High Court of Chhattisgarh
Case Details
1 CRA No.1660/2017 2025:CGHC:42133 NAFR AMARDEEP CHOUBEY Digitally signed by AMARDEEP CHOUBEY Date: 2025.08.26 14:53:12 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1660 of 2017 Amar Sai S/o Anand Ram Manjhwar, Aged About 40 Years R/o Village Penderkhi, Chowki Kedma, Police Station Udaypur, District Surguja, Chhattisgarh., Chhattisgarh ... Appellant versus State of Chhattisgarh Through Police Station Udaypur, District Surguja, Chhattisgarh. , Chhattisgarh ... Respondent For Appellant : Ms. Neelu Singh, Advocate on behalf of Mr. F.S. Khare, Advocate For Respondent/State : Ms. Isha Jajodiya, Panel Lawyer. Hon’ble Shri Bibhu Datta Guru, Judge Judgment on Board 20/08/2025 1. This criminal appeal filed by the appellant under Section 374(2) of the Cr.P.C. is directed against the impugned judgment dated 11/09/2017, passed by the learned Additional Sessions Judge FTC, Surguja(Ambikapur) Special Judge (POCSO), C.G. in Special Sessions Case(POCSO) No.40/2016, whereby the appellant has been convicted and sentenced as Under:- 2 CRA No.1660/2017 Conviction Sentence U/s 454 of IPC R.I. for 2 years and fine of Rs.500/-, in default, Additional S.I. for 1 month U/s 323 of IPC R.I. for 6 months and fine of Rs.500/-, in default, Additional S.I. for 1 month U/s 354 of IPC R.I. for 2 years and fine of Rs.500/-, in default, Additional S.I. for 1 month U/s 8 of the POCSO R.I. for 3 years and fine of Rs.500/-, in Act default, Additional S.I. for 1 month All the sentences are directed to run concurrently 2. Case of the prosecution, is that on 08/07/2016, about 05:00 p.m., the prosecutrix (PW-4) was at home with her sister PW-5. At that time, the appellant unlawfully entered the house, caught hold of the hands of prosecutrix saying that he will make her as his wife and embarrassed her. Thereafter, the prosecutrix pulled her hand away, upon which the appellant assaulted her with a stick. At that moment, the prosecutrix’s grandfather arrived and tried to stop the accused from beating her. The prosecutrix’s sister also attempted to stop him, but the accused scolded and threatened her as well. Thereafter, the accused fled from the spot. Later, when the parents of prosecutrix returned home, she narrated the
Facts
incident to them. Subsequently, FIR was registered against the appellant vide Ex.P-8. Spot map was prepared vide Ex.P-9. Dakhil-Kharij register was seized vide Ex.1/A. Appellant was arrested vide Ex.P-13. After completion of investigation, final report was prepared. 3 CRA No.1660/2017 3. The prosecution in order to prove its case examined as many as 9 witnesses and exhibited 14 documents. Statement of the appellantss under Section 313 of Cr.P.C. were recorded wherein he has pleaded his innocence and false implication in the matter. 4. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant herein for the aforementioned offence and sentenced him as mentioned herein-above against which this appeal has been preferred by the appellant-accused herein questioning the impugned judgment of conviction and order of sentence.
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 6 CRA No.1660/2017 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, 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 7 CRA No.1660/2017 determining the age of a (2006) 5 SCC 584 party regard to the provisions of to the lis, having 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." 12. 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: What "33. 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. 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 8 CRA No.1660/2017 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 juvenility and the same may be rebutted by contra evidence let in by the opposite side. of inquiry, 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 the case is before the JJ Board when pending for trial before the concerned criminal court. In case of an 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 determine the age of a person. It has to be on the basis of the material on and on appreciation of evidence adduced by the parties in each case. record to 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 9 CRA No.1660/2017
Arguments
5. Learned counsel for the appellant would submit that the appellant has been falsely implicated in the case. The entire case of prosecution is based upon the statement of the interested witnesses, who are family members of prosecutrix and the prosecution has not proved the case against the appellant beyond all the reasonable doubts. He would submit that learned trial court wrongly convicted the appellants for the aforesaid offence. As such, the criminal appeal deserves to be allowed and the impugned judgment deserves to be set aside. 6. Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court 4 CRA No.1660/2017 has rightly convicted the appellant for the aforesaid offence, thus, the present appeal deserves to be dismissed. 7. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. The first question arises for consideration in the present appeal is whether the age of victim/daughter of complainant was below 18 years at the time of incident. 9. Mother of victim has been examined as PW-3. She stated that his daughter/victim is 15 years of age. However, she has not stated the exact date of birth of her daughter/victim in the statement. 10. Basanti Bai (PW-1), Head Master of the school has deposed that in the Dakhil Kharij Register vide Ex.P-3, at Serial No.563, date of the birth of victim has been mentioned as 10/11/1999. In cross- examination, she has admitted that the entries in the said register with regard to date of birth of the victim was not made by her. 11. 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 5 CRA No.1660/2017 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.
