1 2025:CGHC:57152-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1529 of 2023 Rupam @ Ayush Jaiswal S/o Sunil Kumar Jaiswal Aged About 20 Years R/o Village Katkona, Police Station Khadgawan, District : Koriya (Baikunthpur), Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Of Police Station, Pratappur, District : Surajpur, Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Anil Gulati, Advocate For Respondent/State : Mr. S.S. Baghel, Dy. Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha, Chief Justice 25.11 .2025 1. Heard Mr. Anil Gulati, learned counsel for appellant as well as Mr.S.S. Baghel, learned Deputy Government Advocate, learned Panel Lawyer, appearing on behalf of the State/respondent. 2. This appeal is directed against the judgment of conviction and order of sentence dated 28.03.2023 passed by the learned ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 Special Judge (POCSO Act, 2012), Pratappur, District – Surajpur C.G.) in Special Sessions Trial No.15/2021, whereby the trial Court has convicted and sentenced the appellant with a direction to run all the sentences concurrently in the following manner : CONVICTION SENTENCE U/s 363 of IPC RI for 01 year and fine amount of Rs.500/-, in default of payment of fine amount, additional RI for 03 months U/s 366 of IPC RI for 07 years and fine amount of Rs.1,000/-, in default of payment of fine amount, additional RI for 06 months U/s 376(2)(j)(n) of IPC RI for 25 years and fine amount of Rs.2,000/-, in default of payment of fine amount, additional RI for 03 years U/s 376(2) of IPC RI for 25 years and fine amount of Rs.2,000/-, in default of payment of fine amount, additional RI for 03 years U/s 6 of the POCSO Act RI for 25 years and fine amount of Rs.2,000/-, in default of payment of fine amount, additional RI for 03 years 3. Case of the prosecution, in brief, is that the date of birth of the victim is 16.09.2007 and on the date of incident 23.10.2021, she was a minor girl of 15 years of age. On 25.10.2021, on the basis of information given by the father of the victim regarding the victim leaving the house without informing him at 7 pm on 23.10.2021 (Ex.P-1) a missing person report was registered at Pratappur police station vide Ex.P-2 and after investigation, a First Information Report of Crime No. 232/2021 was registered under 3 Section 363 of the Indian Penal Code, 1860 regarding the kidnapping of the victim by an unknown accused vide Ex.P-3. A mobile phone was seized from the victim's father in the presence of witnesses and a seizure memo was prepared. During the investigation, on 27.10.2021, the victim was recovered from the possession of accused Rupam alias Ayush in front of witnesses from Sunibada, Devanta Hospital, Ganeshganj Shahdol and a recovery panchnama was prepared vide Ex.P-4 and the victim was physically examined by a female doctor vide Ex.P-20 after taking consent from her and her family members vide Ex.P-13. After questioning the accused Rupam alias Ayush and the juvenile boy Ramnarayan alias Chhotu in front of witnesses, memorandum statement of accused Rupam alias Ayush was recorded vide Ex.P-6 and on the pointing out of the accused Rupam, the mobile SIM was seized and a seizure memo was prepared vide Ex.P-7 and physical examination of the accused Rupam was conducted vide Ex.P-25. After the physical examination of the victim and the accused, the sealed packets preserved by the concerned doctors, containing the accused's underwear and vaginal slide of the victim were seized by constables in the presence of witnesses, and seizure memos were prepared vide Exs. P-22 & 23 respectively. The accused were arrested vide Exs.P-11 & 12. The spot map of the incident was prepared by the Investigating Officer vide and the Patwari vide Ex.P-9 and panchnama was prepared vide Ex.P-10. A 4 seizure memo was prepared vide Ex.P-8 by seizing the admission and dismissal register of the school from the Headmaster regarding the date of birth of the victim and a copy of the Dakhil- kharij register is Ex.P-17C and birth certificate of the victim was also seized and a copy of birth cerificate of the victim is Ex.P- 18C . Statements of the victim and other witnesses were recorded and the statement of the victim was recorded by the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 vide Ex.P-14. After completion of other formal investigation in the case, a charge sheet was presented before the Juvenile Justice Board against the delinquent child and against the accused before the Court of Special Judge (POCSO Act, 2012), Pratappur, District – Surajpur C.G.). 4. When charges were framed against accused Rupam alias Ayush under sections 363, 366, 376 of the Indian Penal Code, 1860 and section 6 of the POCSO Act, 2012, while charges were framed against other accused Shubham under sections 363 and 366-A, he denied all the charges and claimed trial. 5. To establish the charges levelled against the accused persons, the prosecution examined as many as 10 witnesses as PW-1 to PW-10 and exhibited 35 documents vide Ex.P-1 to Ex.P-35. In order to prove defence, the accused has neither examined any witness nor exhibited any document. 5 6. The statement of accused was recorded under Section 313 of CrPC, wherein he denied all incriminating circumstances appearing against him and claimed false implication. 7. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant-accused and sentenced him as mentioned in the second paragraph of this judgment. Hence this appeal. 