Ramesh Chand Alias Baag Vs State of Hp

The present appeal is directed against the judgment dated 29.03.2022 passed by learned Special Judge, Fast Track Court (POCSO), Mandi, Himachal Pradesh, vide which the appellant (accused before the learned Trial Court) was convicted and sentenced as under: -

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1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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Sr. No.	Offence for which punished	Substantive sentence imposed	Fine imposed	In default of payment of fine, Simple Imprisonment imposed
1.	Section 363 of IPC	Simple imprisonment for seven years.	₹5,000/-	Simple imprisonment for a period of 6 months
2.	Section 4 of POCSO Act	Simple imprisonment for seven years.	₹5,000/-	Simple imprisonment for a period of 6 months

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Both the substantive sentences of imprisonment were ordered to run concurrently.

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(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 363 of the Indian Penal Code (IPC) and 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). It has been asserted that the victim is the informant’s son. The informant had gone to a marriage on 14.02.2015. His wife told him after his return that the accused had sodomized the victim and his pants were blood-stained.

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Matter was reported to the police, and F.I.R. (Ex.PW13/A) was registered at the police station. Inspector Satish Kumar (PW19) conducted the investigation. He filed an application (Ex.PW19/A) for conducting the medical examination of the victim. Dr. Dinesh Kumar (PW16) conducted the victim’s medical examination and found no signs of external injury. He issued MLC (Ex. PW16/A). The informant produced the pants (Ex.PB), which were sealed in a parcel with a seal ‘SK’. Specimen seal (Ex. PW15/A) was taken on a separate piece of cloth, and it was handed over to Badri Dutt after its use. The parcel was seized vide seizure memo (Ex. PW10/B). The police arrested the accused. He identified the spot. A memo of identification (Ex.PW10/A) and site plan (Ex. PW19/B) were prepared. Inspector Satish Kumar took the photographs, which were transferred to a CD (Ex.PW19/C). An application (Ex.PW19/D) was filed for conducting the medical examination of the accused. MLC (Ex.PX) was issued. An application (Ex.PW6/A) was filed to obtain the birth certificate of the victim, and a certificate (Ex.PW6/B) was obtained showing his date of birth as 08.10.2000. An application (Ex. PW5/A) was filed to obtain a copy of the victim’s parivar register. Manohar Lal (PW5) issued a copy of the parivar register (Ex. PW5/B). Further

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investigation was conducted by SI Rajesh Kumar (PW18), who carried the victim to the spot. The victim identified the place. Memo of identification (Ex. PW9/A) and site plan (Ex.PW18/A) were prepared. SI Rajesh Kumar seized pine leaves from the spot and put them in a cloth parcel. He sealed the parcel with six seals of seal ‘R’. Sample seal (Ex. PW15/B) was taken on a separate piece of cloth, and the parcel was seized vide memo (Ex. PW9/C). The informant produced one undervest (Ex. P2) and underwear (Ex. P3), which were put in a cloth parcel (Ex. P1). Parcel was sealed with six seals of seal impression ‘R’. A sample seal was taken on a separate piece of cloth, and the parcel was seized vide memo (Ex. PW9/B). The photograph of the spot (Ex. PW3/A) was taken. The case property was sent to RFSL, and the result (Ex. PX) was issued, in which it was mentioned that blood and semen were not detected in the case property and the samples analysed. Statements of prosecution witnesses were recorded as per their version, and after completion of the investigation, the challan was prepared and presented before the learned Trial Court.

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Learned Trial Court charged the accused with the commission of offences punishable under Sections 363 of IPC

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and Section 4 of POCSO Act, to which he pleaded not guilty and claimed to be tried.

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The prosecution examined 19 witnesses to prove its case. PW1 is the victim’s mother to whom the incident was narrated by the Victim (PW2). Sanjay Kumar (PW3) took the photographs. Smt. Gita Verma (PW4) and Narender Paul (PW6) issued the birth certificates of the victim. Manohar Lal (PW5) issued a copy of the victim’s parivar register. Poonam Kumar (PW7) did not support the prosecution’s case. Nek Ram (PW8) was told about the incident. Pawan Kumar (PW9) noticed the stains on the victim’s pants and inquired about them. Badri Dutt (PW10) witnessed the identification made by the accused. Constable Braham Chand (PW11) carried the case property to RFSL. HC Vinod (PW12) was posted as MHC with whom the case property was deposited. Jagdish Kanwar (PW13) recorded the F.I.R. Surjit Kumar (PW14) did not support the prosecution’s case. HHC Tilak Raj (PW15) is the witness to various recoveries. Dr. Dinesh Kumar (PW16) conducted the victim’s medical examination. Desh Raj (PW17), SI Rajesh Kumar (PW18) and Inspector Satish Kumar (PW19) conducted the investigation.

