1 2025:CGHC:17347 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 124 of 2016 1 - Rampravesh Pathak S/o Shri Jugal Prasad Pathak Aged About 47 Years R/o Ward No. 6, Odiya Nagar, Bijuri, Thana Bijuri, Civil And Rev. Distt. Anuppur, Madhya Pradesh., Madhya Pradesh ... Appellant(s) versus 1 - State Of Chhattisgarh Through The District Magistrate, Korea, Thana Manendragarh, Distt. Korea, Chhattisgarh., Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Samir Singh, Advocate For Respondent(s) : Mr. Shailendra Sharma, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 15/04/2025 1. The present Criminal appeal is heard finally with the consent of the parties. 2. This criminal appeal has been preferred by the appellant against the judgment of conviction and order of sentence dated 2 13.01.2016, passed in Special Sessions Case No. 92/2014 by which the learned Sessions Judge Fast Track Court, Baikunthpur, District-Korea (CG),whereby the appellant has been convicted and sentenced as follows:- Conviction Sentence U/s 354 of IPC R.I. for 5 years and fine of Rs. 500/-, in default of payment of fine, additional R.I. for 3 months U/s 10 of POCSO Act R.I. for 5 years and fine of Rs. 500/-, in default of payment of fine, additional R.I. for 3 months. 3. Case of the prosecution in brief is that the prosecutrix started his coaching classes for at N.K. Coaching Center at Aamakherwa Road from 09.04.2014. The timings of her classes were from 11:30 am to 1:00 pm in morning and from 5:30 pm to 7:00 pm in evening. The prosecutrix used to go to her coaching classes with her mother Shagufta Baksh. Teacher of the coaching center (appellant) teaches Chemistry subject. The prosecutrix, Mohd. Shakim and two other boys used to study at the coaching. On 11.04.2014 the prosecutrix went to Coaching with her father at 11:30 am. On the same day no other student came to the class and she was alone. The accused while teaching came near the prosecutrix and started touching her cheeks upon which she defended herself. 4. Prosecution in order to prove its case examined total 6 witnesses. Statements of appellant (accused) was also recorded under 3 Section 313 of CrPC in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication. However, no defence witness has been adduced by him in his defence. 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 appellant has been falsely implicated in the present case. Learned counsel for the appellant further submits that the impugned judgment is per se illegal and contrary to the evidence available on record. The prosecution has failed to prove its case beyond all reasonable doubt against the appellant and therefore, the appellant deserves to be acquitted of all the charges. 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 documents available on record. 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. The question for consideration before this Court is whether on the date of incident, the prosecutrix was minor? 4 10.Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age.— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 11. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : 5 “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 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. 6 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 as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” 12. 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 transfer certificate (Article A-1) in which the date of birth of the prosecutrix is mentioned as 17.06.1997 and on the date of incident, i.e. on 11.04.2014, the age of the prosecutrix was 16 years 9 months and 28 days, but the same has not been proved by the prosecution. 7 Considering the statement of PW-1/ prosecutrix who has deposed in para 3 of her examination-in-chief that her date of birth is 17.06.1997 but in para 13 of her cross-examination she has admitted that she has told her date of birth on the basis of her marksheet. She further admitted that there is no birth certificate issued by the competent authority. Thus, there is no documentary evidence available on record and only on the basis of transfer certificate (Article A-1) and 4th class mark-sheet, date of birth of prosecutrix i.e. 17.06.1997 is marked and also no Kotwari register has been produced regarding date of birth of prosecutrix, 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. PW-5/ Incharge Principal of Kendriya Vidyalaya also denied that the admission to the prosecutrix was given by himself. Thus, the transfer certificate cannot be taken into consideration to determine the age of the prosecutrix. There is no Kotwari Register or Ossification report, produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. 13. From perusal of statements of prosecutrix (PW-1) and PW-5 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. Therefore, this Court finds that the Trial Court has wrongly convicted the appellant under Section 10 of 8 POCSO Act, 2012. 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. Hence, the appellant stands acquitted from the offence under Section 10 of POCSO Act. 14. Now the second question for consideration before this Court is whether on the date of incident the appellant has committed an offence punishable under Section 354 of IPC? 15. PW-1/ prosecutrix has deposed in her examination-in-chief that she started her coaching classes from 09.04.2014 and Mohd. Shakib was already studying in the said coaching. For the first two days she went to the coaching with her mother in two shifts. Her mother used to wait outside her coaching class. On the third day she went to coaching class with her father who dropped her at 11:30 am and went home. That day, Mohd. Shakib was also absent. Accused Rampravesh Pathak taught her for some time and then slowly started touching her hand and slowly brought his hand around her neck and started pressing her chest. 