1 2026:CGHC:7016 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1016 of 2016 Gajendra Thakur S/o Babulal Thakur Aged About 24 Years R/o Village Kathiya, Police Station Arjunda, District Balod Chhattisgarh , Chhattisgarh ... Appellant versus State Of Chhattisgarh Through - Station House Officer, Police Of Police Station - Arjunda, District - Balod Chhattisgarh , Chhattisgarh ---- Respondent For Appellant : Shri Anil Gulati, Advocate For Respondent /State : Shri Jitendra Shrivastava, GA Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 09/02/2026 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 23.07.2016 passed by the Additional Sessions Judge, (FTC), District Balod (C.G.) in 2 Sessions Trial No.01/2016, whereby and whereunder the appellant has been held guilty for commission of the offence under Sections and sentenced as described below : Offence Punishment Under Section 354(D) IPC RI for 02 years and to pay fine of Rs. 500/-, in default of payment of fine to further undergo RI for one month Under Section 509 IPC RI for 01 year and to pay fine of Rs.100/-, in default of payment of fine to further undergo RI for 15 days Under Sections 11 & 12 of the POCSO Act RI for 02 years and to pay fine of Rs.500/- in default of payment of fine to further undergo RI for one month All the sentences were ordered to run concurrently (Fine amount has already been deposited) 2. The prosecution case in brief is that the prosecutrix (PW-1) had lodged a written report in Police Station Arjunda, District Balod, Chhattisgarh to the effect that on the incident date 19.10.2015, when she was going to school on a bicycle, the accused followed her on his TVS motorcycle with the intention of insulting her and stopped her near Mahima Dharmkanta by calling out to her and winked at her while making gestures. 3 3. On the above report of the prosecutrix (PW-1), FIR No. 228/15 under Section 354 (g), 509 of IPC read with Section 11 and 12 of Protection of Children from Sexual Offences Act, 2012 was registered against the accused in Police Station Arjunda, District Balod, Chhattisgarh and investigation of the case was started. 4. During investigation a spot map was prepared, the accused was arrested, documents regarding the birth of the prosecutrix (PW-1) were seized, the prosecutrix (PW-1) was booked under Section 164 of the CrPC. The statement was recorded and the statement of the prosecutrix and witnesses was recorded under Section 161 of CrPC. 5. After completion of investigation, the charge sheet was filed in the Court on 14.12.2015 against the accused under Section 354 (g), 509 of IPC read with Sections 11 and 12 of POCSO Act, 2012. 6. In order to establish the charge against the appellant, the prosecution has examined 9 witnesses. Statement of the appellant was also recorded under Section 313 Cr.P.C., in which he denied the charge levelled against him and stated that he is innocent and has been falsely implicated in the case. After appreciation of evidence available on record, learned trial Court has convicted the appellant and sentenced him as mentioned in paragraph-1 of this appeal. Hence this appeal by the appellant. 4 7. Learned counsel for the appellant would submit that he does not wants to press this appeal on merits and confines his argument to the sentence part only. He further submits that the incident is of the year 2015. Appellant is facing the lis from last 10 years. The appellant was in jail from 22.10.2015 to 04.11.2015 and there is no previous antecedent of the appellant, therefore, it is prayed that the jail sentence awarded to the appellant may be reduced to the period already undergone by him. 8. On the other hand, learned counsel for the State opposes the submissions of learned counsel for the appellant and submits that there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference. 9. I have heard learned counsel for the parties, and perused the record. 10. In order to consider the age of the prosecutrix I have to examine the evidence available on record produced by the prosecution. The prosecution has mainly relied upon the marksheet of Class 10th (Article A-1) in which date of birth of the prosecutrix is mentioned as 10.08.1998. Prosecutrix (PW-1) has stated in her deposition that at the time of incident, she was aged about 17 years. 5 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 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 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 completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board 6 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 case of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC-385, the 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. 13. 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 7 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 8 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:- "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 9 observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.” 14. Section 354(D) of IPC deals with 'Stalking'. Section 354(D) of IPC deals with 'Stalking'. According to Section 354(D) of IPC, "(1) Any man who- (i) follows a woman and 10 contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking. 15. A perusal of Section 354(D) of IPC would go to show that any man who follows a woman and contacts or tries to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman. The main ingredient in the above provision would go to show that despite the fact that the woman is disinterested, if the man goes on wooing her or keeps on sending messages against her will, then the offence under Section 354(D) of IPC would attract as against the said person. 16. Prosecutrix (PW-1) has stated in her statement that on the date of the incident, she was going to school alone on her bicycle. At that time, the appellant followed her from near the garden till Dharmkanta, he was teasing her, when she objected, the accused said that he was following her to insult her. Then she told the accused that she will inform the police and her family about the incident, then the accused said that the police are his father, what can they do to him, the villagers cannot do anything to him. The accused followed her till Dharmkanta. The accused used to make gestures to her earlier also. 11 17. Considering the facts and circumstances of the case and statement given by the witnesses and other material available on records, it transpires that the learned trial Court after considering the material available on record and evidence of the prosecution witnesses, convicted the appellant for the aforesaid offence. 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 recordings the findings as regards conviction of the appellant in the aforesaid Section. 18. With regard to the sentence part, the maximum sentence of the appellant is RI for 02 years. Considering the fact that the date of incident is of the year 2015. Further, considering the nature and gravity of offence and also considering that the appellant was in jail from 22.10.2015 to 04.11.2015, I am of the considered opinion that the ends of justice would be met if, while upholding the conviction imposed upon the appellant, the jail sentence awarded to the appellant is reduced to the period already undergone by him. Fine sentence awarded by the trial Court shall remain intact. Ordered accordingly. 19. The criminal appeal is partly allowed to the extent indicated herein-above. 20. Let a copy of this order and the original records be transmitted to 12 the trial Court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) Judge Vasant