Gajendra Vishwakarma Vs State of Chhattisgarh

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2025:CGHC:6498-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 89 of 2020

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1 - Gajendra Vishwakarma S/o Late Laxminarayan Vishwakarma Aged About 26 Years R/o Ward No. 11, R.S. Colony, Charama, Police Station Charama, District Kanker Chhattisgarh., District : Kanker, Chhattisgarh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through The Station House Officer, Police Station Khadgaon, District Rajnandgaon Chhattisgarh., District : Rajnandgaon, Chhattisgarh

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... Respondent(s)

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For Appellant : Mr. H. S. Ahluwalia, Mr. Barun Kumar Chakraborty, Advocates For Respondent(s) : Mr. Ankur Kashyap, P. L.

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DB: Hon’ble Smt Justice Rajani Dubey, Hon’ble Shri Justice Sachin Singh Rajput

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Judgment on Board

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Per Sachin Singh Rajput, J.

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05/02/2025

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What is under assail in this appeal is the judgment dated 02.11.2019 passed by Additional Sessions Judge (FTC) Rajnandgaon CG in Special Criminal Case (under POCSO) No.49/2017 by which the accused/appellant has been held guilty under Sections 363, 366 IPC and Section 6 of POCSO Act and sentenced to undergo RI for 5 years with fine of Rs. 2000/- u/s 363; RI for 05 years with fine of

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Rs. 2000/- u/s 366 and RI for 10 years with fine of Rs. 5,000/- u/s 6 of the POCSO Act, plus default stipulations.

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Facts of the case in brief are that a written report (Ex-P/12) was lodged by the complainant – the father of the victim, to the effect that on 17.07.2017 his daughter left the house without informing anyone and on being searched it was found that the appellant has allured the victim for marriage and took her away and she became pregnant. He met with the victim on 13.10.2017. On the basis of that report, FIR (Ex.P-13) dated 14.10.2017 was registered against the appellant under section 363, 366 and 376 IPC and 4 and 6 of POCSO Act. Statement of the victim was recorded in which she stated that alluring her on the promise of marriage appellant took her away to Charama, Kanker and Orissa where appellant committed forcible sexual intercourse with her. On 15.10.2017 itself the accused/appellant was arrested under Ex. P-4. After obtaining the consent, victim was medically examined by Dr. Seema Thakur (PW-2) who gave her report Ex.P-5. Accused/appellant was medically examined by Dr. Prashant Thakur (PW-4) who gave his report Ex.P-7 stating that he was capable of performing sexual intercourse. After completion of investigation, charge sheet was filed against the accused/appellant under Sections 363, 366-A, 376 of IPC and Section 4 & 6 of the POCSO Act followed by framing of charge under sections 363, 366, 376 (2) and Section 6 of the POCSO Act.

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Prosecution examined as many as 13 witnesses in order to prove its case. Statement of the accused/appellant under Section 313 CrPC was also recorded in which he denied the allegations made against him, and pleaded false implication.

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Learned trial Court after hearing the parties and going through the evidence adduced before it convicted and sentenced the accused/appellant as described above. Hence this appeal.

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Learned counsel for the accused/appellant submits that the appellant is innocent and has been roped in a false case. He submits that there are number of contradictions and omissions in the deposition of the victim as also the complainant,

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and being so conviction of the appellant cannot be based thereon. According to the counsel for the appellant, even the age of the victim to be below 18 years has not been proved by leading any credible and trustworthy evidence. He submits that considering the overall facts and circumstances of the case and the evidence of the witnesses, the conviction of the appellant as described above is liable to be set aside by allowing the appeal.

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On the other hand, learned State counsel strenuously opposed the arguments advanced by counsel for the appellant and submitted that looking to the categorical statement made by the victim regarding the act of the accused of taking her away on the assurance of marriage and then committing forcible sexual intercourse with her, duly supported by the testimony of other witnesses including the complainant, the findings recorded by the trial Court cannot be said to be perverse and illegal, warranting interference with the same in this appeal.

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Heard counsel for the parties and perused the material available on record with great care and caution.

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Victim (PW-10) has stated in her evidence recorded in Camera Proceeding that she knew the accused/appellant who was resident of Charama. The accused was living in the same village by selling Raincoats and Umbrellas. She has stated that when she was 17 years, the accused took her on the pretext of marriage and committed sexual intercourse with her and she became pregnant and due to ill health she had miscarriage. In her cross-examination she stated that she gave her birth certificate to the Police. She don’t know where she was born or where the birth certificate is from. She also states that she does not know her father can read Hindi. She herself states that he can read Slowly. She admitted that the accused used to work with her father and that is why she knows him. Her father sells membranes during the rainy season. Her father also goes to the village. The accused was in her house for about one and a half months. It is admitted that the accused was living in a rented room in my house. It is admitted that she does not know how the age is

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written in the school, she only knows what is written. She admitted that she did not tell anyone and left the house. She states that she has been menstruating since the age of 14. She does not remember today which date of her last menstruation. She deposed that her sister is 25 years old and she is 4-5 years older than her. At present her age is 19 years. She is stating her date of birth on the basis of the date of birth written in her mark-sheet and according to mark-sheet her age is 19 years 8 months. It is denied by her that when she left home she was above 18 years of age. She states that at the time of incident, she was 18 years old and she went with her consent. She admitted that when she went she did not give any report to anyone about going or being taken or inform the place where she was staying. In further cross-examination she states that she has gone to the accused' s grandmother's house. She admitted that in her grandmother's house the wife and children of the accused were not present. She also admitted that she does not know where the wife of the accused is from and she never met with his wife. It is denied that the accused is not married and she was lying about his marriage. It is also denied that the accused did not take her anywhere and she went on her own will.

