1 2025:CGHC:20823 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 316 of 2016 Pradeep Singh Thakur S/o Kalicharan Thakur Aged About 28 Years R/o Sanjay Nagar, Bakra Market, Audio Plot, Raipur, District Raipur, Chhattisgarh ... Appellant versus State of Chhattisgarh Through Station House Officer, Police Station Kumhari, District Durg, Chhattisgarh ... Respondent ___________________________________________________________ For Appellant : Ms. Sameeksha Gupta, Advocate For State/Respondent : Mr. Shailendra Sharma, Panel Lawyer ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 06/05/2025 1. 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, Ms. ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.05.22 15:55:16 +0530 2 Sameeksha Gupta, Advocate has been nominated to assist the Court. 2. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate, Ms. Sameeksha Gupta through the High Court Legal Aid Services Committee and learned State counsel. In view of law laid down by the Hon’ble Supreme Court in the matter of Surya Baksh Singh v. State of Uttar Pradesh {(2014) 14 SCC 222}, I do not consider it necessary to adjourn this case and issue fresh notice to the appellant and his interest has been duly taken care of by nominating another counsel from the High Court Legal Aid Services Committee. 3. The appellant has filed the instant criminal appeal under Section 374(2) of the Criminal Procedure Code questioning the judgment of conviction and order of sentence dated 25/01/2016 passed by the Additional Sessions Judge, Fast Track Court, Durg, (C.G.) in Special Sessions Case No.9/2015, whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 363 of the Indian Penal Code, 1860 R.I. for 4 years and fine of Rs.5000/- and in default of payment of fine additional R.I. for 06 months Under Section 366 of the Indian Penal Code, 1860 R.I. for 4 years and fine of Rs.5000/- and in default of payment of fine additional R.I. for 06 months Under Section 376 (2) (i) of the Indian Penal Code, 1860 R.I. for 10 years and fine of Rs.10,000/- and in default of 3 payment of fine additional R.I. for 06 months 4. The case of the prosecution in brief is that the complainant (PW-1) lodged a report at the Kumhari police station on 16-9-2012 that his minor daughter (PW.-6), aged about 13 years, had gone somewhere without informing anyone on 16/09/12 at 10:00 am. On the basis of the report filed by the complainant regarding the missing of his minor daughter (PW-12), Assistant Sub-Inspector J.P. Kathote (PW-10) of the Kumhari police station registered a missing person case under sections 363, 366, FIR No. 268/2012 against an unknown person was registered and investigation was started. 5. During the investigation, the investigation officer, Sub-Inspector Narendra Yadav, recovered the prosecutrix from his possession from the house situated at Sanjay Nagar Bakra Market Audio Plot on 16-9-2012. The prosecutrix was recovered in front of witnesses and recovery panchnama (Ex.P.1) was prepared. On investigation it was found that accused Pradeep Singh Thakur had lured and kidnapped the minor girl aged about 13 years daughter of Mangal Gupta, resident of Shanti Nagar Kumhari, and took her to his residence in Raipur, married her, made her his wife and kept her with him and had continuous sexual intercourse with her, as a result of which the prosecutrix is 8 months pregnant. 6. During the investigation, the investigating officer, Sub-Inspector, 4 Narendra Yadav, PW-5, obtained consent from the parents of the victim, for the genital examination of the victim, as per Exhibit P-2 the application form Exhibit P-4, for the medical examination of the complainant was prepared and the victim was sent to Government Hospital, Kumhari, through lady constable Hemlata Patekar No. 754, for genital examination. The victim was medically examined by doctor Dr. Rashmi Abha Minj, PW-2, and medical examination report, Exhibit P-4 was prepared, according to which the victim was found to be 30-32 weeks pregnant on examination date 19.11.14, and was referred for examination of the baby and sonography. 7. During the investigation, the investigating officer, Sub-Inspector Narendra Yadav, PW-5, prepared the medical examination form Exhibit-6 for the accused's potency test and sent the accused to the Government Hospital, Kumhari. Dr. Vipin Chandrakar PW-4 conducted the medical examination of the accused and prepared the report Exhibit-P/6. During the investigation by the investigating officer, Sub-Inspector K.R. Sinha PW-9, the progress card of class V of the prosecutrix, year 2011-12 Article A was seized from the victim's grandmother PW-7 in the presence of witnesses, and the seizure letter was made in the presence of witnesses as per Exhibit P-13, and the Dakhil Kharij Register Exhibit P5C was recovered from the possession of Madlal Sahu, PW.-3, the head teacher of Kanya Prathmik Shala Kumhari and was attached to the record. 5 8. 5 8. During the investigation, the investigating officer Sub-Inspector, Narendra Yadav A.W.-5 arrested the accused in front of witnesses and prepared the arrest sheet Exhibit-7 and arrested the accused and the information was given to the family of the accused as per Exhibit-8. Statements of the prosecutrix and witnesses were recorded. The prosecutrix was produced before the court of Judicial Magistrate First Class, Patan District Durg for recording the statement under Section 164 Cr.P.C. The statement of the prosecutor was recorded under Section 164 Cr.P.C. by the concerned court. After investigation, on finding evidence of crime, the final report has been presented before the court. 9. The accused has denied the charges under sections 363, 366, 376 (2) (i) of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012. 10. In the statement of complaint under section 313 of Criminal Procedure Code, the accused has given the clarification that he had married the prosecutrix out of love at the age of 18 years and that at present a daughter has been born from their married life and that the prosecutrix is living with her parents. 11. In order to bring home the offence, the prosecution examined as many as 09 witnesses. On completion of the trial, the trial Court convicted and sentenced the appellant as mentioned above. Hence, this appeal. 6 12. Learned counsel appearing for the appellant contended that the judgment of conviction and order of sentence passed by learned Trial Court is arbitrary, illegal and contrary to the law applicable in the facts and circumstances of the present case. She would next contend that the learned Trial Court has not properly appreciated the evidence placed on record. She would next contend that the prosecution has completely failed to prove the age of prosecutrix. She would next contend that (PW- 1) father of prosecutrix, (PW-6) prosecutrix, (PW-7) grandmother of prosecutrix, (PW-8) mother of prosecutrix have turned hostile and not supported the prosecution story. She would next contend that there are contradictions and omissions in the statement of the prosecution witnesses. She would lastly contend that it is, therefore most humbly and respectfully prayed that this Court may kindly be pleased to allow this appeal and set aside the conviction passed by the learned trial court and the appellant may kindly be acquitted from the charges. 13. On the other hand, learned counsel for the State opposes the submission advanced by learned counsel for the appellant and submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 14. I have heard learned counsel appearing for the respective parties and perused the record of the trial Court and other material available on record with utmost circumspection. 7 15. 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 Admission Discharge Register of Ex.P-5, which is of Class IV, wherein date of birth of prosecutrix is mentioned as 20/08/1998. 16. The prosecutrix (PW-6) has stated in her examination-in-chief (Para -1) that she knows the accused, he is her husband. She does not know her date of birth. She has studied till class 5th, currently her age is 22 years. She further in para -2 stated that the police interrogated her and she told them the same statement and said that she is an adult and her birth certificate should be called from her parents but it was not called. She further in para -3 has stated that it is wrong to say that her date of birth is 20/08/1998. 17. Madan Lal Sahu (PW-3), Headmaster of Government Girls Primary School Kumhari stated in his cross-examination (Para-2), that the details of the prosecutrix in the Dakhil Kharij Register has not been written by him and he cannot state that the parents of the prosecutrix has got entered the date of birth rightly or not. 18. Grandmother of the victim (PW-7) has stated that the age of the victim is 20 Years and she do not remember the date of birth of the victim. She further in her cross-examination has stated that the age of the prosecutrix 8 is 22 Years and at the time of performing marriage her age was 19 Years. She has also stated that since the prosecutrix had become of more age, therefore, the school teachers had written her date of birth by reducing her age. 19. The mother of the prosecutrix PW-8 has stated that she do not remember the date of birth of the prosecutrix. She has also stated that at present the age of the prosecutrix is more than 18 years, but she cannot state that at present what is her age. She in her cross-examination stated that at present the age of the prosecutrix is 22 Years and at the time of performance of marriage her age was 19 Years and they have entered the less age of the prosecutrix in the school. 20. 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 9 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. (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 10 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. 21. 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. 22. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), 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 11 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 12 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 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 13 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 right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.” 23. In case of Rishipal Singh Solanki Vs. 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 14 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 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 15 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 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.” 24. 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 16 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 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. 15.In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. the 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 17 physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking 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 that the date of 18 birth certificate from the 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.” 25. 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 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. 26. In order to consider the consent of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. 27. The prosecutrix (PW-1) has stated in her examination-in-chief (Para -1) 19 that since she was 12-13 years old, her parents used to torture her by telling her to run away from home, so she used to be upset with her family members, and due to this her maternal grandparents took her with them to Bihar, but there her grandmother used to accuse her of stealing, and her maternal grandfather used to behave badly with her, She was very upset, due to this when she was 20 years old, and she was introduced to the accused, she married the accused in the temple in the year 2013 and living as wife, a child has also been born and they are happy. A false report was filed by my parents because she married the accused without their consent. 28. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix had gone with the appellant and she performed marriage with him and one child was also born out of the wedlock. Further she has not leveled any allegation of sexual intercourse against the appellant. 29. 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 prosecutrix was more than 18 years of age at the time of incident and she was a consenting party. Therefore, in the above facts and circumstances of the case, offence as alleged against the appellant would not be made out. 30. The appeal is allowed accordingly. The judgment of conviction and order 20 of sentence dated 25/01/2016 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 shall remain operative for a period of 06 months in view of Section 437A of CrPC (now Section 481 of Bhartiya Nagrik Suraksha Sanhita, 2023). 31. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Arvind Kumar Verma) Judge ashu