High Court of Chhattisgarh
Case Details
1 Digitally signed by INDRAJEET SAHU Date: 2025.04.15 12:59:04 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 751 of 2024 2025:CGHC:14760-DB NAFR 1 - Mohd. Sajid Ali S/o Sheikh Saheb Ali Aged About 27 Years R/o Near Talab, G-Cabin, Sirsa Road, Old Bhilai, District- Durg, Chhattisgarh. Versus ... Appellant 1 - State of Chhattisgarh Through S.H.O., Police Station- G.R.P, Bhilai, District- Durg, District- Durg, Chhattisgarh. ... Respondent For Appellant For State : : Shri Vedant Bhelonde, Advocate. Shri Shashank Thakur, Dy. Advocate General. Hon’ble Shri Ramesh Sinha, CJ & Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 27.03.2025 Per, Ramesh Sinha, CJ. 1. Notice issued to victim was duly served upon her mother, however none appears to submit/object the appeal/application for suspension of sentence and grant of bail. Though, the matter was listed for orders on suspension of sentence and grant of bail, however, with the consent of parties, the matter is heard finally. 2. Challenge in this appeal is the judgment of conviction and order of sentence dated 13.03.2024 passed by the Additional Sessions Judge, 4th FTSC, Durg, in Special Criminal Case (POCSO) No.10/2023, whereby the appellant has been convicted for the offence under 2 Section 376(2)(n) of IPC and Section 6 of POCSO Act and sentenced to undergo RI for 20 years and fine of Rs.5000/-, in default of payment of fine, additional RI for one year. 3. Brief facts of the case are that, on 16.12.2022 the victim PW-1 lodged a written complaint, Ex.P/1 to Police Station Bhilai-3 stating that in the month of March, 2021 her brother met with a road accident whose treatment was going on at DKS Hospital, Raipur where his friends used to visit to meet him. The present appellant is also one of his friend. When her brother discharged from hospital, the appellant started visiting her house and developed intimacy with her. He took her mobile number and started talking with her. He developed physical relationship by saying that he loves her. He also took her nude photo and video. With the lapse of time, he became possessive and started threatening her that if she talks to any other person, her obscene photo and videos would get viral in mobile phone. Due to said act of the appellant, she changed her mobile number, but he uploaded her obscene video and photos through his Instagram ID. She came to know about this fact
Facts
from her friends. On the basis of said written complaint, an FIR Ex.P/2 was registered against the appellant for the offence under Section 376 IPC, Sections 67 and 67-A of the Information Technology Act, 2000, and Sections 4 & 6 of POCSO Act. The victim was sent for her medical examination to the Govt. Hospital, Bhilai-3, where Dr. Babeeta Saxena, PW-11 medically examined her and gave report Ex.P/21. While examining the victim, the doctor did not notice any external injuries over her body and opined that no definite opinion can be given regarding forcible sexual intercourse. She was also referred for her USG test for confirmation of any pregnancy and also referred to 3 Radiologist for determination of her age. Two slides of her vaginal swab were prepared, sealed and handed over to the police for chemical examination. She was radiologically examined by Dr. B.N. Dewangan, DW-1 who opined her radiological age in between 17 to 18 years and gave his report Ex.D/2. 4. With respect to age and date of birth of the victim, the police seized Mark sheet of Class-VIII of victim vide seizure memo Ex.P/6. School register from Jyoti Vidyalaya, English Medium Higher Secondary School Charoda has also been seized vide seizure memo Ex.P/16 in which the date of birth of victim is mentioned as 10.09.2005. The numbered FIR Ex.P/22-A was registered at Police Station Bhilai for the offence under Section 376 IPC, Section 67 & 67-A of Information Technology (Amendment) Act, 2008 and Section 4 & 6 of the POCSO Act. One mobile phone having SIM No.916267058673 was seized from victim vide seizure memo Ex.P/6. Spot map Ex. P/8 was prepared by the police and Ex.P/9 by the Patwari. The appellant was arrested on 17.12.2022 and he too was sent for his medical examination to Govt. Hospital, Bhilai-3 where Dr. B. Kathotiya, PW-8 examined him and gave his report Ex.P/19 and found the appellant able to do penetrative sexual intercourse. Two mobile phones having SIM Nos. 8962925170 and 9685555969 were seized from the appellant vide seizure memo Ex.P/10. The vaginal slides of victim were sent for FSL examination to State FSL, Raipur from where report Ex. P/29 was received, according to which no semen and sperms were found on the sent articles. The mobile phones seized from victim as well as appellant were sent for its forensic examination to Police Headquarter, Cyber Cell, Raipur, from where report Ex.P/32 has been received in which it has been reported 4 that data was retrieved from the mobile phones seized from the appellant and it could not be recovered whereas, in the mobile phone seized from the victim, in the retrieved data, there was no any obscene photo or video of the victim, however, in the Whatsapp profile certain obscene chats were found. A certificate under Section 65-B of the Indian Evidence Act was obtained from Inspector, Cyber Cell, Police Headquarter, Raipur vide Ex.P/39. 5. Statement of witnesses under Section 161 of Cr.P.C. and statement of the victim under Section 164 of Cr.P.C. have been recorded and after completion of usual investigation, charge-sheet was filed against the appellant for the offence under Section 376 IPC, Section 67 and 67-A of IT Act and Section 4 & 6 of POCSO Act before the Trial Court. 6. The learned trial court framed charge against the appellant under Section 376(2)(n) IPC, Section 67-A of IT Act and Section 6 of the POCSO Act. The appellant abjured his guilt and claimed trial. 7. In order to bring home the charge, the prosecution has examined as many as 14 witnesses whereas two defence witnesses have been examined by the appellant in his defence. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appears against him, pleaded innocence and submitted that he has been falsely implicated in the offence. He further submits that on 10.04.2021 he was Covid Positive and under Home quarantine at Raipur and could not return to his house. 8. After appreciation of the oral as well as the documentary evidence led by the prosecution, the trial court has convicted and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 5 9.
