Bharti Sarthi Vs State of Chhattisgarh

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2025:CGHC:54741-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on : 25-08-2025 Judgment delivered on : 11-11-2025

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CRA No. 1134 of 2018

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Bharti Sarthi W/o Gaurishankar Sarthi Aged About 23 Years R/oKanshichunaa, Thana Bhupdevpur, District- Raigarh, Chhattisgarh. Present Address- Village Durgapur, Dharmjaygarh, ThanaDharmjaygarh, Raigarh, Chhattisgarh

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... Appellant

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versus

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State Of Chhattisgarh Through- Police Station- Kharsiya, DistrictRaigarh, Chhattisgarh.

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... Respondent

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For Appellant : Mr. Ravindra Sharma, Advocate. For Respondent : Mr. Devesh G. Kela, Panel Lawyer.

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Hon'ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad, JJ

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CAV Judgment

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Per Rajani Dubey, J

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Challenge in this appeal is to the legality and validity of the judgment of conviction and order of sentence dated 23.6.2016 passed

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by the Additional Sessions Judge, Fast Track Court, Raigarh in Special Case No.64/2015 whereby the appellant stands convicted and sentenced as under:

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Conviction	Sentence
Under Section 6 of Protection of	Life imprisonment, to pay a fine of
Children from Sexual Offences	Rs.1000/- and in default thereof to
Act, 2012.	suffer additional RI for six months.
Under Section 363 of Indian Penal	RI for three years, pay a fine of
Code.	Rs.200/- and in default thereof to suffer additional RI for two months.
Under Section 368 of Indian Penal	RI for seven years, pay a fine of
Code.	Rs.500/- and in default thereof to suffer additional RI for three months.

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All the sentences were directed to run concurrently.

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Case of the prosecution, in brief, is that son (victim) of the complainant, aged about 17 years, had gone to the house of his sister at Village-Kanchichuna in connection with some work and returned to his house on 3.5.2015. However, on 6.5.2015 the victim left the house for somewhere and did not return thereafter. On this report, offence under Section 363 of IPC was registered on 14.5.2015 at Police Station – Kharsiya. On 29.7.2015 the victim was found with the appellant at Bus Stand, Hamalpara, Kharsiya and was recovered from her possession. After due investigation, charge sheet under Sections 363, 368 of IPC and Section 4 of Protection of Children from Sexual

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Offences Act, 2012 (in short “the Act of 2012”) was filed against the appellant.

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Learned trial Court framed charges under Sections 363, 368 of IPC and Section 6 of the Act of 2012 against the accused/appellant, which were abjured by her and she prayed for trial. In order to substantiate its case the prosecution examined 13 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein she denied all the incriminating circumstances appearing against her in the prosecution case, pleaded innocence and false implication. In her defence, she examined two witnesses.

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After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence this appeal.

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Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. From the statements under Section 161 of CrPC of the witnesses and their depositions before the Court it is crystal clear that there is exaggeration and omission in their statements to falsely implicate the appellant in this offence. Though the prosecution claims that the victim was below 18 years of age on the date of incident but no cogent and reliable evidence has been adduced to prove age of the

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victim in accordance with law. The material witnesses including the interested witnesses of the prosecution have not fully supported the prosecution case. Therefore, in the given facts and circumstances of the case and the overall evidence adduced by the prosecution, no offence is made out against the appellant beyond reasonable doubt and she deserves to be acquitted of all the charges by giving her benefit of doubt.

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Reliance has been placed on the judgment in the matter of P. Yuvaprakash Vs. State reported in 2023 AIR SC 3525 and the judgment dated 20.2.2025 of this Court in the matter of Chiranjeet Dholai Vs. State of CG in CRA No.2364/2023 .

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On the other hand, learned counsel for the State opposing the contention of the appellant would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is liable to be dismissed.

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Heard learned counsel for the parties and perused the material available on record.

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It is clear from the record of learned trial Court that the appellant was charged under Sections 363, 368 of IPC and Section 6 of the Act of 2012 and after appreciation of oral and documentary evidence,

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learned trial Court convicted and sentenced her as described in para 1 of this judgment.

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First of all we shall proceed to consider whether on the date of incident the victim was below 18 years of age.

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As per prosecution, on the date of incident i.e. 6.5.2015 the victim was aged 17 ½ years. The victim (PW-7) states that the accused/appellant enticed him away to Dharamjaigarh for marrying him where they stayed for 1-1 ½ months and while they were returning to Kharsiya by bus, the police recovered him from the possession of the accused/appellant. However, he denied his signature on recovery memo Ex.P/7 from C to C part but admits his statement before the Magistrate Ex.P/8 and his signature thereon from A to A part. At this stage, he was declared hostile by the prosecution and cross-examined where he denied the suggestions of the prosecution. In para 5, on being questioned by the Court, he replied that he has no knowledge whether the accused was aware of the fact that he is 17 years.

