1 2025:CGHC:21008 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 511 of 2016 1 - Jitendra Kumar Satnami S/o Nandu Ram Narang Aged About 19 Years R/o Village Khairdigi, Police Station Gurur, District Balod Chhattisgarh , Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Gurur, District Balod Chhattisarh , Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Sameeksha Gupta, Advocate For Respondent(s) : Ms. Isha Jajodia, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 07/05/2025 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant. I, therefore, requested for assistance from a counsel of the High Court legal aid services committee, Ms. Sameeksha Gupta, Advocate has been nominated to assist the court. I have gone through the judgment under appeal and the 2 depositions of witnesses and exhibits assisted both by Advocate through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) SCC 222 (Surya Baksh Singh Vs. State of Uttar Pradesi), I do not consider it necessary to ad- journ this case and issue fresh notice to the Appellant as his inter- est has been duly taken care of by nominating another counsel from the High Court Legal Services Committee. 2. The appellant has filed the instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973, (henceforth ‘the Cr.P.C.') questioning the judgment of conviction and order of sentence dated 29.03.2016 passed in Sessions Case No. 85/2015 by which the learned First Additional Sessions Judge, District- Balod (C.G.) has convicted and sentenced the appellant as under:- Conviction Sentence U/s 354 of IPC R.I. for 2 years and fine of Rs. 200/-, in default of fine, additional R.I. for 2 months. U/s 354(B) of IPC R.I. for 4 years and fine of Rs. 400/-, in default of fine, additional R.I. for 4 months. U/s 7-8 of POCSO Act R.I. for 4 years and fine of Rs. 400/-, in default of fine, additional R.I. for 4 months. 3. Case of the prosecution in brief is that on 8.09.2015 at about 10:30 am when the prosecutrix who is aged about 19 years was going to school at that time the accused Jitendra met her near 3 Chattan (rock) and hold her hand and outraged her modesty and dragged her, when she tried to escape herself then the accused dragged her hby grabbing her clothers and when she shouted then accused ran away from the spot. 4. In order to prove the charges against the appellant, prosecution examined as many as 5 witnesses. Statement of appellant was also recorded under Section 313 of CrPC in which he pleaded in- nocence and false implication. 2 defence witnesses was exam- ined. After completion of trial, Trial Court convicted and sentenced the appellant in the manner as described above. Hence, this ap- peal. 5. Learned Counsel appearing for the appellant contended that the appellant is innocent has has been falsely implicated in the afore- said offence. The learned Special Judge has failed to appreciate that evidence and material available on record in its correct prospective. 6. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that the prosecution has successfully proved the commission of of- fense by the appellant beyond reasonable doubt and the appellant has been rightly convicted and sentenced by the trial Court, there- fore, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no in- terference. 4 7. I have heard learned counsel for the respective parties, perused the judgment of the trial Court as well as other material available on record with utmost circumspection. 8. In order to consider the age of prosecutrix, I have to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register (Article A-1), wherein date of birth of prosecutrix is mentioned as 16.10.2001. Prosecutrix (PW-2) has stated in her deposition that her date of birth is 21.06.2001. 9. PW-3/ mother of prosecutrix has deposed in para 4 of her examination-in-chief that at present the age of her daughter might be 14-15 years and she did not remember date of birth of prosecutrix. 10. PW-1/ Headmistress of school has admitted in para 3 of her cross-examination that it is not mentioned that who registered the date of birth of prosecutrix in the Dakhil-Kharij Register (Article A- 1). She further admitted that in the Register (Article A-1) it is not mentioned on the basis of which the date of birth of the prosecutrix has been recorded. In para 4 she admitted that there is no signature of the person who admitted the prosecutrixin the school. She again admitted that she has not entered the date of birth of the prosecutrix in Article A-1. 11. Therefore, there is no any documentary evidence available on record that on what basis date of birth of prosecutrix is mentioned 5 as 16.10.2001 and also no birth certificate issued by the Corpora- tion or Panchayat has been produced regarding date of birth of prosecutrix. Even the ossification test of the prosecutrix has not been conducted. There is no legally admissible evidence with re- gard to age of prosecutrix that on the date of incident, she was mi- nor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School Admission and Discharge Register is a weak type of evidence. In her cross-examination, mother of the pros- ecutrix have stated that she is not aware about the date of birth of the prosecutrix. Ms. Dhaneshwari Mandawai (PW-1), Head- mistress of the Primary School, has stated in her cross-examina- tion (Para-3) that she is not aware that on what basis the victim was given admission in the school and in para 4 that she has not entered the date of birth of the prosecutrix in Article A-1. 12. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 provides for presumption and determination of age. The same reads as under : “94. Presumption and determination of age.— (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said 6 person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be 7 completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 13. From perusal of statements of Headmistress (PW-1), prosecutrix (PW-2) and her mother (PW-5) as well as other prosecution witnesses, it appears that there is no any cogent and clinching evidence led by the prosecution to hold that on the date of incident, the prosecutrix was minor and below 18 years of age. 14. Therefore, reverting to the facts of the present case and after considering the evidence collected by the prosecution, I find that no clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the prosecutrix/victim was minor and less than 18 years of age on the date of incident, despite the fact that the trial Court in the impugned judgment has held the prosecutrix minor. Accordingly, I set aside the findings given by the trial Court that on the date of incident, the victim was minor as the same has not been proved by the prosecution by leading cogent and clinching evidence. Hence, the appellant stands acquitted from the offence under Section 7 and 8 of POCSO Act, 2012. 15. Now the question for consideration that arises before this Court is 8 whether the appellant has outraged the modesty of the prosecutrix? 16. PW-2/ prosecutrix has deposed in her examination-in-chief that on 08.09.2015 at around 10:30 am she was going to her school. In the middle of the way to her school she met with the accused where the accused caught hold her hands and pulled her towards the chattan (rock). When she tried to escape then accused grabbed her clothes (chunri and salwar). 17. PW-3/ mother of prosecutrix also supported the statements of prosecutrix. 18. Therefore, from the above facts and circumstances of the case and the statements of victim and other prosecution witnesses, it is clear that on the date of incident, the accused caught hold the hands of victim with intent to outrage her modesty. Considering the material available on record and the evidence adduced by the prosecution, I am of the view that the Trial Court did not commit any illegality or infirmity in the findings recorded by Trial Court as regards conviction of the appellants under Section 354 of IPC. 19. The appellant has remained behind bars from from 09.09.2015 to 31.10.2015 (1 month 21 days) and from 29.03.2016 to 01.02.2018 (1year 10 monhts and 23 days). 20. As regards the sentence awarded to the appellant. Considering the fact that the appellant is facing criminal trial since 2015 and thereafter around 10 years has been elapsed, considering the age 9 of the appellant at present and further considering that the appel- lant has already undergone around 2 years of jail sentence and there is no previous criminal antecedents against him. Therefore, this Court is of the opinion that in the interest of justice, the sen- tence imposed upon the appellant is reduced to the period already undergone. However, fine imposed by trial Court is maintained. 21. Accordingly, the present appeal is partly-allowed to the extent in- dicated hereinabove. 22. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. SD/- (Arvind Kumar Verma) JUDGE Madhurima