1 2025:CGHC:16794 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 182 of 2020 1 - Lallu Prajapati S/o Chhote Lal Prajapati Aged About 56 Years R/o. Mavai, Police Station Churhat, District Sidhi, Madhya Pradesh, At Present Near Petrol Pump, Chhote Colony, Police Station Koni, District Bilaspur, Chhattisgarh. 2 - Munni Bai Prajapati W/o Lallu Prajapati Aged About 55 Years R/o. Mavai, Police Station Churhat, District Sidhi, Madhya Pradesh, At Present Near Petrol Pump, Chhote Colony, Police Station Koni, District Bilaspur, Chhattisgarh. ... Appellants versus State Of Chhattisgarh Through- Police Station Bhoramdeo, District Kabirdham, Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh ... Respondents For Appellants : Mr. Basant Dewangan, Advocate For State/Respondent : Mr. Rishabh Singh Deo, Panel Lawyer Hon'ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board (09.04.2025) 1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant, therefore, requested for assistance from a counsel of the High Court Legal Aid Services Committee, Mr. Basant Dewangan, Advocate has been nominated to assist the Court. 2 2. I have gone through the judgment under appeal and the depositions of witnesses and exhibits assisted both by Advocate, Mr. Basant Dewangan through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) 14 SCC 222 (Surya Baksh Singh V. State of Uttar Pradesh), I do not consider it necessary to adjourn this case and issue fresh notice to the appellant as his interest has been duly taken care of by nominating another counsel from the High Court Legal Services Committee. 3. This appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short CrPC) has been preferred by the appellants (in jail) being aggrieved by the judgment of conviction and order of sentence dated 22.01.2020 (Annexure A/1) passed in Special Sessions Case no. 41 of 2018 by the learned Special Judge, POCSO Act, F.T.C. Kabirdham, Chhattisgarh, whereby the appellants has been convicted and sentenced as under:- Conviction Sentences Under Section 17 of the POCSO Act Rigorous Imprisonment for 04 years and 3 fine amount of Rs. 500/-, in default of fine amount additional rigorous imprisonment for one month. (For both the appellant) Under Section 21 of the POCSO Act Rigorous Imprisonment for 06 months and fine amount of Rs. 500/-, in default of fine amount additional rigorous imprisonment for one month. (For both the appellant) Both the sentence will run concurrently for both the appellant. 4. Brief facts of the case are such that, as per the prosecution case the mother of the victim appeared before the concerned police station and gave an oral information that six months ago on 11.05.2018 in the morning, she along with her husband went to the field to make bricks. When they returned at about 11 AM all her four children were there at home but at about 11:30AM her minor daughter who was aged about 16 years and 05 months went somewhere from the home without informing anyone. The mother of the victim expressed suspicion that someone has lured her daughter from their protection. Thereafter she filed a report. On the basis of the report, investigation was taken up by the concerned Police Station. During the investigation it was found that the accused appellant Rakesh Prajapati has taken the victim with him to some other place, the victim was recovered from the custody of the accused from platform no. 06 of Bilaspur Railway Station and after interrogation Panchnama was prepared and 4 the statements were recorded. 5. After due investigation and after completion of remaining formal proceedings, charge sheet was filed against the present accused appellants, wherein Rakesh Kumar Prajapati was held accused for the offence punishable under Section 363, 366 and 376 of the Indian Penal Code whereas Lallu Prajapati and Munni Bai were held accused for the offence punishable under Section 17 and 21 of the POCSO Act, 2012. 6. To prove the guilt of the accused/appellants, the prosecution has examined as many as 13 witnesses. Statements of the appellants under Section 313 of the Cr.P.C. was recorded, wherein accused/appellants have pleaded their innocence and false implication in the matter. After completion of trial, the trial Court convicted and sentenced the appellants as mentioned in para one of this judgment. Hence, this appeal. 7. Learned counsel appearing for the appellants submits that the impugned judgment dated 22.01.2020 is contrary to the law, facts and circumstances of the case. He stated that the learned trial court has ought to consider the medical report where the age of the prosecutrix is said to be major. Only on the basis of oral statement the age of the prosecutrix is held to be minor. Moreover there is no role of the present appellants 5 in the commission of the said crime. Hence the present appeal deserves to be allowed and he prays that the present appellants be acquitted from all the charges leveled against them by setting aside the impugned judgment dated 22.01.2020, in the interest of justice. 8. Per contra, learned counsel appearing for the State/respondent opposes the argument raised by counsel for the appellant and supported the impugned judgment passed by the Trial Court. He stated that after due diligence and consideration the trial court has convicted the present appellants under the said sections. Hence interference to the judgment so passed by the concerned trial court would largely affect the justice of the victim. 9. I have heard learned counsel appearing on behalf of the parties and perused entire evidence adduced by the complainant and gone through the evidence available on record with utmost circumspection. 10. In the present case, earlier the conviction of the present appellants was under Section 363 and 366 of the Indian Penal Code as well as under Section 17 and 21 of the POCSO Act, 2012, however, the learned trial court has acquitted the present appellants from the charges leveled against them 6 under Section 363 and 366 of the Indian Penal Code, but found convicted for Section 17 and 21 of the POCSO Act. Whenever the conviction is under the POCSO Act, proving the age of the victim is of utmost importance. And in order to prove the age of the victim, statements of the examined witnesses relating to the age of the witnesses and the documentary evidences are to be seen. 11. 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 brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with inquiry under section 14 or section 36, as the case may be,without waiting for further confirmation of the age. (2). (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 process of age determination, by seeking evidence by obtaining- 7 (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 above, age shall be determined by an ossification test or any other latest medical age determination test conduct on the orders of the Committee or the Board: Provided such age determination test conducted on the order the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person. 12. In order to consider the age of prosecutrix, this Court has to examine the evidence/material placed on record by the prosecution. The prosecution has mainly relied upon the Dakhil Kharij Register (Ex. P-07) wherein the date of birth of prosecutrix is mentioned as 05.09.2002. The date of birth as mentioned in the Dakhil Kharij Register has been registered on the basis of transfer certificate in class 6th. Even the ossification test of the prosecutrix has not been done. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she 8 was minor and less than 18 years of age. In absence of examination of author of the School Admission and Discharge Register, the same cannot be taken into consideration to determine the age of the prosecutrix. School admission and discharge register is a weak type of evidence. There is no any kotwari register or ossification report, produced by the prosecution to determine her actual age on the date of incident, that she was below 18 years of age. 13. Prosecutrix (PW-01) in para 05 of her cross- examination has stated that she has stated her date of birth as 05.09.2022 only on the basis of the Dakhil Kharij Register. She stated that she has studied till 10th class, but in this regard no documentary evidence has been adduced by her. Father of the prosecutrix (PW-08) stated the date of birth of her daughter as 05.09.2022. However in para 08 of his cross-examination has stated that the mother of the victim took her for admission in the school. But in para 09 of his examination stated that he cannot tell that he is unaware that who has taken her daughter for admission in 9 the school. Moreover he deposed that the school teacher wrote the age of the victim by herself without any knowledge. 14. (PW-09) Mother of the victim stated that she does not know the age of her daughter. In para -08 of her cross- examination stated that while making an oral report against the present appellants she has stated the age of her daughter by guess. 15. Durga Tiwari (PW-05), author of the Dakhil Kharij Register has deposed in her cross examination that the age of the victim in the Dakhil Kharij Register is mentioned in serial no. 311 as 05.09.2022. The entry has been made by her, but on what basis she has made the entry is not known. Later she stated that on the basis of transfer certificate she has mentioned the date of birth of the prosecutrix. 16. In case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, the 10 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 prosecutrix 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. 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 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 11 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, 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:- 12 "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 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 13 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.” 17. From the perusal of the statements of prosecutrix , her father as well as other prosecution witnesses 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 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, this Court finds it appropriate to 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. 18. However the main accused of the case Rakesh Kumar is concerned, Rakesh Kumar and prosecutrix were very well known to each other. There was a love affair between 14 them, out of which she went along with him. Prior to the incident she never told her parents about the fact that Muni and the sister of the appellant used to tell her about the liking of Rakesh Kumar and about the proposal of marriage. Moreover no one knew that how she went with him on the day of incident when each and every family member of the house was present. No one saw the resistance. Moreover as per the allegation of the prosecutrix, Rakesh Kumar took her to several places and committed rape, but looking to the facts, there seems to be no resistance from her side. Hence the ingredients of Section 366 ad Section 363 of the Indian Penal Code does not come under the purview of the present case so far as the main accused Rakesh Kumar is concerned. 19. Section 17 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, deals with abetment of an offence under the Act. It states that anyone who abets the commission of an offence under the POCSO Act and the offence is actually committed, will be punished with the same punishment as provided for that offence. Section 21, 15 on the other hand, addresses the failure to report a sexual offence against a child. However, looking to the facts and circumstances of the case, this court is of the considered opinion that if the prosecution has failed to prove the age of victim as per law, then the abetment and failure to report sexual offence against a child becomes immaterial. Moreover after bare perusal of the evidences placed on record as well as the statement of the witnesses, this court finds that there was a love affair between the prosecutrix and the accused Rakesh Kumar Prajati, hence the case of abetment and failure to report could not be made out against the present appellants. 20. Therefore, the conviction of the appellant under Section 17 and 21 of the POCSO Act, 2012 stands set aside as the age of the victim/prosecutrix has not been determined. This court finds that the impugned judgment passed by the learned trial court, convicting the present appellants under the said sections is illegal, perverse and contains jurisdictional error. The present appeal is liable to be allowed. 16 21. Consequently, the appeal is allowed . The conviction of the appellants under Section 17 and 21 of the POCSO Act, 2012 is set aside. The impugned judgment dated 22.01.2020 passed by the learned Special Judge, POCSO Act, FTC, Kabirdham, Chhattisgarh is hereby set aside. The appellants are acquitted from all the charges leveled against them. 22. The appellants are reported to be in jail. They be released forthwith, if not needed in any other case. 23. Keeping in view the provisions of Section 437-A CrPC, the appellants are directed to furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 5,000/- each with one reliable surety in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the even of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 17 24. The Trial Court Record (TCR) along with a copy of this judgment be sent back immediately to the trial concerned for compliance and necessary action. sd/- (Arvind Kumar Verma) Judge alfiza