1 2025:CGHC:54400 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1580 of 2025 1 - Surendra Kumar Gahirve S/o Shri Rajkumar Gahirve Aged About 20 Years R/o Village Mohbhatta Ward No.08, Near Jaitkhamb P.S. Bilha District- Bilaspur ... Appellant(s) versus 1 - State Of Chhattisgarh Through The O3cer In Charge, Police Station Bilha, Dist- Bilaspur (C.G.) ---- Respondent ------------------------------------------------------------------------------------------ For the Appellant : Mr. Amit Kumar Chaki, Advocate. For the State/Respondent : Ms. Priya Sharma, P.L. ------------------------------------------------------------------------------------------ Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 07.11.2025 1. With the consent of the parties, the present matter is heard ;nally. 2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 25.06.2025, passed in Special Criminal Case (POCSO Act) No. 62/2024 by which the learned Additional Session Judge (Second Fast Track Special Court) (POCSO Act) Bilaspur, (CG), whereby the appellant has been convicted and sentenced as follows:- Digitally signed by JYOTI JHA Date: 2025.11.12 11:24:46 +0530 2 Convicted under Sections Sentenced to 363 of IPC R.I. for 3 years with fine of Rs. 500/- and, in default of payment fine, addi- tional R.I. for 15 days. 366 of IPC R.I. for 5 years with fine of Rs. 500/- and, in default of payment fine, addi- tional R.I. for 15 days. Both the sentences run concurrently 3. The prosecution case, in brief, is this that the complainant (father of victim) has lodged written report to the concerned Police Station mentioning therein that on 26.02.2024 her brother has dropped her near a salon at around 08:30 am, from where she was expected to proceed to school. However, she did not reach school and his daughter is missing and he has searched every relatives and neighbor but she found missing. Unknown person has abducted his minor daughter (victim). Based upon the said report, FIR (Ex.P/7) was registered against the appellant for oCence punishable under Sections 363 of Indian Penal Code. On completion of investigation, ;nal report/charge sheet was ;led against appellant for the oCence under Sections 363, 366A & 376 of IPC and Section 4 & 6 of the POCSO Act. 4. Prosecution in order to prove its case examined total 10 witnesses. Statements of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence. 3 5. After hearing counsel for the parties and appreciating evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described above of this judgment. Hence this appeal. 6. On 25.08.2023, the victim along with her father appeared before this Court through video conferencing from the concerned DLSA and raised their objection and prayed for rejection of the appeal. 7. Learned counsel for appellant submits that age of the prosecutrix was 17 years and 1 month at the time of alleged incident, but no authentic documentary proof was ;led in order to show that the prosecutrix was a minor girl on the alleged date. The date of birth mentioned as 13.07.2007 in Dhakhil Kharij Panji ( Ex.P-13) cannot be said to be conclusive as the author of the said document could not be examined. Further, PW-2/father of prosecutrix has categorically admitted in his deposition that he failed to explain that on what basis said entry was made in Dhakhil Kharij Panji. Further, no ossi;cation test of the prosecutrix has been conducted to ascertain her age. 8. Learned counsel for the appellant would further submit that the victim was having love aCair with the appellant and she herself eloped with him on her own sweet will and have not made any complaint to anyone while going with the appellant by motorcycle. She has also not raised any alarm while she has been taken by the appellant and also while staying with him and making physical relation with him. The evidence of the victim does not inspire the 4 con;dence and therefore no oCence under IPC and POCSO Act are made out against the appellant. 9. Learned counsel further submits that trial Court convicted the appellant relied upon the statement of PW-1/victim, but her statement is not reliable as there are many contradictions, omissions and development in her statement, which was not considered properly by the learned trial court. From the statements of the prosecutrix recorded before the police, Magistrate and the Court it reFects that she is not a reliable witness and appears to be a consenting party to the act of appellant. Trial Court also ignored the fact that nothing has been found in the medical report of victim though there is allegation that appellant has established forceful physical relationship with her. In fact, there was love aCair between the appellant and the prosecutrix and therefore, she willingly went with his place and had physical relation with him of her own free will. Medical evidence also shows that there was no sign of forcible sexual intercourse on the body of the prosecutrix. The prosecution has failed to prove its case beyond all reasonable doubt against the appellant and therefore, the appellant deserves to be acquitted of all the charges. 10.On the other hand, learned counsel for the State supporting the impugned judgment and submits that on the date of incident the victim was minor and below 18 years of age which is proved by the 1st class of Dakhil Kharij Register in which the date of birth of the victim is recorded as 13.07.2007. She being the minor girl, was 5 kidnapped by the appellant and kept away from the lawful guardianship of the parents by threatening her and committed sexual intercourse with her, thereby committed oCence of rape de;ned under IPC and also of POCSO Act. Considering the entire evidence, the learned trial Court has convicted and sentenced the appellant which is justi;ed and the appeal of the appellant is liable to be dismissed. 