8. Mr. Anil Gulati, learned counsel for the appellant submits that the prosecution had utterly failed to establish that the victim was a minor on the date of the alleged incident. He submits that except birth certificate (Ex.P-18C) which was not issued by the competent authority, no authentic document proving the age of the victim was brought on record nor was any ossification test conducted during investigation. The only document relied upon by the prosecution is the Nursery Class Admission Register (Ex.P/17C), proved through PW-6 Lavkumar, the Headmaster. However, learned counsel submitted that the said document is not admissible in evidence for the purpose of determining age, in view of the law laid down by the Hon’ble Supreme Court in P. Yuvaprakash v. State represented by Inspector of Police, AIR 2023 SC 3525, which categorically holds that a mere school register entry, unsupported by foundational documents, cannot be relied upon to prove age. It is further contended that the deposition of PW-6 itself demolishes prosecution’s case. PW-3 stated that the victim’s father had come at the time of admission 6 and had brought birth certificate issued by the President, Nagar Panchayat and the same was entered in the school record on the basis of said birth certificate. Moreover, the father of the victim in his statement has initially stated that he do not remember the date of the victim and though later on, he has stated that his daughter is aged about 14 years and her date of birth is 16.09.2007, which contradicts the date mentioned in the school records. Hence, the prosecution failed to prove the minority of the victim beyond reasonable doubt. 9. Mr. Gulati further submitted that the evidence on record clearly shows that the victim was a consenting party. From the deposition of PW-2, it is evident that she travelled independently from Pratapput to Baikunthpur, from Baikunthpur to Charcha, and thereafter from Charcha to Shahdol without any coercion, threat, or fear. She stayed with the appellant in Sahdol of her own volition for a considerable duration and never made any complaint to any person or authority about any alleged kidnapping. Her conduct, throughout, was consistent with a person acting with free will and not under duress. Thus, the essential ingredients of kidnapping or abduction under Sections 363 and 366 IPC were not made out. It is argued that there was no incriminating material recovered from the possession of the appellant. In absence of any such material, the prosecution could not substantiate the allegation that the appellant lured or manipulated the victim in any manner. Lastly, he submitted that the prosecution case was riddled with material 7 infirmities, contradictions, and lack of admissible evidence. The prosecution had miserably failed to prove the guilt of the appellant beyond reasonable doubt. As such, the appellant is entitled to benefit of doubt and consequent acquittal of all charges. 10. On the other hand, Mr. S.S. Baghel, learned Deputy Government Advocate appearing for the State/respondent supported the impugned judgment and submitted that the trial Court has rightly appreciated the evidence on record and recorded a well-reasoned conviction. It is contended that the prosecution has duly proved that the victim is a minor on the date of the incident, and the appellant is falsely disputing her age only to escape liability. It is submitted that the school admission register (Ex.P/17C), proved by PW-6 Lavkumar, the Headmaster, clearly records the date of birth of the victim as 16.09.2007. The witness has categorically stated that the entry is made in the regular course of school administration, and such contemporaneous school record is a reliable document under Section 35 of the Indian Evidence Act. It is contended that the victim herself has consistently stated before the Investigating Officer, the Magistrate under Section 164 CrPC, and before the Court, that her date of birth is 16.09.2007. The defence has not produced any material to contradict the date of birth recorded in Ex.P/17C, nor has any alternative date of birth been established. Therefore, the age of the victim stands duly proved from the available admissible evidence. 8 11. Mr. Baghel further submits that the argument of consent is wholly misconceived in law, as consent of a minor is legally irrelevant in cases of sexual intercourse or physical relations. Even otherwise, the conduct of the victim indicates that she was forcibly taken by the appellant. It is submitted that the appellant lured the minor girl on the pretext of marriage and took her from place to place, ultimately confining her in a rented house at Sahdol, from where she was recovered by police during investigation. The victim, in her testimony, has clearly narrated the manner in which the appellant induced her and committed repeated sexual assault upon her. Her version has remained consistent, trustworthy, and inspires full confidence. The statements of the victim, duly corroborated by medical evidence, recovery proceedings, and other documentary evidence, are sufficient to bring home the guilt of the accused. Minor contradictions or omissions, which are natural due to the lapse of time, do not vitiate the prosecution case. As such, the prosecution has proved the case beyond reasonable doubt, and the trial Court has rightly convicted the appellant under the relevant provisions of the IPC and the POCSO Act. No ground is made out to interfere with the well- reasoned judgment of conviction and sentence. 12. We have heard learned counsel for the parties at length and have carefully perused the entire record of the trial Court with utmost circumspection. 9 13. The first question for consideration before this Court would be, whether the trial Court has rightly held that on the date of incident, the victim was minor? 14. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredient to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 15. In Jarnail Singh Vs. State of Haryana, reported in (2013) 7 SCC 263, the Hon’ble Supreme Court laid down the guiding principles for determining the age of a child, which read as follows: “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under : “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty 10 days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (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; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. 11 (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW- PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is 12 expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion.” 16. In order to consider the age of the victim, we have examined the evidence available on record. The prosecution has mainly relied upon the School admission and discharge register Ex.P/17C which is sought to be proved by PW-6 Lavkumar, the Headmaster of the concerned school, who has stated in his deposition that, he had issued a certificate regarding the victim's date of birth, which, based on the Dakhil Kharij Register, shows the victim's date of birth as 16.09.2007. The certificate issued by him is Ex.P-16. This 13 witness further stated that he had entered the victim's name in the mutation register as indicated by her father and her date of birth based on the birth certificate. He had also brought the victim's birth certificate, which is Ex.P-18, and presented its attested copy to the trial Court, which is Ex.P-18C. This witness in his cross- examination has admitted that is true that his signature is not there in the Dakhil Kharij register as admission. He further admitted that the birth certificate of the victim is not attached with the Dakhil Kharij register. The witness voluntarily says that the family of the victim had got a birth certificate made in handwriting from the President of the Nagar Panchayat along with the admission form. He had brought the said file today, in which the said birth certificate is enclosed, whose photocopy he had verified and presented. This witness has further admitted that the birth certificate issued by the competent birth registration officer for granting the birth certificate was not given to him by the victim's guardian. The witness voluntarily says that whatever was given is attached. He also admitted that he is not aware of the fact that how the guardian of the victim had given got prepared birth certificate of the victim from President of the Nagar Panchayat in which her date of birth is mentioned as 16.09.2007. 17. The prosecution had further relied upon the statements of the father of the victim (PW-1), victim herself (PW-2), the mother of the victim (PW-3) and elder sister of the victim (PW-4). They all have stated that the date of birth of the victim is 16.09.2007. 14 18. PW-1, the father of the victim, in his examination-in-chief has stated that the victim, is studying in class 8th from St. Xavier's Rampur. His daughter, the victim, studied from class 1st to 5th from Sky Land Public School, Pratappur. He do not remember the date of birth of his daughter, the victim, but at present his daughter, the victim, is 14 years old. The witness then said that the date of birth of his daughter, the victim, is 16.09.2007. In para 15 of his cross-examination, this witness has stated that his date of birth is 30.05.1980. His date of marriage is 30.03.1998. He had a total of four children. His eldest son is Roopendra Naik, born on 16.11.2001. He had a younger daughter, Megha, whose birth date he cannot disclose. His third daughter is the victim, born on 16.09.2007. His fourth son is Prithviraj, born on 29.05.2016. He admitted that the children were born within a year and a half of their marriage. The witness voluntarily stated that they were born approximately three years apart. He denied that he do not have birth certificates for the children. The victim was born in his home in Pratappur. He admitted that he do not know the time of the victim's birth. He do not know where he had his wife's gestational pregnancy checked while she was pregnant. He got done the victim's birth registration in Pratappur Hospital, he cannot tell on which date it was done. In paragraph 16, he has admitted that the victim's birth certificate was obtained from Pratappur Hospital. He further admitted that the victim's birth registration was conducted at the Pratappur Government Hospital without any documentation. 15 The witness voluntarily stated that the husband and wife had verbally informed the hospital. In paragraph 17, this witness has further admitted that the victim was admitted to school on the basis of her birth certificate. He also admitted that he had filled out a declaration form when enrolling the victim in school, in which he attached her birth certificate. 19. PW-2, the victim, though in her examination-in-chief has stated that her date of birth is 16.09.2007, but, in paragraph 9 of her cross-examination, she has admitted that she had given her date of birth based on her admission/rejection register. She denied that that when she went to school, the teachers wrote her birth date according to their own understanding. They are four siblings. She admitted that they were born with an interval of one and a half to two years. This witness herself says that it could be more than that. This witness has also admitted that she have been menstruating for the last six years. 