Nafr High Court
Case Details
1 SOURABH BHILWAR Digitally signed by SOURABH BHILWAR Date: 2025.06.10 16:52:29 +0530 2025:CGHC:22616 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 245 of 2016 1 - Nilo Mandal S/o Hajra Mandal Aged About 21 Years R/o P.V. No. 58, Thana Pakhanjore, District Uttar Bastar Kanker, Chhattisgarh., Chhattisgarh versus Appellant(s) 1 - The State Of Chhattisgarh Through Police Station Pakhanjore, District Uttar Bastar Kanker, Chhattisgarh., Chhattisgarh (Cause-title taken from the Case Information System) Respondent(s) For Appellant(s) : Mr. Parag Kotecha, Advocate For Respondent(s) : Mr. R.C.S. Deo, PL Hon'ble Shri Justice Bibhu Datta Guru Judgment on Board 09/06/2025 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 30/01/2016 passed in Special Sessions Case No. 74/2015 by the learned Additional Special Sessions Judge, Bhanupratapur, District Uttar Bastar, Kanker (C.G.), whereby the appellant has been convicted and sentenced as under:- 2 Conviction Sentence U/s 363 of the IPC Rigorous imprisonment for 05 year along with fine of Rs. 5000/- with default stipulation U/s 342 of the IPC U/s 506 of the IPC Rigorous imprisonment for 01 year. Rigorous imprisonment for 02 years. U/s 354 of the IPC read with Rigorous imprisonment for 05 years Section U/s 7 & 8 of the with fine of Rs. 2500/-, with default Protection of Children from stipulation. Sexual Offence Act, 2012 All the sentences were directed to run concurrently. 2. Case of the prosecution in brief is that on 20/08/2015 at about 12 O’clock in the night, the Victim went along with her friends to attend the Kirtan in the Village, where the accused/appellant took her forcefully to the house of his Uncle and tried to outrage her modesty. When the Victim raised alarm, the accused gagged her mouth and threatened her with dire consequences. At that time, her friends reached to the place of the incident and after seeing them, the accused left the Victim and fled away from the spot. Thereafter, the Victim reached to the house and
Facts
narrated the incident to her mother. On the basis of the same, the FIR (Ex.P/6) was lodged on the next date morning i.e. 21/08/2015. 3. During investigation, Spot Map (Ex.P/7) was prepared. With regard to date of birth of the Victim, Dakhil Kharij register (Ex.P/1) was seized. The birth certificate and the mark-sheet produced by the Victim was seized vide Ex.P/3. Statement of the Victim under Section 164 of the Cr.P.C was recorded. Statements of witnesses under Section 161 of the 3 Cr.P.C were recorded. Subsequently after completing the investigation, a charge-sheet under Section 363, 342, 354, 506 of the IPC and Sections 7 & 8 of the POCSO Act 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. 5. In order to bring home the offence, the prosecution has examined 09 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. In defence, statement of Viplav Samaghdar (DW1) was recorded. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 30/01/2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 7.
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 6 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, 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 7 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 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 8 satisfy the Court to discharge the initial burden. 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. Rules 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. 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 order to ensure that the benefit cases. This is in 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 school records, it the basis of evidence such as 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." 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 in para 14 to 17 as under : 10 "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: "20. Rule 12 of the JJ Rules, 2007 deals with the 11 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 12 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. Now, the questions comes whether the appellant after confining the Victim forcefully and taking her to the house of his Uncle, has tried to outrage the modesty of the Victim or not?. 19. The Victim (PW4) in her statement has deposed that when she had gone to watch the Village Kirtan, the appellant came there and dragged her towards the house, where the appellant tried to outrage her modesty and when her friends came there, the appellant fled away from the spot. In cross-examination, this witness has admitted that when she had gone to the Kirtan in the Village, there were many people around there. She also admitted that her friend, her sister and many more were also present there along with her. She deposed in cross-examination that when she was being taken by the appellant forcefully, she had screamed, but due to noise at the Kirtan, no one heard her voice. Later on, she herself 13 admitted that her friend had seen when she was being taken by the appellant. She also admitted that there was dispute of her mother with the family of the appellant. 20. Mother of the Victim (PW5) has deposed that on the date of incident, her daughter (the victim) has gone to watch the Kirtan in the village. When the victim returned from the kirtan, she was weeping and narrated the incident to her. Subsequently, in the morning the report was lodged. She admitted in the cross-examination that whatever she sated in his examination-in-chief was deposed on the saying of the victim and she has not seen the incident. She has admitted in cross-examination that she had given the affidavit at the time of bail to the appellant and she has given her consent for enlarging the appellant on bail. 21. Friend (PW6) of the Victim has deposed in her examination-in-chief that when they had gone to watch the Kirtan, the appellant had taken her to the house. In cross-examination, she admitted that if someone screams for rescue there, it can easily be heard. She also admitted in cross- examination that when the appellant had asked the Victim to go, then the Victim has voluntarily went with him after saying ‘Chhor Chhor’. This witness has further admitted in cross-examination that the Victim has never raised any alarm while going. 22. After going through the statements of the Victim (PW4), it appears that the appellant was well knowing the Victim. The victim has categorically stated in examination-in-chief that she was forcefully being taken by the appellant and at that time more than 100-150 people were present there. 14 She also stated that she had screamed while she was being forcefully taken away by the appellant but no one listened her voice. However, she herself admitted that she was seen by her friend (PW6), while she was being forcefully taken away by the appellant. She also admitted in cross- examination that her mother has some dispute with the family of the appellant. 23. On perusal of her statement, it is apparent that there are contradictions and doubt in the statement of the Victim. It is quite unnatural that if some one is being forcefully kidnapped from a place where more than 100-150 people present, no one tried to rescue her when she was screaming. Further, the statement of the friend (PW6) of the Victim clearly shows that the Victim has voluntarily went with the appellant. Thus, the statement of the Victim is hard to believe that the appellant had forcefully taken her from the place where around more than 100-150 people were present. Apart from this, there is admission of the Victim herself that mother of the Victim was having some dispute with the family of the appellant. 24. Thus, the act of the Victim and her family members does not inspire the confidence of this Court towards the guilt of the appellant because of the material contradictions in their statements. 25. For the foregoing reasons, the prosecution has not proved that the appellant had forcefully taken away the Victim from the place of Kirtan, rather it appears that the Victim has voluntarily went with the appellant. Since, it has also not proved that at the time of incident the Victim was 15 minor, thus, the Victim was very much capable to give her own consent while going with the appellant, therefore, I am of the view that the appellant is entitled to be acquitted. 26. The accused is acquitted of the charges for which he was tried. 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. Accordingly, the Criminal appeal is allowed. 27. 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/- $ Bhilwar /`Rahul Sd/- (Bibhu Datta Guru) Judge
Arguments
Mr. Parag Kotecha, learned counsel for the appellant submits that the appellant has been falsely implicated in the present case. He would submit that from the statement of the Victim (PW4), it can be seen that earlier there was a dispute between the appellant and her mother. He would submit that the medical report is not supported the version of the prosecution. 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 4 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. Mr. R.C.S. Deo, learned Panel Lawyer 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 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 (PW4) in her deposition has stated that she is aged about 14 years. Mother (PW5) of the Victim has deposed that the Victim was aged about 14 years on the date of incident. 12. Kamlesh Bai (PW3) has deposed in her statement that with regard to the date of birth of the Victim, the Dakhil Kharij Register was seized from her. Though this witness has accepted that the entries at serial No. 983 in Ex.P/4 has been made by her, she has also disclosed that it was registered only on the saying of the parents of the victim, however, there was no document with regard to the age of the Victim. The prosecution has brought on record Class-V report card of the victim to prove the age of the victim, however, there is no one examined to prove the entries made in the said report card. Even, there is no medical evidence with regard to actual age of the victim. 5 13. Perusal of the aforesaid statements of the witnesses would show that 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 and even the class-V report card 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.