1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1221 of 2016 Judgment Reserved on 27.10.2025 Judgment Delivered on 18.11.2025 1 - Pradeep Kumar Sahu S/o Brijlal Sahu Aged About 26 Years R/o Village Piparpara, Ghutri, Police Station Manendragarh, Distict Korea, Chhattisgarh., Chhattisgarh --- Appellant versus 1 - State Of Chhattisgarh Through Incharge Of Police Station Podi, District Korea, Chhattisgarh., Chhattisgarh --- Respondent CRA No. 1352 of 2016 1 - Mithlesh S/o Lekha Verma Koieri Aged About 30 Years R/o Village Mahuwar, Police Station Haspura, District Aurangabad, Bihar. Presently Residing At Behind, Court Manendragarh, District Korea, Chhattisgarh., Chhattisgarh ---Appellant Versus 1 - State Of Chhattisgarh Through Station House Officer, Police Of Police Station Podi, District Korea, Chhattisgarh., Chhattisgarh ... Respondent For Appellant : Mr. Utkarsh Patel, Advocate on behalf of Mr. P.K. Patel, Advocate in CRA No. 1221/2016 & Mr. Pramod Kumar, 2 Advocate along with Mr. C.K. Sahu, Advocate in CRA No.1352 of 2016 For Respondent/State : Mr. Afroz Khan, Panel Lawyer. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. C A V Judgment Per, Amitendra Kishore Prasad, J. 1.Since both the above-captioned appeals arise out of the same impugned judgment of conviction and order of sentence, they are being heard together and disposed of by this common judgment. 2.In these appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973, the appellants have challenged the legality, validity, and propriety of the judgment of conviction and order of sentence dated 23.08.2016, passed by the Special Judge, {Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989} Baikunthpur, District Korea (C.G) (for short, ‘the Act, 1989’) in Special Trial No. 49/2014. By the said judgment, the appellants have been convicted and sentenced as under:–– Conviction of Appellant- Mithlesh in CRA No. 1221/2016 Sentence Under Section 363 of Indian Penal Code (for short, ‘IPC’) Rigorous Imprisonment for seven years and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous 3 imprisonment for two months. Under Section 366 of IPC Rigorous Imprisonment for ten years and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Under Section 376 (2)(ढ)(झ) of IPC & Section 5(ठ)/6 of the POCSO Act, 2012 Rigorous Imprisonment for ten years and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Under Section 3(1)(xii) of the Act, 1989 Rigorous Imprisonment for five years and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Section 3(2)(v) of the Act, 1989 Imprisonment for life and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Conviction of Appellant- Pradeep Kumar Sahu in CRA No. 1352/2016 Sentence Under Section 363 of IPC Rigorous Imprisonment for seven years and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Under Section 366 of IPC Rigorous Imprisonment for ten years and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Under Section 354 of IPC & Section 7/8 of the POCSO Act Rigorous Imprisonment for five years and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. 4 Under Section 3(1)(xii) of the Act, 1989 Rigorous Imprisonment for five years and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. Section 3(2)(v) of the Act, 1989 Imprisonment for life and fine of Rs.500/- and in default of payment of fine amount to undergo additional rigorous imprisonment for two months. (All the sentences were directed to run concurrently) 3. Case of the prosecution, in brief, is that on 27.02.2014, during the festival of Maha Shivratri, the complainant- Jaglal Singh Gond (PW-5), resident of village Pondi, lodged a report at Police Station Pondi stating that his minor daughter/victim, aged about 15 years, had gone to the local fair along with one of her female friend, a resident of the same village. However, both did not return home till evening. On making inquiry, the complainant/PW-5 went to Rita’s house, where she informed him that while they were on their way to the fair, they met the accused/appellants- Pradeep and his friend Mithlesh, residents of Ghutra, Aamadand, Barwani, who were known to them. The accused persons came on a motorcycle, and after some conversation, all four of them sat on the motorcycle and proceeded towards Nagarpur Chauraha. At Nagarpur Chauraha, the accused persons allegedly left victim’s friend there and took the victim along with them on the motorcycle. Thereafter, the accused- Pradeep, under the pretext and false promise of marriage, enticed and took away the minor victim. The victim’s friend narrated the entire incident to the complainant/PW-5, whereupon he informed the villagers and made 5 extensive searches for his daughter and the accused persons but could not trace them. 4. On the basis of the said report, a First Information Report (FIR) (Ex. P-16) was registered against the accused persons by Assistant Sub-Inspector K.K. Rajwade (PW-12) at the Police Help Centre, Nagpur. During investigation, the Investigating Officer visited the spot, conducted spot inspection and prepared a site map (Ex. P-5). Prosecutrix was recovered from the house of the uncle of the accused vide Ex.P-2. Consent of the prosecutrix and her parents were obtained vide Ex.P-3 and after that, prosecutrix was sent for medical examination where PW-8 Dr. Jyoti A. Jasathi examined the prosecutrix and found that prosecutrix was subjected to sexual intercourse