1 2026:CGHC:17067 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1255 of 2016  Suresh Gond, S/o Sonaram Gond, aged about 22 years, R/o village Pendri, Police Station Pamgarh, District Janjgir- Champa (C.G.). ---- Appellant Versus  State of Chhattisgarh Through : Station House Officer, Police Station Pamgarh, District Janjgir-Champa (C.G.) ---- Respondent For Appellant. - Mr. H.B. Agrawal, Sr. Advocate with Mrs. Preeti Yadav, Advocate. For Respondent - Mr. Kanhaiya Ram Yadav, P.L. Hon'bel Smt. Justice Rajani Dubey (Judgment On Board ) 15/04/2026 1. This appeal arises out of the judgment of conviction and order of sentence dated 2209.2016 passed by the Additional Sessions Judge (F.T.C.), Janjgir, District Janjgir-Champa (C.G.) in Special Sessions Trial No. 64/2015 convicting and 2 sentencing the accused/appellant as under :- CONVICTION SENTENCE Section 8 of Protection of Children from Sexual Offiences Act, 2012 R.I. for 04 years and fine of Rs.5,000/-, in default of payment of fine amount, additional R.I. for 03 months. Section 342/34 of IPC R.I. for 06 months with fine of Rs.500/-, in default of payment of fine amount, additional R.I. for 15 months. All the sentences were directed to run concurrently and in default of payment of fine, sentenced will run separately. 2. Prosecution case, in brief, is that on 25.09.2015 at about 6:00 PM, the prosecutrix (PW-1), after leaving bicycle at the house of accused Suresh, was returning, at the same time accused, Suresh Gond, with the intention of outraging her modesty, caught hold of her hand and forcibly dragged her inside his house, where a juvenile in conflict with law, Vijay Verma, was also present. Both the accused persons attempted to outrage the modesty of the prosecutrix. When the prosecutrix raised an alarm, accused Suresh Gond gagged her mouth, while the juvenile Vijay Verma closed the door, at the relevant time, the prosecutrix’s brother (PW-3) arrived searching her and called out. Upon hearing his voice, the accused persons hide the prosecutrix under a wooden bed and covered her with a blanket. Thereafter, 3 Sunil (PW-2), uncle of prosecutrix, (PW-3) brother of prosecutrix got the door opened and took the prosecutrix back home. On the report of the prosecutrix (PW-1), a FIR (Ex.P-1) was registered against the accused persons for the offence under Sections 354, 342, 34 345(b) of IPC and 8 of POCSO Act & the matter was taken up for investigation. During the course of investigation, the statement of prosecutrix under Section 164 of CrPC was recorded vide Ex.P-2. Spot map was prepared vide Ex.P-3. The accused persons were arrested and sent on remand. School admission register was seized vide Ex.P-8, according to which, date of birth of the prosecutrix was 05.03.2001. 3. After investigation, charge sheet was filed against the accused/appellant under Sections 354, 354(b), 342, 34 of IPC and Section 8 of POCSO Act and the learned Trial Court framed charge against the accused under Sections 8 of POCSO Act and 342/34 of IPC to which the accused/appellant abjured his guilt and pleaded for trial. The juvenile accused was tried separately by the Juvenile Justice Board. 4. So as to hold the accused/appellant guilty, the prosecution examined as many as 05 witnesses. Statement of the accused/appellant was also recorded under Section 313 of 4 Cr.P.C. in which he denied the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 5. The trial Court after hearing counsel for the respective parties and considering the material available on record has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, this appeal. 6. Learned senior counsel appearing for the appellant submits that the impugned judgment passed by the learned Trial Court is contrary to law and facts on record and is liable to be set aside. It is contended that the learned Trial Court has erred in not properly appreciating the mandatory provisions contained in Chapter VI of the Protection of Children from Sexual Offences Act, 2012. The statements of child witnesses were not recorded before the Magistrate, and there is no evidence on record to show that the police officials were not in uniform while recording the statements of the children. Further, the mandatory requirement under Section 24(1) of the Act, that the statement of the child should be recorded by a woman police officer not below the rank of Sub-Inspector, has not been complied with. It is further submitted that the investigating agency has also failed to adhere to the procedure prescribed under Sections 5 25, 26, and 27 of the Act, which are mandatory in nature and intended to safeguard the interests of the child. Non- compliance with these provisions vitiates the entire prosecution case, as the investigation has been conducted in violation of the statutory mandate. Therefore, the prosecution case becomes unreliable and unsustainable in the eyes of law, and the appellant is entitled to be acquitted. Learned counsel also submits that there is an unexplained and inordinate delay in lodging the FIR. The alleged incident is stated to have occurred on 25.09.2015 at about 6:00 p.m., whereas the FIR was lodged only on 26.09.2015 at about 2:00 p.m. This delay has not been satisfactorily explained by the prosecution and raises serious doubts regarding the authenticity of the prosecution story. It is argued that such delay provides sufficient scope for deliberation and concoction of a false case and it is well settled by the Hon’ble Apex Court that the unexplained delay in lodging the FIR may be fatal to the prosecution case. So, the appeal be allowed and, set aside the impugned judgment of conviction and sentence, and acquit the appellant of all the charges levelled against him. In support of his submission, learned senior counsel placed reliance on the decisions of Hon’ble Apex Court in 6 the matter of Jinish Lal Sah v. State of Bihar reported in 2002 Supreme (MP) 1169 and this Court’s order dated 28.01.2026 passed in CRA No.625/2016 [in the matter Pardeshi Das Mahant vs. State of Chhattisgarh] 7. On the other hand, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellant. So, the appeal being without any merit is liable to be dismissed. 