1 2025:CGHC:20533 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 157 of 2020 1 - Sonu Chouhan S/o Shri Lal Sai Chouhan Aged About 25 Years Village - Dugdugiya, Thana Kunkuri, District Jashpur, Chhattisgarh., District : Jashpur, Chhattisgarh ...Appellant(s) versus 1 - State Of Chhattisgarh Through - Officer-In-Charge, Police Station - Urla, District Raipur, Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. B. P. Rao, Advocate For Respondent(s) : Mr. Swajeet Singh Ubeja, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 05/05/2025 1. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 21.11.2019 passed in Special Criminal Case No. 202/2017 by 7th 2 Additional Sessions Judge, Raipur (C.G.) and has convicted and sentenced the appellant as under :- Conviction Sentence U/s 363 of IPC R.I. for 2 years and fine of Rs. 500/-, in default of fine additional R.I. for 15 days. U/s 366 of IPC R.I. for 3 years and fine of Rs. 1000/-, in default of fine, additional R.I. for 1 month U/s 376(2)(n) of IPC R.I. for 10 years and fine of Rs. 5000/-, in default of fine, additional R.I. for 3 months. 2. Case of the prosecution in brief is that father of prosecutrix has lodged the FIR at Urla Police Station on 30.04.2017 that his minor daughter has left the house at 2:00 noon on 30.04.2017. Accordingly, the FIR was registered under Section 363 of IPC and upon investigation and on arresting the appellant and on recovering the prosecutrix on 12.05.2017 from the custody of appellant, and after recording her statement, it was found that prosecutrix was under 18 years of age on the date of incident and while she was in the custody of appellant, the appellant committed sexual offence with her repeatedly. 3. In order to prove the charges against the appellant, prosecution examined as many as 7 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. 3 4. 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 prosecutrix is seen in its entirety, it is clear that she had been a consenting party. 5. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits the 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. 6. 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. 7. 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 Dakhil Kharij Register (Ex.P-14/C), wherein date of birth of prosecutrix is mentioned as 16.04.2000. 8. PW-3/ Headmistress of school has deposed in her examination-in-chief that she is posted as Principal in the school from the year 2003. At S. No. 442 of Dakhil-Kharij Register, the name of prosecutrix is entered and her date of birth is 16.04.2000, her date of admission in school is 10.07.2010 in Class III and date of discharge in Class VIII is 4 25.04.2015 which is entered in her own handwriting. She admitted in her cross examination that she has corrected the date of birth of prosecutrix in Dakhil-Kharij Register by overwriting and has entered the date of birth according to the Birth Certificate. The said birth certificate was presented before her in Class 5th. 9. There is no any documentary evidence available on record that on what basis date of birth of prosecutrix is mentioned as 16.04.2000 and 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 has not been conducted. There is no legally admissible evidence with regard to age of prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. 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 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. 5 (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. 11. 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 6 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 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 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 7 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.” 12. 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 Section 35 of the Indian Evidence Act, a public document has to be 8 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 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 9 unjustly be convicted." 13. From perusal of statements of prosecutrix (PW-1), her father (PW-2) and Principal of her school (PW-3) as well as other prosecution witnesses, it appears that there is no any cogent and clinching evidence led by the prosecution to hold that on the date of incident, the prosecutrix was minor and below 18 years of age. 14. 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 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. 15. Now, the question for consideration before this Court is whether the accused committed rape upon the prosecutrix? 16. In this regard, PW-1/ prosecutrix has admitted in para 8 of her cross- examination that on the date of incident she had an argument with her family members and on the same day the accused called her and asked her to come to Raipur Railway Station. She went alone from her village to Raipur Railway Station. In para 13 she admitted that she lived with accused from 01.05.2017 to 12.05.2017. During this period, she did not informed her parents either through her mobile phone or through the mobile phone of accused. The accused took a house on 10 rent at Ambikapur by telling the landlord that the prosecutrix is his wife. At that time she did not refused that she is not the wife of accused. 17. 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 against her will. 18. Dr. C.M. Pandey (PW-4) who medically examined the prosecutrix gave her report (Ex. P/12) wherein she stated that there is no external injury mark seen on body, secondary sexual character well developed, no injury on breast, axillary hairs, short, blackish in colour. Hymen ruptured old tag present, no injury mark seen, no bleeding. She gave her opinion that sexual act might have been taken place but no sign of recent forceful sexual act. 19. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, I am of the opinion that the age of the prosecutrix is not verified and she was a consenting party. Therefore, in the above facts and circumstances of the case, offence under Sections 363, 366 and 376(2)(n) of IPC would not be made out against the appellant. 20. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 21.11.2019 passed in Special Criminal Case No. 202/2017 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to 11 be in jail. He be released forthwith, if not required in any other case. 21. 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.10,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months along with 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 thereof shall appear before the Hon’ble Supreme Court. 22. 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