Nafr High Court
Case Details
1 CRA No. 1417 of 2017 SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.07.17 10:31:53 +0530 2025:CGHC:32995 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1417 of 2017 Santram @ Chhotu Nishad S/o Shri Than Singh Nishad, Aged About 23 Years By Occupation Labor And Cultivator, R/o Village Devari, Police Station Komakhan, Tahsil Baghbahra Civil And Revenue District Mahasamund Chhattisgarh. versus ... Appellant State Of Chhattisgarh Through The Police Station Komakhan, Civil And Revenue District Mahasamund, Chhattisgarh ... Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. Jameel Akhtar Lohani, Advocate For Respondent(s) : Mr. R.C.S. Deo, Panel Lawyer
Legal Reasoning
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. 6 CRA No. 1417 of 2017 Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"." 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, 7 CRA No. 1417 of 2017 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 regard to (2006) 5 SCC 584 party to the lis, having 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 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." offence where 15. 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. 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 XXXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. 8 CRA No. 1417 of 2017 Rules However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ 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 scrutinized 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 9 juvenile. CRA No. 1417 of 2017 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be per Section 35 of the Indian considered as 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." 16. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held 10 CRA No. 1417 of 2017 in para 14 to 17 as under : "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to 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. 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: 11 CRA No. 1417 of 2017 "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 that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3) (a) of the Rules of 2007 made under the Act of 12 CRA No. 1417 of 2017 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, 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." 17. Thus, the evidence brought on record by the prosecution with regard to the age of the victim cannot be held reliable in absence of the proposition laid down by the Supreme Court in the above judgment. 18. The next question for consideration is that whether the accused sexually assaulted or molested the victim or not. 19. The victim has been examined as PW-2. She in her deposition at para 2 has stated that on the date of incident, the accused Santram @ Chhotu Nishad came to her house and asked for water when she refused to give him water, the accused went away. Later, at 3 PM, when she was sweeping the courtyard of her house, the accused came again and grabbed her breast with bad intention and asked for water. She again denied for the same, on which the accused threatened, abused verbally and used filthy language towards her. She stated that when the accused abused her, she screamed then her brother came there. She stated that she slapped the accused in turn, the 13 CRA No. 1417 of 2017 accused also slapped her on the cheeks. Her cheek was swollen due to the slap. She also stated that the accused also caught hold her hand, due to which she got scratches on the wrist of her left hand. 20. Whereas, in her statement recorded under Section 164 of the Cr.P.C, this witness has stated that the accused came to her house and asked for water to which she denied then the accused got angry at this and started pulling her hand and said that if she did not give him water, he would beat her up. She stated that in defending herself she freed her hand from the grasp of the accused and came out of the house, his nails had scratched her wrist. 21. Bare perusal of the above statements of the Victim, it is quite vivid that there are material contradictions and omissions in the 164 statement and in her Court statement because in the Court statement this witness has stated that the accused while asking for water, grabbed her breast with bad intention on denial, the accused threatened, abused verbally and used filthy language towards her however, in the statement recorded under Section 164 of the Cr.P.C, she has never stated the above fact that the accused grabbed or pressed her breast or molested her in any way or touched her in sexual intent. 22. Such type of act of the Victim does not inspire confidence over the credibility of the statement of the Victim. The victim has offered contradictory Court statements than of 164 of the Cr.P.C. Apart from this, the prosecution has not brought on any other witness who was present on the spot to support the statement of the Victim. 23. Upon considering the entire evidence available on record, this Court found 14 CRA No. 1417 of 2017 that there are major contradictions and omissions in the statement of the Victim, which does not inspire confidence over the credibility of her statement because she had given statement under Section 164 Cr.P.C contradictory to her statement given before the trial Court, which in the opinion of this Court, seems unreliable. 24. It is the trite law that a statement recorded under Section 164 of the Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. The Supreme Court in the matter of R. Shaji v. State of Kerala1 has held as under:- “27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court should be discarded, is not at all warranted. 