2025:HHC:9714 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.130 of 2022 Reserved on: 11.3.2025 Date of Decision: 08.04.2025 Sandeep Kumar ....Appellant Versus State of H.P. ....Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Abhishek Nagta, Advocate. For the Respondent/ State : Mr. Jitender Sharma, Additional Advocate General. Rakesh Kainthla,Judge The present appeal is directed against the judgment of conviction dated 27.9.2021 and order of sentence dated 28.9.2021 passed by learned Special Judge, Fast Track Court, (POCSO), Mandi, District Solan, H.P. (learned Trial Court)vide which the appellant (accused before the learned Trial Court) was convicted and sentenced as under: - ____________ Whether reporters of the local papers may be allowed to see the judgment? Yes 2  2025:HHC:9714 Sl.No. The offence for which the accused was convicted Substantive sentence imposed Fine imposed Simple Imprisonment in default of payment of the fine. 1. Section 457 of IPC imprisonment for three (3) years ₹2000/- Two months 2. Section 8 of the POCSO Act,2012 imprisonment for five (5) years ₹2,000/- Two months 2. It was ordered that both the substantive sentences of imprisonment would run concurrently.(The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 3. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 457 & 354A of the Indian Penal Code(IPC)and Section 8 of the Protection of Children from Sexual Offences Act(POCSO)Act. It was asserted that the victim (name being withheld to protect her identity) was studying in the B.Sc. first year. She was sleeping in her room on 27.7.2015 at about 11.00 p.m. Her mother and younger brother had gone to attend a Kirtan being held in the neighbourhood. Accused Sandeep Kumar switched off the light of the house from the main switch and entered the room through the kitchen. He caught hold of the 3  2025:HHC:9714 victim. The victim woke up. She shouted for help. The accused threatened the victim not to raise a hue and cry. Her aunt visited the spot after hearing her cries. The accused ran away from the spot and left his mobile phone on the table. He bolted the door from the outside, which was opened by the victim's aunt. The matter was reported to the police through an application (Ext.PW-1/A).The police registered an FIR (Ext.PW-6/A). SI Vinod Singh (PW-6) conducted the investigation. He sent the victim to Civil Hospital, Dharampur,with anapplication (Ext.PW-6/C) for conducting her medical examination. Dr Deepak (PW-8) conducted her medical examination and found that she had sustained simple injuries, which could have been caused within 12 hours of examination. He issued the MLC (Ext.PW-8/A). SI Vinod Singh went to the spot and prepared the spot map (Ext.PW-6/D). The victim’s mother handed over the mobile phone left by the accused to the police, which was seized vide memo (Ext.PW-2/A). It was put in a cloth parcel and the parcel was sealed with a seal impression 'O. SI Vinod Singh filed an application (Ext.PW-6/E) for recording the statement of the victim under Section 164 of the Cr.PC. Learned Judicial Magistrate First Class, Court No. II, Sarkaghat recorded her statement (Ext.PW-1/B). An application 4  2025:HHC:9714 (Ext.PW-5/A) was filed before the Secretary Gram Panchayat, Khanaur, who issued the birth certificate (Ext.PW-5/B). The statements of witnesses were recorded,as per their version, and after the investigation of the matter, the challan was prepared and presented before the Court. 4. Learned Trial Court charged the accused with the commission of offences punishable under Section 457 of IPC and Section 8 of the POCSO Act, to which the accused pleaded not guilty and claimed to be tried. 5. The prosecution examined eight witnesses to prove its case. The victim (PW-1)narrated the incident. Her mother (PW-2) reached the spot after some time. Her aunt (PW-3) reached the spot after hearing the cries of the victim. Pal Singh (PW-4) went to the spot and was told about the incident. Roshan Lal (PW-5) produced the birth record of the victim. SI Vinod Singh (PW-6) conducted the investigation. Inspector Amar Singh (PW-7) prepared the challan. Dr. Deepak (PW-8) conducted the victim’s medical examination. 6. The accused in his statement recorded under Section 313 of Cr.PC denied the prosecution's case in its entirety. He 5  2025:HHC:9714 claimed that the witnesses were related to each other and inimical to the family of the accused. They made false statements due to the enmity. He was falsely implicated in the present case. He did not lead any defence evidence. 7. The learned Trial Court held that the statements of prosecution witnesses were reliable. They consistently deposed that the victim was sleeping in her room on 27.7.2017 at about 11.00 p.m. When the accused entered her room, the victim shouted for help, and her aunt reached the room. The accused ran away from the spot. He left his mobile phone in the victim’s room. Minor discrepancies in the statements of the prosecution witnesses were not sufÏcient to discard them. Dr Deepak corroborated the victim's version as he had found injuries on the victim’s person. The defence version that a false case was made against the accused due to the enmity was not probable.Therefore, the accused was convicted and sentenced as aforesaid. 