1 2025:CGHC:60264 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 551 of 2022 1 - Vikas Kumar Vatti @ Vicky S/o Ranjan Vatti Aged About 25 Years R/o Donderapal, Police Station Keshkal, District Kondagaon, Chhattisgarh. ... Appellant versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Dhanora, District Kondagaon, Chhattisgarh. ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Prasoon Agrawal, Advocate For Respondent / State : Mrs. Mukta Tripathi, Panel Lawyer. Hon'ble Shri Justice Naresh Kumar Chandravanshi Judgment on Board 10/12/2025 1. Heard. 2. This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 06.01.2022 passed by the learned Upper Sessions Judge (FTC), Kondagaon, District Kondagaon, Chhattisgarh (henceforth referred to as RUKHSAR BANO Digitally signed by RUKHSAR BANO Date: 2025.12.17 17:15:04 +0530 2 ‘Fast Track Court) in POCSO Case No.32/2021, whereby learned Fast Track Court, after holding the appellant guilty, convicted and sentenced him in the following manner :- Conviction under Section Jail Sentence Fine Sentence Default stipulation 8, POCSO Act RI for 05 years Rs. 1000/- RI for 1 year 366, IPC RI for 10 years Rs. 1000/- RI for 2 years 354, IPC Since the appellant has been sentenced for the offence u/S 8 of the POCSO Act, which is greater in degree of punishment than Section 354 of IPC, therefore, in view of the provisions of Section 42 of the POCSO Act, he has not been sentenced in this Section. All the substantive jail sentences have been directed to run concurrently. 3. The case of the prosecution, in brief, is that on 29.10.2020 at about 12:00 noon to 1:30 pm, when the minor victim was alone in her house, the appellant went there and, on pretext of roaming, took her on his motor cycle towards the forest (jungle) side, where he threw her on the ground, held her neck, hands & feet and also kissed her on cheeks. Thereafter, the victim started crying and pushing the appellant away, she fled from the spot. Subsequently, the appellant again compelled the victim to sit on his motor cycle and dropped her midway. The victim was later dropped to her house by some other persons. She informed her parents about the incident, thereafter, a written complaint (Ex.P-1) was lodged by her father based on which, an FIR (Ex.P-2) was registered against unknown person, as victim had not identified the miscreant. During course of investigation, statements of witnesses were recorded, spot map (Ex.P-3) was prepared 3 by police, birth certificate (Ex.P-6-A) of victim was seized vide seizure memo (Ex.P-4), spot map / panchnama (Ex.P-5) was prepared by the concerned Patwari, Test Identification Parade (for short ‘TI Parade’) of appellant was conducted by the Naib Tahsildar Chhama Yadu (PW-13) from victim, in which, she identified the appellant by touching him vide Ex.P-10 & P-11, the appellant was arrested. After completion of investigation, a charge sheet for the offence under Sections 363, 354 of the IPC and Section 8 of the Protection of Children From Sexual Offences Act, 2012 (for short ‘POCSO Act’) was filed against the appellant. 4. Learned Fast Track Court framed charges under Sections 363, 354 of the IPC and Section 8 of the POCSO Act against the appellant, who abjured the guilt and entered into trial. 5. To bring home the charges, the prosecution examined as many as 15 witnesses and exhibited 15 documents, statement of the appellant under Section 313 of the Cr.P.C. was recorded, in which, he denied all the incriminating circumstances appearing against him in the evidence of the prosecution claiming himself to be innocent and false implication. No defence witness has been examined in support of the appellant. 6. After considering the evidence brought by the prosecution, learned Fast Track Court convicted and sentenced the appellant, as has been stated in opening paragraph of this judgment. Being aggrieved, the appellant has preferred instant appeal. 7. Learned counsel appearing for the appellant / accused would submit that the FIR was lodged against unknown person, as the victim did not identify alleged miscreant. TI Parade of the appellant was conducted on 29.05.2021 i.e. after more than 7 months of the said incident. The minor victim was said to be aged about 10 years & 7 months, therefore, it cannot 4 be supposed that any memory regarding appearance of miscreant would have remained to her. He would further submit that (PW-4) maternal grandfather of victim has contradicted his statement of examination-in- chief in his cross-examination that he was known to the appellant prior to incident. He further submitted that Chhama Yadu (PW-13) had allegedly got conducted TI Parade but she herself has admitted in cross- examination that the appellant, victim & her parents, and other witnesses were brought together in front of her. Indresh Negi (PW-8) and Sevant Atkari (PW-15) have also stated that the victim, appellant and witnesses have taken together by the police at Keshkal where identification parade was conducted by Naib Tahsildar Chhama Yadu (PW-13), as such, credence of TI Parade is vitiated, despite that, learned Fast Track Court has convicted the appellant, which is perverse to the evidence available on record, hence, he prays that the appeal may be allowed and the appellant be acquitted of all the charges levelled against him. 8. Per contra, learned State counsel supported the impugned judgment and conviction part also. 9. I have heard learned counsel for the parties and perused the material available on record along with record of the Fast Track Court. 