1 CRA No.616/2016 2025:CGHC:59767 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 616 of 2016 Sharit Kumar Paikara S/o Sant Ram Paikara Aged About 20 Years R/o Village Tarashiv, P.S. City Kotwali, Balodabazar, District Balodabazar - Bhatapara Chhattisgarh , Chhattisgarh ... Appellant versus State of Chhattisgarh Through - Station House Officer, Police Of Police Station - City Kotwali, Balodabazar, District Balodabazar - Bhatapara Chhattisgarh , Chhattisgarh Respondent (Cause title taken from the Case Information System) For Appellant : Mr. Anil Gulati, Advocate with Ms. Gunja Taram, Advocate. For Respondent : Ms. Supriya Upasane, G.A. Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board 09/12/2025 1. The present appeal is directed against the judgment of conviction and sentence dated 30/04/2016 passed by the learned 2nd Additional Sessions Judge, Balodabazar, C.G. in Special Criminal Case No.54/2015, whereby the appellant has been convicted and sentenced as under:- AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.12.17 15:39:06 +0530 2 CRA No.616/2016 Conviction Sentence Under Section 456 of the IPC R.I. for 1 year & fine of Rs.500/- with default stipulation. Under Section 8 of the POCSO Act R.I. for 3 years and fine of Rs.1000/- with default stipulation. Both the sentences were directed to run concurrently 2. Facts of the case, in brief, is that the complainant/victim-PW-2 lodged a report at P.S.Kotwali, Balodabazar that on 16/09/2015 at about 10:00 p.m., the appellant entered the house of victim and tried to outrage her modesty. It is also alleged that the appellant committed the same incident 4-5 times prior to the incident dated 16/09/2015. Based on the above report, FIR was registered against the appellant vide Ex.P-2. During the investigation, spot map was prepared vide Ex.P-3. Statement of victim was recorded under Section 164. Appellant was arrested vide Ex.P-10. With regard to ascertain the age of the victim, Dakhil Kharij Register (Ex.P-9/C) and Kotwar book vide Ex.P-7/C were seized. After completing the investigation, the final report was prepared. 3. In order to bring home the above-stated offence, the prosecution examined as many as 13 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. was recorded, wherein he has pleaded his innocence and false implication in the matter. 4. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in opening 3 CRA No.616/2016 paragraph of this judgment. Hence this appeal. 5. Learned counsel for the appellant submit that the appellant has been falsely implicated in the present case. The prosecution has miserably failed to prove the actual age of the victim, as the age of victim mentioned in the Dakhil-Kharij register and in Kotwar book is different. Learned counsel further submits that there are material contradictions and omissions between the statement under Section 164 and Court Statement. He submits that the incident occurred on 16/09/2015 and the FIR lodged on 19/09/2015 and as such the same suffers from delay and laches. The entire incident is highly doubtful, therefore, the conviction of the appellant is not sustainable and he may be acquitted of the charges framed against him. 6. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the victim and other witnesses are fully reliable. There are sufficient evidence available on record to hold that the appellant is guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference. 7. I have heard learned counsel for the parties and perused the record. 4 CRA No.616/2016 8. The first question arose for the consideration would be whether the victim was minor and less than 18 years of age on the date of incident or not. 9. PW-2, victim stated that she is studied till 8th standard, but she does not know her exact date of birth. PW-3, father of victim and PW-1, mother of victim stated that the victim has studied till 8th standard, however, they do not know the exact date of birth of her daughter. 10. PW-9, Headmaster of the school, has deposed in his statement that the Dakhil Kharij Register Ex.P-9/C was seized by the police. He deposed that in the dakhil-kharij register, the date of birth of victim has been mentioned as 12/01/1998. In cross-examination, he has admitted that the entries in the said register with regard to date of birth of the victim was not made by him. Apart from that, Kotwar book was also seized which is Ex.P-7/C, in which, date of birth of victim was mentioned as 30/11/1997. 11. The date of incident is 16/09/2015. According to date of birth mentioned in the dakhil-kharij register i.e. 12/01/1998, the victim’s age is 17 years 8 months and according to date of birth mentioned in Kotwar book i.e. 30/11/1997, the victim’s age is 17 years 09 months. Thus, it is crystal clear that on the date of incident the victim has completed more than 17 years of age. 12. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by 5 CRA No.616/2016 Inspector of Police, 2011(2) SCC 385, 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 6 CRA No.616/2016 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 Jaiswal2, 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:- 7 CRA No.616/2016 "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." 13. In case of Rishipal Singh Solanki Vs. 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. 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 8 CRA No.616/2016 of the person as nearly as may be. XXXX XXXX XXX 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 scrutinised 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. 9 CRA No.616/2016 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 10 CRA No.616/2016 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 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 thedescription 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 11 CRA No.616/2016 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 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 CRA No.616/2016 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 fromthe 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. Reverting to the facts of the present case, except for the evidence like Dakhil-kharij register and Kotwar book, no other evidence like ossification test report have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. There is no evidence that on what basis the date of birth of the victim was recorded in the said register. The evidence produced by the prosecution with respect to the age of the victim are not of that sterling quality which is sufficient to determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 16. Now, the next question for consideration would be, whether the trial Court is justified in convicting the appellant for the offence under Section 456 of IPC and Section 8 of POCSO Act. 13 CRA No.616/2016 17. In 164 statement, the victim stated that the accused, Shakeel Pakra, is a resident of her own village. He has studied till 8th standard. Shakeel used to harass her. She stated that whenever she goes outside to bath or to fetch water from the pond or the tap, the accused harasses her. For the past two months, Shakeel has been continuously harassing her and also caught hold her hands and other parts of her body. She further stated that the incident is of the night of 16.09.2015 at about 10:00 PM. She was at her house in village Tarashiv along with her parents. After having dinner, everyone had gone to sleep at night. The door of the house was open. Her father had gone to brush his teeth. Then, her father told her mother to see who was standing at the door, thereafter, her mother caught hold of him. At that time, she was not completely asleep. She heard the entire conversation. Her mother had caught Shakeel, who is a resident of her own village. 18. PW-2, victim, stated in her Court statement that about two months ago, when she used to go to the river/pond to bath, the accused used to catch hold of her hands and arms with the intention of expressing love. She had informed her parents about this. After that, a meeting was held in the village in which many people were present. The accused also attended the meeting. The people present in the meeting warned the accused not to do such acts, but he did not comply. On 16.09.2015, the accused entered my 14 CRA No.616/2016 house at night. At that time, she was asleep. She stated that she does not know for what purpose the accused had entered her house. In her cross-examination, she stated that on 16.09.2015 at about 10:00 PM, the accused did not molest or tease her. She further stated that in written report, she did not mention that the accused used to tease her with the intention of insulting my modesty. 19. PW-1, mother of victim, stated in her evidence that about two or three months ago, at around 10:00 p.m., when she opened the door of her house, the accused was standing near the door. On seeing him, she called her husband, and he caught hold of the accused because he was trying to enter into the house. Her daughter had not told her about any incident that had happened to her. The accused used to keep talking to her daughter, therefore he was caught. 20. PW-3, father of victim stated in her evidence that about two months ago, around 10:00 PM. The accused, opened the door of her house. His wife told him that someone was standing outside the door. Then, he ran towards the door and caught the accused, Sharit. After that, when he shouted, the Sarpanch and other villager came and then he narrated to them that the accused was standing near the door because of his ill intentions towards his daughter. The accused had entered inside his house. 21. In summary, the victim’s Court testimony is inconsistent with her 15 CRA No.616/2016 Section 164 CrPC statement, as in the 164 statement she alleged continuous harassment and physical molestation by the accused and claimed awareness of the incident on the night of 16.09.2015, whereas in her Court statement she denied any molestation or teasing on the said date, expressed uncertainty about the accused’s intention in entering her house, stated that she was asleep at the relevant time, and admitted that she had not mentioned any intention to outrage her modesty in her written report, resulting in material contradictions and omissions on crucial aspects of the prosecution case. 22. There is a clear contradiction between the victim’s statement under Section 164 CrPC and the testimony of PW-1 (mother), inasmuch as the victim stated that she was not completely asleep and had heard the entire conversation when her mother caught hold of the accused at the door, whereas PW-1 deposed that on seeing the accused she called her husband, who caught hold of the accused as he was trying to enter the house, and further categorically stated that her daughter had not told her about any incident having occurred with her and that the accused was apprehended only because he used to talk to her daughter, thereby contradicting the victim’s version regarding her awareness of the incident and the circumstances and reason for apprehending the accused. 23. The victim’s statement under Section 164 CrPC suffers from a 16 CRA No.616/2016 material infirmity inasmuch as she specifically named the accused as “Shakeel,” a resident of her village and who allegedly harassed her, whereas the appellant before the Court is named as “Sharit,” thereby indicating a clear discrepancy in the identity of the accused; this incorrect naming in the 164 statement raises serious doubt about the correctness and reliability of the victim’s version and creates a material contradiction with the prosecution case regarding the identity of the appellant. 24. 24. For the foregoing reasons, this Court is of the opinion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt, as the age of prosecution has not been proved, there are material contradictions and omissions among the prosecution witnesses and inconsistencies in the victim’s evidence, and consequently her testimony does not inspire confidence. 25. In the result, the appellant is allowed. The impugned judgment of conviction and sentence dated 30/04/2016 is set aside. The appellant is reported to be on bail. His bail bond is not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. 26. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. SD/- (Bibhu Datta Guru) Judge Gowri/Amardeep