Aakash Jaiswal Vs State Of Chhattisgarh

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CRA No. 749 of 2016

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2025:CGHC:55896

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JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2025.11.20 10:24:48 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 749 of 2016

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Aakash Jaiswal S/o Ashok Jaiswal Aged About 19 Years R/o Village Akhrar, Police Station Lormi, Civil And Revenue District Mungeli, Chhattisgarh., Chhattisgarh

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... Appellant(s)

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versus

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State Of Chhattisgarh Through Station House Officer, Police Station Lormi, District Mungeli, Chhattisgarh., Chhattisgarh

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... Respondent(s)

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(Cause title is taken from Case Information System)

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For Appellant : Mr. Amit Kumar Sahu, Advocate

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For Respondents/State : Mr. R.C.S. Deo, P.L.

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Hon’ble Shri Bibhu Datta Guru, Judge Order on Board

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17/11/2025

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This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 04.06.2016 passed in Sessions Trial No. 42/2015 by the learned Additional Sessions Judge, Mungeli, District Mungeli, C.G. whereby the appellant has been convicted and sentenced as under:-

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Conviction	Sentence
Under Section 452 of the IPC	R.I. for one year and fine amount of Rs. 500/- with default stipulations.
Under Section 354 of IPC	R.I. for one year and fine amount of Rs. 500/- with default stipulations.
Under Section 8 of	R.I. for 3 years and fine amount
POCSO	of Rs. 1,000/- with default stipulations.

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As per the prosecution story, on 15 October 2014 at about 7 p.m., the prosecutrix (PW-1) was inside her house when accused Akash Jaiswal came, asked her to open the door, and on her refusal, kicked the door, hurled abuses, and threatened to kill her before leaving. Shortly afterward, he returned, jumped over the wall, entered the courtyard, caught hold of her arm, and attempted to outrage her modesty, but fled when she resisted and raised an alarm. On her report, Crime No. 329/14 was registered at Police Station Lormi, a site map and Regarding the age of the prosecutrix, Article-A eighth grade mark sheet was seized as per the seizure memo (Exhibit P-3). The Dakhil Kharij register (Exhibit P-5) was seized as per the seizure memo (Exhibit P-4), witnesses’ statements were recorded, the accused was arrested, and after completion of investigation, the charge sheet was filed before the Additional Sessions Judge, Bilaspur, on 21.11.2014.

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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.

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In order to bring home the offence, the prosecution has examined 8 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.

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The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 04.06.2016 convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits that the trial court committed grave illegality in convicting the appellant, as the allegations against him are false, baseless, and not supported by reliable evidence. It is argued that even the testimony of the prosecutrix (PW-1) does not support the prosecution case, as her own version shows that her brother and grandmother were present in the house at the time of the alleged incident, making the occurrence in the manner stated highly improbable. The evidence of PW-2 is also unreliable, particularly because the appellant was well known to the family, yet the witnesses claimed to have mistaken him for a thief. Counsel further submits that the prosecution failed to prove the age of the prosecutrix in accordance with law and did not produce any clinching or connecting evidence to establish the guilt of the accused. The findings of the trial court are thus perverse, unsupported by the material on record, and amount to a conviction in a case of no evidence. Hence, the judgment of conviction deserves to be set

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aside.

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On the other hand, learned counsel for the State opposed the submission and submits that conviction of the appellant is well merited which does not call for any interference.

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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.

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The first question arises before this Court whether the victim was minor on the date of incident or not?.

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The victim (PW-1) stated that she was 14 years old and that her date of birth was 18.08.2000. This assertion is corroborated by PW-2, the father of the victim, who also deposed that his daughter was 14 years old and that her date of birth was 18.08.2000. PW4, Baijnath Sahu, the Principal, further testified that the DakhilKharij Register recorded the victim’s date of birth as 18.08.2000. However, during cross-examination, PW-4 admitted that the said entry in the Dakhil-Kharij Register was made on the basis of the Transfer Certificate (TC) of Class 5th. He also conceded that the TC was neither attached to the Dakhil-Kharij Register nor was he aware of the date of birth mentioned in the TC.

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In the present case, the prosecution has failed to satisfactorily establish the age of the victim. Although PW-1 and PW-2 stated that the victim’s date of birth is 18.08.2000 and that she was 14 years old at the time of the incident, their oral assertions are not

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supported by reliable documentary evidence. PW-4, the Principal, admitted that the entry of the date of birth in the Dakhil-Kharij Register was made on the basis of the Transfer Certificate (TC) of Class 5th; however, the said TC was neither produced before the Court nor attached to the Dakhil-Kharij Register. PW-4 further conceded that he had no knowledge of the date of birth mentioned in the TC. In the absence of the foundational document on the basis of which the school register entry was made, the prosecution has failed to prove the age of the victim beyond reasonable doubt.

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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:

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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. 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.

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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:-

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"The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."

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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:-

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"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"."

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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.

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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 case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &

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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. 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 evidence scrutinized and accepted only if worthy of such acceptance.

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33.6. That it is neither feasible nor desirable to lay

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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 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 case of P. Yuvaprakash Vs. State represented by

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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., 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.

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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

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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."

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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 (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

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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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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. Hence, the conviction under Section 8 of POCSO is not sustainable, as the prosecution failed to prove that the victim was a minor on the date of the incident.

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The next question for consideration would be whether the appellant has tried to outrage the modesty of the victim ?

