1 2025:CGHC:3252 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 219 of 2020 1 - Dhaneshwar Kurrey S/o Asharam Kurrey Aged About 24 Years R/o Village , Sankra, Police Station Arjuni, District Dhamtari, Chhattisgarh., District : Dhamtari, Chhattisgarh --- Appellant versus 1 - State Of Chhattisgarh Through Police Station Arjuni, District Dhamtari Chhattisgarh., District : Dhamtari, Chhattisgarh --- Respondent For Appellant : Mr. Pushpendra Kumar Patel and Ms. Laxmin Kashyap, Advocates For Res/State : Mr. Aatanu Ghosh, Deputy Government Advocate Hon’ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 17.01.2025 1. Today the matter is listed for further hearing in the motion hearing list and with the consent of the parties the matter has been heard finally. 2. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22.01.2020 passed by learned Special Judgment (POCSO Act, 2012) (FTC), Dhamtari (C.G.) in Special Criminal Case 2 (under POCSO Act, 2012) No. 20/2019 whereby the appellant has been convicted and sentenced as under: Conviction U/S Sentence Fine In default of payment of Fine u/S 376(2) of Indian Penal Code No separate sentence has been awarded ……. ……. U/s 6 of the Protection of Children from Sexual Offences Act, 2012 Rigorous imprisonmen t for 10 years Rs. 5000/- R.I. for 06 months All the sentences have been directed to run concurrently. 3. Case of the prosecution, in brief, is that on 02.05.2019, a missing report (Ex.P/4) has been lodged by father of the victim (PW03) to the effect that his minor daughter is missing since 01.05.2019 and despite her search, her whereabouts could not be tressed out. Earlier also she was kidnapped by the appellant but his minor daughter returned back to him after one day and therefore, he is having suspicion upon him that he again kidnapped his minor daughter. On the basis of written report lodged by father of the victim (PW03), the Police has registered the FIR Ex. P/4 for the offence under Section 363 of the Indian Penal Code (in short IPC) against the appellant. During the course of investigation, the victim was recovered on 02.05.2019 from the possession of the appellant and recovery Panchanama Ex. P/1 was prepared in presence of the witnesses. The victim was sent for her medical examination to District Hospital, Dhamtari where Dr. Namrta C. Daniel (PW-17) has medically examined her and gave her report vide Ex. P/25. While medically examining the victim, the doctor has not found any external 3 injuries on her body and has opined that as no recent sexual assault is visible, no definite opinion can be given for sexual intercourse. Two slides of her vaginal swab were prepared, sealed and handed it over to police for its chemical examination. With respect to age and date of birth of the victim, the Police has seized the School Register from Government Primary School, Limtara vide seizure memo Ex. P/15 and after retaining the attested true copy of School register Ex. P/16C, and Ex. P/17C, the original Register Ex.P/16 and Ex. P/17 were returned to the School. The police has also seized the hospital register with respect to the date of birth of the victim vide seizure memo Ex. P/21 and the attested true copy of the hospital register is Ex. P/20C. The spot map (Ex.P/6) was prepared by the police and spot map (Ex. P/7) was prepared by the Patwari. The appellant was arrested on 02.05.2019 and he too was sent for his medical examination to District Hospital, Dhamtari where Dr. U. L. Kaushik (PW11) has medically examined him and gave his report Ex. P/22. After examination of the appellant, the doctor has opined that the appellant is able to perform sexual intercourse. Vaginal slides and underwear of the victim and underwear of the appellant were sent for chemical examination to State FSL, Raipur from where FSL report Ex.P/31 was received and according to the FSL report, semen and sperm were found on the vaginal slides of the victim. The birth certificate of the victim article A/2 was also received which was issued by Dr. Sandeep Patauda (PW10 ). 4. The statement of witnesses were recorded under section 161 of Cr.P.C. Statement of the victim under Section 164 of Cr.P.C. have also been recorded. 5. After completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 363, and 376 of Indian Penal 4 Code and Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act, 2012”). The Trial Court has framed charges against the appellant namely- Shivshankar Singh Gond for the offences under Sections 363 and 376(2) of IPC and Section 6 POCSO Act, 2012. The accused/appellant abjured his guilt and claimed trial. 6. In order to establish the charges against the accused, the prosecution has examined as many as 24 witnesses. The statement of accused was also recorded under section 313 of Cr.P.C. in which he denied the material appearing against him, plead innocence and stated that he is innocent and has falsely been implicated in the case. 7. After appreciation of oral & documentary evidence available on record, learned trial court has convicted the appellant –Dhaneshwar Kurrey under Section 376 (2) of IPC and Section 6 of POCSO Act, 2012 and sentenced him as mentioned in the earlier part of this judgment. However the appellant has been acquitted from the offence under Section 363 of the IPC. Hence this appeal. 