1 2025:CGHC:18458 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 306 of 2016 Kamlesh @ Raja S/o Mahesh Kumar Aged About 20 Years R/o Purani Basti, Near Talkies, Baloda Bazar, District Baloda Bazar-Bhatapara, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Of Police Station City Kotwali, Baloda Bazar Bhatapara, Chhattisgarh. ---- Respondent ----------------------------------------------------------------------------------------------- For Appellant : Mr. Ajay Mishra, Advocate For Respondent-State : Mr. Shailendra Sharma, Panel Lawyer ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 23.04.2025 1. The appellant has filed the instant appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 20.01.2016 (Annexure A-1) passed in Special Sessions Case No.27/2015 by which the 2nd Additional Sessions Judge, Baloda-Bazar (C.G.) has convicted and sentenced the appellant as under: 2 Conviction Sentence In Default of Payment of Fine Under Section 363 of the IPC RI for 03 years and fine amount of Rs.1,000/- Additional RI for 01 month Under Section 366 of the IPC RI for 07 years and fine amount of Rs.2,000/- Additional RI for 02 months Under Section 06 of the POCSO Act, 2012 (As contained under Section 42 of the POCSO Act, conviction under Section 6 of the POCSO Act instead of Section 376(1) of the IPC) RI for 10 years and fine amount of Rs.3,000/- Additional RI for 06 months (All sentence shall run concurrently) 2. Case of the prosecution, in short, is that on 03.04.2015, the complainants/ parents of the victim appeared at the City Police Station, Balodabazar and lodged an oral report that his daughter aged 15 years is missing at Latuwa Road, Balodabazar on 02.04.2015 at 08:00 pm. It is alleged that all the family members had dinner and went to sleep in the room. In the morning, at around 05:00 am, mother of the victim came down from the roof to the field and when she saw her daughter/victim was not in the room of the house. She informed her husband, i.e., father of the victim about this. Then, both of them searched around and called relatives to get information, but she could not be traced. 3. On the basis of this, information about the missing of the victim was 3 registered in the Diary Sanha No. 47. Prima facie, on the suspicion of someone kidnapping the minor victim, an FIR (Ex.P-14) was registered against an unknown person. On the basis of a complaint lodged in the diary under Section 363 of IPC. On 04.04.2015, the spot map (Ex. P.1) of the incident was prepared as per the information given by the complainants. On 06.04.2015, the parents and relatives of the accused were pressurized to somehow find and bring the victim, upon which the accused presented the minor abducted victim at the police station, where the recovery panchnama (Ex.P.6) was prepared. On the same day, the statement of the victim was recorded, in which she told that the accused had made physical relations with her and had sexual intercourse with her. Thereafter, after taking the consent of the father of the prosecutrix for examination of the private parts of the prosecutrix, a written complaint Ex.P-18 was prepared and sent to the Medical Officer, Balodabazar for examination of the private parts of the prosecutrix and it was examined. On the same date, an underwear was seized and a seizure memo Exhibit P.7 and the underwear seized from the prosecutrix was sent to the doctor for examination by preparing a written complaint Ex.P-19. 4. On the basis of aforesaid report, a case was registered against the accused under Sections 363, 366, 376 IPC and Section 6 of the POCSO Act. On 07.04.2015, the accused was arrested by preparing an arrest panchnama Ex.P-13 and information about it was given to her family member (Ex.P- 4 17). 5. On 07.04.2015 itself, a motorcycle was seized from the accused by preparing seizure memo Exhibit P.11 and the underwear worn by the accused was seized by preparing seizure memo Exhibit P.12. The accused and the underwear seized from him were sent for examination by preparing report Exhibit P.9A and Exhibit P.10A respectively. On the same date, on victim’s father presentation, a progress report which belonges to the prosecutrix, in which her date of birth was recorded as 05.08.1999, was seized by preparing seizure memo Exhibit P.3. 6. During investigation, on 09.04.2015, the prosecutrix was sent to Judicial Magistrate First Class, Balodabazar for recording her statement under Section 164 of IPC. 7. In order to establish the charge against the appellant, the prosecution has examined as many as 12 witnesses. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case. 8. After appreciation of evidence available on record, learned trial Court has convicted the appellant and sentenced him as mentioned in paragraph one of this appeal. Hence this appeal by the appellant. 9. Learned counsel appearing for the appellant contended that there was 5 affair between appellant and prosecutrix, she went alongwith appellant of her own will and no alarm was raised by her while she roamed with appellant. The parents of the prosecutrix was doing the marriage of the prosecutrix along with other person at Kanpur City, therefore, she herself went with the appellant. Conduct of prosecutrix is seen in its entirety, it is clear that she had been a consenting party. He further contended that as per case of prosecution, at the time of alleged incident prosecutrix was a minor girl, but no authentic documentary proof was filed in order to show the actual age of prosecutrix. He further contended that the learned trial Court has failed to see that the medical report of the prosecutrix also does not support the case of prosecution and the Doctor who examined the prosecutrix has stated that there is no any injury on the body of the proseuctrix regarding the struggle. Without there being any sufficient, cogent and clinching evidence/material available on record, the alleged offences of the IPC and the POCSO Act are not made out against the appellant, hence, he is entitled for acquittal. 10. Per contra, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 11. I have heard learned counsel for the parties, and perused the record with utmost circumspection. 6 12. In order to consider the age of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Progress Report of Class 5th (Ex.P-25C), wherein date of birth of prosecutrix is mentioned as 05.08.1999. Prosecutrix (PW-3) has stated in her deposition that her date of birth is 05.08.1999. Father of prosecutrix (PW-1) has stated in his examination-in-chief that at the time of incident, age of the prosecutrix was 15 yeas and 08 months. Mother of prosecutrix (PW-2) has stated in her examination-in-chief that at the time of incident, aged of the prosecutrix was 15-16 years. 13. In order to consider the medical report of prosecutrix, I have to examine the evidence available on record produced by the prosecution. 14. Dr. Jayshree Shadilya (PW-12) who examined the prosecutrix and who gave the medical report Ex.P-23, wherein she opined that prosecutrix’s last menstruation was on 1st April. She advised her to get her urine tested and her right hand x-rayed. After that, her x-ray plate was brought to her and on examination, the bones of her right hand were not joined. This shows that she was below 18 years of age. On examination of the slide taken from her vagina, it was found that there were no traces of human sperm in it. On examination of her genitals, there were signs of abrasion in her vaginal hood. Her vagina and vulva were of normal pink colour. A finger was entering her vagina. On the basis of the above tests, she found 7 that prosecutrix had had sexual intercourse with her within a week. Her urine test result was negative. She attached the X-ray plate, lab test report and sealed slide OPD ticket with her report. 15. There is no birth certificate issued by the Corporation or Panchayat has been produced regarding date of birth of prosecutrix. Even the ossification test of the prosecutrix has not been conducted. There is no legally admissible evidence with regard to age of prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. 16. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age.— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and 8 proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the 9 purpose of this Act, be deemed to be the true age of that person. 17. From perusal of statements of prosecutrix (PW-3), her father (PW-1) and her mother (PW-2) as well as other prosecution witnesses, it appears that there is no any cogent and clinching evidence led by the prosecution to hold that on the date of incident, the prosecutrix was minor and below 18 years of age. 18. 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 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) 10 (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 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. 11 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 courtshould 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 adopted solely on the basis of medical opinion by 12 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 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 13 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. 20. 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 14 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 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.” 21.Now, reverting to the facts of the present case and after considering the 15 evidence collected by the prosecution and in the light of the aforesaid judgments of the Hon’ble Supreme Court, I found that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix/victim was minor and less than 18 years of age on the date of incident, despite the fact that the trial Court in the impugned judgment has held the prosecutrix minor. Accordingly, I set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching or reliable evidence. 22. The fact of commission of rape the prosecutrix (PW-3) herself stated in Para-3 of the examination-in-chief that the accused took her to Village Donde and raped her. The accused raped her three to four times. On the fourth day of taking her there, the accused brought her back to Balodabazar along with his brother-in-law. The accused brought her to the hospital near the police station. Her parents were going to get her married in Kanpur, so the accused abducted her saying that he would marry her. 23. In her cross-examination (Para-8), she stated that her younger sister brought her the keys at night. She further stated that when the accused took her away, she took her clothes etc. with her. 24. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of 16 time, the appellant has committed rape, therefore, it appears that it is a case of elopement. Dr. Jayshree Shadilya (PW-12) who examined the prosecutrix opined that on examination of the slide taken from her vagina, it was found that there were no traces of human sperm in it. On examination of her genitals, there were signs of abrasion in her vaginal hood. Her vagina and vulva were of normal pink colour. On the basis of the above tests, she found that prosecutrix had had sexual intercourse with her within a week. Her urine test result was negative. 25. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, I am of the opinion that the age of the prosecutrix is not verified and it is a case of elopement. It is considered opinion of this Court, the prosecutrix is a consenting party, therefore, in the above facts and circumstances of the case, offence under Sections 363 & 366 of IPC and Section 06 of POCSO Act would not be made out against the appellant. 26. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 20.01.2016 (Annexure A-1) is hereby set aside. Appellant stands acquitted of all the charges levelled against him. If the appellant is on bail, his bail bonds shall continue for a further period of six months as per Section 437-A of Cr.P.C. 17 27. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for information and necessary action, if any. Sd/- (Arvind Kumar Verma) Judge Vasant