11.Heard learned counsel for the respective parties and perused the recorded placed on record. 12.In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register (Ex.P-13) which is sought to be proved by the Principal PW-3. PW-3 in his deposition has stated that since 2022 he is posted as Incharge Principal. The police had seized School Admission and Discharge register with respect to date of birth of the victim vide seizure memo Ex.P/12 and according to which the date of birth of the victim is recorded as 13.07.2007. In the school register the victim was admitted in Class-1st on 03.07.2013. In cross-examination, he has admitted that the endorsement with respect to date of birth of the victim in the said school register is not in his handwriting. He did not know as to who had taken her to the school for her admission. he also did not know as to on what basis her date of birth has been recorded in the said school register. 13.The victim (PW-1) has deposed in her statement that her date of 6 birth is 13.07.2007. She has not stated anything in her deposition as to on what basis she is saying that her date of birth is 13.07.2007. 14. PW-2 father of the victim has stated in his deposition on the date of incident the age of the victim is 16 years and 7 months. 15.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 Dakhil-kharij register, it would not be safe to hold that the victim was minor on the date of incident. The statement of the prosecution witnesses are contradictory to each other with regard to the age of the victim and does not inspire con;dence upon this Court to hold that the date of birth of the victim is 13.07.2007. 16.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 satised, rstly, entry that is relied on must be one in a public or other ocial 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 ocial 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 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." 17.The Hon’ble Supreme Court in paragraphs 40, 42, 43, 44 and 48 of its judgment in Alamelu and Another Vs. State, represented by 7 Inspector of Police, 2011(2) SCC 385, has observed as under: “40. Undoubtedly, the transfer certicate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certicate, 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 certicate 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 certicate 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." 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 8 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 certicate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certicate can not be relied upon to denitely x 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 led on the ground that the plaintiB 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 diBerent standard can be applied in case of an accused as in a case of abduction or rape, or similar oBence 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.” 18.In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & 9 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 led 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 nding 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 sucient 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 diBerent 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 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 10 court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benet of the JJ Act, 2015 is made applicable to the juvenile in conGict 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 oBences. 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 ocial document maintained in the discharge of ocial duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certicate, 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. Ossication 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.” 19.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 certicate from the school or matriculation or equivalent certicate by the concerned examination board has to be rstly preferred in the absence of which the birth certicate 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 ossication 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 certicate and not the date of birth certicate or matriculation or equivalent certicate was considered. Ex. C1, i.e., the school transfer certicate showed the date of birth of the victim as 11.07.1997. Signicantly, the transfer certicate 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 Ocial (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 11 answer to thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certicate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the oBence. 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 conGict 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 certicates, if available and in the absence whereof; (ii) the date of birth certicate from the school (other than a play school) rst attended; and in the absence whereof; (iii) the birth certicate 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, benet 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 certicate from the school and the matriculation or equivalent certicate 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 certicate 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 signicant 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 certicate was given precedence and it was only in the event of the certicate not being available that the date of birth certicate fromthe school rst attended, could be obtained. In Section 94(2)(i) both the date of birth certicate from the school as well as the matriculation 12 or equivalent certicate 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.”] 