Isha Jajodiya, PL Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 28/10/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 28/06/2016 passed in Special Criminal Case No.512/2015 by the learned 7th Additional Sessions Judge (F.T.C.), Raipur, (C.G.), whereby the SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.11.04 10:41:51 +0530 2 CRA No. 839 of 2016 appellant has been convicted and sentenced as under:- Conviction Sentence U/s 354 (A) (1) of the IPC R.I. For 02 years with fine of Rs. 1,000/-, with default stipulation. U/s 8 of POCSO Act R.I. for 03 years with fine of Rs. 1,000/-, with default stipulation. Both the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that the mother of the victim (PW/1), filed an oral report at the Shobha Police Station in Gariaband district, stating that on 10.02.2015, at 8.00 A.M., her daughter, had gone to graze their goat. She had gone to bath in a drain near the village. While washing clothes in the drain, at 11.00 A.M., she heard the scream of her daughter. She stopped washing clothes, stood up, and saw the accused, Radheshyam, in her field, dragging her daughter, towards the forest, with the intention of outraging her modesty. When she approached him, the accused abandoned the victim and fled towards his home. She then returned home with her daughter and the goat. Since her husband was not at home, she told him about the incident when he returned in the evening and then filed a report on 13.02.2015. 3. During investigation, Spot Map was prepared. The statement of the victim was recorded under Section 164 of the Cr.P.C. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P/7C) was seized. Subsequently, after completing the investigation, a charge-sheet was submitted before the Court. 3 CRA No. 839 of 2016 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. In order to bring home the offence, the prosecution has examined 05 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment convicted and sentenced the appellant as mentioned aforesaid. Hence, this appeal. 6. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case, according to the statement of the appellant recorded under Section 313 Cr.P.C., there was a dispute between the family members of the victim and the appellant which was later corroborated by the victim herself in her deposition at para 10. He would submit that in the evidence of the witnesses, it can be seen that there are material contradiction and omissions. Learned counsel would submit that the prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident and without there being any evidence with regard to the age of the Victim, the conviction of the appellant is bad in the eyes of law. 7. Learned Panel Lawyer appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. 4 CRA No. 839 of 2016 There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 9. The first question arises before this Court whether the victim was minor on the date of incident or not?. 10. PW/1 mother of the victim stated in her deposition that the age of her daughter is 15 years while the victim herself stated in her deposition that her age is 16 years and further she stated that she does not know her age and also stated that she was unaware of her date of birth. She also stated that at the time of admission in the school, her parents had understated her age to enroll her in school. 11. PW/3 Pawan Singh Thakur, Teacher posted at Middle School Bhootbeda, Gariyaband has produced the Dakhil Register vide Ex.P/7C wherein the date of birth of the victim has been mentioned as 13/07/2000. This witness in his cross-examination categorically stated that the names of the students, their father's name and their dates of birth written in the Dakhil Kharij register mentioned in Ex.P-07 are not in his handwriting, he does not know who has mentioned the said entries. He admitted the fact that Ex.P-07 does not state who admitted the victim to the school and there is no documentary evidence or proof is available to prove the date of birth of the victim. Even, there is no medical evidence with 5 CRA No. 839 of 2016 regard to actual age of the victim. 12. From perusal of statement of PW/3, it appears that he is also not sure and produce any evidence regarding the date of birth of victim. Further perusal of the aforesaid statements of the witnesses would show that though there is entry regarding date of birth of the victim in the Dakhil Kharij register, but on what basis, the entry was made, is not mentioned in the register. 13. 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, the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand 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 6 CRA No. 839 of 2016 examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar 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 7 CRA No. 839 of 2016 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." 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. 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 8 CRA No. 839 of 2016 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 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 scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to 9 CRA No. 839 of 2016 lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be 10 CRA No. 839 of 2016 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." 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 11 CRA No. 839 of 2016 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 12 CRA No. 839 of 2016 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. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. Hence, the conviction under Section 8 of the POCSO Act is not sustainable. 17. The next question for consideration arises before this Court is that whether the accused on the date of incident committed sexual harassment on the victim with intention to outrage her modesty. 13 CRA No. 839 of 2016 18. In this regard, PW/1, mother of the victim stated in her statement that she knows the accused Radheshyam Yadav. She stated that the incident is about a year old. It was Tuesday, around 11 AM, when she went from her house to take a bath in the stream. She further stated that she was washing clothes in the drain, at that time she heard her daughter’s scream, hearing which, she stopped washing clothes; stood up and looked in our field where the accused Radheshyam who lived nearby was holding her daughter and dragging her towards the forest with the intention of outraging her modesty. She admitted the fact that when she went there, the accused left the victim and ran towards his house. The accused had tied her daughter to a tree. She rescued her from there. 19. PW/2, the victim stated in her statement that she knows the accused. She narrated the incident as stated by her mother (PW/1). She stated that the accused came at the spot where the incident took place and forcibly tied her hands behind her back. She screamed then her mother came. Thereafter the accused left her and ran away. She categorically stated that the accused did not do anything to her or say anything obscene to her. Thereafter, she alongwith her mother returned home; her mother and father took her to Shobha Police Station to file a report about the incident. During cross-examination, she stated that the accused keeps goats, and she also has goats. She admitted the fact that we keep a dog along with the goats. The accused's goat died after being bitten by their dog. She admitted the fact that there was an altercation between the families 14 CRA No. 839 of 2016 of the victim and the accused when the goat died due to the dog bite. She negated the fact that the accused had forcibly caught hold of her and tied her up. 20. Perusal of the above statement the victim, it is clear that she herself admitted that the accused did not do anything wrong to her or utter any obscene words. Her statement does not corroborate the prosecution version of the incident. On the contrary, during cross-examination, she admitted the existence of prior animosity between the families owing to the death of the accused’s goat, which was bitten by their dog, and also denied the allegation that the accused had forcibly caught hold of her and tied her up. Thus, her testimony fails to support the prosecution story in material particulars. 21. Furthermore, Dr. Sunil Singh, (PW/4) who examined the victim stated that he was posted as Medical Officer in Community Health Centre Mainpur since 1990 till date. On examination, the patient/victim complained of pain in both her wrists. However, no external injury was visible there. He opined that the pain of the injured was of normal nature. 22. Moreover, according to the statement of the appellant recorded under Section 313 Cr.P.C., there was a dispute between the family members of the victim and the appellant regarding their dogs and goats which was later corroborated by the victim herself in her deposition at para 10. 15 CRA No. 839 of 2016 23. With regard to the offence under Section 354(A)(1) of IPC is concerned, on the date of incident the appellant has not committed such offence or act which attracts the provisions of Section 354(A)(1) of IPC. The victim herself stated in her deposition that the accused do nothing wrong to her, hence the evidence of the victim does not inspire the confidence of this Court towards the guilt of the appellant. 24. For the foregoing reasons, the prosecution has failed to prove that the appellant had committed the offence under Section 8 of the POCSO Act and Section 354(A)(1) of the IPC. Therefore, I am of the view that the appellant is entitled to be acquitted. 25. The accused is acquitted of the charges for which he was tried. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal appeal is allowed. 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/- (Bibhu Datta Guru) Judge $ Bhilwar