8. I have heard learned counsel for the parties and perused the material available on record. 9. It is clear from the record of the learned trial Court that the learned trial Court framed charges against the accused/appellant and other accused person under Section 8 of the POCSO Act and 342 read with section 34 of IPC & after appreciation of oral and documentary evidence, the learned trial Court convicted the accused/appellant under Section 8 of POCSO Act and 342/34 of IPC. 10. The question for consideration before this Court is that whether the prosecutrix on the date of incident was minor or not. 7 11. As per the prosecution, the Prosecutrix (PW/1) was aged about 15 years at the time of incident and the Prosecutrix (PW-1) mentioned her age in FIR (Ex.P-1) to be 15 years. 12. Rakesh Kumar Ghritlahare (PW-5) who is the Principal of Govt. Primary School, Pendri has stated that as per the school admission register (Ex.P-8) of school, the date of birth of the prosecutrix at Sl. No.1357 is recorded as 05.03.2001 and he also issued a certificate to this effect vide Ex.P-6 and admitted his signature on ‘A to A’ part. 13. In cross-examination, the witness admitted that whitener had been used at Serial No. 1357, which pertains to the prosecutrix. It was further admitted that whitener was also used in Exhibit P-8A, specifically in the ‘School Leaving’ column. Additionally, Exhibit P-8 does not disclose the basis on which the said entry was made. 14. In order to establish the age or date of birth of the prosecutrix, the prosecution had to examine any of the parent of the prosecutrix but it has failed to do so. Neither father nor mother of the prosecutrix was examined in the case, and only on the basis of school admission register (Ex.P-8), which itself appears to have tampered with using whitener, the learned Trial Court recorded its finding that on the date of incident the prosecutrix (PW-1) was below 16 8 years. 15. The Hon’ble Apex Court while dealing with the issue of determination of age, in P. Yuvaprakash vs. State represented by Inspector of Police reported in 2023 (SCC Online) SC 846 : (2024) 17 SCC 684 held in paras 14 to 17 as under :- “14. 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 9 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 or a municipal authority or a panchayat; (iii) and only in the absence of (I) and (ii) above, age shall be determined by 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 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.” 15. It is evident from the 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 him being a 10 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 of which the Juvenile Justice Act requires consideration is that the court concerned has to determine the age by considering the following documents : “94. (2)(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 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.” 16. 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 of Panchayat and it is 11 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. 17. 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 Revenue Official (Deputy Tahsildar) concerned 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, Ext. C-1 could not have been relied upon to hold that ‘M’ was below 18 years at the time of commission of the offence.” 12 16. Similarly, in Mahadeo v. State of Maharashtra reported in (2013) 14 SCC 637, the Supreme Court observed that though school records may be considered, the Court must be satisfied about their authenticity and reliability, particularly with respect to the source of the date of birth mentioned therein. 17. However, in the present case, Ramesh Kumar Ghritlahare (PW-5), the Principal, admitted that whitener had been used in the school admission register (Ex.P-8) against the entry of the prosecutrix’s date of birth, thereby rendering the said entry doubtful. Furthermore, the prosecution has failed to produce any other authentic document with regard to the date of birth of the prosecutrix. In such circumstances, the prosecution has utterly failed to establish the date of birth of the prosecutrix through legally admissible evidence, and consequently, the finding of the learned Trial Court holding the prosecutrix to be a minor is liable to be set aside and it is accordingly set aside. 18. The next question which arises for consideration before this Court whether the accused had wrongfully confined the prosecutrix or not ? 19. The prosecutrix (PW-1) stated that on the date of the incident, i.e., 25.09.2015, she went to the house of the 13 accused to keep her bicycle there. While she was returning, the accused dragged her inside by holding her hand, where another juvenile accused was already present. Both the accused/appellant and the juvenile accused attempted to take her inside a room, and when she tried to raise an alarm, the accused/appellant gagged her mouth. She further stated that when her brother (PW-3) and uncle came searching for her, the accused/appellant hid her under a wooden bed and falsely told them that she was not in the house. However, her brother and uncle found her, rescued her from their custody, and took her home. She also stated that had her brother and uncle not arrived in time, the accused/appellant would have outraged her modesty. She further stated that she lodged a report at the police station and had also given a statement earlier before the Court at Akaltara. 