1 CGHC010429272019 2026:CGHC:42022 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1978 of 2019 1 - Rajendra Shriwas @ Motu S/o Ashrit Shriwas, Aged About 25 Years, R/o Bhainapara, Mulmula, Police Station - Mulmula, District Janjgir-Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh ... Appellant versus 1 - State of Chhattisgarh Through Police Station Mulmula, District - Janjgir-Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Chitendra Singh, Advocate. For State : Mr. R.R. Pithwa, Deputy Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Judgment on Board 26-09-2026 1. The present appeal is listed for consideration on PUD dated 02-09-2026 received from the learned trial Court, however, with the consent of the parties the appeal has been heard finally. 2. The present criminal appeal has been filed by the appellant under Section 374(2) of the Cr.P.C. against the impugned judgment of conviction and sentence dated 15-10-2019 passed by the learned Special Judge (Atrocity) Janjgir-Champa (C.G.), in Special Sessions Case No. 15/2019, whereby the appellant has been convicted and sentenced in the following manner with a direction to run all the jail sentences concurrently:- Conviction Sentence U/s 363 of the IPC R.I. for 04 years with fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 1 Digitally signed by MOHAMMED AADIL KHAN Date: 2026.09.28 16:02:33 +0530 2 month, U/s 366 of the IPC R.I. for 05 years with fine of Rs. 1000/-, in default of payment of fine, additional R.I. for 1 month. 3. The case of the prosecution, in brief, is that, on 30-05-2019 the victim PW-1 was missing from her house and when her whereabout could not be traced out, her brother-in-law PW-3 lodged a missing report to police that his sister- in-law is missing since 04:00 p.m. on 30-05-2019 and her whereabouts could not be traced out. The police registered offence under Section 363 against unknown person which is Ex.-P/8. During investigation the victim was recovered on 30-05-2019 itself at Railway Station Jairam Nagar from the possession of the appellant. The recovery panchnama Ex.-P/9 was prepared in presence of the witnesses. The victim was sent for her medical examination to Community Health Center, Pamgarh where she was medically examined by PW-4 Doctor K.K. Dahire who found injuries of abrasion on right forearm and abrasion on right knee and gave his report Ex.- P/11. Spot map Ex.-P/2 was prepared by police and Ex.-P/3 was prepared by Patwari. The social status certificate of the victim has been seized vide seizure memo Ex.-P/5. The mobile phone of the victim has also been seized vide seizure memo Ex.-P/6. With respect to age and date of birth of the victim middle school mark sheet was seized vide seizure memo Ex.-P/10 and school record has been seized vide seizure memo Ex.-P/13 and after retaining its attested true copy the original school record was returned to the school, its attested true copy is Ex.-P/13C. The appellant was arrested on 30-05-2019 and his motorcycle was seized vide seizure memo Ex.-P/15. The appellant was also sent for his medical examination to Community Health Center Pamgarh where he was medically examined by PW-4 Doctor K.K. Dahire. Though he was complaining pain in both the legs, but the doctor could not find any external injury on his body and gave his report Ex.-P/12. 3 Statement of the victim under Section 164 of the Cr.P.C. Ex.-P/7 was recorded and the statement of witnesses under Section 161 of the Cr.P.C. have been recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offence under Section 363, 366 of the IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘the SC/ST Act’). 4. The learned trial Court has framed the charge under Sections Section 363, 366 of the IPC and Section 3(2)(v) of the SC/ST Act. The appellant denied the charge and claimed trial. 5. In order to prove the charge against the appellant, the prosecution has examined as many as 10 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the circumstances that appears against him, pleaded innocence and has submitted that he has been falsely implicated in the offence 6. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court has acquitted the appellant from the offence under Section 3(2)(v) of the SC/ST Act, however, he has been convicted for the offence under Section 363 and 366 of the IPC and sentenced as has been mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the alleged offence. The age of the victim has not been proved in accordance with law by examining the documents on the basis of which the date of birth has been recorded in the school register. The victim is a major girl having love affair with the appellant and she on her own will accompanied to elope with the appellant. While roaming with the appellant, the police vehicle came from backside and 4 after seeing the police their vehicle got unbalanced and the victim fell down on the road by which she received injuries, thereafter, both of them had gone to railway station where they were taking rest when the police arrested them. Since the victim is a major girl, she voluntarily accompanied the appellant, no offence either of kidnapping or inducing the victim to compel her for marriage has been proved and the appellant is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions the evidence of prosecution witnesses are reliable and sufficient to hold the appellant guilty for the alleged offence. The victim was minor on the date of incident and her minority has been proved by the school record which has been proved by PW-5. The minor victim was kept away from her lawful guardianship by the appellant for which the learned trial Court has rightly convicted and sentenced him for the alleged offence. The impugned judgment of conviction and sentence is justified and does not requires any interference. 9. I have heard the learned counsel for the parties and perused the record of the trial Court. 10. The first and foremost question arose for consideration would be age of the victim as to whether on the date of incident she was minor and less than 18 years of age or not. 11. The prosecution has mainly relied upon school register Ex.-P/13C which is sought to be proved by PW-5, who is the Head Master of the school. He stated in his evidence that the police has seized the school register with respect to date of birth of the victim vide seizure memo Ex.-P/13 and the attested true copy of the school register is Ex.-P/13C. In the said school register the date of birth of the victim is recorded as 10-04-2002. In cross- examination he stated that on the basis of the date of birth disclosed by her 5 father he recorded the date of birth of the victim in the school register. There is no document annexed in the case on the basis of which the date of birth has been recorded in the school register. Though he is the author of the school register, but there is no basis on which entries have been made in the school register. 12. The admissibility and evidentiary value of the school register is considered by the Hon’ble Supreme Court in the case of Alamelu and Another Vs. State, represented by Inspector of Police, reported in 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 victim in the absence of any material on the basis of which the age was recorded. 13. In paragraphs 40, 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 absence of the material on the basis of which the age was recorded. 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. [(2006) 5 SCC 584] held as follows:- 6 "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 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. 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 7 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 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. 8 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 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.” 15. In case of P. Yuvaprakash Vs. State represented by Inspector of Police, reported in 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 9 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 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 commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. [2022 (8) SCC 602] 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 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 [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 10 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 Vs. 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 the hierarchy of documents that would be accepted in order of preference.” 16. Reverting to the facts of the present case, from the evidence of the victim PW-1, she stated that her date of birth is 10-04-2002. PW-2 mother of the victim has not stated the date of birth of the victim in her examination-in- chief, however, in cross-examination she stated that the elder sister of the victim had gone to the school for her admission. She could not tell as to whether at the time of her admission, her birth certificate was produced or not. The Head Master of the school PW-5 has stated that the entries have been made in the school register on the basis of the date of birth disclosed by her father, however, mother of the victim has stated that her sister had gone to school for her admission. She could not tell as to whether any birth certificate was produced at the time of her admission or not. The father of the victim has not been examined. Thus, barring the oral statement of the victim, no other evidence available on the record to prove the date of birth of the victim, the school record has not been proved in accordance with law, there is no any ossification test report nor any birth certificate of the victim 11 produced by the prosecution to prove her age, yet the learned trial Court has held her minor and less than 18 years of age on the date of incident. 17. So far as the allegation of kidnapping and inducing the victim to compel her for marriage against the appellant is concerned, I again examine the evidence of the victim, PW-1. 18. The victim PW-1 has stated in her evidence that the appellant is her neighbour. She had a telephone call on 29-05-2019 and on the next morning at about 04:00 a.m. he knocked the door of her house and when she opened the door the appellant insisted her to go with him and she accompanied him. After some distance she asked him as to where they are going, then the appellant said that they are going to marry. Thereafter, she asked to leave her back to her house. At the same time, they heard noise of police vehicle and then the appellant accelerated the speed of his bike and they fell down on road as their motorcycle has got unbalanced. She received injury on her elbow and knee and the appellant also received injury on his leg. Thereafter, they had gone to Jairam Nagar Railway Station and were taking rest, after some time her brother-in-law along with police personnel reached there and caught them. In cross-examination she admitted that the appellant is also her friend from school time and he gave her the mobile phone. She has not disclosed about the mobile phone to her parents. The appellant gave missed call and thereafter she made calls to the appellant and they engaged in conversation through the same mode. At about 04:00 a.m. she accompanied the appellant. Both had gone by his motorcycle. She has not raised alarm at that time. After having fell down on the road both of them had gone to Jairam Nagar Railway Station where they were taking rest, at that time police came there. From the evidence of this witness it clearly reveals that at about 04:00 a.m. the victim voluntarily accompanied the appellant, both of them had gone for roaming, on the way their motorcycle got unbalanced and they fell down by which the victim received injury on her elbow and knee. Thereafter, they 12 were taking rest in Jairam Nagar Railway Station from where police caught them. There is no any protest or alarm raised by the victim at the time when she accompanied the appellant. She could have raised alarm at the time when the appellant allegedly came to her house at 04:00 a.m. in the morning or she can refuse to accompany him, but she did not do so. When she was not found to be minor on the date of incident, she was having good relation with the appellant and well acquainted with him as they were having regular chatting through the mobile phone which was provided to her by the appellant and she accompanied him without raising any objection, all her conduct goes to show that she voluntarily accompanied the appellant and the appellant had not used any force to kidnap her or induced her to compel her for marriage. 19. The offence of kidnapping and eloping with accused have been considered by the Hon’ble Supreme Court in the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, where the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Para 9 and Para 10 of its judgment that:- “9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an 13 active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". 20. Recently in the matter of Tilaku alias Tilak Singh Vs. the State of Uttrakhand, the judgment passed in the matter of S. Varadarajan (supra) has been relied upon by the Hon’ble Supreme Court in CRA No.183 of 2014 decided on 06.02.2025. 21. PW-2 is the mother of the victim, she deposed on the basis of the information given by the victim. Likewise, PW-3 who is brother-in-law of the victim, has also deposed as per the information given by the victim, whereas, the evidence of the victim PW-1 itself is not found sufficient to hold the appellant guilty for the offence under Section 363, 366 of the IPC. 22. In view of the facts and circumstances of the case as well as the evidence available on record this Court is of the considered opinion that the learned trial Court has not considered the evidence available on record in its true perspective and came into an erroneous conclusion while convicting the appellant for the offence under Section 363 and 366 of the IPC, and that from the evidence available on record the appellant is entitled for benefit of doubt. 14 23. Accordingly, by giving the appellant benefit of doubt the present appeal is allowed. The appellant is acquitted from the alleged offence of Section 363 and 366 of the IPC and the impugned judgment of conviction and sentence is hereby set aside. The appellant stands acquitted from all the charges leveled against him. 24. The appellant is reported to be on bail, his bail bonds shall continue for a further period of six months as provided under Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023. 25. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Aadil