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Father of the victim (PW-11) has stated that the date of birth of her daughter is 21.11.1999. On 17.07.2017, as his daughter had left his house without informing anyone and she did not return home, he made search. Later on investigation, it was found that the accused had taken his daughter by luring her. His daughter was found in village Basanwadi. He states that he got married in the year 1988. It is admitted that he has three children, two daughters and one son. His elder daughter has studied upto Class VIII. It has been five years since my elder daughter got married and he has a four years old grandson. Her daughter / victim has failed in Class 9^th and the victim was born in Pushpa Hospital, Dalli Rajhara. He has not produced the birth certificate of the victim. He himself stated that he has produced the school certificate. His elder daughter was born about five years after his marriage and the victim was born 4-5 years thereafter and his son was born ten years after that. He stated that his elder daughter was born in the year 1996 and in the year 2000 there

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were 2-4 days left, the victim was born. He admitted that he was married in the year 1988 and after that both his daughters were born within the gap of 10 years. It is also admitted that the victim is married. He admitted that he didn’t make any missing report after her daughter left home. He himself states that he was searching in his family. He admitted that the birth dates of his children which he is giving are approximate. He also admitted that at the time of his children’s birth, he had not written down the dates of birth. He now states that he had written down the dates of birth. Mother of victim (PW-9) has stated in her cross-examination that when she was 28 years then the victim was born and her daughter was born in Pushpa Hospital, Dalli. Her daughter’s menstruation starts at about the age of 12-13 years.

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The learned trial Court gave a finding that the victim is a consenting party. The question which needs determination of this Court is to whether she was under the age of 18 years on the date of incident. The teacher who had produced the Progress Report Card Article A has not been examined. Dr. Seema Thakur (PW-2) is the witness who medically examined the victim and found that the victim was 14 weeks pregnant and in her statement she deposed that the victim had informed her that she is above 18 years. It is admitted that she was physically mature and did not feel the need to verify her age, hence she did not advise to verify her age.

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In support of her age, progress report card Article A and Birth Certificate Article-B have been produced by the prosecution where her date of birth is written as 21.11.1999. The birth certificate Article-B was disbelieved by the learned trial Court. The learned trial Court placed reliance on the progress report card of victim Article – A to determine the age of the victim. In this the date of birth is also mentioned as 21.11.1999. However, not even a single piece of paper has been filed to show as to on what basis such date of birth was initially recorded which eventually found place in the school progress card. Even the father of the victim has stated that he is telling the date of birth of his children on assumption. Likewise, the School Teacher (Head Master) who produced the Progress report card has not been examined. The same

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date of birth mentioned birth certificate in Article – A has been disbelieved by the learned trial Court and believed the progress report Article -B containing same date of birth. Thus there is no clinching evidence regarding the victim to be below 18 years of age on the date of incident.

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Dealing with the identical issue in the matter of Alamelu and Another Vs.

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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

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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 Ravinder Singh Gorkhi Vs. State of UP, (2006) 5 SCC 584,

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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 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 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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33.2.2. 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 subsection (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 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 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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15.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., 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, DW3, 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 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

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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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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, hence, we set aside the finding given by the trial Court that on the date of incident the victim was minor. Even the father of the victim has not been able to disclose the date of birth of his daughter (victim) with certainty. Thus the factual position if seen in the light of the aforesaid judicial pronouncements of the Supreme Court, this Court has no hesitation to say that the prosecution has utterly failed in establishing the fact that the victim on the date of incident was below 18 years of age.

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Now as regards commission of sexual intercourse, the evidence of the doctor (PW-2) says that the victim had informed her that she is above 18 years. It is admitted that she was physically mature and did not feel the need to verify her age, hence she did not advise to verify her age. Taking into consideration the entire evidence of the victim on material particulars, and the things are put together, it emerges that all throughout she was a consenting party to the act of the accused including that of the sexual intercourse as held by the learned trial Court.

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The aforesaid factual and legal analysis makes this Court arrive at the conclusion that the prosecution has utterly failed to prove its case beyond all reasonable doubts and therefore the findings so recorded being not based on the just and proper appreciation of the evidence adduced by the prosecution, this Court is of the

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opinion that the conviction of the accused/appellant as mentioned above cannot be allowed to stand. Therefore, the judgment impugned is hereby set aside; the appellant is acquitted from all charges and the appeal stands allowed.

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As the appellant is in jail, he is directed to be set free forthwith, if not needed in any other case.

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Keeping in view of the provisions of Section 481 of Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS), the appellant is directed to furnish a personal bond in terms of from No. 47 prescribed in the (BNSS) of sum of Rs. 10,000/- before the concerned trial Court which shall be effective for a period of six months along with 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 trial Court record along-with the copy of this judgment be sent back im-

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mediately to the trial Court concerned for compliance and necessary action.

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Sd/Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge

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PARUL MITTAL

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Digitally signed by PARUL MITTAL Date: 2025.02.12 10:40:29 +0530

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Parul

Gajendra Vishwakarma v. State of Chhattisgarh

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Gajendra Vishwakarma v. State of Chhattisgarh

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