Dantewada, Chhattisgarh v. State Of Chhattisgarh Through S.H.O. Dewri, District
Case Details
1 2025:CGHC:41719-DB NAFR BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.08.19 17:46:05 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2303 of 2023 Samir Kumar Nag S/o Gopinath Nag Aged About 22 Years R/o Malappa Camp Kirandul, PS- Kirandul, District : Dantewada, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through S.H.O. Dewri, District : Balod, Chhattisgarh ... Respondent For Appellant : Mr.B.P.Singh, Advocate For Respondent For Objector : : Mr.Hariom Rai, Panel Lawyer Mr.Roshan Kumar Mishra, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge Per Ramesh Sinha, CJ 19/08/2025 1. The criminal appeal arises out of the judgment of conviction and order of sentence dated 30.12.2023 passed by the Special Judge (POCSO Act, 2012), Balod, District Balod in Special Sessions Case No.40/2021 whereby the appellant has been convicted and sentenced in the following manner : 2 Conviction Sentence Sl. No. 1. Under Section RI for 3 years and fine of Rs.2000/-, in 363 of the IPC default of payment of fine to further undergo RI for 1 year. 2. Under Section RI for 5 years and fine of Rs.2000/-, in 366 of Indian default of payment of fine to further Penal Code. undergo RI for 1 year. 3. Under Section 6 Life imprisonment (till his natural life) and of Protection of fine of Rs.3000/-, in default of payment of Children from fine to further undergo RI for 1 year Sexual Offences Act, 2012
Legal Reasoning
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, 11 as in that case the accused may unjustly be convicted." 15. In the matter 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 XXX 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. 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 12 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 section 35 and other the Indian Evidence Act viz., 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.” 13 16. Recently, in the matter of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 SCC Online SC 846, the 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 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 14 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 15 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. Reverting to the facts of the present case and due consideration of the prosecution evidence, we find that no any clinching and legally admissible evidence have been brought by the prosecution to prove the fact that the victim was minor on the date of incident, yet the trial Court in the impugned judgment has held her minor,
Arguments
2. Mr.Roshan Kumar Mishra, learned counsel for the objector submits that the victim has no objection, if bail is granted to the appellant. 3. The prosecution story, in brief, is that the complainant/victim's father (PW-2) lodged a report at Deori Police Station on 12.03.2021, stating that he works in agriculture and his minor daughter, aged 13 years, 1 month and 17 days, had gone to watch a dance performance in Kuangon village on the night of 11/12.03.2021, around 2-3 A.M. and had not returned home. Despite searching for her in the family and relatives, her whereabouts were not known. The victim was wearing a blue jeans pant and a pink T-shirt and was studying in Class 8th. She 3 could speak Hindi and Chhattisgadhi. There was a suspicion that some unknown person might have enticed her away. 4. Based on the above oral report, a First Information Report (Ex.P-23) was registered at Deori Police Station against an unknown person under Section 363 of the Indian Penal Code (IPC), and the investigation was initiated. During the investigation, the victim was recovered from the possession of appellant Sameer Kumar Nag on 12.03.2021 and a recovery panchnama (Ex.P-1) was prepared. Consent for medical examination was obtained from father of the victim vide Ex.P-2. Notice under Section 91 of the CrPC was issued to the father of the victim vide Ex.P-3. Spot map was prepared by the investigating officer vide Ex.P-6. Patwari also prepared the spot map vide Ex.P-7. Consent was obtained from the father of the victim for DNA test vide Ex.P- 11. Mark-sheet of class 5th of the victim in which date of birth has been mentioned as 25.01.2008 was seized vide Ex.P-13. MLC of the victim was done by Dr.Sujata (PW-1) vide Ex.P-16 and no injury seen over thigh, buttock and over vagina. Hymen ruptured. No bleeding, no inflammation and no redness. Two vaginal slides prepared, sealed and handed over to L.C. Tikeshwari Uike for FSL examination. The doctor has opined that as per examination, hymen ruptured, no bleeding, no redness and no inflammation. Dakhil kharij register of the victim in which date of birth of the victim was recorded as 25.01.2008 was seized vide Ex.P-17. Certified copy of dakhil kharij register is Article A’C’. The appellant 4 was examined by the doctor vide Ex.P-18 in which he was found fit for normal sexual intercourse. Two vaginal slides of the victim was seized vide Ex.P-21. The appellant was arrested on 4.4.2021 vide arrest memo Ex.P-30. Slide (Article A) of the victim was sent to FSL for chemical examination and as per FSL report (Ex.P-38), human sperm was found in Article A. DNA report is found to be positive vide Ex.P-41. The statements of the witnesses were recorded. Subsequently, the appellant was charged under Sections 363, 366, 376(2)(n) and 376(3) of the IPC and Sections 4 and 5(l)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. After completing the investigation, charge- sheet was filed against the appellant under the aforementioned sections. 5. The trial Court has framed charges against the appellant under Sections 363, 366, 376(2)(n) and 376(3) of the IPC and Sections 4 and 5(l)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The appellant abjured his guilt and pleaded innocence. 