10. As per the case of prosecution, age of the minor victim was 10 years, 7 months & 15 days. Learned Fast Track Court has also held in para 10 of the impugned judgment that the victim was 10 years, 7 months & 15 days old on the date of incident on the basis of her birth certificate (Ex.P-6-A). Ex.P-6-A, which is a photocopy of birth certificate of victim, has been proved by her father (PW-3), which was seized vide seizure memo (Ex.P- 4). This fact has also been supported by Constable Hriday Baghel (PW-9) and Constable Kamleshwar Jurri (PW-10), thus, seizure of birth certificate 5 (Ex.P-6-A) of the victim is very well proved. As per the birth certificate, date of birth of the victim was 13.03.2010. 11. The manner & procedure to determine the age of minor / juvenile has been contemplated in Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (henceforth referred to as ‘JJ Act, 2015’), which reads thus :- “ 94. Presumption and determination of age - (1) xxx xxx xxx (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.” 12. The Hon'ble Supreme Court while emphasizing the aforesaid provision 6 in the cases of Om Prakash Vs. Union of India (Criminal Appeal No. 4229 of 2024, decided on 08 th January, 2025 ) and Rajni Vs. State of Uttar Pradesh [2025 LiveLaw (SC) 602] has held that age of the minor should be determined according to Section 94 of the JJ Act, 2015, which is a reiteration of Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007, which mandates the explicit outline, a sequence for determining a person’s age i.e. date of birth certificate from a School, or matriculation / equivalent certificate from the concerned examination Board, if available; and in the absence thereof; a birth certificate given by a Corporation or Municipal Authority or a Panchayat. And only in the absence of above document, 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. 13. In view of the aforesaid provision and law rendered by the Hon’ble Apex Court, from the birth certificate (Ex.P-6-A) of the victim, in which, her date of birth is mentioned as 13.03.2010, which has neither controverted by the appellant nor any evidence to reburt aforesaid facts has been adduced by him, therefore, on the basis of aforesaid birth certificate of victim and date of birth mentioned in it, it is found that learned Fast Track Court has not committed any mistake in holding victim minor i.e. 10 years, 7 months & 15 days years old on the date of incident i.e. 29.10.2020. 14. So far as offence of kidnapping and sexual assault upon minor victim by the appellant is concerned, from perusal of FIR, it is evident that the victim has not identified miscreant, as such, the FIR was lodged against the unknown person. 15. PW-4 is maternal grandfather of victim, who has stated in his deposition that while returning from Korkoti, he had seen that appellant was taking 7 victim on motor cycle. He has further stated that the appellant had also wished him but he has denied in his cross-examination that the person who wished him was known to him. Even otherwise, if he had identified the appellant, then he would have informed police that the person who had taken victim was appellant but he did not do so. Therefore, identification of appellant is also not established from deposition of PW-4 maternal grandfather of victim. PW-3 father of victim was also not known about the miscreant. 16. The appellant is said to be identified by the victim in TI Parade conducted by Naib Tahsildar Chhama Yadu (PW-13), to which, she prepared identification memo (Ex. P-10 & P-11) but she herself has admitted in her cross-examination that the appellant, victim & her parents and witnesses all were made present in front of her by the police, meaning thereby prior to TI Parade, all the persons were kept in situation to be seen to each other. Indresh Negi (PW-8) and Sevant Atkari (PW-15) are said to be witnesses of said identification parade but they have also stated that the victim, appellant and witnesses all were taken by police together to Keshkal to get identification of appellant from victim. From aforesaid evidence, it is found that the appellant was got identified from victim prior to TI Parade, which vitiates credibility of TI Parade. It is also apt to be noted here that the victim was a minor girl aged about 10-11 years and TI Parade was conducted after about 7 months from the date of incident, since victim had seen alleged miscreant first time, therefore, having considered her age and long period of 7 months, it also creates doubt that features and postures etc. of alleged miscreant would have remained in the memory of victim. In such situation, identifying appellant by the victim in the Court also cannot be held to be reliable. Therefore, on such 8 unreliable TI parade, it cannot be held proved that the person who allegedly kidnapped and sexually assaulted victim, was appellant. 17. In view of above discussion, it is found that learned Fast Track Court, without properly appreciating and marshaling the evidence available on record, convicted and sentenced the appellant only relying on the TI Parade, which is found to be completely unreliable. Therefore, the impugned judgment suffers from perversity and illegality, hence, the same deserves to be set aside. 18. Accordingly, the criminal appeal is allowed. The impugned judgment of conviction and order of sentence dated 06.01.2022 passed by the learned Fast Track Court is hereby set aside/quashed. The appellant is acquitted of the all the charges levelled against him. 19. The appellant is said to be on bail. He needs not surrender. The bail bonds furnished by the appellant shall remain in operation for a further period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 20. Record of the concerned Court below along with a copy of this judgment be sent back forthwith for compliance and needful, if any. Sd/- (Naresh Kumar Chandravanshi) JUDGE Rukhsar