8. Feeling aggrieved and dissatisfied with the judgment and order passed by learned Trial Court, the accused has filed the present appeal, asserting that the learned Trial Court erred in convicting and sentencing the accused. The prosecution's version 6  2025:HHC:9714 that the accused had left his mobile phone in the victim’s room was improbable because no prudent person would leave his belongings at the scene of the crime. The witnesses were interested, and their testimonies were to be carefully scrutinized by the Court. Learned Trial Court failed to do so. The medical evidence only proved injuries which could have been caused by a fall, and medical evidence was not sufÏcient to connect the accused with the commission of a crime. The victim asserted that it was dark at the time of the incident; hence, it was not possible for her to identify the accused. It was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 9. I have heard Mr. Abhishek Nagta, learned counsel for the appellant and Mr. Jitender Sharma, learnedAdditional Advocate General for the respondent-State. 10. Mr. Abhishek Nagta, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. The victim was admittedly studying in the B.Sc. first year. The prosecution had not produced her matriculation certificate and relied upon the certificate issued 7  2025:HHC:9714 by the Gram Panchayat, which is not admissible. The prosecution should have proved the age of the victim by proving her matriculation certificate. The victim changed her version in the Court and asserted that the incident had taken place during the day, which is contrary to the initial version that the incident had taken place during the night. This makes the prosecution's case highly suspect, and the learned Trial Court overlooked this aspect. Even as per the prosecution's case, the light was switched off by the accused, and it was not possible for the victim to identify the accused. The prosecution's version that the accused entered the room through the service window of the kitchen is also not probable. Learned Trial Court erred in convicting and sentencing the accused. Hence, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 11. Mr Jitender Sharma, learned Additional Advocate General for the respondent-State, submitted that the victim’s testimony was rightly relied upon by the learned Trial Court. It was duly corroborated by the statements of her aunt, her mother and Pal Singh. The medical evidence also showed the injuries on the person of the victim,which corroborated her version regarding 8  2025:HHC:9714 the accused gagging and molesting her. There is no infirmity in the judgment passed by the learned Trial Court. Therefore, he prayed that the present appeal be dismissed. 12. I have considered the submissions made at the bar and have gone through the records carefully. 13. It was specifically asserted in the complaint (Ext. PW1/A) that the victim was studying in the B.Sc. first year. She stated on oath that she was studying in the B.Sc. final year on the date of her deposition. 14. It was laid down by the Hon’ble Supreme Court in Jarnail Singh versus State of Haryana (2013) 7 SCC 263 that the provisions of the Juvenile Justice Act (JJ Act) should be followed to determine the age of the victim under the POCSO Act. It was observed: “23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with the law, we are of the view that the aforesaid statutory provision should be the basis for determining the age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of the minority is concerned between a child in conflict with the law and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been 9  2025:HHC:9714 expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has an overriding effect over an option expressed in a subsequent clause. The highest-rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), the matriculation (or equivalent) certificate of the child concerned is the highest-rated option. In case the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation, a municipal authority, or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid that Rule 12(3) postulates the determination of the age of the child concerned on the basis of medical opinion. 24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6, could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution, in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6, on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix, VW, PW 6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the 10  2025:HHC:9714 prosecutrix VW, PW 6, had studied up to Class 3. Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records indicating that the prosecutrix VW, PW 6, was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are, therefore, of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6. It would also be relevant to mention that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material, including the ossification test, for determining the age of the prosecutrix VW, PW 6. The deposition of Satpal, PW 4, has not been contested. Therefore, the date of birth of the prosecutrix VW, PW 6 (indicated in Ext. PG as 15-7-1977) assumes finality. Accordingly, it is clear that the prosecutrix VW, PW 6, was less than 15 years old on the date of occurrence, i.e. on 25-3-1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW, PW 6, was a minor on the date of the occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court that even if the prosecutrix VW, PW 6, had accompanied the appellant- accused Jarnail Singh of her own free will and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor.” (Emphasis supplied) 15. It was held in Sanjeev Kumar Gupta versus State of U.P.