1 2025:CGHC:16603 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 185 of 2016 1 - Dhanjay Kurre S/o Balram Kurre Aged About 22 Years R/o Vill. Maatpur, P.S. Kukdur, Distt. Kabirdham Chhattisgarh. , Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Kukdur, Distt. Kabirdham Chhattisgarh. , Chhattisgarh ... Respondent(s) For Petitioner(s) : Ms. Sameeksha Gupta, Advocate For Respondent/State : Ms. Isha Jajodia, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 08/04/2025 This appeal is directed against the impugned judgment of conviction and order of sentence dated 30.01.2016 passed by the Special Judge POCSO, Kabirdham (CG) in Special Sessions Trial No. 142/2015 whereby and whereunder the appellant has been held guilty for the commission of offence as under: 2 U/s. 341 IPC RRI for 1 month and fine of Rs. 500/-, in default of fine to further undergo RI for 15 days U/s. 323 IPC RI for 1 years and fine of Rs. 500/-, in default of fine to further undergo RI for 1 month U/s. 8 of the POCSO Act, 2012 RI for 3 years and fine of Rs. 1,000/- in default of fine to further undergo RI for 3 months. All the sentenced are ordered to run concurently. 2. Facts of the case in brief are that on 22.07.2015, at about 3.00 pm, the prosecutrix was returning from Higher Secondary School Maathpur along with her friends and on the way, the appellant stopped her and caught hold of her hand and asked her friend to go home. She got scared and tried to resist at this, the appellant slapped her. On the said complaint made by the prosecutrix, Crime No. 35/2015 was registered against the appellant for the offence under Sections 354,341,323 IPC and 7 and 8 of the POCSO Act. Prosecutrix wa s medically examined and after completion of investigation, charge sheet, was filed against the appellant under Sections 354,341, 323 IPC and 7 & 8 of the POCSO Act. 3. So as to hold the accused/appellant guilty, the prosecution has examined 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges leveled against him and pleaded his innocence and false implication in the case. 4. By the judgment impugned the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph 1 of the judgment. Hence this appeal. 3 5. Contention of the counsel for the appellant is that : i) the impugned judgment of conviction and order of sentence is bad and contrary to law. ii) there is no cogent reliable witness to the incident. The trial court has failed to appreciate that ingredients of the Sections against the appellant. iii) according to the prosecution, the place of incident is a public place and there are so many passersby so it is not possible to commit the offence by the appellant at the said place. The prosecution has also utterly failed to produce any independent witness. iv) the trial court did not appreciate the fact that there was some dispute between the appellant and the father of the prosecutrix regarding fees of yoga class and he has been implicated in a false case. 6. On the other hand supporting the impugned judgment it has been argued by the State counsel that the conviction of the appellant is in accordance with law and there is no infirmity in the same. 7. Heard counsel for the parties and perused the material on record. 8. Grandfather of the prosecutrix (PW-1) has stated that prosecutrix is her granddaughter aged about 14 years. He was informed by her granddaughter that the appellant had made an attempt to outrage her modesty and therefore a report was lodged at police station Kukdar against the appellant. Mother of the Prosecutrix (PW-2) has stated that she was informed by the prosecutrix about the incident. 9. Prosecutrix (PW-3) has stated that she is studying in class 8 at Govt. higher Secondary School, Maathpur. On the date of incident ie. 4 23.07.2015 at about 3.30 pm when she was returning from the school along with her friends, on the way, the appellant stopped her and caught hold of her hand. He was saying her for bad work and she shouted and ran away. She has stated that the appellant caught her hair and was saying to her friends that he will do bad work with her and after slapping them, went away from there. She narrated about the incident to her mother and grandmother and on the next day, went along with her brother and grandfather to lodge a report at police station. Friend of the prosecutrix (PW-5) has stated that on the date of incident when she was returning from school along with the prosecutrix and her friends, on the way, the appellant stopped her and caught hold of her hand and thereafter slapped her and they were also beaten by hands and fists and threatened them not to disclose about the incident to any one. Ratan Singh (PW-6) is the Teacher of Govenrment Primary School Maathpur, PS Kukdar. The police seized the school admission and discharge register vide Ex.P-3 with respect of the prosecurrix’s date of birth. However, the author of the school admission and discharge register has not been examined. 10. The procedure for determination of date of birth has been provided under sub-section (2) of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Relevancy of school admission and discharge register came for hearing before Hon’ble Supreme Court in the 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. 5 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. 11. 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 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 Purohit, observed as follows:- "The date of birth mentioned in the scholars' 6 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 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 7 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. 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 8 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.” 12. In case of Rishipal Singh Solanki Vs.State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon’ble Supreme Court has observed in para 33 as under : “33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the 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 9 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 hyper technical 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 10 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.” 13. 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 school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth 11 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.” 14. In a recent decision, in Rishipal Singh Solanki Vs.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: 12 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 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 13 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.” 15. In the present case, there was inconsistency in the statement of the prosecutrix to ascertain the age of the prosecutrix where the father of the prosecutrix has stated that the prosecutrix 14 years of age and thus the trial court held her minor. On scrutiny of the evidence, it is thus clear that on the date of incident the accused/appellant stopped her on the way, caught hold of her hand and asked her for bad work and slapped her. Prosecutrix has duly supported the prosecution case. It is pertinent to mention here that the love letters and cards Ex.D-2, D-3, D- 4 and D-5 which have been written by the victim/prosecutrix to the appellant however, she has denied the fact but has admitted that the handwriting in the said letters and cards is same therefore, it is not a case of outraging modesty. Thus considering the overall and circumstances of the case, in particular the statement of the prosecutrix, we are of the view that the trial court was justified in 14 convicting the appellant under Sections 341,323 IPC. It is pertinent to mention here that in contravention of Section 7 of the PoCSO Act, Section 8 of the Act would be applicable. In this case, the accused has caught her hand asked for bad work and slapped her therefore Section 7 of the POCSO Act would not be attracted, therefore the accused is acquitted of the offence under Section 8 of the POCSO Act. 16. Thus, the applicant is convicted for wrongfully restraining and voluntarily causing hurt to the victim and therefore the offence under Section 341 nd 323 IPC against the appellant is maintained. 17. So far as the sentence imposed on the appellant is concerned, looking to the age of the appellant on the date of incident was 22 years and a rustic villager, therefore ends of justice would be served if the sentence of one year imposed on him is reduced to the period already undergone by him. The appellant is reported to be on bail. Surety and personal bond earlier furnished at the time of suspension of sentence shall remain operative for a period of six months in view of the provisions of Section 437-A Cr.P.C. 18. In the result, the appeal is partly allowed. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.24 13:14:00 +0530