20. From the aforesaid evidence, it is quite vivid that the prosecution has relied upon the birth certificate of the victim (Ex.P-18C) to prove her age, in which the date of birth of the victim is mentioned as 16.09.2007. Admittedly, the said birth certificate was issued by the President of Nagar Panchayat and on the basis of said birth certificate, the entry of date of birth was made as 16.09.2007 in the School admission and discharge register Ex.P/17C and further the prosecution witnesses, i.e. father of the victim (PW-1), victim herself (PW-2), the mother of the victim (PW-3) and elder sister of 16 the victim (PW-4) all have stated that the date of birth of the victim as 16.09.2007, which is totally based on the alleged birth certificate. 21. It is clear from the record that the entire edifice of the prosecution on the issue of age stands upon a handwritten certificate prepared by the President, Nagar Panchayat, with no primary register, no statutory record, and no proof of authority. 22. Under the Registration of Births and Deaths Act, 1969 (for short, ‘the Act of 1969’) only the Registrar appointed under Section 7 is competent to issue birth certificates. An elected office-bearer such as President, Nagar Panchayat is not vested with statutory authority to register births or issue certificates. The Supreme Court has consistently held that School records are admissible only if supported by the original birth record from a competent authority. {Jarnail Singh (supra)} A document not issued by an authorized officer or unsupported by entries in the statutory birth register cannot be relied upon to determine age. (Birad Mal Singhvi v. Anand Purohit, (1988) 1 SCC 604). Certificates obtained in a casual manner or prepared for school admission without corroboration from statutory records are inherently unreliable. (Satpal Singh v. State of Haryana, (2010) 8 SCC 714). 23. In the present case the birth certificate (Ex.P-18C) is not issued by a competent authority under the 1969 Act. No birth register entry was produced. The certificate is handwritten, origin 17 unverified. Even the Headmaster admitted complete ignorance about its procurement or authenticity. The school register entries are entirely derivative from this undocumented certificate. The oral statements of family members are based on the same certificate and not on independent recollection. Therefore, the prosecution has failed to establish the date of birth of the victim by cogent, admissible, and reliable evidence. 24. In criminal jurisprudence, age—when forming the foundation for applying stringent provisions of the POCSO Act—must be proved beyond reasonable doubt. The evidence on record falls far short of that standard. Where statutory evidence of birth is absent and the prosecution relies only on derivative or doubtful documents, the benefit of doubt must go to the accused. Since the age of the victim has not been proved, the presumption of minority under the POCSO Act cannot be invoked. The very substratum of the prosecution case thus collapses. 25. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis birth certificate, which is not issued by the competent authority, based upon which the entry was made in the School admission and discharge register it would not be safe to hold that the victim was minor on the date of incident. 18 26. In the matter of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 27. In the matter 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. It was 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 19 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 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 right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 28. In the matter 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 : 20 “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board 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. 21 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 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.” 29. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, Hon’ble Supreme Court has held in para 14 to 17 as under : “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate 22 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. 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 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 23 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 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.” 30. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident 24 yet the trial Court in the impugned judgment has held her minor, hence, we set aside the finding given by the trail Court that on the date of incident the victim was minor. 31. So far as the issue of forceful sexual intercourse by the appellant upon the victim is concerned, we have carefully perused the statement of the victim recorded under Section 164 CrPC. In her 164 CrPC statement, the victim has stated that she got acquainted with Rupam Jaiswal through phone about one and a half years ago. She used to talk to Rupam Jaiswal regularly on phone. On 23.10.2021, Rupam Jaiswal told her that he was coming to meet her near her house. On the same date, Rupam Jaiswal came near her house, then she went to him. When she went to him, Rupam told her that let's go for a walk, then she sat on Rupam's motorcycle and started going towards Pratappur bus stand, but Rupam started taking the motorcycle ahead of Pratappur bus stand towards Baikunthpur, after which she said that she will not go further. After that, she got down from Rupam's motorcycle and started going towards her house. Upon which Rupam told her that he will drop her home, but instead of dropping her at my home, Rupam took her towards Baikunthpur and there he took her to his friend's room and did wrong things to her. Rupam took her from Baikunthpur to Shahdol. They kept roaming on 23rd and 24th October, after that on 25.10.2021 they took a room on rent in Shahdol. She stayed in the room on 25- 26th October 2021, during that time Rupam did wrong things to 25 her. On 27.10.2021 his father went to Shahdol and brought her back to Pratappur. In her 164 CrPC statement, she has not stated that the appellant allured or threaten her or used any force while travelling along with him and while making physical relationship with her against her will or consent. 