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The accused, in his statement recorded under

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Section 313 of Cr. P.C. denied the prosecution’s case in its entirety. He stated that prosecution witnesses deposed against him at the instance of some person due to enmity. He was falsely implicated after due deliberation. He was innocent and had not committed any offence.

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Learned Trial Court held that the victim was a minor. The victim stated that the accused had performed anal intercourse with him. This was duly corroborated by the statements of the witnesses and the circumstances on record. Minor contradictions in the statements of the prosecution’s witnesses were not sufficient to discard the prosecution’s case. The absence of injuries on the victim's body was not material, as the medical examination was conducted more than 12 days after the incident. The foundational facts were proved, and the burden would shift upon the accused to establish his innocence. He did not produce any evidence. Therefore, the learned Trial Court convicted and sentenced the accused as aforesaid.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in

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appreciating the evidence. The prosecution has failed to prove its case beyond a reasonable doubt. The witnesses made contradictory statements. Different certificates showed different dates of birth, which made the prosecution’s version doubtful that the victim was a minor. The victim's mother stated that Pawan Kumar (PW9) had told her the name of the accused. However, Pawan Kumar (PW9) stated in the crossexamination that he came to know about the name of the accused from the victim's father on the 26^th and 27^th . The victim’s testimony was not corroborated by any person. The incident was reported to the police after 11 days, and the delay in reporting the matter to the police was not properly explained. The medical and scientific evidence did not prove that the accused had committed penetrative sexual assault upon the victim. As per the victim, the incident occurred 10-15 feet away from the road. The road is frequented by many vehicles, and it is difficult to believe that the incident would have gone unnoticed. Therefore, it was prayed that the present appeal be allowed and the judgment & order passed by the learned Trial Court be set aside.

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I have heard Mr. Sanjay Kumar Sharma, learned counsel for the appellant/accused and Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State.

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Mr. Sanjay Kumar Sharma, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in relying upon the testimonies of the prosecution’s witnesses. The matter was reported to the police after eleven days, and there is no explanation for the delay. The victim was not proven to be a minor. The prosecution produced three different birth certificates, which mentioned three different dates of birth. The medical and scientific evidence did not support the prosecution’s case. There were material discrepancies in the testimonies of the prosecution witnesses, which made the prosecution’s case highly suspect. Hence, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial court be set aside. He relied upon Nasib Kumar versus State of H.P., Cr. Appeal No. 135 of 2021, Tsewang versus State of H.P., Cr.A. No.138 of 2019, Prahlad versus State of Rajasthan, Criminal Appeal No.1794-1796 of 2017 and Rahul Rajabhau Pistulkar and another versus The State of Maharashtra and another in support of his submission.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that the learned Trial Court had rightly held that foundational facts were proved on record, and the burden shifted upon the accused to prove his innocence. However, he did not produce any evidence. The victim’s statement was corroborated by the medical evidence. Learned Trial Court had rightly held that the absence of injuries after twelve days of the incident was not material. The documents on record proved that the victim was born in the year 2000, and any discrepancy in the birth certificate issued by the Gram Panchayat and the certificate issued by the school is not material because the certificate issued by the school will prevail over the certificate issued by the panchayat. Therefore, he prayed that the present appeal be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in Jarnail Singh versus State of Haryana (2013) 7 SCC 263 that the provisions of the Juvenile Justice Act (JJ Act) should be followed

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to determine the age of the victim under the POCSO Act. It was observed:

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“23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with the law, we are of the view that the aforesaid statutory provision should be the basis for determining the age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of the minority is concerned between a child in conflict with the law and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has an overriding effect over an option expressed in a subsequent clause. The highest-rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), the matriculation (or equivalent) certificate of the child concerned is the highest-rated option. In case the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such an entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation, a municipal authority, or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid that

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Rule 12(3) postulates the determination of the age of the child concerned on the basis of medical opinion.