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence. ” 25. After perusing the entire evidence and considering the law laid down by the Hon’ble Supreme Court, it is clear that the trial Court while passing the impugned judgment, has committed grave error and not justified in convicting the appellant as there is no proof with regard to Section 8 of the POCSO Act which deals with touching a child's private parts or 1 (2013) 14 SCC 266 15 CRA No. 1417 of 2017 making a child touch the private parts of another person, with sexual intent but without penetration. Therefore, in the facts and circumstances of the case; the evidence on record, and the contradictory statement made by the victim herself, it would not be safe for this Court to hold that the appellant has committed sexual assault upon her. 26. For the foregoing reasons, the prosecution has not proved its case beyond reasonable doubt that the appellant had sexually assaulted the Victim, and from the evidence of the victim the same creates doubt, therefore, I am of the view that the appellant is entitled to be acquitted. 27. The accused is acquitted of the charges for which he was tried. The impugned judgment of conviction and sentence is set aside. Since pursuant to the non bailable warrant the appellant has been arrested and produced before this Court, he be released forthwith if not required in any other case, on furnishing a personal bond for a sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The bail bond shall remain in operation for a period of six months as required under the provisions of Section 481 of the BNSS. The appellant shall appear before the higher Court as and when directed. Accordingly, the Criminal Appeal is allowed. 28. 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. S. Bhilwar/ Gowri Sd/- (Bibhu Datta Guru) Judge
Arguments
Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 15/07/2025 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 30.08.2017 passed in Special Sessions Case No. H-11/2017 by the learned Additional Sessions Judge, Fast Track Court/ Special Judge (POCSO Act), Mahasamund, C.G., whereby the appellant has been convicted and sentenced as under:- 2 CRA No. 1417 of 2017 Conviction Sentence U/s 8 of the POCSO Act Rigorous imprisonment for 03 years and fine of Rs. 500/- with default stipulation. All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that the father of the victim gave a written application in police station Komakhan stating therein that on 04-02-2017, he had gone to a meeting in the village panchayat building, his wife had gone to the field to collect cow dung, his daughter/ prosecutrix was alone in the house. When he came home from the meeting, the victim told that Chhotu resides in their village entered the house and asked for water to which she denied and the accused went away. After some time the accused came again; caught her hand; pressed her chest; started molesting her; and told her obscene and indecent words. When she screamed, the accused ran away towards his house. On the basis of the report of victim’s father, First Information Report bearing Crime No. 11/2017 was registered in police station Komakhan. 3. During investigation, Spot Map (Ex.P/3) was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.A-2C) was seized. Statement of the Victim and the Statements of witnesses were recorded. Subsequently after completing the investigation, a charge-sheet was submitted before the Court. 4. After framing the charges against the accused/appellant, the charges were read out and explained to the appellant, he denied committing the crime and demanded trial. 3 CRA No. 1417 of 2017 5. In order to bring home the offence, the prosecution has examined 17 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30.08.2017 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that the conviction against the appellant is bad in law and it is not supported by the evidence of the prosecution beyond reasonable doubt. He would submit that while passing the impugned judgment, the trial Court failed to appreciate the fact that there are material contradictions and omissions in the statements of the prosecution witnesses. In the evidence of the witnesses, it can be seen that there are material contradiction and omissions. Learned counsel would submit that the prosecution has failed to prove the fact that the prosecutrix/Victim was below 18 years of age at the time of incident and without there being any evidence with regard to the age of the Victim, the conviction of the appellant is bad in the eyes of law. 8. Learned counsel appearing for the State opposes the submissions made by the counsel for the appellant and submits that the conviction of the appellant is well merited which does not call for any interference. There 4 CRA No. 1417 of 2017 is clear evidence regarding age of the prosecutrix, therefore, this appeal deserves to be dismissed. 9. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 10. The first question arises before this Court whether the victim was minor on the date of incident or not?. 11. The Victim (PW/2) in her deposition has stated that on the date of incident, she was aged about 14 years and stated her year of birth as 2003 whereas in her cross-examination, she categorically stated that she did not remember her date of birth. Also her mother (PW/4) in her statement stated that she is illiterate and unable to tell her daughter’s date of birth. 12. PW/14- Ku. Suman Pandey, posted as Assistant Teacher in the Primary School, Devri has stated in her statement that in the admission register, the date of birth of the victim is mentioned as 20.03.2003. In the cross- examination, she categorically stated that she has not certified the admission register. She also stated that on what basis, the entry was made in the register and who has made the entry in the admission register (Exhibit A-2C). There is no documentary evidence attested with the Register. According to which, the age of the victim cannot be defined. 13. Perusal of the aforesaid statements of the witnesses would show that 5 CRA No. 1417 of 2017 though there is entry regarding date of birth of the victim in the Dakhil Kharij register, but on what basis, the entry was made, is not mentioned in the register. There is no basis or certificate has been attested to record the entry. As also there is no medical evidence with regard to actual age of the victim. 14. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Supreme Court has observed as under: "40.Undoubtedly, the transfer certificate, Ex.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. 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.