and gave her MLC report vide Ex.P-4. Accused/appellants were taken into custody vide Exs.P-20 & Ex.P- 21 and they were sent for medical examination where PW-10 Dr. J.K. Yadav examined them and found that the appellants are capable of performing sexual intercourse and gave his reports vide Exs.P-13A & P-14A. Vide Ex.P-1, undergarments of prosecutrix. Caste certificate of prosecutrix was seized vide Ex.P-8. Vide Ex.P-10, Dakhil Kharij Panji showing the date of birth of prosecutrix as 15.04.1999 and other documents were seized. Vide Ex.P-15, undergarments of appellants were seized. Vide Ex.P-18 motorcycle of appellant- Pradeep were seized. Seized articles were sent to FSL for chemical examination and as per FSL report vide Ex.P-24, 6 seminal spots and human spermatozoa have been found on the articles marked as ‘A, B & C’ i.e. slides of prosecutrix and undergarments of appellants. 5. After due investigation, statements of the witnesses were recorded under Section 161 of Cr.P.C. The accused/appellants were charge- sheeted before the jurisdictional criminal Court and the case was committed to the trial Court, in which, accused/appellants abjured their guilt and entered into defence by stating that they have not committed the offence. 6.The prosecution, in order to prove its case, examined as many as 18 witnesses and exhibited 24 documents. In defence, the accused/appellants have examined none but exhibited one document i.e. Ex.D-1. The statements of the accused persons/appellants were recorded under Section 313 of Cr.P.C., in which, they denied circumstances appearing against them in the evidence brought on record by the prosecution, pleaded innocence and false implication. 7. The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the accused persons/appellants for the offences as mentioned in the opening paragraph of the judgment, against which, these appeals have been preferred by the appellants herein, questioning the impugned judgment of conviction and order of sentence. 7 8. Learned counsel for the appellants would submit that the learned trial Court has erred in convicting the appellants for the offences in question. It is contended that the appellants have been falsely implicated in the present case and have not committed any offence as alleged by the prosecution. Learned counsel for appellant– Mithlesh, in CRA No. 1352/2016, would further submit that the conviction of appellant–Mithlesh is contrary to the evidence available on record. He would contend that from the statement of the prosecutrix (PW-3), it is apparent that she was a consenting party. She had voluntarily travelled with appellant–Mithlesh to several places and has herself admitted during her testimony that they were in a love affair. However, the learned trial Court has mainly based its conviction on the finding that the prosecutrix was a minor at the time of the alleged offence, a finding which, it is submitted, is perverse and unsustainable. The prosecution has failed to establish the age of the prosecutrix in accordance with law. Her father could not state her exact date of birth, and the school admission register relied upon by the prosecution was not duly proved. The Headmaster who produced the said record did not establish the date of birth in the manner required by law. In these circumstances, the finding that the prosecutrix was a minor lacks proper evidentiary foundation. Hence, no offence under the aforesaid Sections is made out against appellant–Mithlesh. It is, therefore, prayed that he be acquitted of all the charges levelled against him. Similarly, learned counsel for the accused–Pradeep 8 Kumar Sahu, in CRA No. 1221/2016, would submit that his conviction under the aforesaid Sections is also erroneous. It is contended that the prosecution has failed to prove the caste certificate of the prosecutrix in accordance with law. When the alleged offence itself has not been established, the question of convicting the appellants under Sections 3(1)(xii) and 3(2)(v) of the Act, 1989 does not arise, as the essential ingredient, that the offence was committed on the ground that the prosecutrix belonged to a Scheduled Caste or Scheduled Tribe, has not been proved. It is, therefore, humbly prayed that the impugned judgment of conviction and order of sentence be set aside, and that appellant–Pradeep be acquitted of all the charges levelled against him. 9.Reliance has been placed upon the decisions of Supreme Court in the matters of Alamelu and another vs State represented by Inspector of Police (2011) 2 SCC 385; Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, (2022) 8 SCC 602; P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 84; Jarnail Singh vs State of Haryana, (2013) 7 SCC 263; Manoj vs. State of Haryana, (2022) 6 SCC 187 & Vinod Katara vs. State of U.P., (2023) 15 SCC 210. 10.On the other hand, learned counsel for the State would support the impugned judgment and submit that the prosecution has brought home the offence against the appellants and has proved the case 9 beyond reasonable doubt and thus, the appellants have rightly been convicted and sentenced for the aforesaid offences. 11. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records with utmost circumspection. 12.The first question that arises for consideration before this Court is whether the finding recorded by the trial Court, holding the victim to be minor/below 18 years of age on the date of the incident, is correct. 13. To determine the age of the prosecutrix, she was examined as PW-1. However, in her deposition, she did not state her exact age with certainty. Further, PW-5 the father of the prosecutrix, categorically stated in his testimony that he does not know the exact date of birth of prosecutrix. He also admitted that the date of birth of the prosecutrix was neither recorded in the Kotwari register nor supported by any documentary proof. He further deposed that he is unaware of the exact date of birth of any of his children. Moreover, PW-6 Raghunath Prasad, the Headmaster of the concerned school from where the admission register (Ex. P/10) was seized, unequivocally stated that the date of birth of prosecutrix mentioned therein has no authentic basis. He admitted that no birth certificate or Kotwari certificate was produced at the time of the prosecutrix’s admission to substantiate the entry 10 regarding her date of birth. He further deposed that the admission register does not bear the signature of the prosecutrix’s guardian and that there are visible overwritings and corrections in the entry relating to her date of birth, which cast serious doubt on its genuineness. 14. In case of Alamelu and Another (supra), 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 victim 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. 15.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 11 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, 12 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 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. 13 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. 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 victim 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 14 21 of the Constitution, as in that case the accused may unjustly be convicted." 16. Also, the Supreme Court in the matter of Rishipal Singh Solanki (supra) has held that:- “46. But in the instant case, admittedly, there is no other document indicating the date of birth of the second respondent contrary to what has been indicated in the matriculation certificate. Thus, such a discrepancy in the date of birth does not arise herein. No contra evidence to the documents produced by the second respondent have been produced by the appellant herein. In the circumstances, we are not inclined to differ from the order of the High court which sustained the judgment of the District & Sessions Court as well as of the JJ Board in this case. 47. Section 94 of the JJ Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the Committee. But in case the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Committee or the JJ Board is a juvenile has to be drawn by the said authorities. The said presumption has to be drawn on observation of the child. However, the said presumption may not be drawn when the Committee or the Board has reasonable grounds for doubt regarding the 15 person brought before it is a child or not. In such a case, it can undertake the process of age determination by the evidence which can be in the form of: (i) Date of birth certificate from the school or the matriculation certificate from the concerned board, if available or in the absence thereof; (ii) The birth certificate given by a corporation or by a municipal authority or a panchayat and in the absence of the above; (iii) Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.” 17. Further, the Hon’ble Supreme Court in the matter of P. Yuvaprakash (Supra) has held that:- “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 16 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.,3 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: 17 “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.” 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 & Ors4 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 18 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 v State of West Bengal5, 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.” 18. In the matter of Jarnail Singh (Supra), the Supreme Court laid down the guiding principles for determining the age of a child, which read as follows:- “22.On the issue of determination of age of a minor, one only needs to make a reference to 19 Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under: “12. Procedure to be followed in determination of Age.? (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining - (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; 20 (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; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub- rule (3), the court or the Board or as the case maybe the Committee shall in writing pass an 21 order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 22 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued panchayat. Yet again, if such a certificate is available, consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the 23 determination of age of the concerned child, on the basis of medical opinion." 19.In case of Manoj (supra), the Hon'ble Supreme Court has observed as under:- “18. Hence, it cannot be reasonably expected to formulate a unifrom standard for determination of the age of the union of epiphysis on factors affecting the people of the different States of India. 19. Furthermore, this Court in a judgment in Jyoti Prakash Rai v a person has never been considered by courts of law as also by the medical scientist to be conclusive in nature… 20. The Court held as under (Jyoti Prakash Rai case. SCC pp. 228-29, paras 12-13) “12………………………… 13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After a certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu v State of Maharashtras opined (SCC p. 290 para 20) 20.It is urged before us by Mr Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted We are unable to accept this contention for the reasons 24 that the expert medical evidence is not binding on the ocular evidence The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact.' In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side.” 20. In case of Vinod Katara (supra), the Hon'ble Supreme Court has observed as under:- “64. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v Prabhat Singh, and Jyoti Prakash Rai v. State of Bihar. that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person. but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the 25 degree of probability and not proof beyond reasonable doubt.” 21. When the present case is examined in the light of the aforesaid decisions of the Hon’ble Supreme Court, it is evident that both the prosecutrix (PW-1) and her father (PW-5) have failed to state her exact date of birth or age with certainty. The documentary evidence relied upon by the prosecution has not been duly proved in accordance with law. The testimony of the Headmaster (PW-6) further indicates that the date of birth of the prosecutrix could not be conclusively established. Further, neither ossification test was conducted nor any other document was filed to show the exact date of the prosecutrix. If the statements of these witnesses, coupled with the available documents on record, are taken into consideration, it is evident that the prosecution has failed to prove the exact age and date of birth of the prosecutrix. Further, the prosecution has neither produced any school record nor furnished a birth certificate issued by a competent authority to establish the age of the victim. Moreover, there is no reliable medical evidence on record to conclusively determine her age. Therefore, in the absence of any reliable or primary documentary evidence regarding the exact date of birth of the prosecutrix, it is difficult to hold that, at the time of the incident, the prosecutrix was a minor at the time of the alleged incident. 22. In view of the foregoing discussion, and upon consideration of the totality of the evidence available on record, this Court is of the 26 considered opinion that the prosecution has failed to discharge its burden of proving beyond reasonable doubt that the victim was below 18 years of age on the date of the alleged incident. Accordingly, the finding recorded by the learned trial Court holding the victim to be a minor at the relevant time is unsustainable and is hereby set aside. 23. Now, the next question would be, whether the appellant is the author of the crime in question or not? 24. A perusal of the evidence produced by the prosecution, particularly the testimony of the prosecutrix (PW-3), clearly reveals that she was in a love relationship with appellant- Mithlesh and had accompanied him voluntarily. The prosecutrix remained with the appellant- Mithlesh for a period of more than four months at different places. It has come in evidence that she resided with the appellant- Mithlesh in Mumbai for about four months, during which period, they lived together as husband and wife, and the appellant- Mithlesh had regular physical relations with her. In paragraph 25 of her deposition, the prosecutrix has categorically stated that she had informed her mother that she was living with appellant- Mithlesh of her own free will, treating him as her husband. She has further stated that there was no dispute regarding caste between them; they were living happily, and if the police had not intervened, she would have continued to live with him. She has also clearly 27 deposed that appellant-Mithlesh never established any physical relationship with her by use of force. 25.The above testimony of the prosecutrix (PW-3) unequivocally demonstrates that she was a consenting party to the relationship and that there was no element of coercion or inducement on the part of the appellant- Mithlesh. The learned Trial Court, therefore, committed a serious illegality in convicting appellant- Mithlesh despite such clear evidence of consent. Moreover, PW-14 P.S. Thakur, Investigating Officer has also stated during his examination that, upon investigation, it was found that the present case was not a case of rape. 26. Coming to the evidence of PW-8 Dr. Jyoti A. Jasathi, the Medical Officer, who examined the prosecutrix. She categorically stated that upon medical examination, the hymen of the prosecutrix was found to be torn. She further deposed that the urine pregnancy test conducted on the prosecutrix was positive, and the medical report corroborates that the prosecutrix was pregnant at the time of examination. However, it is pertinent to note that the doctor did not express any definite opinion regarding the possibility of recent sexual intercourse or the use of force. Furthermore, no external or internal injuries were found on the body of the prosecutrix that would indicate forcible sexual intercourse. This aspect of the medical evidence, therefore, does not lend support to the prosecution’s version alleging forcible rape. On the contrary, it 28 appears consistent with the defence plea that the prosecutrix was a consenting party to the relationship. 