8. Learned counsel for the appellant would argue that the prosecution has failed to prove its’ case against the appellant beyond reasonable doubts. There are material omission and contradiction in the evidence of the prosecution witnesses, which cannot be made basis for his conviction. Though the learned trial Court has found that the victim was the consenting party but only because of the reason that she was found to be minor on the date of incident, the appellant has been convicted whereas there is no cogent and clinching evidence produced by the prosecution with respect of the age of the victim that she was minor on the date of incident. The prosecution has relied upon the school register as well as birth certificate issued by Dr. Sandeep Patauda (PW10) for 5 determination of the age of the victim but the same has not been proved by producing the basis on which the date of birth has been recorded. Even the hospital register has not been proved by examining the person who has got made entries in the said hospital register. The birth certificate issued by the doctor is also on the basis of the hospital register but the hospital register itself is not proved then it cannot be considered to be sufÏcient evidence for her age determination. Since the learned trial Court has also considered that the victim was the consenting party, the appellant is questioning only the age of the victim on the ground that there is no sufÏcient evidence with respect to the age of the victim and by giving benefit of doubt the appellant may be acquitted. 9. On the other hand, the learned counsel for the State while opposing the arguments advanced by the counsel for the appellant contended that the except minor contradiction & omission, the prosecution has proved its case beyond reasonable doubt. There are overwhelming evidence with respect to the age of the victim that she was minor on the date of incident which has been proved by the school record as well as by the hospital record. He would further submit that the hospital record is the prime document which has been made at the time of the birth of the child which cannot be doubted even if the person who made entries in the hospital record has not been examined. From the evidence produced by the prosecution the victim was held to be minor on the date of incident who has been subjected to sexual intercourse by the appellant and sexual intercourse to a minor girl does amount to offence of rape for which the learned trial Court has rightly convicted and sentenced him which needs no interference. 6 10. I have heard the counsel for the parties and perused the material available on record. 11. The core question arises for consideration would be the age of the victim as to whether on the date of incident, she was minor or not. The prosecution has mainly relied upon the school Register Ex. P/16C and Ex. P/ 17C as well as hospital record Ex. P/ 20C. The school register Ex. P/16C and Ex. P/17C are sought to be proved by PW-8, who is incharge headmaster of the primary School Limtara, he has stated in his deposition that the police has seized school register from him with respect to confirm the date of birth of the victim vide seizure memo Ex. P/15 and after retaining the attested true copy of the School register Ex. P/16C and Ex. P/17C, original School Register Ex.P-16 and Ex. P/17 was returned to the school. In the school register the date of birth of the victim mentioned as 28.10.2002. In his cross examination, he admitted that in the school register Ex. P/16C and Ex. P/17C the entries has not been made by him. He further admitted that name of the father of the victim is not “xxxxx”. He further admitted that on what basis the date of birth of the victim has been recorded in the school register he did not know. He also admitted that the school register and date of birth register has not been certified by the head master of the school. 12. The admissibility and evidencery value of the School Register has been considered by 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.P-16 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 7 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, 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 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 8 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." 13. 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: 33.2.2. 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 XXX 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 9 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 scrutinised 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 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 10 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." 14. 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 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 thedescription 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 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 11 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 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 fromthe 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." 15. The prosecution has further led the evidence of Dr. Sandeep Patauda (PW10) who issued the birth certificate of the victim article A/2. He stated in his evidence that he issued the said certificate on the basis of 12 the entries available in the hospital register in which the date of birth of the victim is recorded as 28.10.2002. In cross-examination, he admitted that the certificate article A/2 has been issued after about 14 years of the birth of the victim. He further admitted that at the time of issuing the certificate article A/2 no identity card was produced before him. He further admitted in his cross-examination that in hospital register Ex. P/20C the hospital number is mentioned as 212511 whereas in document article A/2 hospital number is mentioned as 738051. 