& Ors (2019) 12 SCC 370 thatas per the Juvenile Justice Act 2015, the matriculation certificate or the certificate from the school first attended by the victim has to be preferred to the birth certificate issued by the local authority. It was observed: “17. The 2015 Act came into force on 15-1-2016. Section 111 repeals the earlier 2000 Act but stipulates that, despite the repeal, anything done or any action taken under the said 11  2025:HHC:9714 Acts shall be deemed to have been done or taken under the corresponding provisions of the new legislation. Section 94 contains provisions in regard to the determination of age, is in the following terms: “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 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 Examination Board concerned, if available; and in the absence thereof; (ii) the birth certificate given by a corporation, 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 that such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. 12  2025:HHC:9714 (3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the Examination Board concerned 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)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. 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. 16. It was held in Vinod Katara versus State of U.P., 2022 SCC OnLine SC 1204, that clause (a) of Rule 12(3) of 2007 Rules contains a hierarchical order, which means that if the matriculation certificate is available the certificate from the local authority or the medical evidence regarding the age cannot be admitted. It was observed: 48. Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident from the use of the language “in the absence whereof”. This indicates that where a matriculation or equivalent certificate is available, the 13  2025:HHC:9714 documents adverted to in (ii) and (iii) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained. 49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751, this Court, while examining the scope of Rule 12 of the 2007 Rules, had reiterated that medical opinion from the Medical Board should be sought only when the matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended, or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available. This Court had held that the entry related to the date of birth entered in the mark sheet is valid evidence for determining the age of the accused person, so also the school leaving certificate for determining the age of the appellant. 17. A similar view was taken in P. Yuvaprakash v. State, 2023 SCC OnLine SC 846, wherein it was observed that: “11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act, which reads as follows: “34. Procedure in case of commission of offence by a child and determination of age by the Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such 14  2025:HHC:9714 question shall be determined by the Special Court after satisfying itself about the age of such person, and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.” 12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act 2015 becomes relevant and applicable. That provision is extracted below: “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 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, 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 15  2025:HHC:9714 conducted on the orders of the Committee or the Board: Provided that such age determination test conducted on the order of 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 a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 13. It is evident from a conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or his being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order in which the Juvenile Justice Act requires consideration are that concerned court has to determine the age by considering the following documents: “(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, 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”. 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 16  2025:HHC:9714 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, 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 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 with 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 the commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh (2021) 12 SCR 502, 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 parimateria) 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 the determination of age. The juvenility of a person in conflict with the 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 17  2025:HHC:9714 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, the benefit could be given to the child or juvenile by considering the age on the 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 v. The State of Uttar Pradesh (2019) 9 SCR 735 that: “Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 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 v. State of West Bengal (2012) 9 SCR 224, 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 18  2025:HHC:9714 the hierarchy of documents that would be accepted in order of preference. 18. This position was reiterated in Vinod Katara v. State of U.P., (2024) 4 SCC 150: 2024 SCC OnLine SC 233wherein it was observed at page 155: “22. Section 94(2) of the JJ Act provides for the mode of determination of age. In the order of priorities, the date of birth certificate from the school stands at the highest pedestal whereas the ossification test has been kept at the last rung to be considered, only in the absence of Criteria Nos. 1 and 2 i.e. in the absence of both certificate from school and birth certificate issued by a Corporation/Municipal Authority/Panchayat.” 19. Therefore, as per Rule 12(3)(a)(ii) of Juvenile Justice, Rule 2007 and Section 94 of the Juvenile Justice Act, 2015, the certificate from the school which was first attended by the victim has to be preferred to the birth certificate which falls within Rule 12 (iii)(a) of the Juvenile Justice Rule, 2007 or Section 94 (ii) of the JJ Act. 20. In the present case, the victim was studying in the B.Sc. first year on the date of the incident, and her matriculation certificate is available. Therefore, the prosecution was supposed to produce the matriculation certificate to prove the victim’s date of birth. However, the prosecution relied upon the birth certificate issued by the Secretary, Gram Panchayat, Khanaur, 19  2025:HHC:9714 which is not admissible,as mentioned above, in the presence of a matriculation certificate. Hence, there is no legally admissible evidence to show that the victim was a minor on the date of the incident and the conviction recorded by the learned Trial Court for the commission of an offence punishable under Section 8 of the POCSO Act is not sustainable. 21. It was asserted in the complaint (Ext.PW1/A) that the victim was sleeping in her room on 27.7.2015 at 11.00 p.m. The victim (PW-1), on the other hand, stated on oath that she was sleeping in her room on 27.7.2015 at 11.00 a.m. Therefore, she has changed the time of the incident from 11.00 p.m. to 11.00 a.m. It is not a typographical error, as is apparent from the fact that she subsequently stated that she identified the accused from his short hair in the dim solar light coming from outside her room. This clearly shows that the victim has stated that the incident had taken place in the morning, which is contrary to the prosecution's version. The shift in the time of the incident from the night to the morning would affect her testimony adversely and it is difÏcult to rely upon her testimony due to this major contradiction. 20  2025:HHC:9714 22. Her mother (PW-2),her aunt (PW-3) and Pal Singh stated that the incident had taken place on 27.07.2015 at 11.00 p.m. However, the victim has deposed that the incident had taken place at 11.00 a.m. when the solar light was coming into her room, therefore, the testimonies of these witnesses that the incident had taken place at 11 pm cannot be used to corroborate the victim’s testimony. 23. The victim stated that the accused left the mobile phone on the TV table, which was handed over to the police.However, the police failed to connect the mobile phone to the accused. Vinod Singh (PW-6) stated in his cross-examination that the call detail record of the recovered mobile was not procured by him. He volunteered to say that SHO Amar Singh had procured it. Amar Singh (PW-7) stated in his cross-examination that he had not investigated the case. Thus, the SIM number of the mobile phone was not ascertained and the customer application form of the SIM was also not taken into possession to show that the SIM in the mobile was issued to the accused. Therefore, there is no evidence that the mobile phone belonged to the accused. 21  2025:HHC:9714 24. Even the identity of the accused has also not been established satisfactorily. The victim (PW-1) stated that she identified the accused from his short hair in dim solar light coming from outside her room. Her initial version was that the incident had taken place during the night, and the other witnesses also said so. Therefore, it was not possible for the victim to identify the accused with the help of a dim solar light. Further, it was not possible to identify the accused with short hair in the absence of any evidence that no other person had short hair at the time of the incident. 25. The victim's aunt (PW-3) stated that she saw the accused while running away from the victim’s house after bolting the door from outside. She did not claim that she knew the accused before the incident or had seen him before the incident. Therefore, it was essential that her power of identification should have been tested by a test identification parade. However, no test identification parade was conducted in the present case. 26. Pal Singh (PW-4) stated that he saw the accused running away from the victim’s house. He has also not stated that he knew the accused or he had seen him before the incident. 22  2025:HHC:9714 Therefore, his identification made for the first time in the Court without a previous identification parade is not sufÏcient. 27. It was laid down by the Hon’ble Supreme Court in P. Sasikumar v. State of T.N., (2024) 8 SCC 600: (2024) 3 SCC (Cri) 791: 2024 SCC OnLine SC 1652 that where the witness had not seen the accused before the date of the incident, the identification of the accused made in the dock is not acceptable. It was observed on page 605: “17. The admitted position in this case is that the test identification parade (hereinafter referred to as “TIP”) was not conducted. All the prosecution witnesses who identified the accused in the Court, such as PW 1 and PW 5, were not known to the present appellant, i.e. Accused 2. They had not seen the present appellant before the said incident. He was a stranger to both of them. More importantly, both of them have seen the appellant/Accused 2 on the date of the crime while he was wearing a “green-coloured monkey cap”! xxx 21. It is well settled that TIP is only a part of the police investigation. The identification in TIP of an accused is not a substantive piece of evidence. The substantive piece of evidence, or what can be called evidence, is only dock identification, that is, identification made by a witness in court during the trial. This identification has been made in court by PW 1 and PW 5. The High Court rightly dismisses the identification made by PW 1 for the reason that the appellant i.e. Accused 2 was a stranger to PW 1 and PW 1 had seen the appellant for the first time when he was wearing a monkey cap, and in the absence of TIP to admit 23  2025:HHC:9714 the identification by PW 1 made for the first time in the court was not proper. xxxx 23. We are afraid the High Court has gone completely wrong in believing the testimony of PW 5 as to the identification of the appellant. In cases where the accused is a stranger to a witness and there has been no TIP, the trial court should be very cautious while accepting the dock identification by such a witness (see: Kunjumon v. State of Kerala [Kunjumon v. State of Kerala, (2012) 13 SCC 750: (2012) 4 SCC (Cri) 406]). xxx 27. In the facts of the present case, the identification of the accused before the court ought to have been corroborated by the previous TIP, which has not been done. The emphasis of TIP in a given case is of vital importance as has been shown by this Court in recent two cases of Jayan v. State of Kerala [Jayan v. State of Kerala, (2021) 20 SCC 38] and Amrik Singh v. State of Punjab [Amrik Singh v. State of Punjab, (2022) 9 SCC 402: (2023) 2 SCC (Cri) 404]. 28. In Jayan [Jayan v. State of Kerala, (2021) 20 SCC 38], this Court disbelieved the dock identification of the accused therein by a witness, and while doing so, this Court discussed the aspect of TIP in the following words: (Jayan case [Jayan v. State of Kerala, (2021) 20 SCC 38], SCC p. 44, para 18) “18. It is well settled that the TI parade is a part of the investigation, and it is not substantive evidence. The question of holding a TI parade arises when the accused is not known to the witness beforehand. The identification by a witness of the accused in the Court who has, for the first time, seen the accused in the incident of the offence is a weak piece of evidence, especially when there is a large timegap between the date of the incident and the date of recording of his evidence. In such a case, the TI 24  2025:HHC:9714 parade may make the identification of the accused by the witness before the Court trustworthy.” 28. In the present case, there is no evidence that the witnesses knew the accused or had seen him before the incident; therefore, his identification made in the dock for the first time in the Court without any previous test identification parade cannot be relied upon. 29. The mother of the victim had not seen the accused. She was told about the incident by the victim. Hence, her statement does not establish the identity of the accused. 30. Therefore, there is unsatisfactory evidence regarding the identity of the accused and learned Trial Court overlooked this aspect. 31. The victim stated that the accused visited her room again because she had forgotten her mobile, but she had bolted the door from inside, so the accused left the place and was seen by her aunt. Her aunt (PW-3) and Pal Singh (PW/4) have not stated that the accused had returned to the place of incident to pick up his mobile phone; rather, Pal Singh stated that the accused ran away after the victim had raised a hue and cry and he bolted the door from outside. Her aunt (PW-3) stated that she had seen the 25  2025:HHC:9714 accused running away from the victim’s house after bolting the door from outside. Thus as per her aunt and Pal Singh, they had seen the accused only once when he was running away from the victim’s room after bolting the door from outside. This contradicts the victim’s testimony that the accused bolted the door from outside and returned to pick up his mobile. This aspect also makes the testimony of the victim highly suspect. 32. Dr Deepak (PW-8) noticed scratch marks on the right arm,the knee joint and on the right lateral side of the face just below the right eye, which could have been caused within 12 hours of the examination. These injuries do not corroborate the prosecution's version that the accused had caught hold of the wrists of the victim and made her lie on the floor because no injuries were noticed on the wrist or the back. 33. The learned Trial Court was only swayed by the fact that the witnesses had made consistent statements, which is not correct because the statements are not consistent, but the statement of the victim contains major contradictions regarding the time and return of the accused. Learned Trial Court failed to notice that the identity of the accused was also not satisfactorily 26  2025:HHC:9714 established. The mobile phone was never analysed to find the SIM number or to trace the ownership of the SIM. These infirmities made the prosecution's case unreliable. Learned Trial Court erred in overlooking these aspects and in relying upon the statements of the victim and other witnesses to hold that the offence of criminal trespass and outraging the modesty of the victim was established by such statements. 34. Consequently, the present appeal is allowed, and the judgment and order passed by the learned Trial Court are ordered to be set aside. The accused is acquitted of the commission of the charged offences. The fine amount, if deposited, be refunded after the expiry of the period of limitation for filing the appeal in case no appeal is preferred, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court. 35. In view of the provisions of Section 437-A of the Code of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)], the respondent/accused is directed to furnish his personal bond in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Registrar (Judicial) of this Court/learned Trial Court, 27  2025:HHC:9714 within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the respondent/accused, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 36. A copy of this judgment, along with the records of the learned Trial Court, be sent back forthwith. Pending miscellaneous application(s), if any, also stand(s) disposed of. (Rakesh Kainthla) Judge 8th April, 2025 (mamta) Digitally signed by KARAN SINGH GULERIA Date: 2025.04.08 17:46:22 IST