Decision
order holding the accused to be a juvenile in to borderline cases. This is in 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. school 33.9. That when the determination of age is on the basis of evidence such as 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 maintained in the discharge of official duty would have greater credibility than private documents. document 33.10. Any document which is in consonance with public documents, such matriculation certificate, could be as 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 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." not 13. 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 : 10 CRA No.1660/2017 "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.1660/2017 "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, 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 municipal 12 CRA No.1660/2017 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 fromthe 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." 14.In view of above cited judgment, the prosecution has failed to prove the exact date of birth of victim/daughter of the complainant beyond reasonable doubt. The evidence produced by the prosecution with respect to the age of the victim are not of that sterling quality which is sufficient to determine the age of the victim. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. Hence, Section 8 of the POCSO Act does not attract in the present case, as the age of victim has not been proved beyond reasonable doubt, as such, Section 8 of the POCSO Act is hereby set aside and the appellant is acquitted of the said charges. 15.PW-4 victim, stated in her evidence that on the date of the 13 CRA No.1660/2017 incident, her parents had gone to the forest and she was present along with her younger sister. She was engaged in plastering the floor of the house, then the appellant came in the house, caught hold of her hand and arm, pulled her and said that he will make her as his wife and embarrassed her. Thereafter, the appellant assaulted her by means of stick, which caused an injury to her right arm and fled from the house. Later, around 5:00 p.m., when her parents returned from the forest, she narrated the whole incident to them. In cross-examination, she stated that the appellant came in drunken condition along with her wife. 16.PW-5 , sister of the victim, stated in her evidence that at about 4–5 p.m. in the evening, the appellant came to her house and assaulted her sister/victim with a sarai stick, due to which, she suffered injury to her hand. Thereafter, wife of the appellant arrived and took the appellant to their house. In her cross-examination, she stated that the appellant has not hold the hand of victim. 17.PW-3, mother of the victim stated in her evidence that she had gone forest along with her husband and at around 5:00 p.m. When she reached home, her daughter informed her that while she was cleaning and whitewashing the house, the appellant of the village came and demanded money from her for consuming liquor. When her daughter refused to give money, the appellant assaulted her with a stick on her hand and elbow, due to which, she sustained injuries. Thereafter, wife of the appellant took him in their house. In cross-examination, she stated that on the date of incident, the 14 CRA No.1660/2017 appellant came in her house along with his wife and both of them consumed liquor. She further stated that the victim did not inform her that the appellant had caught hold of her hand, arm and pulled her. She admits that since the appellant had came to her house along with his wife, therefore, the appellant was not in the intention of outraging the modesty of the victim. 18.Dr. A.R. Jayant, PW-2, conducted the medical examination of victim, submitted a report and found following injury: “A bruise on the right arm measuring 3 × 2 inches. Opinion – The aforesaid injury was caused by a hard and blunt object and is of a simple nature. 19.In view of foregoing discussions, looking to the evidence of PW-5, sister of victim, which she stated that she has not seen the appellant to caught hold of her hand and from the statement of PW-3, mother of victim that the victim told her that on the date of incident, the appellant came along with his wife and demanded money for consuming liquor and in her cross-examination she stated that the appellant came to her house along with his wife. The aforesaid evidence of victim PW-4, sister PW-5 and mother PW-3 are contradictory, hence, the prosecution failed to prove the commission of alleged offence under Section 354 of IPC against the appellant beyond reasonable doubt, thus, the appellant is acquitted for the offence under Section 354 of the IPC in the present case. 15 CRA No.1660/2017 20.As far as the conviction of the appellant under Section 323 and 454 of IPC is concerned, it is undisputed that the appellant had trespassed the house of the victim in a drunken condition and thereafter, assaulted the victim by means of stick, which is reflected from the evidence of victim and the medical report submitted by the Dr. A.R. Jayant, who conducted the medical examination of the victim. Hence, the trial Court has rightly convicted the appellant under Section 454, 323 of IPC. Thus, the conviction and sentence imposed upon the appellant under Section 454, 323 of IPC is just and proper and accordingly the same is maintained. 21.Considering the entire facts and circumstance of the case, the manner in which the incident occurred, the fact that the incident took place around 09 years ago, the age of the appellant at present is about 48 years; during pendency of this appeal the appellant was on bail since 2017; and did not misuse the liberty granted to him and keeping in view the Judgment of Hon'ble Supreme Court in the matter of George Pon Paul v. Kanagalet, (2009) 13 SCC 478, the appellant was sentenced to the period already undergone, this Court is of the opinion that no fruitful purpose would be served by sending the appellant back to jail at this stage. 22.In the result, the appeal is allowed in part. The convictino and sentence imposed under Section 354 of IPC and Section 8 of the POCSO Act, are set aside. However, while maintaining the conviction of the appellant under Section 454, 323 of IPC, his jail 16 CRA No.1660/2017 sentence is reduced to the period already undergone by him. However, the fine amount imposed by the trial Court in respect of these offences shall remain intact. 23. The appellant is reported to be on bail. His bail bonds are not discharged at this stage and the bonds shall remain operative for a period of six months in view of Section 481 of the BNSS. 24.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/- (Bibhu Datta Guru) Judge Amardeep