16. The further piece of evidence led by the prosecution is that the evidence of (PW09) who is accountant of the Christian Hospital, Dhamtari who stated in his evidence that he produced the hospital register before the police on 24.07.2019 which is Ex. P/20 and its attested true copy is Ex. P/20C. In the said hospital register the entries relating to the date of birth of the victim and is mentioned as 28.10.2002. In cross-examination he admitted that at the time when the entries have been made in register Ex.P/20, he was not posted at Dhamtari. He did not know as to who has made entries in the said register even no initial/signature is there by the person who has made entry in it. He also admitted that in the document Ex. P/ 20, the surname of the parents of the child is not mentioned. He further admitted that after 10 years of the birth of the child the hospital records are destroyed and he further admitted that the record of the hospital number 212511 is also destroyed. 17. From these evidences, when the hospital number in the hospital register Ex. P/20C and the certificate article A/2 is different, doctor Sandeep Patauda (PW10) who issued the certificate on the basis of entries made in the hospital register, whereas the basis on which the entries made in the register have not been proved and the person who made entries have also not been examined by the prosecution even there is no initial 13 or signature in the said register about correctness of the said entries. By such type of evidence the age of the victim cannot be determined without any room of doubt. Although the hospital register can be said to be an authentic register which has been prepared immediately after the birth of the child but to prove the authenticity of the register something more is required and the same has to be proved by the other relevant records or the person by whom the entries have been made particularly when there is no signature of the person in the register who made the entry in it. Only by an entry without there being any particular or certification by an authorised ofÏcial of the hospital, it cannot be said that the said register is sufÏcient to prove the age of the victim and therefore, this Court is not in any hesitation to say that the school register as well as the hospital register and the certificate issued by the doctor is not sufÏcient in the peculiar facts of the case to hold that the victim was minor on the date of incident. 18. The victim (PW02) has stated in her evidence that her date of birth is 28.10.2002. In cross-examination, her date of birth was challenged but she denied. 19. the mother of the victim (PW01) has stated in her evidence that the date of birth of the victim is 28.10.2002. In cross-examination she has admitted that she has not got registered the date of birth of the victim to the Kotwari register . 20. PW03, father of the victim, has stated that at the time of her birth he has not got her birth certificate from the hospital and he subsequently obtained the birth certificate from the hospital which he produced before the police and same has been seized by the police. He denied that the birth certificate has been issued by the hospital in the year 2016. He admitted in his evidence that at the time of admission of the victim in the 14 school, he has not taken her birth certificate with him and got recorded her date of birth on assumption. 21. The prosecution tried to prove the age of the victim by leading oral evidence of the victim herself and her parents but the evidence of the witnesses are not of that sterling quality by which it can be hold that the victim was minor and less than 18 years at the time of incident. 22. So far as the allegation of offence of rape is concerned, although the learned trial Court has held that the victim was consenting party in making consensual physical relation with the appellant while recording a finding in paragraph No. 23 of its’ judgment, yet from perusal of the evidence of the victim (PW02), it appears that on the date of incident, there was a quarrel took place between the victim and her brother for which she left the house and went to village Sankra from there he had gone to village Kurud and Bhakara alongwith the appellant on his motorcycle, they visited place to place thereafter, they stayed in the house of the appellant in the night and where they made physical relation. On the next morning they again visiting various places at that time, the appellant received a telephonic call and informed that father of the victim has lodged a report. In cross-examination she admitted that prior to the date of incident also she regularly met with the appellant for which the father of the victim scolded them and warn the appellant that if he not stopped meeting with the victim he will lodged a report against him. She further admitted that on the way she did not disclose to anyone that the appellant committed rape upon her. She further admitted that she had not protested when the appellant was making physical relation with her and has not made any complaint against him. 23. Considering the evidence led by the prosecution the learned trial Court has held that the relation between the appellant and victim was 15 consensual relation and this Court is also with an agreement with the finding recorded by the trial Court that the victim is engaged in making consensual physical relation with the appellant therefore, in opinion of this Court the alleged act of the appellant not comes under the definition of rape as she was found to be major on the date of incident. 24. For the forgoing reasons, the appeal is allowed. The judgment of conviction and order of sentence dated 22.01.2020 is set aside. The appellant is acquitted from all the charges framed against him. He is reported to be in jail since 22.01.2020. He be released forthwith, if not required in any other case. 25. Keeping in view the provisions of Section 481 of BNSS, 2023, the appellant is directed to forthwith furnish a personal bond of sum of Rs. 25,000/- 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 event 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. 26. 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/- (Ravindra Kumar Agrawal) Judge amita Digitally signed by AMITA DUBEY Date: 2025.02.01 15:06:27 +0530