1 2025:CGHC:18212 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1032 of 2019 Hari Singh Jatav @ Harish Singh S/o Ram Bharose Singh Jatav Aged About 24 Years R/o Keliya, Police Station - Keliya, District Jalon (Uttar Pradesh)., District : Jalaun, Uttar Pradesh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Balco Nagar, District Korba Chhattisgarh., District : Korba, Chhattisgarh ... Respondent For Appellant : Mrs. Indira Tripathi, Advocate For State/Respondent : Mr. Jitendra Shrivastava, Dy. Govt. Adv. Hon'ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board (22.04.2025) 1. In pursuance of the order dated 20.03.2025, the accused appellant is present before this court today. His presence is hereby marked. 2. With the consent of the parties, the matter is heard finally. 3. This appeal filed under Section 374(2) of the Code of Criminal 2 Procedure, 1973 (in short CrPC) has been preferred by the appellant (in jail) being aggrieved by the judgment of conviction and order of sentence dated 25.06.2019 passed in Special POCSO Case No. 16 of 2017 passed by the learned Additional Session Judge, FTC district Korba, Chhattisgarh, whereby the appellant has been convicted and sentenced as under:- Conviction Sentences Under Section 04 of the POCSO Act Rigorous Imprisonment for 07 years and fine amount of Rs. 500/-, in default of fine amount additional rigorous imprisonment for one month. Under Section 366(A) of the Indian Penal Code Rigorous Imprisonment for 05 years and fine amount of Rs. 400/-, in default of fine amount additional rigorous imprisonment for one month. Under Section 363 of the Indian Penal Code Rigorous Imprisonment for 05 years and fine of Rs. 400/- in default of payment of fine amount additional rigorous imprisonment for one month. All the sentences will run concurrently. 4. Brief facts of the case are such that, since 17.07.2015 the prosecutrix was missing after going to school. On 20.07.2015 the mother of the prosecutrix called the appellant, upon which the appellant told her that her daughter wants to talk to her. The prosecutrix on the call told her that the appellant has married her and she does not want to live there. The mother of 3 the prosecutrix lodged an FIR against the present appellant and after investigation, the prosecutrix was recovered from the possession the appellant. After due investigation and after completion of remaining formal proceedings, charge sheet was filed against the present accused appellant. Offences punishable under Section 363, 366(a), 376 of the Indian Penal Code and Section 04 of the POCSO Act, 2012 was registered against the appellant. 5. To prove the guilt of the accused/appellants, the prosecution has examined as many as 11 witnesses. Statements of the appellant under Section 313 of the Cr.P.C. was recorded, wherein accused/appellant has pleaded his innocence and false implication in the matter. After completion of trial, the trial Court convicted and sentenced the appellant as mentioned in para one of this judgment. Hence, this appeal. 6. Learned counsel appearing for the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case. She stated that the evidence of the school teacher is not sufficient to prove the age of the prosecutrix more so ever, looking to the conduct of the prosecutrix and the fact that she has already married the appellant in the year 2018 and is residing in her in-law’s house and as of now is pregnant. Hence the conviction of the 4 appellant cannot be sustainable and the same deserves to be set aside. The learned trial court has failed to consider the defense evidence and without properly appreciating the evidence in which it clearly reflected that the prosecutrix was a consenting part/willing part who went along with the appellant and married him. Hence she prays that the impugned judgment be set aside and the appellant be acquitted from all the charges leveled against him, in the interest of justice. 7. Per contra, learned counsel appearing for the State/respondent opposes the argument raised by counsel for the appellant and supported the impugned judgment passed by the Trial Court. He stated that after due diligence and consideration the trial court has convicted the present appellant under the said sections. Hence interference to the judgment so passed by the concerned trial court would largely affect the justice of the victim. 8. I have heard learned counsel appearing on behalf of the parties and perused entire evidence adduced by the complainant and gone through the evidence available on record with utmost circumspection. 9. After looking to the offences under which the present appellant has been convicted, this court is of the considered view there 5 is largely two aspects which need to be seen in order to dispose of the present appeal in accordance with law. The first question arises is whether the prosecutrix was minor at the time of alleged incident, as the appellant is convicted and sentence under Section 04 of the POCSO Act, 2012. 10. 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 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 proceed with 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 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 6 absence thereof; (ii) The birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the above, age shall be determined by an ossification test or any other latest medical age determination test conduct on the orders of the Committee or the Board: Provided such age determination test conducted on the order 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 purpose of this Act, be deemed to be the true age of that person. 11. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Supreme court held that 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. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under : 7 “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 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 8 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 Jaiswal, 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 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 9 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.” 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-06) wherein the date of birth of prosecutrix is mentioned as 12.10.1999 at serial no. 635. The date of birth as mentioned in the Dakhil Kharij Register has been registered on the basis of the saying of the mother and father of the prosecutrix and was admitted to class first. 13. However, PW-04 the head master in his deposition has specifically stated that he is telling the date of birth of the prosecutrix as 12.10.1999 as per the Dakhil Kharij Register. He stated that he cannot tell whether the head master who was posted at that time, entered the date of birth of the prosecutrix, duly verified it with the Kotwari Register or Birth Certificate or not. 10 14. PW-01 mother of the prosecutrix with regard to the age of her daughter stated in para 14 of her deposition that the birth date of her daughter is 12.10.2001 however, when she was only four years old, she got her date of birth registered as more than two years so that she can go to school. But as of now the age of her daughter is 17 years and at the time of incident she was only 15 years old. PW-03 the prosecutrix in her deposition has deposed that her date of birth is 12.10.1999. 15. Even the ossification test of the prosecutrix has been done by the doctor PW-08. In the ossification test (Ex. P-11)it has been held that the age of the prosecutrix is above 17 years but less than 20 years. 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 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. There is no any kotwari register 11 produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. Moreover the depositions of the prosecutrix as well as her mother shows huge contradictions when it comes to the date of birth of the prosecutrix. And taking into consideration the result of ossification test it cannot be held that the prosecutrix is a minor girl because the test shows that she was less than 20 years but it cannot be said that she was less than 18 years. 16. From the perusal of the statements of prosecutrix , and other prosecution witnesses and after considering the evidence collected by the prosecution, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix 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, this Court finds it appropriate to 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 12 proved by the prosecution by leading cogent and clinching evidence. 17. The second most important fact which has to be deal with is whether the accused appellant committed rape with the prosecutrix or not? In this respect the consent of the prosecutrix has to be seen. Therefore, the depositions made by the prosecutrix before the Judicial Magistrate under Section 164 of the Code of Criminal Procedure is of utmost importance. 18. Prosecutrix (PW-03) in her 164 statement before the Judicial Magistrate deposed that she was having a love affair with the accused and without informing the parents she voluntarily went with the accused to Bilaspur by bus first and then they went to Jhansi by train, thereafter they went to village Kailiga Distric Jallan where they got their marriage solemnized. Meanwhile she talked with her mother on phone. 19. On perusal of the statement made by the prosecutrix it 13 reflects that she was a consenting party. There was a love affair between the prosecutrix and the accused appellant. Therefore, this court finds that the impugned judgment passed by the learned trial court, convicting the present appellants under the said sections is illegal, perverse and contains jurisdictional error. The present appeal is liable to be allowed. 20. Consequently, the appeal is allowed . The conviction of the appellant under Section 04 of the POCSO Act and under Section 366(A), 363 of the Indian Penal Code. The impugned judgment dated passed by the learned trial court is hereby set aside. The appellant is acquitted from all the charges leveled against him. 21. The appellant is reported to be in jail. He be released forthwith, if not needed in any other case. 22. Keeping in view the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 5,000/- with one reliable surety in the like amount before the court concerned which shall be effective 14 for a period of six months along with an undertaking that in the even of filing 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. 23. The Trial Court Record (TCR) along with a copy of this judgment be sent back immediately to the trial concerned for compliance and necessary action. sd/- (Arvind Kumar Verma) Judge alfiza