27. Close scrutiny of the evidence of the prosecutrix (PW-3) makes it evident that she was a consenting party who stayed with the appellant- Mithlesh of her own free will, without offering any resistance during the entire period of her stay. Furthermore, she did not lodge any complaint with any of the nearby persons while staying or traveling with the appellant- Mithlesh. The evidence indicates that she was not abducted by the appellant-Mithlesh; rather, she accompanied him voluntarily and with consent. Moreover, PW-8 Dr. Jyoti A. Jasathi, who medically examined the prosecutrix, found no internal or external injuries on her person. It is a well-settled legal principle that in cases of sexual assault, a conviction can be sustained solely on the testimony of the victim if such testimony inspires confidence. However, in the present case, the statement of the prosecutrix does not inspire such confidence, as her conduct clearly demonstrates that she stayed and traveled with the appellant- Mithlesh of her own free will and was never coerced or forced to do so. It is also pertinent to mention that the alleged incident occurred on 27.02.2014, whereas the FIR (Ex.P-9) was lodged only on 01.03.2014, and no plausible explanation for this delay has been offered by the prosecution. 28. Thus, considering the entire evidence available on record, as well as the conduct and behaviour of the victim/prosecutrix, it appears 29 that she was a consenting party. Since we have already held that the prosecutrix was not below 18 years of age, her consent must be regarded as voluntary. Therefore, in view of the foregoing discussion, we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt, and the learned trial Court was not justified in convicting and sentencing appellant–Mithlesh for the aforesaid offences. Accordingly, appellant–Mithlesh is entitled to be acquitted of the aforesaid charges levelled against him. 29.So far as the conviction of appellant- Pradeep Kumar Sahu is concerned, it is evident from the record that he did not commit any overt act in connection with the alleged incident. The evidence merely indicates that he was present along with co-appellant Mithlesh, based on the information given by the prosecutrix’s friend. There is no material on record to show his participation in the alleged offence. Accordingly, he is entitled to the benefit of doubt, and all charges levelled against him are hereby set aside. He is acquitted of the offences alleged. 30. As regards the offences under Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, PW-14, Shri P.S. Thakur, the Investigating Officer, has categorically admitted in his deposition that although offences under the said Act were alleged against the appellants, but the investigation was not conducted by a Gazetted Police 30 Officer not below the rank of Deputy Superintendent of Police (DSP), as is mandatorily required under Section 9 of the Act and Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995. The aforesaid statutory provision clearly stipulates that the investigation of offences under the Act must be carried out by a police officer not below the rank of DSP, who has been specifically appointed by the State Government for that purpose. This requirement is mandatory in nature, and any investigation conducted in violation thereof stands vitiated in the eyes of law. In the present case, it is an admitted position that the investigation was conducted by an officer below the rank of DSP, and there is nothing on record to suggest that such officer was duly authorised by the State Government to investigate offences under the Act. In view of this patent procedural illegality, the very foundation of the prosecution under the SC/ST (Prevention of Atrocities) Act, 1989, collapses. Consequently, the investigation and the resultant charge-sheet in respect of the offences under the said Act are vitiated and cannot be sustained in law. Further, since we have already held that offence under Sections 363, 366, 376 (2)(ढ)(झ) of IPC & Section 5(ठ)/6 of the POCSO Act, 2012, have not been framed against the appellants, theredfore, too offence under Sections Sections 3(1)(xii) and 3(2) (v) of the SC/ST (Prevention of Atrocities) Act, 1989 is not made out against the appellants. Accordingly, the appellants are entitled 31 to acquittal of the offences punishable under Sections 3(1)(xii) and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. 31.For the foregoing reasons, the appeals are allowed. The judgment of conviction and the order of sentence dated are hereby set aside. The appellants are acquitted of all the charges framed against them. 32. The appellants are reported to be on bail. Keeping in view the provision of Section 437-A of CR.P.C., the appellants are directed to forthwith furnish personal bond in terms of Form No.45 prescribed in the Cr.P.C. of sum of Rs.25,000/- each with one surety each in the like amount before the trial 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 appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 33.Registry is directed to transmit the trial Court record along with a copy of this judgment to the concerned trial Court forthwith for information and necessary compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha