1 2025:CGHC:17350 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 259 of 2016 1 - Ganesh Kaiwartya S/o Ramkrishna Kaiwartya Aged About 19 Years Occupation Labourer, R/o Village Lal Khadan Bilaspur, Infront Of Dheka School, Bilaspur, District-Bilaspur,Chhattisgarh. 2 - Deepak Kumar Kaiwartya S/o Late Vishwanath Kaiwartya Aged About 18 Years Occupation Labourer, R/o Village Lal Khadan Bilaspur, Infront Of Dheka School, Bilaspur, District Bilaspur, Chhattisgarh. ...Appellants versus State Of Chhattisgarh Through Station House Officer, A J A K, Police Station Janjgir, District Janjgir Champa, Chhattisgarh. ... Respondent ---------------------------------------------------------------------------------------------- For Appellant : Ms. Smriti Ekka, Advocate appears on behalf of Mr. Mahesh Pandey, Advocate For Respondent-State: Mr. Jitendra Shrivastava, Deputy Government Advocate ---------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Order on Board 15.04.2025 1. With the consent of the parties, matter is heard finally. 2. This criminal appeal has been preferred by appellants against the judgment of conviction and order of sentence dated 08.02.2016 recorded by the Learned Special Judge Janjgir Champa, Chhattisgarh and presided over by Shri Ganpat Rao in Special Sessions Case No. 59/2015, wherein the accused appellant have been convicted and sentenced as under:- 2 Conviction Sentence Under Section 354 of Indian Penal Code Rigorous Imprisonment for one year and fine amount of Rs. 200/- and in default of payment of fine amount further rigorous imprisonment for one month to both the appellant. Under Section 354 A of Indian Penal Code/ Section 12 of the Protection of Children from Sexual Offences Act, 2012 Rigorous Imprisonment for one year and fine amount of Rs. 200/- and in default of payment of fine amount further rigorous imprisonment for one month to both the appellant. Both the sentences will concurrently for both the appellant. 3. The prosecution case, in brief, is this that on 15.10.2013 prosecutrix aged about 15 years lodged an FIR against the accused appellants alleging that at around 1 PM when she along with her friend Laxmi (victim no. 2) was going to the market the accused appellants on a bike came in front of their cycle and stopped them. Upon which she told them that they don’t know them, why are they stopping them. In reply the accused appellants said that its better they should know them now and they want to do something bad with them. Thereafter the complainant made a call at her home and called her family members. Based upon report, initially the Police registered FIR. There statement were recorded under Section 161 of Cr.P.C and, based upon which, accused appellants were arrested. 4. On completion of investigation, challan/charge sheet was filed against Ganesh Kaiwartya and Deepak Kumar Kaiwartya. 5. Prosecution in order to prove its case examined total 08 witnesses. Statement of appellants (accused) was also recorded 3 under Section 313 of CrPC in which they denied all incriminating evidence appearing against them, pleaded innocence and false implication. However, no evidence was adduced by them in their defence. 6. After hearing learned counsel for the parties and appreciating the evidence available on record, the trial Court vide impugned judgment convicted and sentenced the accused/appellants in the manner as described in Para-1 of this judgment. Hence this appeal. 7. Learned counsel for the appellants submits that the impugned judgment is per se illegal and contrary to the evidence available on record. The prosecution utterly failed to prove that the age of the victims were below 18 years on the date of incident. No injury has been found on the body of the victims, which makes the prosecution story unreliable. From the evidence it appears that the fight occurred between appellants and Deepak(brother of the complainant) and same has been given color of outraging modesty. She also stated that there are contradictions and omissions in the deposition of prosecution witnesses. Hence she prays that the conviction and sentence dated 08.02.2016 passed in Special Sessions Case No. 59 of 2015 be set aside in the interest of justice. 8. On the other hand, learned counsel for the State supporting the impugned judgment and submits that the prosecutrix was a minor girl on the date of incident and this fact has been duly 4 proved by the prosecution by adducing oral and documentary evidence. Being so, the impugned judgment is strictly in accordance with law and the present appeal is liable to be dismissed. 9. Heard learned counsel for the respective parties and perused the recorded placed on record with utmost circumspection. 