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PW-13 Kushlal Verma, Head Master of the school, produced admission-discharge register of the school and stated that at S.No.169 in this register, name of the victim is mentioned with his date of birth as 6.2.1998. The original admission-discharge register is Ex.P/19 and its certified copy is Ex.P/19C which bears his signature from A to A part. However, in cross-examination he admits that he did not make any

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entry in this register Ex.P/19 and that it is also not mentioned in the said register as to on what basis date of birth of the victim was recorded therein. He then volunteers that it is recorded on the basis of transfer certificate. However, except the document of Ex.P/19, no other document in relation to date of birth of the victim was produced by the prosecution.

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PW-3 father of the victim states that the victim is his son and when he went missing, he lodged a report Ex.P/3 and admits his signature on it from A to A part. He also admits his signature on the consent letter (Ex.P/4) for medical examination of his son. The prosecution declared him hostile and cross-examined where he admitted the suggestion of the prosecution that on the date of incident i.e. 6.5.2015 his son was minor.

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PW-6 Dr. Navin Agrawal has written age of the victim as 17 years in his report Ex.P/8 and denied the suggestion of the defence that the victim was more than 18 years of age. However, he admits that he did not advise for examination of the victim by radiologist. In this case, admittedly, no ossification test of the victim was conducted by the prosecution for ascertaining his age.

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This Court in the matter of Chiranjeet Dholai (supra) while dealing with the age of the victim observed and held from paras 19 to 24 of its judgment as under:

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“19. Thus, it is clear that at the time of admission of the victim in the school, the birth certificate or Kotwari Panji have not been produced by her mother and on the oral information given by the mother of the victim the entry was made in the School admission and discharge register. Except dakhil kharij register (Ex.P-9C) and Tatimma Form (Ex.P-12C), no other evidence such as birth certificate, Kotwari register or ossification report are produced by the prosecution to prove the actual age of the victim.

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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 admission and discharge register it would not be safe to hold that the victim was minor on the date of incident.

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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:

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"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

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much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.”

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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 the absence of any material on the basis of which the age was recorded. It was observed as under:

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"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.

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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:-

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“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."

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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:

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“33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

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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.

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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.

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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.

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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

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evidence scrutinised and accepted only if worthy of such acceptance.

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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.

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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.

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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.

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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.

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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.

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33.11 Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a

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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."

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Recently, in the matter 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:

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“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. 14. 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

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missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(1) 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.

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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:

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"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: (1) 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."

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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:

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"Clause (1) 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.

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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"

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In the instant case also it is clear that except the copy of admission-discharge register (Ex.P/19C), no other documentary evidence was adduced by the prosecution. PW-13 Kushlal Verma, Head Master, admits that he is not author of the entry made in this register regarding date of birth of the victim. In these circumstances, keeping in view the aforesaid guidelines outlined by the Hon’ble Supreme Court for deciding the age of the victim in cases like the present one, we find that the prosecution has utterly failed to adduce any clinching or legally admissible evidence to prove the age of the victim that he was minor on the date of incident. Thus, this Court is of the opinion that learned trial Court was not justified in holding the victim minor at the relevant point of time.

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Looking to the statement of the victim (PW-7) and his conduct during the incident and subsequent thereto, it is clear that he was a consenting party to the act of the appellant. He states that he went with her to Dharamjaigarh, both of them stayed at Dharamjaigarh for 1- 1 ½ months and while returning to Kharsiya by bus, they were caught by the police. In para 3 after being declared hostile by the prosecution when cross-examined he admits that they ran away from their house without informing anyone for living together by doing labour work. The accused/appellant is 23 years old and the victim admits in para 7 of his deposition that intercourse between them was consensual. Though in cross-examination by the defence he denies the suggestion that the accused did not entice him away and volunteers that he could not

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understand, therefore, went with her, however, considering the manner in which the incident took place, the victim was recovered while travelling with the accused and his conduct throughout the whole incident, it can safely be inferred that the victim was a consenting party to whatever act committed by the accused. Since we have already held that the prosecution has failed to prove that the victim was minor on the date of incident, no offence as alleged is made out against the accused/appellant. However, learned trial Court failed to properly appreciate the oral and documentary evidence in accordance with law and recorded a finding of guilt against the accused which is not sustainable and thus liable to be set aside.

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In the result, the appeal is allowed and the impugned judgment convicting and sentencing the accused/appellant under Sections 363, 368 of IPC and Section 6 of the Act of 2012 is hereby set aside and she is acquitted of the said charges.

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The accused/appellant is reported to be on bail, therefore, keeping in view the provisions of Section 481 of BNSS, 2023 she is directed to furnish a personal bond for a sum of Rs.25,000/- with one surety 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.

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The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. A copy of this judgment be also forwarded to the concerned Jail Superintendent for information and necessary action.

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Sd/	Sd/
(Rajani Dubey)	(Amitendra Kishore Prasad)
Judge	Judge

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The date	The date	The date when the judgment is uploaded on
when the	when the	the website
judgment is	judgment is
reserved	pronounced
		Operative Full
25.8.2025	11-11-2025	- 11-11-2025

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Digitally signed MOHD by MOHDAKHTAR KHAN AKHTAR Date: KHAN 2025.11.1115:07:02 +0530

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Khan

Bharti Sarthi v. State of Chhattisgarh

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Bharti Sarthi v. State of Chhattisgarh

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