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Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6, could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution, in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6, on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix, VW, PW 6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6, had studied up to Class 3. Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records, indicating that the prosecutrix, VW, PW 6, was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are, therefore, of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6. It would also be relevant to mention that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material, including the ossification test, for determining the age of the prosecutrix VW, PW 6. The deposition of Satpal, PW 4, has not been contested. Therefore, the date of birth of the prosecutrix VW, PW 6 (indicated in Ext. PG as 15-7-1977) assumes finality. Accordingly, it is clear that the prosecutrix VW, PW 6, was less than 15 years old on the date of occurrence, i.e. on 25-3-1993. In the said view of the matter, there is no room for any doubt that the prosecutrix, VW, PW 6, was a minor on the date of occurrence. Accordingly, we

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hereby endorse the conclusions recorded by the High Court that even if the prosecutrix VW, PW 6, had accompanied the appellant-accused Jarnail Singh of her own free will and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor.” (Emphasis supplied)

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It was held in Sanjeev Kumar Gupta versus State of

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U.P.& Ors (2019) 12 SCC 370 that Rule 12 (3)(a) provides that a matriculation certificate, if available, in its absence date of Birth certificate from the school first attended and in their absence the birth certificate given by the Corporation Municipal Authority or Panchayat would be considered. These are in hierarchical order. Thus, where a matriculation certificate is available, the birth certificate from the school and the birth certificate given by the Corporation cannot be relied upon. It was observed:

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“12. Clause (a) of Rule 12(3) provides that for the purpose of seeking evidence in the enquiry, the following documents would have to be obtained:

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(i) matriculation or equivalent certificate if available;

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(ii) in the absence of (i), the date of birth certificate from the school first attended; and

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(iii) in the absence of (i) and (ii), the birth certificate given by a corporation, municipal authority or panchayat.

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Clause (a) of Rule 12(3) contains a hierarchical ordering, evident from the use of the language “in the absence whereof”. This indicates that where a matriculation or equivalent certificate is available, the documents

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adverted to in (ii) and (iii) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained. This facet of Rule 12(3) was noticed in the twojudge Bench decision of this Court in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750: (2013) 1 SCC (Cri) 594 ].

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K.S.P. Radhakrishnan, J. while holding that the procedures laid down in CrPC cannot be imported while making an enquiry in regard to a claim of juvenility under the 2007 Rules observed: ( Ashwani Kumar Saxena case [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594 ], SCC pp. 763-64, para 32)

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“32. “Age determination inquiry”, contemplated under Section 7-A of the Act, read with Rule 12 of the 2007 Rules, enables the court to seek evidence, and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended, other than a play school. Only in the absence of a matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining a medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case an exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child

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or juvenile by considering his or her age on the lower side within the margin of one year.”

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The Court took notice of the fact that there could be situations in which the date of birth recorded in the matriculation certificate, or for that matter in the other certificates referred to in Rule 12(3)(a), may not be correct. The Court held that it was only when those documents are found to be fabricated or manipulated could the date of birth as reflected be discarded. The Court held : ( Ashwani Kumar Saxena case [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594 ], SCC p. 764, para 34)

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“34. … There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But the court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for a medical report for age determination.”

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In the view of the Court, it was only if the above conditions were fulfilled that a medical report could be called.

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The decision in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750: (2013) 1 SCC (Cri) 594] was rendered on 13-9-2012. Soon thereafter, a three-judge Bench of this Court considered the provisions of Section 7-A and Rule 12 in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489: (2013) 1 SCC (Cri) 83] . R.M. Lodha, J. (as the learned Chief Justice then was), speaking for himself and Anil R. Dave, J. observed: ( Abuzar Hossain case [Abuzar

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Hossain v. State of W.B., (2012) 10 SCC 489: (2013) 1 SCC (Cri) 83 ], SCC pp. 509-10, para 39)

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“39.3. As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued, nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not, by itself, be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents, like the school-leaving certificate or the voters' list, etc., obtained after conviction would depend on the facts and circumstances of each case, and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh [Akbar Sheikh v. State of W.B., (2009) 7 SCC 415 : (2009) 3 SCC (Cri) 431] and Pawan [Pawan v. State of Uttaranchal, (2009) 15 SCC 259 : (2010) 2 SCC (Cri) 522] these documents were not found prima facie credible while in Jitendra Singh [Jitendra Singh v. State of U.P., (2010) 13 SCC 523 : (2011) 1 SCC (Cri) 857] the documents viz. school-leaving certificate, mark sheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for the determination of the age of the delinquent.”

