1 2025:CGHC:18005 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 206 of 2016 1 - Rajesh Kumar Nirala S/o - Uderam Nirala Aged About 21 Years R/o Village - Tilaidadar, P.S. - Kosir, District - Raigarh, Chhattisgarh , Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through - S. H. O. Sarseeva District - Baloda - Bazar - Bhatapara, Chhattisgarh , Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Pushkar Sinha, Advocate For Respondent(s) : Ms. Isha Jajodia, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 21/04/2025 1. With the consent of the parties the present appeal is heard finally. 2. Today when the matter is called out for hearing, no one appeared on behalf of the appellant. I, therefore, requested for assistance from a counsel of the High Court legal aid services committee, Mr. 2 Pushkar Sinha, Advocate has been nominated to assist the Court. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) SCC 222 (Surya Baksh Singh Vs. State of Uttar Pradesj), I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as her interest has been duly taken care of by nominating another counsel from the High Court Legal Services Committee. 3. 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 29.01.2016 passed in Special Sessions Case under the POCSO Act No.30/2015 by which the learned 2nd Additional Sessions Judge, Balodabazar, (C.G.) has convicted and sentenced the appellant as under :- Conviction Sentence U/s 363 of IPC R.I. for 3 years and fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 3 months. U/s 366 of IPC R.I. for 7 years and fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 6 months U/s 376(1) of IPC and Section 4 of POCSO Act R.I. for 7 years and fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 1 year. 3 4. Case of the prosecution in brief is that on 16.05.2015 Kanti Bai, mother of prosecutrix has lodged a missing report at Police Station Sarsiva that her daughter who is aged about 16 years had gone to purchase something on 10.05.2015 at Sarsiva Bus Stand at around 11:00 am and when at 1:00 pm the complainant returned home she found that her daughter is missing. The complainant also alleged that her daughter used to talk to somebody over mobile phone but on being questioned she told nothing. 5. After hearing learned counsel for the parties and appreciating evidence available on record, the trial Court vide judgment dated 25.09.2019 convicted and sentenced the appellant/accused for the offence punishable under Sections 363, 366 & 376(1) of IPC and Section 4 of POCSO Act, 2012 in the manner as described above of this judgment. Hence, this appeal. 6. In order to prove the charges against the appellant, prosecution examined as many as 10 witnesses. Statement of appellant was also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. After completion of trial, Trial Court convicted and sentenced the appellant in the manner as described above. Hence, this appeal. 7. Learned counsel appearing for the appellant submits that there was love 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 from one place to another. Conduct of 4 prosecutrix is seen in its entirety, it is clear that she had been a consenting party. Learned counsel appearing for the appellant submits that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. 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. Learned counsel further submits 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. Prosecution also failed to examine the person before the trial Court, who entered the date of birth of prosecutrix in her School register and, therefore, 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 prosecutrix. Learned Counsel further contended that there are material contradictions and omissions between case diary statements and Court deposition of prosecution witnesses. Prosecution failed to adduce any cogent and reliable piece of evidence to prove the guilt of appellant. Further, trial Court also failed to appreciate that medical report/evidence placed on record does not support the case of prosecution. Without there being any sufficient, cogent and clinching evidence/material available on record, the alleged offence of IPC is not made out against the appellant, hence, he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits the 5 prosecution has successfully proved the commission of offense by the appellant beyond reasonable doubt and the appellant has been rightly convicted and sentenced by the trial Court, therefore, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 9. I have heard learned counsel for the respective parties, perused the judgment of the trial Court as well as other material available on record with utmost circumspection. 10.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 MLC (X-Ray report). 11. Mother of the prosecutrix (PW-5) has stated in her statement that since she is illiterate therefore she does not know the date of birth of the prosecutrix. 12. Dr. Jaishree Shadilya (PW-01) who medically examined the prosecutrix gave her report (Ex. P-2) wherein she has stated that secondary sexual character of prosecutrix are well developed, no sign of struggle on the body seen. X-Ray of Right wrist are advised. There is incomplete fusion of ossification center of lower end with their shopt. Her probable age is between 16 to 18 years. Examination of private parts:- Vulva is of normal pink colour, hymen old healed lacerated duration of which is not more than 10 days. X-Ray Plate Swab is taken from vulva and vagina respectively marked as 1 & 2. Report of under microscope show no sperm particles 6 and pregnancy test is negative. 13. There is no documentary evidence available on record which proves that on the date of incident the prosecutrix was minor. Also 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 reveals the probable age of the prosecutrix to be 16 to 18 years. 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. There is no Dakhil-Kharij Register or Kotwar Register available on record which proves that on the date of incident, the prosecutrix was minor. Also, the mother of prosecutrix PW-5 have deposed in her statement that she is illiterate and does not know the date of birth of the prosecutrix. 14. 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 proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. 7 (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 purpose of this Act, be deemed to be the true age of that person. 15. From perusal of statements of prosecutrix (PW-6), her mother (PW-5) and other prosecution witnesses, it appears that there is no any cogent and clinching evidence led by the prosecution to hold that on the date 8 of incident, the prosecutrix was minor and below 18 years of age. 16. 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)(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 9 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. 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 10 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 be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 17. 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 11 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. 18. 11. The Hon'ble Apex Court in the matter of Alamelu and another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 observed in paras 40 & 48 of its judgment 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 12 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:- 19. "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 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 20.Now, reverting to the facts of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, I find that no clinching and legally admissible evidence has been brought by the prosecution to 13 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 evidence. 21. The fact of commission of rape stated by the prosecutrix (PW-6) in her statement that on 10.05.2015 the accused proposed her for marriage and took her to his Village Tilaidadar. She further stated that she told accused to first ask to her mother, sister and brother- in-law for marriage. She further alleged that accused married her and established physical relation with her. This witness in her cross-examination has deposed that she knows the accused from about 1 month. She further admitted that she herself sat on his motorcycle from the Sarseeva Bus Stand. She again admitted that Bus Stand is a public area where there always remains rush. When she was going with the accused she did not ask anybody for help. 22. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix was a consenting party. Nowhere she disclosed that at any point of time that the appellant was taking her by forcefully and appellant has committed sexual intercourse with her without her consent. 23. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the 14 prosecutrix, I am of the opinion that the age of the prosecutrix is not verified and she was a consenting party. Therefore, in the above facts and circumstances of the case, offence under Sections 363, 366 & 376 (1) of IPC and Section 4 of POCSO Act, 2012 would not be made out against the appellant. 24. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 29.1.2016 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be on bail. His Bail bonds are not discharged at this stage and the same shall remain operative for a further period of 6 months in light of Section 437-A of Cr.P.C. 25. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) JUDGE Madhurima