20.Reverting to the facts of the present case, the victim (PW-1) has stated in her deposition that her date of birth is 13.07.2007. Her father (PW-2) has not deposed anything in his deposition as to on what basis she is saying that her date of birth is 13.07.2007. Mr. Naresh Kumar Pandey (PW-3) though has admitted that in the Dakhil-kharij Register (Ex.P-13), date of birth of the victim has been mentioned as 13.07.2007, but in his cross-examination, he has admitted that the endorsement with respect to date of birth of the victim in the said school register is not in his handwriting and on what basis the date of birth of the victim was recorded in the school, he did not know. 21.Except for these evidences, no other evidence like Kotwari register or birth certi;cate have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses i.e. victim herself (PW-1), father of the victim (PW-2) and Mr. Naresh Kumar Pandey (PW-3) and also Dakhil-kharij Register (Ex.P-13) are not su3cient to hold that the victim was minor on the date of incident because of the reason that no documents has been shown to 13 ascertain the fact that on what basis the date of birth of the victim was recorded. The entry with regard to age of the victim has been mentioned in the Dakhil-kharij Register (Ex.P-13) is not su3cient to hold actual date of birth of the victim. There is every possibility that the date of birth of the victim is recorded on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the victim are not of that sterling quality which is su3cient to determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 22.So far as issue of kidnapping and forceful sexual intercourse by the appellant with victim is concerned, we have carefully perused the evidences of the victim. In her evidence, the victim PW-1 has stated that on 26.02.2024 she and appellant went to Gram Lormi, where she resided with the appellant near about 10-11 days in his aunt’s house and during the said period, the accused had established physical relation with her will and she did not resist the accused from having physical relation. After recover of victim, the policemen interrogated and recorded her statement in which she has stated that her date of birth is 13.07.2007 at the time of incident. On being asking from the victim, she disclosed that the appellant has taken her with him and made physical relation with her. 23.PW-06, the Doctor who has medically examined the victim have not 14 found any external injury on her body. She has also stated that no de;nite opinion could be given with regard to any forceful sexual intercourse. The Doctor advised the victim to a radiologist to check the reality of age. Even the father (PW-2) or any other witness have not stated anything that she had sustained any injuries which goes to suggest that such statements were an afterthought. 24.On perusal of the evidence, it appears that there is no evidence that she has raised any alarm or has shouted when she was allegedly subjected to forceful sexual intercourse by the appellant. She travelled with the appellant by car upto the Gram Lormi but she has not made any complaint to any of the persons she met while she was travelling with the appellant. From the close scrutiny of the evidence makes it clear that the victim neither was taken by force nor she was kidnapped by the appellant, she herself accompany with the appellant on her own will and consent. Further the appellant has not committed any forceful sexual intercourse with her without her will or consent and she engaged in making physical relation with the appellant consensually. 25.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. 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 of the victim must 15 inspire con;dence. 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 prosecution has to bring home the charges levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 26.Considering the entire evidence available on record, the evidence with regard to the age and conduct of the victim, her evidence, absence of any injury over her body as also the evidence that she was in love aCair with the appellant, we are of the opinion that prosecution has failed to prove that on the date of incident the victim was minor, she has not been kidnapped by the appellant and has not been taken by force and she herself eloped with him and made physical relation with him consensually, therefore, in view of the above facts and circumstances of the case, the oCences under Sections 363, and 366 of IPC are not made out against the appellant. 27.For the foregoing reasons, the appeal is allowed. The impugned judgment of conviction and sentence dated 25.06.2025 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail, he be released forthwith, if not required in any other case. 28.Keeping in view the provisions of Section 437-A of the CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to forthwith furnish a personal bond in terms of 16 Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- with one surety in the like amount before the Court concerned which shall be eCective for a period of six months along with an undertaking that in the event of ;ling of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 29.The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) Judge Jyoti