1 2025:CGHC:16301 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 89 of 2016 1 - Rupesh Soni @ Sonu S/o Late Shatrughann Soni Aged About 25 Years R/o Sangam Chowk, Charouda, Bhilai, B M Y, Charouda, Police Station Bhilai, District Durg Chhattisgarh. ... Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer Police Of Police Station Kotwali, Korba, District Korba Chhattisgarh. ... Respondent(s) For Petitioner(s) : Shri Anil Gulati, Advocate For Respondent/State : Shri Swajeet Singh Ubeja, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 07/04/2025 This appeal is filed against the judgment impugned dated 12.01.2016 passed by the learned Additional Sessions Judge (FTC) Klorba, District Korba (CG) in Special Session Trial No. 17/2014 convicting and sentencing the accused/appellant for the offence as under: 2 U/s. 363 IPC RI for 7 years and fine of Rs. 3,000/-, in default of payment of fine to further undergo SI for 6 months U/s. 366 (A) IPC RI for 7 years and fine of Rs. 3,000/-, in default of payment of fine to further undergo SI for 6 months U/s. 376 IPC RI for 7 years and fine of Rs. 3,000/-, in default of payment of fine to further undergo SI for 6 months U/s. 4 of the POCSO Act RI for 7 years and fine of Rs. 3,000/-, in default of payment of fine to further undergo SI for 6 months. 2. The case put-forth by the prosecution in brief is that on 26.10.2013 missing report was lodged by the father of the prosecutrix at police station Kotwali alleging that on 25.10.2013, his daughter had left the home from his lawful guardianship. During investigation, it was found that the appellant had allured her on the pretext of marriage and she was recovered from the custody of the appellant on 17.01.2014 and FIR was registered in Crime No. 35/2014 against the appellant. Spot map and seizure panchnama was prepared and the prosecutrix was medically examined after taking consent from her parents. The documents in relation to the age of prosecutrix were also seized. Appellant was also medically examined. Appellant was arrested and information was sent to the family members. After recording her statement and getting her medically examined and completing other procedural formalities, charge-sheet was filed against the accused/appellant under Sections 363, 366 (A) and 376 IPC and Section 4 of the POCSO Act. Learned trial Court framed the charges accordingly. The accused however, denied the charges and claimed for trial. 3 3. Prosecution has examined 14 witnesses in supports of its case followed by recording of 313 CrPC statement of the accused/appellant. The appellant has pleaded his innocence and false implication in the case. 4. Counsel for the appellant submits that while recording the finding of conviction of the appellant for the offences described above, learned trial Court has not taken into consideration the contradictions and omissions in the statements of the witnesses including that of the prosecutrix, and as such has fallen in a serious legal error. He submits that in her deposition, the prosecutrix had admitted that they hd performed marriage in the temple and that she was a consenting party as she voluntarily accompanied the appellant. He submits that prosecution has also not been able to prove by adducing any reliable evidence that on the date of incident the victim was below 18 years of age. In these circumstances, submission of the counsel for the appellant is that the conviction and sentence imposed by the Court below are liable to be set aside by allowing this appeal. 5. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that there is ample evidence to show that the appellant had allured the minor prosecutrix aged about 17 years at the relevant time from her lawful guardianship on the assurance of marriage and had also performed marriage in the temple therefore, learned Court below was fully justified in holding him guilty and imposing the sentence as referred to above, which do not call for any interference in this appeal. 4 6. Heard learned counsel for the parties, considered their rival submissions and perused the material available on record. 7. Father of the prosecutrix (PW-1) has stated that his daughter was aged about 17 years 4 to 6 months on the date of incident. He has stated that after lodging of missing report, his daughter was recovered from the custody of the appellant. He has stated that the class 5 marksheet of his daughter has been seized by the police. Prosecutrix (PW-2) has stated that she knew the appellant and they were having love affair and she eloped with the appellant to Mahasamund where they performed marriage and were resided for about 1-1 1/2 months. Mother of the prosecutrix (PW-3) has stated that her daughter is aged about 17 years and on 25.10.2013, when she was not found in the house, search was made and thereafter missing report was lodged at police station Kotwali. Thereafter, the police recovered the prosecutrix from the custody of the appellant. Dr. Ghanshyam Deewan (PW-7) is the medical officer of Disrict Hospital, Korba who had examined the appellant vide Ex.P-8 and found him physically and mentally normal and capable of performing sexual intercourse. Dr. Smt. V. Rawte (PW-11) who had examined the prosecutrix vide Ex.P-13 and found her secondary sexual characters were well developed and no injury was seen on the private part and body of the prosecutrix. She opined that the hymen was old ruptured and she is habitual to sexual intercourse. She had handed over two vaginal swabs to the constable for investigation. (PW-10) Uma Kaiwartya, Headmaster of Primary School Sitamani, Korba has stated that the police has seized the school 5 admission and discharge register (Ex.P-11 & 12) In the said register the date of birth of the prosecutrix is mentioned as 06.09.1996 at Serial No. 6130 and admission to school in class 2 in the year 2003. In cross- examination, she has admitted that she is neither the author of the date of birth of the prosecutrix nor the school admission and discharge register. 10. From the evidence available on record with respect to the age of the prosecutrix ie. the author of the school admission and discharge register have not been examined. Prosecutrix herself has stated that the might be aged about 18 years more or less on the date of incident. She was not consistent in her statement. From the perusal of the statement of the father and mother of the prosecutrix it appears that there is no any cogent and clinching evidence led by the prosecution so as to hold that on the date of incident, the prosecutrix was minor and below 18 years of age. 11. 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. 6 12. 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 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 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 7 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 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.” 8 13. 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 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 9 record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered 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.” 14. 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 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 10 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. 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.” 11 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 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.” 16. Now reverting to the facts of the present case, it appears that the author of the school admission and discharge register has not been examined and the Kotwari register with regard to birth of the prosecutrix has not been seized by the prosecution. Thus, on due consideration of the evidence and in the light of the aforesaid judgments of the Hon’ble Supreme Court, we find that there is no any clinching and legally admissible evidence 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 that the trial court in the impugned judgment has held the prosecutrix minor. Moreover, the prosecutrix has admitted the fact that they wanted to marry and had performed marriage in the temple nd were residing at Mahasamund in a rented house for 1 -1 ½ months 12 where she had given consent for developing physical relation with the appellant and thus, it appears that she had gone with the appellant of her own. 17. In view of the above discussion, I am of the opinion that the offence under Section 4 of the POCSO Act has not been proved against the appellant beyond all reasonable doubt. Accordingly, the findings given by the trial court that the prosecutrix was minor on the date of incident is set aside as the same has not been proved by the prosecution by leading cogent and clinching evidence. 18. For the foregoing reasons the appeal is allowed. The judgment of conviction and order of sentence for the offence under Sections 363,366(A) and 376 IPC would not be made out against the appellant. 19. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 12.01.2016 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be on bail and therefore no further order is required. Their bail bonds stand discharged. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.23 17:18:22 +0530