1 2025:CGHC:17345 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 99 of 2016 1 - Hemant Dewangan S/o Shri Gopal Prasad Dewangan Aged About 22 Years R/o Naya Ganj Kochtapara, Ward No. 21, Raigarh, Police Station Kotwali, Raigarh, District Raigarh Chhattisgarh. , Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through The Police Station Lalbag, District Rajnandgaon Chhattisgarh. , Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Roop Naik, Advocate For Respondent(s) : Mr. Rishabh Singh Deo, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 15/04/2025 1. With the consent of the parties, the present matter is heard finally. 2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 16.12.2015, passed in Special Sessions Case No. 26/2014 by which the learned Additional Sessions Judge and Special Judge 2 (POCSO) F.T.C., Rajnangaon (CG),whereby the appellant has been convicted and sentenced as follows:- Conviction Sentence U/s 366 of IPC R.I. for 7 years and fine of Rs. 2000/-, in default of payment of fine, additional imprisonment for 6 months. U/s 376 of IPC R.I. for 7 years and fine of Rs. 2000/-, in default of payment of fine, additional imprisonment for 6 months. U/s 3/4 of POCSO Act R.I. for 7 years and fine of Rs. 2000/-, in default of payment of fine, additional imprisonment for 6 months. 3. Brief facts of the case are that the complainant Valaram Sahu (PW-1) lives in village Ghorda and does agricultural work. The date of birth of his youngest daughter, the victim/applicant (PW-2) is 20.03.1996. On 16.03.2014, at around 3 pm, he was sitting near the window of his house. At the same time his daughter, the victim/applicant (PW-2) went towards the courtyard of the house in front of him. She was wearing a white spotted kurta (salwar suit). He thought that his daughter, the victim applicant (PW-2) had gone to the fields with her mother Kamtabai (PW-4). In the evening when his wife Kamtabai (PW-4) returned from the fields, he asked his wife Kamtabai (PW-4) where the victim/applicant (PW-2) was. Then it was told by his wife Kamtabai (PW-4) that the victim/applicant (PW-2) had not come to her. Then he searched 3 nearby relatives of the victim/applicant (PW-2), but she was not found. Then he went to the police station Lalbagh and reported the incident at 11.30 am on 21.03.14. According to the information given by Valaram Sahu (PW-1), In-charge Inspector Shaukat Ali (PW-10) registered an FIR (Ex. P-1) for an offence under Section 363 of Cr.P.C. against unknown person bearing Crime No. 114/2012. On 09.04.2014, Thugiya Chandravanshi (PW-6) recovered the victim/applicant (PW-2) from the possession of accused Hemant Devagnan and prepared recovery Panchnama Ex.P-8. From the possession of the accused, a blue colored underwear with Lux Venus written on it, which had semen like stains at many places, was confiscated and a seizure memo Exhibit P-9 was prepared. Consent was obtained from the victim/applicant (PW-2) regarding her medical examination, the consent letter is Ex.P-7 and consent was also obtained from Valaram (PW-1), father of the victim/applicant (PW-2) whose consent letter is Ex. P-3. The application given for obtaining permission regarding genital examination from Sub-Divisional Magistrate Rajnandgaon is Ex.P-4. 4. Prosecution in order to prove its case examined total 12 witnesses. Statements of appellant (accused) was also recorded under Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no evidence was adduced by him in his defence. 4 5. After hearing counsel for the parties and appreciating evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellant in the manner as described above of this judgment. Hence this appeal. 6. Learned counsel for appellant submits that the Trial Court has wrongly held the age of the prosecutrix as below 18 years only on the basis of the school admission record without any corroborating fact of date of birth, which is not authentic evidence to prove the date of birth. No authentic documentary proof was filed in order to show that the prosecutrix was a minor girl on the alleged date. The date of birth mentioned as 20.03.1996 in Dhakhil Kharij Panji (Ex. P-21) cannot be said to be conclusive as P.W.-12/Principal of the school, in his cross-examination admitted that he cannot tell on what basis the age of the victim was recorded in the register. Further, P.W.-01/father of prosecutrix has categorically admitted in his deposition that he does not know the date of birth of the prosecutrix. Further, no ossification test of the prosecutrix has been conducted to ascertain her age. 7. On the other hand, learned counsel for the State supporting the impugned judgment submits that the Trial Court has rightly appreciated and considered the documentary evidence (Ex. P-21) with regard to proving the age of the prosecutrix and has given a clear finding that on the date of incident the prosecutrix was 17 years 11 months and 24 days. The prosecutrix has categorically incriminate the present appellant in her statement and the 5 appellant has failed to offer any explanation in this regard in his statement under Section 313 of Cr.P.C. It is well settled law that the statement of the prosecutrix, in inspired confidence to the judicial conscious of the Court, is alone sufficient to convict the accused who had committed the henious offence of rape and no further corroboration is required. He further contended that the judgment of conviction and sentence recorded by the learned Trial Court is based on sufficient and reliable evidence tendered by the prosecution and there is no infirmity in the same. As such, even if there was affair between the appellant and the prosecutrix, the act committed by the appellant makes him liable for conviction under Sections 366 & 376 of IPC and Section 3 and 4 of POSCO. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed. 8. Heard learned counsel for the respective parties and perused the record placed on record. 9. 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. 6 (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. 10. 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 7 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 8 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.” 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 Section 35 of the Indian Evidence Act, a public document has to be 9 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 10 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-21) and marksheet of Class 10th (Ex. P-22), wherein date of birth of prosecutrix is mentioned as 20.03.1996 and on the date of incident, i.e., on 16.03.2014 age of the prosecutrix was 17 years 11 months 24 days, but the same has not been proved by the prosecution as the author of the Dakhil- Kharij Register PW12 has admitted in his cross-examination that he cannot tell on what basis the age of the victim was recorded in the register. He also admitted that to take admission in the primary school the date of birth of the child is entered in the registered and in the Transfer Certificate. The date of birth mention in TC is entered in records when the student takes admission either in different school or in Class 6th or 9th of same school. Considering the statement of P.W.-02/prosecutrix, she has deposed in her cross-examination that she know the accused and they used to talk. There is no documentary evidence available on record, nor any Birth certificate has been produced. Even the ossification test of the prosecutrix has not been done. 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. Also, PW-12, Principal of the School has denied the basis upon which the date of birth was entered. Also, 11 he could not tell who had made the entry in the said register. Thus, the School Admission and Discharge Register 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 Ossification report produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. The father of prosecutrix (PW-1) has also unable to state the date of birth of the prosecutrix. Therefore, the prosecution has failed to prove that on the date of incident prosecutrix was minor. 13. Also, prosecutrix PW-2 has deposed in her examination-in-chief that she knows the accused and they got acquainted with each other while talking over mobile phone. Accused once or twice had come to her village. On 03.02.2014 she went along with accused to Raigarh and she stayed with the accused in Raigarh for about a month. She further admitted in her cross-examination that she went along with accused by her own free will. She further admitted that the accused had not made any promise of marriage to her prior she went with the accused. She again admitted that the villagers knew that there is love affair between the accused and the prosecutrix. She also admitted that the accused used to visit her house with her sister-in-law’s brother. With regard to her age, though the prosecutrix has deposed that her date of birth is 20.03.1996 but in cross-examination she has admitted that she does not know whether her date of birth as mentioned in Dakhil- 12 Kharij Register is correct or not. In para 9 of her cross- examination the prosecutrix has deposed that she does not want to proceed a criminal trial against the accused. 14. PW-1/ father of prosecutrix has admitted in his cross-examination that the villagers knew about the love affair between the prosecutrix and the accused. He also admitted that the accused used to visit his house. In para 5 of his cross-examination this witness admitted that he has entered the date of birth of the prosecutrix on his own ( अंदाज़ से). He also admitted that her daughter/prosecutrix is 2-3 months elder than the date of birth he has entered in the school. 15. From perusal of statements of prosecutrix (PW-2), her father (PW- 1) as well as 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/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 as 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 proved by the prosecution by leading cogent and clinching evidence. 16. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has committed any forceful sexual 13 intercourse with her. Dr. Gambhir Kotadiya (PW-8) has deposed in his statement that on 10.04.2014 he had performed abdominal sonography of prosecutrix and gave report (Ex. P/18) and found that the prosecutrix is 8 months pregnant. 17. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, this Court is of the opinion that the age of the prosecutrix is not verified and not proved by the prosecution that prosecutrix was minor at the time of incident and she was a consenting party and also it is a case of elopement. Therefore, in the above facts and circumstances of the case, offence under Section 366, 376 of IPC and Section 3 and 4 of POCSO Act would not be made out against the appellant. 18. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 16.12.2015 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. 19. The appellant is reported to be in 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. 20. 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