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The prosecutrix (PW-1) stated that she knew the accused Akash Jaiswal and on 15.10.2014 at about 6:30 PM, while she was in the bathroom of her house, the accused allegedly came there, abused her in filthy language, and after she refused to open the door, he purportedly kicked it and left. She further stated that the accused returned after about five minutes, allegedly climbed over the wall, caught hold of her hand, and fled when she raised alarm, at which point her elder uncle entered the house. She stated that she informed her parents upon their arrival, after which her father went to the appellant’s house, where the accused allegedly abused and threatened him. Thereafter, she lodged a named report against the accused/ appellant.

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During cross-examination, she stated that she was a Class Xth student and denied the defence suggestions that she had

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friendly relations with the appellant, that she called him to her house, that he visited frequently, or that a caste-related dispute or family pressure led her to lodge a false report. She stated that her grandmother and younger brother were present in the house and that her brother, aged about 11 years, saw the accused jumping over the wall. She clarified that her elder uncle did not witness the incident but saw the accused jumping out, and she denied that the wall was too high to climb or that she had filed a false complaint. She maintained that the doors of the house were closed at the time of the incident and that her uncle entered after being called by her brother. She also denied speaking to the accused over the phone or deposing falsely at the instance of her relatives.

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PW-2, father of the victim stated that the incident occurred in October. His wife and he went to Lormi for shopping. He further stated that he arrived home around 7:30 PM. The house was quiet and his daughter stated that at around 6:30 PM, the accused, Akash Jaiswal, kicked and asked her daughter to open the door, abusing. He further stated that his daughter told that "My parents are gone, and I will not open the door." The accused then entered the courtyard wall by jumping. He further stated that at that time, his daughter was washing her hands and feet in the bathroom and his son, was playing in the courtyard. He further stated that when the accused jumped over the wall and came in, his handicapped mother shouted, "Thief, thief!" his son, went to call his elder uncle and in the meanwhile the accuse fled away.

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PW-5 (Bade papa of the victim) deposed that about four to five months prior, he was at his house, which is adjacent to the house of the victim and at round 3:00–3:30 PM, he allegedly heard victim shouting, and her grandmother, who was sitting in the verandah, also raised an alarm. The witness stated that when he reached the spot, the accused was no longer present and the victim informed him that while she was in the bathroom, the accused had come there, had misbehaved with her, attempted to touch and drag her, and had fled by jumping over the wall when she screamed.

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During cross-examination, the witness stated that his statement to the police was recorded the day after the incident. He admitted that the time mentioned by him earlier as 3:00 PM was incorrect and that 7:00 PM was the correct time. He stated that the younger brother was named Sahil, later clarifying that the household name was Sahil but the actual name was Adarsh. He denied suggestions that the accused was invited to their house, that the accused helped the victim in her studies. When asked whether Adarsh had specifically called him at the time of the incident, the witness initially stated that he had gone upon hearing the shouts, but later added that Adarsh had come to call him.

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PW-6 (Brother of the victim) deposed that the incident occurred about a year earlier, at around 7:00 PM, when he was in the courtyard of his house and his sister was inside the bathroom. He further deposed that the accused first pushed the outer door, and

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when victim did not open it, the accused allegedly climbed over a neighbouring wall and entered their courtyard. He stated that victim was washing her hands and face in the bathroom when the accused went inside and caught hold of her hand. The witness claimed that he saw the accused holding his sister’s hand and then went to call his elder uncle and by the time his uncle arrived, the accused had already fled.

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In cross-examination, the witness denied the suggestion that he was deposing under the influence of his elder brother. He denied the suggestion that he had told the police only that he heard his sister shouting and saw the accused running away after jumping over the courtyard wall, and stated that if such a statement appeared in his police statement (Ex. D-1), he did not know the reason. When asked whether he had actually not witnessed the incident and had gone to call his uncle merely upon hearing the shouts, the witness stated “yes.”

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Having examined the testimonies of the material witnesses, this Court finds that the prosecution version suffers from material contradictions and inconsistencies going to the root of the case, rendering the conviction unsustainable. The prosecutrix (PW-1) stated that the incident occurred at about 6:30–7:00 PM, whereas PW-5 initially claimed the time to be 3:00–3:30 PM and corrected himself only later, undermining the reliability of his presence and version. PW-6, the brother of the prosecutrix, made contradictory statements regarding whether he actually witnessed the appellant

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holding the hand of the prosecutrix or merely heard her shouts and saw the appellant running away, as reflected in his crossexamination. The prosecution witnesses also differed significantly on the sequence of events, including whether the accused first pushed the outer door, when and how he allegedly entered by jumping the wall, and who raised the initial alarm. These inconsistencies create serious doubt about the occurrence itself as narrated. Further, the prosecution failed to establish the age of the prosecutrix through cogent documentary evidence, as the foundational document for determining her date of birth was neither produced nor proved. In view of the material contradictions, doubtful testimony, and absence of reliable evidence establishing the essential ingredients of the offences, this Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt.

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After perusing the entire evidence, it is clear that the trial Court while passing the impugned judgment, has committed grave error and not justified in convicting the appellant as the prosecution has failed to establish the essential ingredients of the offence under Section 452, 354 of IPC and Section 8 of POCSO.

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The accused is acquitted of the charges for which he was tried. The impugned judgment of conviction and sentence is set aside. 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.

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Accordingly, the Criminal appeal is allowed.

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