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. 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, 9 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, 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." 16. 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 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. 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. 10 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. 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." 17. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 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 11 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: "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 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. 12 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." 18. So far as the other piece of evidence with respect to age of the victim is her birth certificate Ex.P/11-C. The said birth certificate was produced by the mother of victim PW-3. 19. The birth certificate of the victim was sought to be proved by the mother of the victim and not the authority issuing the same. Hence, no weight can be placed on such document as its evidentiary value itself is in question. The Investigating Officer has not got verified the authenticity of the said birth certificate and further, he has not issued any notice to the issuing authority for production of its original document with respect to the birth certificate of the victim and did not examine the authority issuing the certificate of birth of the victim nor conducted any investigation relating to the birth place of the victim. 20. While examining the birth certificate in terms of legal parameters under Section 35 of the Indian Evidence Act, 1872 it must be established by the prosecution by necessary evidence. It was essential to show that a document was prepared by the public servant in discharge of his official duty. A birth certificate may be admissible under Section 35 of the Indian Evidence Act, 1872, but the Court is not barred from taking evidence to test the authenticity of the entries made therein. The admissibility of a document is one thing and proof of its contents is an altogether different aspect. In the matter of State of Bihar Vs. Radhakrishna Singh, 1983 (3) SCC 118, the requirements of Section 35 of the Evidence Act was elucidated before a document can be held to be admissible under this Section, viz (1) the document must be in 13 the nature of an entry in any public or other official book, register or record, (2) it must state a fact in issue or a relevant fact and (3) the entry must be made by a public servant in discharge of his official duties or in performance of his duty. 21. In 2019 SCC OnLine Sikkim 50 (State of Sikkim Vs. Girijaman Rai alias Kami) the Sikkim High Court has held that:- “27. Mere production of a birth certificate without even authenticating the same by proving it through its maker is however, not enough to prove the age of the victim. The age of the victim must be proved by leading clinching evidence. The cogency of the evidence led would ultimately help the court in determining the age of the victim.” 22. True it is the birth certificate is a public document and it has been prepared in discharge of official duty of the authority, but when correctness of the entry made in the birth certificate is disputed by the other party the same has to be enquired and to be proved by producing the basis on which the entry has been made in the birth certificate or it can be proved by producing original register from which it has been abstracted as a copy of the original record. The victim and her mother have stated nothing in their deposition about the basis on which her date of birth is recorded in birth certificate, therefore, the documents relating to the date of birth of the victim, i.e., birth certificate and school admission and discharge register are not free from all doubts and have not been proved by the prosecution to make it admissible in its evidentiary value, yet the trial Court has held the victim minor relying upon the birth certificate. 14 23. The third evidence with respect to age of victim is her ossification test report Ex.D/2 produced by the appellant in his defence and examined by Dr. B.N. Dewangan, DW-1. Dr. B.N. Dewangan, have stated in his evidence that on 20.01.2022 the victim was brought before him for her radiological examination by the police. After his radiological examination he opined her age in between 17-18 years and his report is Ex.D/2. He also stated that there may be error of margin of 2 years on either side as reflected in his report. In his cross examination, he states that there is possibility of an error of margin of 2 years on either side as per Modi’s Medical Jurisprudence based on environment and their nurture. 24. In the matter of Ramdeo Chouhan Vs. State of Maharashtra, 2001(5)SCC 714, the Hon’ble Supreme Court has considered the relevancy of ossification test report in determination of the age of victim and observed in paragraph 51 and 52 as under : “51. In his report the doctor has detailed all the data on which he reached his conclusion. I do not propose to extract all such data here except pointing out that such data collected by Dr B.C. Roy is in consonance with the guidelines provided in the textbooks on medical jurisprudence (vide Modi's Medical Jurisprudence and Jhala & Raju's Medical Jurisprudence). Ossification test is done for multiple joints, for which the radiological report was obtained. The margin of error according to authorities on medical jurisprudence can be two years either way as the maximum. In this context it is useful to extract the relevant passage from Jhala & Raju's Medical Jurisprudence (6th Edn., p. 198): "If ossification test is done for a single bone the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion the margin of error may be reduced. Sometimes this margin is reduced to six months on either side." 52. Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where we grope in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered………..” 15 25. Further, in Jaya Mala Vs. Home Secretary, Govt. of Jammu & Kashmir & Anr. 1982(2)SCC538 in paragraph 9 the Supreme Court has held as under: “9…..However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side…..” 26. By giving benefit of doubt in favour of the appellant, from the evidence produced by the prosecution as well as the appellant in his defence, there is no consistent evidence that victim was minor and less than 18 years of age. Therefore, considering all the evidence available on record, it would not be safe for this court to hold the victim was minor and less than 18 years of age. 27. So far as offence of rape is concerned, we again examine the evidence available on record. 28. PW-1, the victim have stated in her evidence that in the month of March, 2021 her brother met with an accident and was hospitalized at DKS Hospital Raipur. The appellant who is his friend came to meet him at hospital. After discharge of her brother in the month of April, 2021 the appellant used to visit her house to see her brother and in that period she introduced with the appellant and they exchanged their mobile number and started talking to each other. In the month of April, 2021 itself when her brother had gone to hospital for routine checkup and she was alone in her house, the appellant came to her house and made physical relation with her. After 2-3 days, he called her at a garden situated nearby her house and took her to a vacant railway quarter at Zone-1 by his motorcycle and again made physical relation with her. He also prepared obscene videos of her physical relation and when she asked to delete the same he misguided and kept the videos 16 in his mobile phone. He regularly allured her and asked for sexual favour by various means. Subsequently, he started threatening her that if she will not sexually favour him, he will kill her brother. On 16.05.2022 the appellant got married and when she shown her disinterest to continue their relationship, he again threatened her and get her nude photos and videos uploaded in Instagram. She came to know about her nude photos and videos through her friend and thereafter informed the incident to her family members and lodged the report. She also states that due to threatening given by the appellant, she changed her mobile number and since her old mobile phone got damaged, she purchased new phone which was seized by the police. In cross examination, she states that her house is situated in the dens locality and her relatives are residing in close periphery. Their houses are adjoining. The appellant came to her house in the mid day. She disclosed in her 164 CrPC statement that appellant prepared her obscene video at Railway quarter and if it is not there, she could not tell the reason. She admits that she has not given her mobile phone through which she regularly talked to appellant. Even the said number was also not provided to police. She admits that in 164 CrPC statement, Ex.P/7, she disclosed that they were engaged in making sexual relation 2-3 times in a week which continued up to September, 2021. From September, 2021 upto 16.05.2022 there was no physical relation between them, but he connected with her through video call. She admits that she has not disclosed any incident to her family members or any of her relatives. She used to talk to father of appellant through whatsapp who advised her to change her mobile and SIM number and on his advice she changed the same. 17 The manner in which the message was sent in Instagram, she identified that it was prepared by the appellant as she was well acquainted by his behavior. She further admits that while talking with appellant through mobile phone she also intimate with the appellant and fallen in love with him. Before his marriage, he came to her house and some dispute arose between them which were intervened by both the family members. She voluntarily states that when the ex girlfriend of the appellant came to his shop, she informed about obscene video to her ex girlfriend and at that time she assured her that she will get her obscene video deleted from the mobile phone of appellant, however later on, when she asked to delete the same, the appellant became anger and beaten her. Her mobile phone is not linked with her Adhar Card. She is not using e-mail ID. She was using Google through ID of her brother. She could not remember her Instagram ID. From the evidenced of this witness it is quite vivid that from the month April, 2021 up to September, 2021 the victim was in relationship with the appellant and both of them were making physical relationship 2-3 times in a week without raising any objection. It is only when some dispute arose between them, she got separated herself from relationship and thereafter there were no physical relation between them, but dispute with respect to obscene video or heated exchange were going on since then. Despite that she has lodged the report to the police on 16.12.2022 i.e. after about more than an year. It is only when her obscene video uploaded, she lodged a report. However, she also admitted in her evidence that she has not given her mobile phone and mobile number through which she made conversation with the appellant. Further, the trial court has acquitted the appellant from the 18 offence of Section 67-A of the IT Act as the prosecution could not establish the fact that appellant has uploaded obscene video of victim in the mobile phone. When the cause of lodging report against the appellant was getting viral the obscene video of victim, and the prosecution could not establish the fact of obscene video got viral by the appellant and appellant got acquitted from that offence, there was no ground to lodge report against the appellant as she was in consensual physical relation with the appellant up to September, 2021. 29. PW-3 is the mother of victim, who have stated in her evidence that in the month of March, 2021, when her son met with an accident, his friend i.e. appellant used to come to meet him and in between that period he developed intimacy with her daughter and started abusing her sexually. The appellant asked her daughter to send her obscene video of taking bath and threatened if she fails to do so, he will kill her brother. He also threatened that he will throw acid upon her and called her at PP Yard Colony, Charoda in a vacant quarter and committed her rape. All the incident was informed to her by her daughter. The appellant became possessive and asked her daughter not to talk to any other person. The act of the appellant was also informed to his family members but his behavior became deteriorating day by day and ultimately he got the obscene video of her daughter viral in Instagram and when they came to know about the obscene video, they lodged the report. In cross examination, she states that before accident of her son, she was not known to the appellant. In the year, 2020 there was lockdown, but the appellant called her daughter at G-Cabin which is nearby of her house. The appellant used to follow her daughter having 19 Acid bottle with him when she goes to Tuition. He called her in a vacant quarter at Shanti Nagar and made physical relation with her. All the incident was informed to her by her daughter and if it is not there in her police statement, she could not tell the reason. She admits that victim herself got prepared her nude video, but it was prepared on the instance of appellant. 30. PW-5, the uncle of victim, have stated in his evidence that his nephew had informed him that appellant got viral obscene video of victim and thereafter they had gone to lodge a police report. He denied his police statement and thereafter he was declared hostile. He admits that his house is adjoining to the house of the victim. Nothing specific came in the evidence of this witness against the appellant which can be said to be corroborative or clinching piece of evidence. 31. PW-7, the friend of victim, have turned hostile and not supported the case of prosecution even she denied that she knows the victim. 32. PW-10 is the brother of victim, who have stated that on 16.03.2021 he met with an accident and underwent Neuro surgery at DKS Hospital Raipur. The appellant is friend of his another friend who got intimated with his sister and thereafter they were in relation. The appellant threatened her that she should not talk to any other person otherwise he will kill him. He forced his sister to send her obscene video. Earlier they got convinced the family members of the appellant to asked him not do so, despite that he continued in blackmailing the victim and ultimately the appellant got viral the obscene video of his sister in Instagram. In cross examination, he admits that in March, 2020 there was a nationwide lockdown and during lockdown period transit pass was 20 required to move from one place to other place. Some persons were found Covid positive and therefore his entire lane was sealed by police. Her sister was not using any Instagram ID. He disclosed that appellant was blackmailing his sister for sending her obscene video and if it is not there in his police statement, he could not tell the reason. There is omission of various lines of his statement made before the court with that of his 164 CrPC statement. 33. PW-11, Dr. Babeeta Saxena, who medically examined the victim, have not found any external injuries on her body and she referred for her radiological examination and USG Test. She found her pregnancy test negative. The prosecution has examined PW-14, Omprakraksh Sharma who is the Inspector posted at Cyber Forensic Lab, PHQ, New Raipur and examined with respect to the mobile phone chatting and obscene video uploaded through Instagram in the mobile phone and proved his report Ex.P/32 to P/39. Since the trial court did not find sufficient evidence with respect to uploading obscene video in the Instagram and no sufficient evidence were found in the mobile phone of the appellant as well victim, it is not worthy to discuss his evidence again as the appellant has already been acquitted from the offence of Section 67A of the IT Act. 34. From the entire evidence produced by the prosecution it is quite vivid that the victim who is a major girl having love affair with the appellant was engaged in making consensual physical relation with the appellant for a considerable period without raising any objection or protest. It is only when her obscene video got viral in the mobile phone, she lodged a report against the appellant, but the said video has not been proved that it was uploaded by the appellant. The fact remains that she was in 21 consensual physical relation with the appellant for a considerable period for which the offence under Section 376(2)(n) of IPC is not made out as the appellant has not committed any offence against will or consent of the victim. Further, the victim was a major girl. Therefore, the offence under the POCSO Act is also not made out against the appellant. 35. For the forgoing reasons, we are of the considered opinion that there is no sufficient material to uphold the conviction and sentence of the appellant for the alleged offences. 36. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted from all the charges. He is reported to be in jail since 17.12.2022. He be released forthwith, if not required in any other case. 37. Keeping in view the provisions of section 481 of BNSS, 2023, the appellant is directed to forthwith furnish a personal bond of sum of Rs. 25,000/- with one reliable surety in the like amount before the court concerned which 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 or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 38. The lower court records along with a copy of this judgment be sent back immediately to the trial court, concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice inder
Arguments
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. There is no cogent and legally admissible evidence available on the record to show that the victim was minor and less than 18 years of age on the date of the incident. The school register has not been proved in accordance with rules. The said school record is of Class-III whereas there is no record of initial schooling of victim. Therefore, without there being any basis on which entries have been made in the said school record, the same cannot be taken into consideration for determination of the age of victim. He would further argue that the victim was having love affair with the appellant and was a consenting party in making physical relationship with the appellant. The prosecution has further relied upon birth certificate Ex.P/11-C allegedly issued by the Registrar, Birth and Death which was not seized during the course of investigation, but produced by the witness during the course of her examination which is impermissible under the law. The said birth certificate has not been verified from where it is said to have been issued and its authenticity is doubtful. The other evidence of age of victim is the ossification test report Ex.D/2. While medically examining the victim, she was referred to Radiologist for her age determination. Dr. B.N. Dewangan, Radiologist, District Hospital Durg, conducted the test and found her age between 17 to 18 years. Therefore, from the evidence it is proved that victim was not minor, but was a major girl despite that the trial court held her minor which is contrary to facts available on record. Further, it is only when her obscene video gets viral, she lodged a report. There is no evidence on 6 record that the said obscene photo/video got viral from the mobile phone of appellant. Report of Cyber expert is also missing in this regard. Therefore, on offence either under IPC, IT Act or POCSO Act is is made out against the appellant and thus he is entitled for acquittal. 10. On the other hand, learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submits the the evidence of prosecution witnesses are fully reliable. The age of victim has been proved from school record which is proved by PW-6, Akhila Mary, who is Headmistress of the school. Further, the age of victim has been proved by her birth certificate Ex.P/11-C. Although, the said certificate was produced at the time of examination of witnesses, but it is a public document and admissible under Section 35 of the Indian Evidence Act, 1872. Therefore, its authenticity cannot be doubted even if it is not seized during the course of investigation. The victim was minor on the date of the incident, and her consent is immaterial. The evidence of the victim need not be required for any corroboration and on the sole testimony of the victim, the conviction can be made. Further, from the mobile phone of victim, the obscene photo and videos were recovered for which the appellant has been convicted under IT Act. From the evidence of witnesses, the guilt of appellant has duly been proved. Therefore, the impugned judgment of conviction and sentence needs no interference. 11. We have heard learned counsel for the parties and perused the records carefully. 12. The first and foremost question arises for consideration would be the age of victim as to whether she was minor on the date of incident or not? 7 13. The prosecution has mainly relied upon school register, Article A/2-C which is sought to be proved by P.W-6, Akhila Mary, Headmistress of School. She has stated in her evidence that she is posted as Headmistress at Jyoti Vidyalaya Charoda since June, 2022. The police has seized the school register with respect to date of birth of victim vide seizure memo Ex.P/16 and after retaining its attested true copy Article A/2-C, the original register was returned back. She brought the original register with her, according to which the date of birth of victim is 10.09.2005. She got admitted in Class-III in her school on 08.06.2013. In cross examination, she admits that entries in school register Article A/2-C has not been made by her and it was in the handwriting of office staff. She could not tell who has made the said entry. She admits that when student came on transfer from any other school, his/her date of birth is recorded on the basis of date of birth mentioned in their TC. Admittedly, PW-6 is not the author of school register nor the said TC of Vivekanand School has been produced by the prosecution, on the basis of which the date of birth of victim was recorded in the school register Article A/2. 14. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, which is in respect of admissibility of school records of a person, 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 8 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. 15. 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 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.