16. PW-02/ father of the prosecutrix has deposed that on the date of incident he dropped her daughter to the coaching center and went to pick her up at around 1:30 pm. His daughter/ prosecutrix did not tell her anything and has narrated the facts to her mother. 17. PW-4/ Dr. D.K. Singh has medically examined the prosecutrix and gave his report Ex. P/3 wherein he has deposed that there is scratch mark on right forearm, inflammation(redness) on right cheek and redness in neck. 18. PW-06/ mother of prosecutrix has not supported the case of the prosecution and deposed that her daughter/prosecutrix has not tell anything about the incident. Further she deposed that they have compromised with the accused. 9 19. The parties have filed the compromise application under Section 320(8) of Cr.P.C. on 15.10.2015 before the Sessions Court but the same was rejected by the Sessions Court on the ground that the offence under Section 354 of IPC is not compoundable offence. 20. Learned Counsel for the appellant relied on the decision of the Hon’ble Supreme Court in P. Ramaswamy Vs. State (Union Territory) of Andaman and Nicobar Islands (2013) 14 SCC 577 held in para 11 as under: “11. It appears from the applications filed by the complainant, the victim and the appellant that all of them reside in the same locality. They have decided to bury the hatchet. They want to live peacefully and, therefore, they have arrived at a compromise. The victim is now about 18 years of age. The appellant is about 67 years of age. As already noted the information received from the Jailor, District Jail, Prothrapur (Andaman and Nicobar Islans) shows that the appelant has undergone almost the entire sentence imposed on him. He has undergone about five and a half months imprisonment. Offence under Section 354 of IPC is compoundable by the woman assaulted or to whom the criminal force was used. The victim has in her application filed in this Court prayed that permission be granted to compound the offence under Section 354 of IPC. In the circumstances of the case, we feel that the prayer for compounding deserves sympathetic consideration. 12. In the circumstances, without going into the question whether the High Court was right n refusing to take the 10 compromise on file and compound the offence, we deem it appropriate to grant permission to compound the offence. Hence, we permit the appellant, the complainant and the victim to compound the offence under Section 354 of IPC. The said offence shall stand compounded. As per Section 320(8) of Cr.P.C. the composition of this offence shall have the effect of acquittal of the offence under Section 354 of IPC. Hence, the appellant is acquitted of the charge under Section 354 of IP. In view of this the impugned orders dated 13.07.2012 and 10.12.2012 passed by the Calcutta High Court are set aside. If the appellant is in jail, he is directed to be released forthwith unless otherwise required in any other case.” 21. Compoundable offences are those that can be compounded or compromised outside the Court. The offence punishable under Section 354 of IPC was compoundable till the amendment incorporated in the Cr.P.C. i.e. in the year 2009 [New amendment inserted by Act No.5 of 2009 with effect from 31.12.2009]. Offence punishable under Section 354 of IPC is not included in the table substituted under Section 320 of the Cr.P.C. Now this question remain settled that the offence punishable under Section 354 of IPC after amendment w.e.f. 31.12.2009 are “non-compoundable offence”. The date of alleged incident is 11.04.2014 i.e. after the amendment. In this premises also, the offence under Section 354 of IPC is non-compoundable. Learned Trial Court has not committed any error while rejecting the application filed under 11 Section 320 of Cr.P.C., mentioning this offence is non- compoundable. 22. Therefore, taking a cumulative note of the facts and circumstances of the case, the statements of witnesses, the documents presented by the prosecution, this Court has no hesitation to hold that the findings recorded by the trial Court convicting the accused/appellant under Section 354 of IPC are based on due appreciation of the evidence on record and deserves to be and is hereby maintained. 23. As regards sentence, considering the facts and circumstances of the case, the sentence of 5 years rigorous imprisonment imposed by the trial Court under Section 354 of IPC appears to excessively on the higher side and therefore, keeping in view that the parties have compromised with each other and are living peacefully, this Court is of the opinion that it would be in the interest of justice if the sentence imposed on him is reduced to the period already undergone. 24. Accordingly, the present appeal is partly allowed. The conviction of the appellant under Section 354 of IPC is affirmed and against the conviction he is sentenced to the period already undergone by him. 25. It is reported that the appellant is on bail. His bail bonds is 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 the Cr.P.C. 12 26. Records of the trial court be sent back along with a copy of this order forthwith for information and necessary compliance. Sd/- (Arvind Kumar Verma) JUDGE Madhurima