1 2025:CGHC:321-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1701 of 2024 Surendra Chouhan S/o Dolnarayan Chouhan, Aged About 22 Years R/o Village- Bhelwatikara, Police Station-Chakradharnagar, District-Raigarh (C.G.) ... Appellant versus State Of Chhattisgarh Through Police Of Police Station- Kotararoad, Raigarh (C.G.) ... Respondent For Appellant : Mr.Praveen Dhurandhar, Advocate For Respondent : Mr.Swajit Uboweja, Panel Lawyer Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon’ble Shri Justice Ravindra Kumar Agrawal, Judge Per Ramesh Sinha, CJ 03/01/2025 1. The criminal appeal arises out of the judgment of conviction and order of sentence dated 18.04.2024 passed by the Additional Sessions Judge. F.T.S.C. (POCSO), Raigarh in Case No.33/2023 (Special POCSO Case), whereby the appellant has been convicted and sentenced in the following manner : BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.04 10:54:12 +0530 2 Sl. No. Conviction Sentence 1. Under Section 363 of the IPC RI for 3 years and fine of Rs.500/-, in default of payment of fine to further undergo RI for 2 months. 2. Under Section 366 of Indian Penal Code. RI for 5 years and fine of Rs.500/-, in default of payment of fine to further undergo RI for 2 months. 3. Under Section 6 of Protection of Children from Sexual Offences Act, 2012 RI for 20 years and fine of Rs.1,000/-, in default of payment of fine to further undergo RI for 4 months. 2. Learned State counsel submitted that notice issued to father of the prosecutrix has been served to him, but none has appeared on his behalf to contest the present appeal. 3. The prosecution story, in brief, is that father of the prosecutrix made written report (Ex.P-6) to Police Station Kotra Road, Raigarh to the effect that on 5.6.2023 his minor daughter whose date of birth is 17.05.2007 went missing and he has also made allegation against the appellant that he visited the house for 2 to 3 times and he was asked not to come. On the basis of written report, FIR was registered vide Ex.P-7. During investigation, the prosecutrix was recovered from the possession of the appellant at village Bhelwatikra and recovery panchnama was prepared vide Ex.P-1. Consent for medical examination was obtained from the prosecutrix vide Ex.P-2. The statement of the prosecutrix was 3 recorded under Section 164 CrPC before the JMFC, Raigarh vide Ex.P-3. Consent for medical examination of the prosecutrix was obtained from mother of the prosecutrix vide Ex.P-4. MLC of the prosecutrix was conducted by Dr.Arunima Shukla vide Ex.P-5 in which no any internal injury seen. Spot map was prepared by the investigating officer vide Ex.P-8. Marksheet of class 5th of the prosecutrix in which her date of birth has been mentioned as 17.05.2007 was seized vide Ex.P-9. Dakhil kharij register of the prosecutrix in which date of birth has been mentioned as 17.05.2007 was seized vide Ex.P-11. Dakhil kharaij reigster was given on Supurdnama vide Ex.P-12. Certified copy of the dakhil kharij register in which date of birth of the prosecutrix has ben mentioned as 17.05.2007 was seized vide Ex.P-13C. Vaginal slide and underwear of the prosecutrix were seized vide Ex.P-14. The appellant was arrested on 8.6.2023 vide arrest memo Ex.P-15. Underwear of the appellant was seized vide Ex.P-18. Seized articles i.e. slide (Article A), underwear of the prosecutrix (Article B) and underwear of the appellant (Article C) were sent for FSL and as per FSL report (Ex.P-24), semen stains and human sperm were not found in Articles A, B and C and upon completion of investigation, charge-sheet was submitted before the Court concerned. 4. The trial Court has framed charges against the appellant for offence under Sections 363, 366, 376(2)(n) of the IPC and Section 4 6 of the POCSO Act. The appellant abjured his guilt and pleaded innocence. 5. In order to establish the charge against the appellant, the prosecution examined 07 witnesses. The statement of the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, the learned trail Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 6. 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 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 dakhil-kharij register, the same cannot be taken into consideration for determination of age of the prosecutrix. 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 prosecutrix that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the learned trial Court has failed to appreciate that the prosecutrix was major and she was consenting party and she without any hue and cry remained with 5 the appellant from 5.6.2023 to 7.6.2023. He also submits that if the entire case of the prosecution is taken as it is, then also the alleged offences are not made out against the appellant and he is entitled for acquittal. 7. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that the prosecutrix was minor and below 18 years of age at the time of incident, which is proved by the School dakhil-kharij register Ex.P-13C which contains the date of birth of the prosecutrix as 17.05.2007. The dakhil-kharij register is admissible piece of evidence to determine the age of the prosecutrix. Therefore, there is no illegality or infirmity in the findings of learned trial Court. The prosecutrix was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her. As such, the impugned judgment needs no interference. 8. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 9. In order to consider the age of the prosecutrix, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the School dakhil-kharij register Ex. 13C which is sought to be proved by PW-5 Shri Lalkumar Patel, Headmaster of Government Primary School, Gejamuda. Lalkumar 6 Patel (PW-5) has stated in para 4 of his deposition that today he has brought with him the original dakhil kharij register of the said school in which serial number 1476 the name and address of the prosecutrix and her parents are recorded and the prosecutrix’s date of birth is recorded as 17.05.2007. The prosecutrix took admission in class I on 27.06.2013 and after passing class V, she took TC from their school on 18.06.2018. The original dakhil kharij register is Ex.P-13 and the certified copy is Ex.P-13C. In para 5 of his cross-examination, she has admitted that Ex.P-13, number 1476 of Dakhil Kharij register is not in his handwriting. In para 6 of his cross-examination, he has admitted that he do not know what documents were presented by the guardian of the prosecutrix at the time of her admission regarding her birth. He voluntarily said that he was not posted at that time. In para 7 of his cross- examination, he has denied that the date of birth of the prosecutrix i.e. 17.05.2007 may be wrong, he voluntarily said that the date of birth of the prosecutrix is recorded as 17.05.2007 in dakhil kharij register. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the prosecutrix. 10.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 prosecutrix so as to hold that on the date of incident she was minor and below 18 7 years of age. Only on the basis of school dakhil-kharij register it would not be safe to hold that the prosecutrix was minor on the date of incident. The statement of the prosecutrix, as also the statement of PW-5 Lalkumar Patel, Headmaster of Government Primary School, Gejamuda are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 17.05.2007. 11. 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 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." 12. 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 8 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 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 9 standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 13. In 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 XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when 10 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. 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 11 be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 14. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the 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. 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 12 be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year.” 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of 13 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.” 15. 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 prosecutrix 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 prosecutrix was minor. 16. So far as the issue of forceful sexual intercourse by the appellant upon the prosecutrix is concerned, we have carefully perused the statement of the prosecutrix recorded under Section 164 CrPC (Ex.P-3). In her 164 CrPC statement (Ex.P-3), the prosecutrix has stated in para 2 of her statement that her family has relatives in village Bhelwantikra where she used to visit frequently. She became friends with Surerndra of Bhelwantikra about 4 years ago and she has known him since then. In para 3, she has stated that she used to talk to Surendra Chauhan on phone since about 4 14 years ago. On 5.6.2023 she called Surendra Chauhan and invited him to her house in Gejamuda. On the said date at about 7.00- 7.30 P.M. Surendra Chauhan came near her house on a motorcycle. When Surendra Chauhan came near her house, she went out of the house and sat on the motorcycle with Surendra Chauhan and went to Surendra Chauhan’s house in Bhelwantikra. In para 4 of his statement, she has stated that two days later, her parents and a policeman came to Bhelwantikra and brought her from Surendra Chauhan’s house. Surendra Chauhan’s sister’s wedding was taking place at his house and we had attended the wedding. When she was at Surendra Chauhan’s house, Surendra Chauhan and she had physical relations. She had physical relations with Surendra Chauhan of her own free will. Surendra Chauhan and she want to get married. In para 5 of her statement, she has stated that Surendra Chauhan has not used any force on her. She wanted to marry him, that is why she went and had physical relations with him. 17. In her 164 CrPC statement, she has not stated that the appellant allured or threatened her or used any force while travelling along with him and while making physical relationship with her against her will or consent. 18. In para 7 of her cross-examination before the trial Court, the prosecutrix (PW-1) has admitted that her relatives live in village Bhelwatikra. She has admitted that she used to visit village 15 Bhelwatikra regularly. She has admitted that she met accused Surendra Chauhan of village Bhelwatikra four years ago. She has also admitted that she used to talk to the accused on phone for four years. In para 8 of her cross-examination, she has admitted that on the date of incident, the accused called her on phone. She has also admitted that she went with the accused on his motorcycle on her own free will after he called her. She has also admitted that she went to the accused house because his sister’s wedding was taking place at the accused house. 19. Close scrutiny of the evidence, it is clear that the prosecutrix was a consenting party. In her 164 CrPC statement (Ex.P-3) the prosecutrix has stated in para 2 of her statement that her family has relatives in village Bhelwantikra where she used to visit frequently. She became friends with Surerndra of Bhelwantikra about 4 years ago and she has known him since then. In para 3, she has stated that she used to talk to Surendra Chauhan on phone since about 4 years ago. On 5.6.2023 she called Surendra Chauhan and invited him to her house in Gejamuda. On the said date at about 7.00-7.30 P.M. Surendra Chauhan came near her house on a motorcycle. When Surendra Chauhan came near her house, she went out of the house and sat on the motorcycle with Surendra Chauhan and went to Surendra Chauhan’s house in Bhelwantikra. In para 4 of his statement, she has stated that two days later, her parents and a policeman came to Bhelwantikra and brought her from Surendra Chauhan’s house. Surendra 16 Chauhan’s sister’s wedding was taking place at his house and we had attended the wedding. When she was at Surendra Chauhan’s house, Surendra Chauhan and she had physical relations. She had physical relations with Surendra Chauhan of her own free will. Surendra Chauhan and she want to get married. In para 5 of her statement, she has stated that Surendra Chauhan has not used any force on her. She wanted to marry him, that is why she went and had physical relations with him. 20.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 prosecutrix must inspire confidence. Even though the testimony of the prosecutrix 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 reasonable doubt, which the prosecution has failed to do in the instant case. 21. Considering the entire evidence available on record and the conduct of the prosecutrix, we are of the opinion that the prosecutrix 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 Sections 363 & 366 of the IPC and Section 6 of the POCSO Act would not be made out against the appellant. 17 22. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment and conviction and order of sentence dated 18.04.2024 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 08.06.2023. He be released forthwith if not required in any other case. 23. Keeping in view of the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of 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 receipt of notice thereon shall appear before the Hon’ble Supreme Court. 24. 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/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu