1 CRA No. 1013 of 2016 2025:CGHC:60272 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1013 of 2016 1 - Yuvraj Singh Gavarna S/o Binjhwar Singh Gavarna Aged About 22 Years R/o Janjalipara, Korar, Police Station Korar, Distt. North Bastar, Kanker Chhattisgarh, Chhattisgarh 2 - Kamlesh Kumar Urvasa S/o Jagdev Ram Urvasa Aged About 22 Years R/o Janjalipara, Korar, Police Station Korar, Distt. North Bastar, Kanker Chhattisgarh , District : Kanker, Chhattisgarh Appellant(s) Versus State Of Chhattisgarh Through Station House Officer, Poice Station - Bhanupratappur, Distt. North Bastar, Kanker Chhattisgarh , Chhattisgarh Respondent(s) (Cause-title taken from Case Information System) For Appellant(s) : Mr. Amit Kumar Sahu, Advocate For Respondent(s) : Ms. Isha Jajodia, PL Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 11.12.2025 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 28.07.2016 passed in Special Sessions Trial No. 37/2016 by the learned RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.12.16 17:19:35 +0530 2 CRA No. 1013 of 2016 Additional Sessions Judge, (FTC), Rajnandgaon (C.G.) whereby the appellants have been convicted sentenced as under:- Conviction Sentence U/s 354 (B) of the Indian Penal Code read with Sections 7 & 8 of the POCSO Act. Rigorous imprisonment for 03 years and fine of Rs. 10,000/- in default of which R.I. for 1 month 2. The case of the prosecution, in brief, is that on 20.03.2016, a program of the Gondwana community was being held at the village Tutarbharri, Bhanbheda, which the victim had attended from around 8:00 a.m. At approximately 10:00–10:30 p.m., while returning home to give food to her grandmother, she was allegedly forcibly grabbed from behind by two persons (the accused), who tried to drag her towards the fields. The victim attempted to free herself, during which the accused removed and threw away her dupatta. When one of the accused removed his hand from her mouth, the victim raised an alarm, upon which some villagers came running. Seeing this, the accused abandoned the victim and fled, but the villagers chased and caught them. On being asked, the accused disclosed their names as Yuvaraj Singh and Kamlesh Kumar, residents of Janzalipara, Korra. It is alleged that the accused had taken the victim with the intent to outrage her modesty. The victim, along with her parents, lodged a report at Bhanupratappur Police Station, resulting in the registration of FIR No. 59/16 (Ex.P/1). During the investigation, a site plan was prepared (Ex.P/2), and the victim’s statement under Section 164 CrPC was recorded before the 3 CRA No. 1013 of 2016 Magistrate, Pakhanjur (Ex.P/3). The school admission records of the victim were seized vide Ex.P/6. The accused were arrested with prior notice to their relatives, and arrest memos were prepared. Statements of witnesses were recorded, and after completing all other formalities, the chargesheet was filed before the Special Court. During the trial, the accused were formally charged under Section 354(B) of the Indian Penal Code and Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012. When the charges were read and explained to them, the accused denied the allegations. In order to prove its case, the prosecution examined ten witnesses. The statements of the accused/appellants were recorded under Section 313 CrPC, wherein they pleaded their innocence and alleged false implication in the matter. 3. The trial Court, after appreciating the oral and documentary evidence on record, by its judgment dated 28/07/2016, convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 4. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and is not supported by the evidence of the prosecution beyond reasonable doubt. Learned counsel further submits that the prosecution has failed to prove that the prosecutrix/victim was below 18 years of age at the time of the incident, and in the absence of any evidence regarding the age of the victim, the conviction of the appellant is legally unsustainable. He therefore prays that the appellant be acquitted of 4 CRA No. 1013 of 2016 all charges. 5. Learned counsel 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 and does not call for any interference. There is clear evidence regarding the age of the prosecutrix; therefore, the State submits that this appeal deserves to be dismissed. 6. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 7. The first question arises before this Court whether the victim was minor on the date of incident or not?. 8. The Victim (PW-1), in her deposition, stated that she had studied up to the 9th Standard, that her age was 17 years at the relevant time, and that her date of birth was 10/11/1998. Her mother (PW-2) deposed that the victim was about 16 years of age. To establish the age of the victim, the prosecution examined Arvind Sharma (PW-10), an Assistant Teacher of the Primary School under Janpad Panchayat, Bhanupratappur, who stated that as per Serial No. 6536 of the School Dakhil Kharij Register, the date of birth of the victim was recorded as 10/11/1998. However, in his cross- examination, PW-10 categorically admitted that he himself had not made the said entry in the Dakhil Kharij Register, nor was he present at the time when such entry was recorded. 