10. Now this Court has to see whether the prosecution has been able to prove that on the date of incident prosecutrix was minor or not as the accused appellants have been convicted under Section 12 of the POCSO Act, 2012. On behalf of the prosecution, the admission register of Govt. Girls Higher Secondary School, Akaltara has been produced in relation to the admission of the victim. PW-02 Mrs. Shobha Singh Chandel states that she is working as Headmistress in the same school. The date of birth of the victim is 15.04.1998 which is duly reflected on serial no. 1544 in page no. 272-273 of the admission register in Ex. P-06. This fact of the victim has not been challenged by the accused appellants. According to Ex. P/6C victim was given admission in class 6th on 04.07.2011. Both the victim have stated their age to be 15 years on the date of incident. And the incident happened two years ago. The statement of the victims have not been challenged by the accused appellants. The prosecution has heavily relied upon the entry made in Dakhil-Kharij register of Government Girls School, Akaltara, 5 regarding date of birth of prosecutrix. 11.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 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 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 process of age determination, by seeking evidence by obtaining- 6 (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 above, age shall be determined by an ossification test or any other latest medical age determination test conduct on the orders of the Committee or the Board: Provided such age determination test conducted on the order 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. 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 7 consideration of the aforesaid catena of judgments is as follows: 33.2. 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 8 deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7. This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same 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 9 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. In light of aforesaid decisions of the Hon'ble Supreme Court, this Court is of the view that in the present case, there is clinching and legally admissible evidence brought on record by the prosecution to prove the fact that the prosecutrix was minor on the date of incident, learned trial Court has recorded in the impugned judgment that she was minor and hold that the prosecution has been able to prove successfully that on the date of incident she and her friend was minor. Hence this court finds that the conviction of appellant for the offence punishable under Section 12 of the POCSO Act cannot be set aside as the prosecution leaving no doubt has been able to prove themselves minor at the time of incident. 14. Now coming to the point whether the appellants have tried to outrage the modesty of the victims ? Prosecutrix in her statement has stated that on the date of incident she was going to the 10 market on a bicycle with her friend Laxmi. The accused appellants were on a motorcycle. Accused Deepak was driving the motorcycle and accused Ganesh was sitting behind. Both the accused asked them to stop, when they did not stop, the accused brought the motorcycle in front of their bicycle and stopped it. After getting down from the motorcycle the accused told her “Why are you not stopping” and abused them. He also said that they will not leave her alive after raping. Accused Ganesh was holding her hand and accused Deepak was holding her bicycle. Her friend Laxmi told the accused that she had made a mistake let her go. Then the accused threatened her. Victim called her brother Deepak. Deepak came there in five minutes. Even in front of Deepak the accused were threatening to throw acid on her. Deepak called his father. His father came on the spot. His father beat up one of the accused. One of the accused ran away from there. They lodged an FIR. 15. The statement of the victim has been completely supported by victim no. 2 that the PW/02 (Ku. Laxmi). 16. PW-03 Deepak has stated in his statement that her sister called her in the market when both the accused appellants were trying to outrage the modesty of her sister and of her friend. When he reached on the spot he stopped the accused appellants from doing the same. His uncle and one 11 Satya came on the spot and slapped the accused appellants upon which accused Deepak ran away from the spot. 17. PW-04/ Dilip, father of the victim in his statement stated that when he got the information about all the happenings he reached on the spot, when he reached on the spot accused Deepak ran away with the motorcycle and the other accused remained there. He slapped the other accused and took him to the Police Station, where his daughter/victim lodged an FIR against the present appellants. Thus, looking to the evidence of prosecutrix and the statement of the witnesses, it is clear that on the date of incident both the accused appellant tried to outrage the modesty of the victim as well as of her friend Laxmi. They forcefully stopped them and used abusive language and further threatened them. 18. In the result, the appeal cannot be entertained and the impugned judgment can’t be set aside. As this court finds that there is no such ground upon which the accused appellants be released. No doubt prosecution has proved their case beyond reasonable doubt. 19. The conviction and sentence of the appellants is hereby affirmed/maintained. 20. Accordingly, the present criminal appeal being devoid of merits is hereby dismissed. sd/- (Arvind Kumar Verma) alfiza JUDGE