20. In cross-examination, the prosecutrix (PW-1) denied this suggestion of defence that seeing her brother and uncle and due to fear, she hid in the wooden bed of the accused and covered blanket. The prosecutrix has denied this suggestion that her brother and uncle had dispute with accused Suresh and they filed a report after the accused had filed one, however, she admitted this suggestion that on the report of 14 both the parties, the matter is pending consideration before the Pamgarh Court. 21. Sunil Kumar Verma (PW-2), the uncle of the prosecutrix, stated that on the date of the incident, i.e., 25.09.2015, the brother of the prosecutrix informed him that the accused, Suresh, had taken the prosecutrix (PW-1) to his room. Thereafter, he (this witness), along with the brother of the prosecutrix, went to the house of the accused and called out to him. Upon being asked whether he had brought the prosecutrix, the accused denied the same. He further stated that they then searched the room of the accused using a mobile torch and found that Vijay Verma and the accused/appellant had hidden the prosecutrix under a wooden bed covering blanket. Thereafter, the brother of the prosecutrix called the aunt of the accused, and after informing her about the incident, they returned home with the prosecutrix. 22. In para 4 of his cross-examination, this witness has denied this suggestion that prosecutrix went to the house of accused voluntarily. PW-2 has admitted that after he brought the prosecutrix (PW-1) back from the accused's house, the accused assaulted him, thereafter, he lodged the report. He has also admitted that if he had not been 15 assaulted, he would not have lodged the report at police station. 23. Brother of the prosecutrix (PW-3) has stated that on the date of incident i.e. on 25.09.2015, Samaru informed him that the accused/appellant and Vijay took the prosecutrix (PW-1) to his house holding her hand, thereafter, he along with Sunil (PW-3) went to the house of accused/appellant, called him out and asked whereabouts of prosecutrix, when the accused replied that the prosecutrix did not come to his house, thereafter they entered the house of accused, searched his house and found that accused had hidden the prosecutrix under the wooden bed covering blanket. Thereafter, they took the prosecutrix to home and lodged the report at police station. In cross-examination, this witness has denied this suggestion that prosecutrix went to the house of accused voluntarily. He admitted that he had not seen the accused dragging the prosecutrix holding her hand. 24. Close scrutiny of the evidence of prosecutrix (PW-1), her uncle (PW-2) and brother (PW-3) when read in its entirety clearly shows that the prosecutrix (PW-1) herself went to the house of accused/appellant and when her brother and uncle searched the house of accused, they found the prosecutrix 16 hidden under the wooden bed covering blanket. The evidence of aforesaid witnesses does not conclusively establish wrongful confinement or use of criminal force with the requisite intent. The aforesaid circumstances under which she was found there do not inspire confidence to sustain the conviction. Further, there is a delay in lodging the FIR, which has not been satisfactorily explained. Moreover, PW-2 has admitted that the report was lodged only after he was assaulted by the accused/appellant, thereby creating a serious doubt regarding the genesis of the prosecution story. 25. The Hon’ble Apex Court in Jinish (supra) held that there is no doubt that the appellant who was a tuition teacher of PW 1 has misused the trust reposed in him by PW 1’s family but then since the prosecution has failed to establish the fact that PW 1 was below the age of 18 and the evidence on record indicates that PW 1 had willingly gone away with the appellant, and in the absence of any threat, coercion or inducement, having been established by the prosecution we think it not possible to rely on the prosecution case to come to the conclusion that the appellant is guilty of the charges framed against him under section 366A and 376 IPC or even section 366 as contended by the learned counsel for 17 the State. 26. In the light of above judicial pronouncement of Hon’ble Apex Court, in the present case also, the prosecution has failed to prove the age of the prosecutrix below 16 years and also failed to prove this fact that the accused/appellant wrongfully confined the prosecutrix in his house. 27. In view of the aforesaid infirmities, inconsistencies, and lack of reliable evidence, this Court is of the considered opinion that the prosecution has failed to prove the charges against the accused/appellant beyond reasonable doubt. Accordingly, the accused/appellant is entitled to the benefit of doubt. 28. In the result, the appeal is allowed. Conviction of the accused/appellant under Section 8 of POCSO Act and 342/34 of IPC and sentenced imposed thereunder are hereby set aside. He is acquitted of the said charges by extending him benefit of doubt. 29. The appellant is already on bail. Keeping in view the provisions of Section 437-A Cr.P.C. (new section 481 of the B.N.S.S.), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which 18 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 for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 30. 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/- (Rajani Dubey) JUDGE pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2026.04.17 13:28:44 +0530