6. In order to establish the charge against the appellant, the prosecution examined 15 witnesses. The statement of the appellant under Section 313 of the CrPC was also recorded in which he denied the material appearing against him and stated that he is innocent and he has been falsely implicated in the case. After appreciation of evidence available on record, learned trail 5 Court has convicted the accused/appellant and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 7. Learned counsel for the appellant argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the victim that on the date of incident she was minor and less than 18 years of age. In absence of examination of author of the dakhil-kharij register, the same cannot be taken into consideration for determination of age of the victim. Dakhil-kharij register is a weak type of evidence. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the victim that on the date of incident she was below 18 years of age. It is further argued by learned counsel for the appellant that learned trial Court has failed to appreciate that the victim (PW-1) lived with the appellant without any protest for the period of near about 1 month and looking to her conduct, it is clearly evident that she has willing and consenting party, therefore, the impugned conviction of the appellant being unsustainable in law, deserves to be quashed. The trial Court has failed to appreciate the evidence of Dr.Sujata (PW-5), who has specifically stated that on examination of the victim, she found no injury over thigh, buttock and over vagina. He also submits that if the entire case of the prosecution is taken as it is, then also the alleged offences are not made out against the appellant and he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes the 6 submissions made by learned counsel for the appellant and submits that the victim was minor and below 18 years of age at the time of incident, which is proved by the School dakhil-kharij register (Article A’C’) which contains the date of birth of the victtim as 25.01.2008. The dakhil-kharij register is admissible piece of evidence to determine the age of the victim. Therefore, there is no illegality or infirmity in the findings of learned trial Court. The victim was abducted by the appellant and kept away from the lawful guardianship. The appellant kept her in illegal confinement for a considerable period and forcefully committed sexual intercourse with her. As such, the impugned judgment needs no interference. 9. We have heard the learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 10. In order to consider the age of the victim, we have examined the evidence available on record. The prosecution relied upon the School dakhil-kharij register Ex. P-17 which is sought to be proved by PW-4 Pushpa Sahu, Assistant Teacher of Government High School, Kota K.B. No.01, Kuakonda, District Dantewada. Pushpa Sahu (PW-3) has stated in para 1 of her deposition that she has been working as Assistant Teacher (LB) at Government High School, Kota, KBK-01, Kuakonda, District Dantewada, Chhattisgarh, since 2016. On 08.03.2008, she was attached to Government Primary School, Kodenar, Gajraj Camp, Kirandul, 7 District Dantewada, on her own application. On 03.04.2021, the Head Teacher was on leave due to COVID-19, and she was functioning as the In-charge Head Teacher. On that day, she received a memorandum from Deori Police Station asking for dakhil kharij register to determine the victim's age, which is Ex.P- 16. In compliance with this, she produced the dakhil kharij register No. 6 at 12:20 P.M. on 03.04.2021 and the police seized it and prepared a seizure memo, Ex.P-17, which bears her signature from A to A. In para 2 of her deposition, she has stated that today, she has brought the original dakhil kharij register No. 6 with her. After comparing the original dakhil kharij register No. 6 with the certified copy attached to the case and finding them to be correct, the dakhil kharij register No. 6 was marked as Article A, and the certified copy was marked as Article A-C. According to the dakhil kharij register No. 6, page 64, and dakhil kharij serial No. 3022, the victim's date of birth is 25.01.2008. The victim was admitted to Class 1 on 09.07.2013. In para 3 of her cross-examination, she has admitted that the victim's date of birth and the entire entry in Article A are not in her handwriting. It is true that Article A does not mention the basis on which the victim's date of birth was recorded. She has further admitted that she does not know on what basis the victim's date of birth was recorded in Article A. She has also admitted that Article A does not mention the name and signature of the person who admitted the victim to school. In para 4 of her cross-examination, she has admitted that the police did 8 not give her a notice under Section 160 of the CrPC, but she voluntarily state that they gave her a notice under Section 91 of the CrPC for producing the dakhil kharij register. She has further admitted that often, when admitting children to Class 1, their date of birth is estimated. She has admitted that she is not the head of the institution at Government Primary School, Kodenar, Gajraj Camp, Kirandul, District Dantewada. 11. At the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her father and on the oral information given by father of the victim the entry was made in the School dakhil kharij register. No other evidence of birth certificate or Kotwari register or ossification report are produced by the prosecution to prove the actual age of the prosecutrix. 12.After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the victim so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school dakhil-kharij register it would not be safe to hold that the victim was minor on the date of incident. The statement of the victim, as also the statement of PW-4 Assistant Teacher Pushpa Sahu are contradictory to each other 9 and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 25.01.2008. 13. In the matter of Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme Court has held as under : “26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 14. In the matter of Alamelu and Another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385, 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 prosecutrix in 10 the absence of any material on the basis of which the age was recorded. It was 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.
Decision
hence, we set aside the finding given by the trail Court that on the date of incident the victim was minor. 18. So far as the issue of forceful sexual intercourse by the appellant upon the prosecutrix is concerned, we have carefully perused the evidence of the victim recorded before the trial Court. 19. The victim (P-1) has stated in para 1 of her evidence that she identified the person in the arrest memo as Sameer Kumar Nag, a resident of Kirandul, District Dantewada. In para 2 of her evidence, she has stated that she has been living with her grandparents since childhood. She was studying in Class 8th, and her date of birth is 25.01.2008. When she was in Class 8 th, the school was closed due to the lockdown, and she was staying at 16 home. She got acquainted with the appellant through mobile phone and they became friends. The appellant did not lure her with any kind of temptation, nor did he propose marriage to her. During Shivaratri, the appellant and she went to Odisha, but she does not know the exact location where the appellant kept her. She stayed with the appellant in Odisha for about a month. In para 3, she has stated that during this one month stay in Odisha, the appellant did not do any work nor did she do any work. They used to live together. During this time, the appellant had physical relations with her twice. At the time of the incident, she was about 13 years old, which she had informed the appellant, despite that, the appellant had physical relations with her. In para 9 of her cross-examination, she has admitted that after the age of 8-9 years, her parents took her to Kirandul. Her grandparents enrolled her in school in Kirandul. She has admitted that while enrolling her in school her grandparents wrote the date of birth in school, she does not know on what basis. She did not go to school in Kuangaon. Before Kirandul she studied in Balmindir and Anganwadi in Bailadila. In para 12 of her cross-examination, she has stated that she does not know whether her birth certificate has been made or not. She has admitted that after this incident the police got her medical examination and x-ray done etc. She does not know whether the doctor told her age to be 17 to 19 years after x-ray. She has admitted that the appellant has never 17 lured or kidnapped her, whenever she has gone, she has gone on her own will. 20. As per the radiologist report, which has not been marked and exhibited but according to learned counsel for the appellant, it is the part of the charge-sheet, the age of the victim is between 17 to 19 years. 21.The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges levelled against the appellant beyond reasonable doubt, which the prosecution has failed to do in the instant case. 22. Considering the entire evidence available on record and the conduct of the prosecutrix, we are of the opinion that the victim was more than 18 years of age at the time of incident, further she was a consenting party with the appellant. Therefore, in the above facts and circumstances of the case, offence under Sections 363 & 366 of the IPC and Section 6 of the POCSO Act would not be made out against the appellant. 18 23. For the foregoing reasons, the criminal appeal is allowed and the impugned judgment dated 30.10.2023 is set aside. The appellant stands acquitted from all the charges. The appellant is in jail, he be released forthwith if not required in any other case. 24. Keeping in view of the provisions of Section 437-A CrPC (Now Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023) , the appellant is directed to furnish a personal bonds in terms of from No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25000/- with 2 reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith 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 thereon shall appear before the Hon’ble Supreme Court. 25. The trial Court record alongwith the copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Chief Justice Judge Bablu