32. While recording her statement before the trial Court, the victim (PW-2), in her examination-in-chief, has stated that the incident occurred approximately 6-7 months ago. While she was studying at St. Xavier's School in Baikunthpur, her sister's friend, Pallavi, spoke to the accused, Ayush, using his mobile phone. After that, he began calling her frequently. For a few days, she ignored Ayush's phone calls. However, when she spoke to him later, he told her over the phone that he loved her and wanted to marry her, which she refused. After that, due to the lockdown, she returned to her home in Pratappur. This witness further stated that after coming to Pratappur, the accused Ayush called her again and said that he was coming to Pratappur and that they would meet somewhere in Pratappur and talk. Then she told him to come. After arriving in Pratappur, when accused Ayush called her and informed that he was arriving in Pratappur, she left her house at 5-6 pm and went to meet him near a culvert located some distance from her house. There, accused Ayush again confessed his love for her and began talking about marrying her. She refused and started walking back home. The accused then asked to be dropped off. At that time, accused Ayush was 26 accompanied by another boy, Chhotu. Under the pretense of dropping her home, accused Ayush and Chhotu forcibly made her sit in the middle of the motorcycle and took her to Baikunthpur. Near the Pratappur bus stand, she asked them to get off the motorcycle, but they refused. Accused Chhotu was driving the motorcycle, and accused Ayush sat behind her, keeping her in the middle. 33. PW-2, the victim, has further stated that after going to Baikunthpur, they stayed overnight at Chhotu's relative's place. The next morning, they went to Charcha on Chhotu's motorcycle and stayed there till evening. After that, Chhotu returned from there with his motorcycle and from there, accused Shubham took her and accused Ayush on his motorcycle to Shahdol. In Shahdol, for two-three days, accused Shubham and Ayush kept taking her around the railway station and its surroundings. She used to ask them to drop her at my home, but they kept postponing it by saying that they would drop her at my home. This witness also stated that when they stayed near the railway station, accused Ayush did wrong things with her twice. Two or three days later, accused Shubham arranged a room for her and accused Ayush, where the three of them stayed for two days. At that time, accused Ayush had done wrong this three-four times with her. After that, his father came there with the police to find her. The police had done the written recovery panchama (Ex.P-1) in shahdol. 27 34. In paragraph 10 of her cross-examination, the victim (PW-2) has specifically admitted that she did not tell anyone about the incident while traveling from Pratappur to Baikunthpur, from Baikunthpur to Charcha, and from Charcha to Shahdol. She also admitted that she did not ask for help during that time. She denied that she did not shout for help while traveling from Pratappur to Shahdol. The witness voluntarily stated that she shouted for help near the Pratappur bus stand and at Bhaiyathan. She also admitted that the police did not interrogate her and take any testimony. The witness voluntarily stated that the S.I. Sir had interrogated her. She denied that the police wrote a police statement in her name and included it in the case, but she cannot say so. She also admitted that she did not mention shouting for help at the Pratappur bus stand and Bhaiyathan while giving her statement to the police. Today, she is telling this for the first time in Court. 35. From perusal of the aforesaid statement of the victim (PW-2), it is evident that she has not stated that the appellant allured or threatened her or used any force while travelling along with him and while making physical relationship with her against her will or consent. Thus, on close scrutiny of the evidence of the victim, it is clear that the victim was a consenting party. 36. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony 28 of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 37. Considering the entire evidence available on record and the conduct of the victim, we are of the opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 363, 366, 376(2)(j)(n), 376(3) of the IPC and Section 6 of the POCSO Act would not be made out against the appellant. 38. For the foregoing reasons, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 28.03.2023 passed by the learned Special Judge (POCSO Act, 2012), Pratappur, District – Surajpur C.G.) in Special Sessions Trial No.15/2021 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 29.10.2021. He be released forthwith if not required in any other case. 39. Keeping in view of the provisions of Section 437-A CrPC, the appellant is directed to furnish a personal bond in terms of from No.45 prescribed in the Code of Criminal Procedure for a sum of 29 Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court. 40. The Trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra