1 CRA No.1384 of 2022 2025:CGHC:58831-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1384 of 2022 Sudhir Bawri S/o Kishan Bawri Aged About 25 Years R/o Sindurpur, Police Station - Chandankiyari, District - Bokaro, (Jharkhand) ... Appellant versus State Of Chhattisgarh Through The Station House OfÏcer, Police Station - Pendra, District - Gourela - Pendra - Marwahi Chhattisgarh ... Respondent(s) (Cause title taken from CIS) For Appellant : Shri K.P. Sahu, Advocate. For Respondent(s) : Shri Shailendra Sharma, Panel Lawyer. Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board Per, Bibhu Datta Guru, Judge 04/12/2025 By order dated 19-4-2023, this Court directed the State counsel to inform the complainant/father of victim (PW-3) regarding pendency SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.12.08 15:49:13 +0530 2 CRA No.1384 of 2022 of the appeal revealing that he can appear on the date fixed and object the prayer made by the appellant. Today, learned State counsel would submit that the intimation regarding pendency of the appeal has already been given to the complainant. Despite the above, no representation is made on behalf of the complainant to object the prayer. 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 02.06.2022 passed in Special Sessions Case No. 26/2021 by the learned Special Additional Sessions Judge, Pendra road, District- Gourela-Pendra-Marwahi (wrongly mentioned as District-Bilaspur) (C.G.), whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s 6 of POCSO Act R.I. for 20 years with fine of Rs. 1,000/-, with default stipulation. 2. The prosecution case, in brief, is that on 27.08.2019 at about 12:00 midnight, the victim informed her mother that she was going to Village Andi and would return in an hour. She left the house on a bicycle but did not return. Her family members 3 CRA No.1384 of 2022 searched for her in the houses of relatives, but her whereabouts could not be traced. Suspecting that some unknown person had enticed and taken away his daughter, the victim’s father lodged a report at Police Station Pendra, on the basis of which Crime No. 298/2019 under Section 363 IPC was registered vide Ex.P/4. 3. During investigation, search was made for the victim, and on 25.06.2021, she was recovered from the custody of the accused at Village Sindurpur (Mahal), Chandan Kiari, District Bokaro, Jharkhand. The victim was medically examined. Her statement and those of other witnesses were recorded. A spot map (Ex. P-05) was prepared. 4. The accused was arrested, and the arrest memo (Ex. P-08) was prepared. For establishing the age of the victim, the Dakhil Kharij register was seized from the Principal, as per Ex. P-06. 5. During medical examination, the doctor prepared a vaginal slide of the victim and sealed her undergarment, which was handed over to the Investigating OfÏcer through the woman constable and seized under Ex. P-18. Similarly, a semen slide of the accused was prepared and sealed during his medical 4 CRA No.1384 of 2022 examination, which was seized under Ex. P-19. All seized articles were forwarded to the Regional Forensic Science Laboratory, Bilaspur, for chemical examination. The FSL report (Ex. P-24) was received. 6. Upon completion of the entire investigation, a charge-sheet was filed against the accused for offences under Sections 363, 366, 376 IPC and Sections 4 & 6 of the POCSO Act, 2012. 7. Charges under Sections 363, 366, 376(3), 376(2)(i) IPC and Sections 5(n)(ii), 5(j)(ii) read with Section 6 of the POCSO Act were framed, which the accused denied and sought trial. 8. In his examination under Section 313 Cr.P.C., the accused denied all incriminating evidence and claimed false implication. No defence evidence was adduced. 9. The prosecution examined 11 witnesses, including the victim, her parents, school principal, medical ofÏcers, seizure witnesses, and the investigating ofÏcers. 10. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted the appellant as mentioned in para-1 of this judgment. 5 CRA No.1384 of 2022 11. Learned counsel for the appellant submits that the impugned judgment dated 02.06.2022 is perverse, erroneous and contrary to the material on record, as the prosecution has failed to prove the age of the prosecutrix, the Headmaster (PW-4) having admitted that her date of birth was not recorded in the Dakhil-Kharij Register, and PW-1 mother, PW-2 victim and PW-3 father having given contradictory statements regarding her date of birth. It is further urged that the trial Court failed to properly appreciate the testimony of the prosecutrix (PW-2), who clearly stated that she had voluntarily gone to the house of the appellant, insisted on staying with him, married him after 4–5 days, lived with him as wife and subsequently gave birth to a child on 01.07.2020, indicating that she was a willing and consenting party. Despite acquitting the appellant under Sections 363 and 366 IPC on the same set of evidence, the trial Court has erroneously convicted him under Section 6 of the POCSO Act without establishing minority or lack of consent. The evidence led by the prosecution suffers from material contradictions and omissions and does not furnish cogent proof of guilt, rendering the findings of the trial Court baseless, perverse 6 CRA No.1384 of 2022 and unsustainable. Hence, the conviction deserves to be set aside. 12. Learned Panel Lawyer appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 13. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 14. The question arises before this Court whether the victim was minor on the date of incident or not?. 15. (PW1) mother of the victim and (PW3) father of the victim stated that they were not fully aware of the exact date of birth of the victim and provided an approximate age, stating that she was around 19–20 years old at the time of the incident in 2019. Victim (PW2) stated that her date of birth as 01.06.2000, stating that she was 19 years old when she went to Jharkhand and that she attended school up to the ninth grade. PW2 also 7 CRA No.1384 of 2022 stated that her father had informed her about her birth year and that the school records contained a different date, which was entered on the basis of the school’s own record-keeping without her knowledge. PW1 and PW3 consistently stated that they did not know the exact date of birth, that the school records were written independently, and that the age of the victim at the time of the incident was around 19 years. 16. PW-4 stated that on 24.06.2021 he was posted as Headmaster at Primary School, Nagwahi. stated that he had joined the school as Headmaster on 29.08.2008. He admitted that the admission register does not mention the basis on which the date of birth was recorded. He stated that the date was written as per details received from the Anganwadi but acknowledged that the Anganwadi list was not entered in the register. He further admitted that there was no signature of the person who recorded the date of birth and volunteered that the entry was written by him. 17. From perusal of statement of PW/4, it reflects that the school record provides an approximate date of birth, and its accuracy cannot be considered fully reliable or conclusive evidence of 8 CRA No.1384 of 2022 the victim’s exact age. 18. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by 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 9 CRA No.1384 of 2022 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, 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 10 CRA No.1384 of 2022 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:- "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) 11 CRA No.1384 of 2022 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." 19. 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 of the person as nearly as may be. XXXX XXXX XXXX 12 CRA No.1384 of 2022 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 sufÏcient 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 13 CRA No.1384 of 2022 proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinized and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same 14 CRA No.1384 of 2022 would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or ofÏcial document maintained in the discharge of ofÏcial 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." 20. 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 : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent 15 CRA No.1384 of 2022 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 OfÏcial (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. this 16 CRA No.1384 of 2022 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 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 17 CRA No.1384 of 2022 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 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 18 CRA No.1384 of 2022 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." 21. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. Hence, the conviction under Section 6 of the POCSO Act is not sustainable. 22. Upon a detailed examination of the evidence on record, it is evident that the prosecution has failed to establish the charge against the appellant under Section 6 of the POCSO Act. The victim (PW2) consistently deposed that she went with the appellant voluntarily and of her own free will, without any threat, coercion, or force. She further stated that after a few days, their marriage was solemnized with her consent, and they continued to live together as husband and wife. This conduct indicates that the relationship between the appellant and the victim was consensual. 23. The statements of the victim’s parents (PW1 and PW3) corroborate that the victim never complained of being 19 CRA No.1384 of 2022 compelled or subjected to any unlawful sexual activity by the appellant. Moreover, the evidence regarding the age of the victim is inconclusive. PW4, the Headmaster, confirmed that the date of birth recorded in the school register was based on Anganwadi records and entered by him without independent verification or parental confirmation. This creates doubt regarding whether the victim was indeed a minor at the time of the alleged incident. 24. Considering the above, the prosecution has not proved beyond reasonable doubt that the appellant violated Section 6 of the POCSO Act. The essential elements of the offence, namely sexual assault on a minor without consent, are not established in this case. 25. For the foregoing reasons, the prosecution has failed to prove that the appellant had committed the offence under Section 6 of the POCSO Act. Therefore, we are of the view that the appellant is entitled to be acquitted. 26. The accused is acquitted of the charges for which he was tried. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain 20 CRA No.1384 of 2022 operative for a period of six months in view of Section 481 of the BNSS. Accordingly, the Criminal appeal is allowed. 27. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Shoaib