9. A careful scrutiny of the aforesaid evidence reveals that although the prosecution has relied upon an entry in the Dakhil Kharij Register to 5 CRA No. 1013 of 2016 establish the date of birth of the victim, no competent or author witness, who had either made the entry or was aware of the basis on which the entry was recorded, has been examined. The said register also does not disclose the source document or material on the basis of which the date of birth was entered. In the absence of proof regarding the origin, authenticity, and reliability of the said entry, the mere production of the Dakhil Kharij Register, without examining its author or foundational evidence, cannot be treated as conclusive proof of the age of the victim. 10. 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 6 CRA No. 1013 of 2016 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, 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 7 CRA No. 1013 of 2016 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) 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." 11. 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 8 CRA No. 1013 of 2016 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 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. 9 CRA No. 1013 of 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." 12. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of 10 CRA No. 1013 of 2016 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 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 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 11 CRA No. 1013 of 2016 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 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 12 CRA No. 1013 of 2016 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 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." 13. 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. 14. The next question for consideration would be whether the appellant has tried to outrage the modesty of the victim ? 15. PW-1, the victim, deposed that about four to five months prior to her deposition, at around 10.00–10.30 p.m., while returning to her grandmother’s house at Bhanbheda after attending a Gondwana community programme, the accused came from behind, pressed her mouth, caught hold of her and attempted to drag her towards a field. When they tried to lift her dupatta, she raised an alarm, upon which villagers, including Hemant Dugga and Satish Teta, reached the spot. Seeing them, the accused attempted to flee but were chased and apprehended. She stated that the 13 CRA No. 1013 of 2016 accused were forcibly attempting to outrage her modesty and that she was thereafter escorted home by the villagers. On the next day, she came to Court along with her parents. She denied any tutoring or false implication and affirmed the correctness of her statement. She further stated that she informed the police, showed them the place of occurrence, and that her signatures appear on the spot map (Ex. P-02), her statement under Section 164 CrPC recorded before the Magistrate at Pakhanjur (Ex. P-03), and the spot map and panchnama prepared by the Patwari (Exs. P-03 and P-04). In her cross-examination, she admitted that the report was lodged at Police Station Bhanupratappur the next day at about 5.00–6.00 p.m. by her parents, that the police station is about 8–10 kilometres from her village, and that the time of incident was stated approximately. She denied knowing the accused earlier or having any conversation with them, stating that they suddenly came from behind in the dark. She admitted that due to darkness she could not say which accused caught her first, but asserted that both had caught her. She denied signing any blank papers and stated that the police recorded her statement after showing her the writings, and that they visited the village three to four days after the report. 16. Mother (PW2) of the victim stated that she came to know about the incident on the next day at about 5.00–6.00 p.m., when villagers informed her that while returning from a Gondwana community programme, the accused had forcibly acted with her daughter. Upon inquiry, her daughter also narrated the incident to her. She further stated that the police recorded her statement. 14 CRA No. 1013 of 2016 In her cross-examination, she admitted that she had not witnessed the incident herself and that she came to know about it only through the villagers and her daughter. 17. PW-4, Duryodhan Singh Guruti deposed that the incident occurred in the year 2016, though he does not remember the exact date or month, and that it took place at about 11.00 p.m. when a Gondwana community programme was in progress. He stated that cries of “save, save” were heard, upon which villagers rushed to the spot. The villagers brought the accused persons along with the girl. The girl told them that while she was returning home, the accused had caught hold of her on the way, pressed her mouth and molested her. He further stated that thereafter all of them went to the police station and the report of the incident was lodged on the next day. In his cross-examination, PW-4 admitted that he had not witnessed the incident himself and came to know about it only after the villagers brought the victim and the accused. He admitted that he had seen the girl for the first time on the date of the incident, that a village meeting had taken place, and that he learnt about the incident from what the villagers told him. He further admitted that he had not seen the girl in the village prior to the incident and that when he went to the police station, no questioning of the girl took place in his presence. 18. PW-5, a minor boy stated that in the same year a Gondwana community programme was being held, which he was attending. At about 10.00–11.00 p.m., he heard a girl shouting “save, save.” On hearing the cries, he, along with other villagers, went towards the place of occurrence. At the spot, the 15 CRA No. 1013 of 2016 accused persons were present. On being asked, the girl stated that the accused had pressed her mouth, due to which she had raised the alarm. He further stated that the accused had pressed the mouth of the victim with the intention of molesting her. Thereafter, the villagers apprehended the accused and took them to the school. He also stated that the police recorded his statement. In his cross-examination, he denied the suggestion that he had gone behind the villagers, stating instead that the villagers had followed him. He further denied that 8–10 persons had already reached the spot before they arrived. 19. PW-6 stated that he knows and identifies the accused persons and also knows the victim, who used to study with him. He deposed that about two to three months prior to his deposition, a Gondwana community programme was being held. On the night of the incident, while he and other villagers were going to their houses for dinner, they heard cries of “save, save,” upon which they ran towards the place of occurrence. On reaching there, he saw the victim climbing an mango tree. The victim told them that the accused had caught hold of her and dragged her with the intention of outraging her modesty, and that she had climbed the tree to save herself. Thereafter, they helped the victim come down from the tree. In his cross-examination, PW-6 admitted that when he was going for dinner, other villagers were already moving towards the spot and he joined them. He admitted that they reached the spot later and that he had not witnessed the actual occurrence. He further admitted that the victim 16 CRA No. 1013 of 2016 narrated the incident to him at the spot. 20. Upon an overall appreciation of the oral evidence, it is evident that except for the testimony of the victim (PW-1), all other witnesses are admittedly not eye-witnesses to the actual occurrence. PW-2 (mother), PW-4, PW-5 and PW-6 reached the spot only after hearing cries and their knowledge about the incident is entirely based on what was allegedly narrated by the victim. None of these witnesses have seen the accused committing any overt act so as to directly establish the ingredients of Section 354(B) IPC. 21. Even the testimony of PW-1 shows certain material infirmities. The incident is alleged to have occurred at night in darkness, and PW-1 herself admitted in cross-examination that due to darkness she could not state as to which accused caught her first. The FIR was lodged with a delay on the next day at about 5.00–6.00 p.m., despite the police station being hardly 8– 10 kilometres away and accessible even at night. No plausible explanation for such delay has been satisfactorily brought on record. 22. The version of PW-6 that the victim had climbed a mango tree to save herself does not find corroboration from PW-1, nor does it find mention in the FIR or the statement under Section 164 CrPC. Such material improvements create a serious doubt regarding the exact manner of occurrence. 23. As already held hereinabove, the prosecution has also failed to conclusively establish that the victim was below 18 years of age on the date of incident. In the absence of legally admissible and reliable proof of age, conviction under Sections 7 and 8 of the POCSO Act cannot be sustained. 17 CRA No. 1013 of 2016 24. It is a settled principle of criminal jurisprudence that suspicion, however strong, cannot take the place of proof. The prosecution was required to establish the guilt of the accused beyond reasonable doubt, which it has failed to do in the present case. The inconsistencies, absence of direct evidence, delay in lodging the FIR, and failure to prove the age of the victim cumulatively create serious doubt in the prosecution case. 25. Consequently, this Court is of the considered view that the conviction of the appellants under Section 354(B) IPC read with Sections 7 and 8 of the POCSO Act is not sustainable in law. 26. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 28.07.2016 passed by the learned Additional Sessions Judge (FTC), Rajnandgaon in Special Sessions Trial No. 37/2016 is hereby set aside. The appellants are acquitted of all the charges. 27. The appellants are reported to be on bail. Their bail bonds are not discharged at this stage and the bond shall remain operative for a period of six months in view of Section 481 of the BNSS. 28. 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/- (Bibhu Datta Guru) Judge Rahul/Gowri