1 2025:CGHC:53378 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1865 of 2025 Jitendra @ Satya S/o Ashok Kumar Uikey Aged About 19 Years R/o Village Nejchang, P.S. Kodekhurse, District Kanker Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Anda, District Durg Chhattisgarh ---- Respondent ----------------------------------------------------------------------------------------------- For Appellant : Ms. Preeti Yadav, Advocate For Respondent-State : Ms. Nupur Trivedi, Panel Lawyer ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 31.10.2025 1. The appellant has filed the instant appeal under Section 415 of the BNSS, 2023 questioning the judgment of conviction and order of sentence dated 04.09.2024 passed by the Additional Sessions Judge, 4th F.T.S.C., Special Court, Durg (C.G.) in Special Criminal Case (POCSO) No.24/2019, whereby the appellant has been convicted and sentenced as under :- Conviction Sentence In Default of Payment of Fine Under Section 363 of the IPC RI for 01 year and fine amount of Rs.100/- Additional RI for 01 month VASANT KUMAR Digitally signed by VASANT KUMAR Date: 2025.11.04 11:02:18 +0530 2 Under Section 366(a) of the IPC RI for 03 years and fine amount of Rs.100/- Additional RI for 01 month Under Section 376(2)(n) of the IPC RI for 10 years and fine amount of Rs.5,000/- Additional RI for 01 month (All sentences shall run concurrently) 2. As per prosecution story in brief is that the complainant/victim has lodged report to the concerned police station that on the date of incident i.e. 24.11.2018 at about 12.00 p.m., the victim was gone to her friend and thereafter, she did not return in her house in time and she was not received any information to her relatives. Based upon the such complaint, concerned police station has registered for the offence punishable under section 363 of I.P.C. against the unknown person and after recovered the victim, the police has registered FIR for commission of offence U/s. 363, 366 (a), 376 (2) (n), 506 Part-II of the Indian Penal Code and section 06 of the Protection of Children From Sexual Offences Act, 2012 against the appellant. 3. After the completion of the investigation, police has filed charge sheet before learned Upper Sessions Judge Fourth F.T.S.C. Special Court Durg (C.G.) where case commenced for trial in Special Criminal case (under POCSO Act 2012) No. 24/2019. 4. After trial, the appellant has given. statement under section 313 of Cr.P.C. and he has denied the allegation against him and he has not produced any witness for his defense. 5. The prosecution has examined as many as 09 witnesses, for support of the case 3 of the prosecution and details of the prosecution witnesses has mentioned in impugned conviction order Annexure A-1. 6. Learned counsel appearing for the appellant contended that the learned trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellant. She further contended that the learned trial Court failed to appreciate the evidence recorded in the case in its true and correct perspective and succumbed to conjectures and surmises in convicting and sentencing the appellant. She further contended that the question of age of the prosecutrix in cases under Sections 363, 366 and 376, Indian Penal Code is of vital importance, particularly the trial Court relied upon the statement given by the father of the victim (PW-3) who is not reliable and untrustworthy and unsupported to the case, and depositions and statement. She further contended that there are material contradiction and omission in the statement of several witnesses. Learned counsel further contended that the prosecution failed to adduce any cogent and reliable piece of evidence to prove the guilt of appellant. Without there being any sufficient, cogent and clinching evidence/material available on record, therefore, conviction of appellant is not sustainable. 7. Per contra, learned counsel for the State/respondent opposes the argument raised by counsel for the appellant, supported the impugned judgment and submits that sentence awarded by the trial Court is just and proper and requires no interference. 8. I have heard learned counsel appearing for the respective parties and perused the record of the trial Court and other material available on record with utmost 4 circumspection. 9. In order to consider the age of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register (Ex.P/3-C), wherein date of birth of prosecutrix is mentioned as 06.07.2001. 10. B.R. Sahu (PW-1), Headmaster of the Government Girls Primary School, Palari, District Balod (CG) who posted in the said school since 16.10.2008 and at the time of admission of the prosecutrix, i.e., 08.06.2007, PW-1 was not posted in the said school. Headmaster (PW-1) stated in his cross examination that the prosecutrix was enrolled in his school in Class -1. He further stated that he cannot say on what basis the victim's date of birth was recorded when she was enrolled in Class-I. No documents regarding the victim's exact date of birth are available at school. 11. Prosecutrix (PW-2) stated in her statement that her date of birth is 06.07.2001 and at the time of incident, she was studying in Class-12th. Father of the prosecutrix (PW-3) has also corroborated the statement of the prosecutrix with regard to date of birth of the prosecutrix. 12. 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 person brought before it under any of the provisions of this Act (other than for the purpose of giving 5 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 the 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 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. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the 6 purpose of this Act, be deemed to be the true age of that person. 13. There is no any documentary evidence available on record that on what basis date of birth of prosecutrix 06.07.2001 is mentioned and also no birth certificate issued by the Corporation or Panchayat has been produced regarding date of birth of prosecutrix. Copy of Kotwari Register is also not produced with regard to age of the prosecutrix. There is no legally admissible evidence with regard to age of prosecutrix that on the date of incident, she was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. 14. 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 7 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 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. 8 33.8. If two views are possible on the same evidence, the courtshould 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.” 15. 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 : 9 “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 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. 16. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors., 2022 (8) SCC 602, 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 10 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(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 11 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.” 17.Now, considering the fact of the present case and after considering the evidence collected by the prosecution and in the light of the aforesaid judgments of Hon’ble Supreme Court, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix was minor and less than 18 years of age on the date of incident. Accordingly, I am not inconfirminty with the finding of the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. 18. The fact of commission of rape stated by the prosecutrix (PW-2) in her statement that on 24.11.2018 at 12 o'clock she had left her house to go to the shop, then the accused Jitendra alias Satya came there and told her to come with him otherwise he would kill her. When she told him that she will not go, he threatened her and took her towards the bus by holding her hand and took her to Tumnar by bus. She further stated that the accused's sister and brother-in-law live in Tumnar. The appellant told his sister and brother-in-law that she is his wife and he kept her in his house in Tumnar like his wife many times and forcibly had physical relations with her 12 against her will. When she refused, he used to beat her and threatened to kill her. Subsequently, on January 14, 2019, her elder mother, aunt, and elder brother came to Tumnar, Bijapur, to pick her up, and returned to Anda on January 15, 2019. The police also arranged for her my medical examination. 19. Close scrutiny of the evidence led by the prosecution would make it clear that the prosecutrix has nowhere disclosed that at any point of time, the appellant has taken forcibly and has committed rape, therefore, it appears that it is a case of elopement. 20. Thus, considering the entire facts and circumstances of the case particularly, the evidence with regard to the age and conduct of the prosecutrix, I am of the opinion that the age of the prosecutrix is not verified and it is a case of elopement. It is considered opinion of this Court, the prosecutrix is a consenting party, therefore, in the above facts and circumstances of the case, offence under Sections 363, 366(a) & 376(2)(n) of IPC would not be made out against the appellant. 21. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 04.09.2024 is hereby set aside. Appellant stands acquitted of all the charges levelled against him. The appellant is reported to be in jail. He be released forthwith, if not required in any other case. 22. Keeping in view the provisions of Section 437-A CrPC (now Section 481 of BNSS), the appellant is directed to furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of 13 Rs.10,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 23. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) Judge Vasant