1 CRA No.330 of 2016 2025:CGHC:53927 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 330 of 2016 Pankaj @ Chhotu Pathak S/o Shiv Kumar Pathak Aged About 22 Years R/o Mahamaya Chowk, Ward No. 4, Pandariya, Police Station Pandariya, Civil And Rev. Distt. Kabirdham Chhattisgarh. , Chhattisgarh ... Appellant versus State of Chhattisgarh Through Station House Officer, Police Station Pandariya, District Kabirdham Chhattisgarh. , Chhattisgarh Respondent (Cause title taken from the Case Information System) For Appellant : Mr. Dharmesh Shrivastava, Advocate For Respondent/State: Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Bibhu Datta Guru , Judge Order on Board 04/11/2025 1. This appeal is directed against the judgment of conviction and sentence dated 27/02/2016 passed by the learned Special Judge (POCSO) FTC, Kabirdham, C.G. in Special Sessions Case No.160/2015, whereby the appellant has been convicted and sentenced as under:- AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.11.07 16:35:35 +0530 2 CRA No.330 of 2016 Conviction Sentence Under Section 451 of the IPC R.I. for 2 years & fine of Rs.500/- with default stipulation Under Section 12 of the POCSO Act R.I. for 3 years & fine of Rs.1000/- with default stipulation Both the sentences are directed to run concurrently. 2. Facts of the case, in brief, is that, the prosecutrix lodged a report at P.S. Pandaria that when she was studying in class 10th, the present appellant used to talk her and in the month of June, he hold her hand by saying “he loves her and he wants to marry her”. When the prosecutrix narrated the incident to her parents, her father got her admitted to another school. It is further alleged that the appellant used to speak to her in an obscene manner over phone, and used to force her to marry and pressurize to establish physical relations. On 29.06.2015 at 2.30 pm, the appellant came to her house and threatened that on 01.07.2015, he would make her as his wife and take her away after making her wear a mangalsutra. At that time, her mother Teejan Bai was there. The appellant also called the mother of prosecutrix over the phone and used filthy language. Based on above facts, FIR was registered against the appellant. Spot map was prepared and after completion the investigation, final report was prepared. 3. In order to bring home the above-stated offence, the prosecution examined as many as 8 witnesses. Statement of the appellant 3 CRA No.330 of 2016 under Section 313 of the Cr.P.C. was recorded, wherein he has pleaded his innocence and false implication in the matter. 4. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence this appeal. 5. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He submits that the witnesses in the case are interested witnesses and most of them have turned hostile and not supported the case of prosecution. The learned trial Court failed to appreciate the statements of the appellant recorded under Section 313 of Cr.P.C. where he has stated that the report has been falsely lodged by the prosecutrix due to dispute between the appellant with the father of prosecutrix. Only on the statement of prosecutrix, the appellant has been implicated falsely in the present case. Learned counsel further submits that as per the statement of PW-4, mother of accused, the father of prosecutrix is a habitual drinker and after consuming liquor, he used to shout and create nuisance, due to which, her son-appellant objected him in his office and for this reason, father of prosecutrix made false report by her daughter to implicate him. The prosecution has miserably failed to prove the actual age of the victim and PW-5 Principal of the school stated in his evidence that he has recorded the date of birth of victim in the 4 CRA No.330 of 2016 Dakhil Kharij register. However, PW-5 Principal clearly stated that he has not taken any document with respect to the date of birth of victim to record in dakhil kharij register. Learned counsel submits that the entire incident is highly doubtful, therefore, the conviction of the appellant is not sustainable and he may be acquitted of the charges framed against him. 6. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the victim and other witnesses are fully reliable. There are sufficient evidence available on record to hold that the appellant is guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference. 7. I have heard learned counsel for the parties and perused the record. 8. The first and foremost question arose for the consideration would be whether the victim was minor and less than 18 years of age on the date of incident or not. 9. PW-2, mother of victim stated that the victim was running in 18 years of age. However, she has not stated the exact date of birth of victim. PW-1, victim stated in her evidence that she is 17 years of age and her date of birth is 27/08/1998. PW-3, father of prosecutrix stated that the date of birth of victim is 27/08/1998 and 5 CRA No.330 of 2016 her age is 17 years. 10. PW-5, Om Prakash Gupta, Principal of the school has deposed in his statement that the Dakhil Kharij Register Ex.P-7/C was seized by the police. He deposed that in Sr. No.524 of dakhil-kharij register, the date of birth of victim has been mentioned as 27/08/1998. In cross-examination, he has admitted that he has made entries in the said register with regard to date of birth of the victim, however, he categorically stated that while taking the admission of victim, he has not taken any document with respect to prove the exact date of birth of victim. 11. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Supreme Court has 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. 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. 6 CRA No.330 of 2016 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 7 CRA No.330 of 2016 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 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 8 CRA No.330 of 2016 right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 12. 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. 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 9 CRA No.330 of 2016 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 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 10 CRA No.330 of 2016 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 be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." 13. 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 11 CRA No.330 of 2016 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 thedescription 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 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 12 CRA No.330 of 2016 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 13 CRA No.330 of 2016 that the date of birth certificate fromthe 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." 14. Reverting to the facts of the present case, PW-2, mother of victim stated that the victim is running in 18 years of age. However, she has not stated the exact date of birth of victim. PW-1, victim stated that she is 17 years of age and her date of birth is 27/08/1998. PW-3, father of prosecutrix stated that the date of birth of victim is 27/08/1998 and her age is 17 years. PW-5, Om Prakash Gupta, Principal of the school categorically stated that he has not taken any document with respect to prove the exact date of birth of victim, while he making entries in the dakhil kharij register at the time of admission in the school. 15. Except for these evidences, no other evidence like ossification test report 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 evidence of Dakhil Kharij Register is not sufficient to hold that the victim was minor on the date of incident because of the reason that the PW-5 has not taken any document 14 CRA No.330 of 2016 while he was making entries in the said register at the time of admission. There is every possibility that the date of birth of the victim was recorded in the Dakhil Kharij Register 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 sufficient 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. Thus, the conviction under Section 12 of the POCSO is not made out against the accused/appellant. 16. The next question for consideration would be whether the appellant has committed the said offence or not. 17. PW-4, mother of appellant stated in her evidence that Pankaj is his son. The police neither questioned her nor recorded her statement. She knows PW-3; he is a Clerk in the Irrigation Department at Pandariya, and his house located near her house. She further stated that PW-3 is addicted to alcohol and used to drink in front of her house every day and create nuisance. PW-3 used to consume alcohol and abuses people. She further stated that her son Pankaj/appellant had gone to the office of PW-3 to lodge a complaint regarding his conduct and for the this reason, her son has been falsely implicated in this case. 15 CRA No.330 of 2016 18. PW-3, father of prosecutrix stated in his evidence that his daughter was giving her class 10th examination in the year 2014- 15 when the accused molested her by teasing and holding her hand. On the afternoon of 29th June 2015, while he was at school, his wife called and informed him that the accused had entered their house and said that he would marry their daughter, make her wear a mangalsutra, and would bring eight to ten people to take her away. In cross-examination, he stated that he was a peon in the school earlier. It is correct to say that he drinks alcohol. He further admitted that when the accused molested her daughter by teasing and holding her hand, he did not mention the same in his police statement. He further stated that the prosecutrix had not told him about the incident that took place during the Class 10th examination. 19. PW-1 prosecutrix stated in her evidence that she is a student of Class 11. When she was in Class 10th, during the time of the board examinations, she used to go to school and the accused used to follow her, but he never said anything to her. Therefore, she did not tell her parents. On the day of the last board examination, when she was returning home after the exam, he told me that he loved her and had been watching her for a long time. Then, she got scared because she was alone at that time. She further stated that the accused used to call her on different mobile numbers. On 29th June 2015, at around 2:30 p.m., the 16 CRA No.330 of 2016 accused came to her house. At that time, only her mother and she were at home. The accused threatened them, saying that he would make her as his wife. In cross-examination, she stated that she does not know whether the accused has a mobile phone registered in his own name or not. She does not remember that which mobile number she mentioned in the report Exhibit P-01. She also does not know whether the number mentioned in the report Exhibit P-01 actually belongs to the accused or not. 20. After going through the above evidences, It is evident from the testimony of PW-4, the mother of the accused, that the father of the victim has a history of habitual alcohol consumption and creating disturbances in the neighborhood. Her evidence suggests that the appellant, Pankaj, had merely gone to the office of father of victim to make complaint regarding his misconduct. This indicates a possible motive for falsely implicating her son in the present case. The conduct and character of father of victim as described by PW-4, raise reasonable doubt regarding the credibility of the allegations against the appellant. Moreover, PW-3 admits in his evidence that he consumes alcohol. It also reveals from his statement that the prosecutrix did not inform him about the alleged incident that occurred during her Class 10th examination, and he only became aware of the incident after his wife informed him. Apart from that, there is no other witnesses who have seen the appellant entered the house of the prosecutrix 17 CRA No.330 of 2016 and threatened her. 21. Considering the above, it appears that the prosecution has failed to establish a strong case against the accused, and the evidence presented raises doubts about the allegations made against him. Therefore, it is likely that the accused may be acquitted of the charges due to lack of sufficient evidence and inconsistencies in the statement of the case of prosecution. The prosecution has failed to prove its case beyond reasonable doubt against the appellant and the appellant is entitled for benefit of doubt. Thus, the conviction of the appellant under Section 451 IPC is not sustainable. 22. In the result, the appeal is Allowed. The impugned judgment of conviction and sentence dated 27/02/2016 is set aside. The appellant is acquitted from all the charges leveled against him. Appellant is on bail. Surety and personal bonds earlier furnished by him at the time of suspension of sentence shall remain operative for a period of six months in view of the provisions of Section 481 of the BNSS. The appellant shall appear before the higher Court as and when directed. 23. 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/- (Bibhu Datta Guru) Judge Gowri/Amardeep