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The above decision in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83 ] was rendered on 10-10-2012. Though the earlier

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decision in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594] was not cited before the Court, it appears from the above extract that the three-Judge Bench observed that the credibility and acceptability of the documents, including the school leaving certificate, would depend on the facts and circumstances of each case, and no hardand-fast rule as such could be laid down. Concurring with the judgment of R.M. Lodha, J., T.S. Thakur, J. (as the learned Chief Justice then was) observed that directing an inquiry is not the same thing as declaring the accused to be a juvenile. In the former, the court simply records a prima facie conclusion, while in the latter, a declaration is made on the basis of evidence. Hence, the approach at the stage of directing the inquiry has to be more liberal ( Abuzar Hossain case [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489: (2013) 1 SCC (Cri) 83 ], SCC pp. 513-14, para 48)

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“48. If one were to adopt a wooden approach, one could say nothing short of a certificate, whether from the school or a municipal authority, which would satisfy the court's conscience before directing an enquiry. But then directing an enquiry is not the same thing as declaring the accused to be a juvenile. The standard of proof required is different for both. In the former, the court simply records a prima facie conclusion. In the latter, the court makes a declaration on evidence that it scrutinises and accepts only if it is worthy of such acceptance. The approach at the stage of directing the enquiry has, of necessity, to be more liberal, lest there is an avoidable miscarriage of justice. Suffice it to say that while affidavits may not be generally accepted as a good enough basis for directing an enquiry, that they are not so accepted is not a rule of law but a rule of prudence. The Court would, therefore, in each case weigh the relevant factors, insist upon filing better affidavits if the need so arises, and even direct any additional information considered relevant, including the information

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regarding the age of the parents, the age of siblings and the like, to be furnished before it decides on a case-to-case basis whether or not an enquiry under Section 7-A ought to be conducted. It will eventually depend on how the court evaluates such material for a prima facie conclusion that the court may or may not direct an enquiry.”

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Both these judgments have since been considered by a two-judge Bench of this Court in Parag Bhati [Parag Bhati v. State of U.P., (2016) 12 SCC 744 : (2017) 3 SCC (Cri) 819] , where it was observed : (SCC p. 758, para 36)

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“36. It is a settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of the date of birth, the date of birth mentioned in the matriculation certificate has to be treated as conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand being taken by the accused which raises doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83] , an enquiry for determination of the age of the accused is permissible which has been done in the present case.”

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The 2015 Act came into force on 15-1-2016. Section 111 repeals the earlier 2000 Act but stipulates that, despite the repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of the new legislation. Section 94 contains provisions in regard to the determination of age, is in the following terms:

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“ 94. Presumption and determination of age .—(1) Where it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence), that the said person is a child, the Committee or the

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Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining—

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the Examination Board concerned, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

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Provided that such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

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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 Examination Board concerned in the same category [namely (i) above]. In the absence thereof, category (ii) provides for

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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)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. 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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It was held in Vinod Katara versus State of U.P., 2022

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SCC OnLine SC 1204 that clause (a) of Rule 12(3) of 2007 Rules contains a hierarchical order. It was observed:

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Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident from the use of the language “in the absence whereof”. This indicates that where a matriculation or equivalent certificate is available, the documents adverted to in (ii) and (iii) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained.

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In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751 , this Court, while examining the scope of Rule 12 of the 2007 Rules, had reiterated that medical opinion from

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the Medical Board should be sought only when the matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended, or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available. This Court had held that the entry related to the date of birth entered in the mark sheet is valid evidence for determining the age of the accused person, and also the school leaving certificate for determining the age of the appellant.

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A similar view was taken in P. Yuvaprakash v. State,

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2023 SCC OnLine SC 846, wherein it was observed:

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Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act, which reads as follows:

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“34. Procedure in case of commission of of f ence by a child and determination of age by the Special Court . - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)

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(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person, and it shall record in writing its reasons for such determination.

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(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person.”

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In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act 2015 becomes relevant and applicable. That provision is extracted below:

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“94. Presumption and determination of age. - (1) Where it is obvious to the Committee or the Board,

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based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence), that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining-

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(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

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(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

¶127

Provided that such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

¶128

(3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.”

¶129

It is evident from the conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or his being a

¶130

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victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order that the Juvenile Justice Act requires consideration are that the concerned court has to determine the age by considering the following documents:

¶133

“(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

¶134

(ii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

¶135

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board”.

¶136

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, 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 fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar), had

¶137

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stated on oath that the records for the year 1997 with 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 the commission of the offence.

¶140

In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh (2021) 12 SCR 502 , 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:

¶141

“20. Rule 12 of the JJ Rules, 2007, deals with the procedure to be followed in the determination of age. The juvenility of a person in conflict with the 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, the benefit could be given to the child or juvenile by considering the age on the lower side within the margin of one year.”

¶142

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 v. The State of Uttar Pradesh (2019) 9 SCR 735 that:

¶143

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¶145

“Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 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.

¶146

In Abuzar Hossain @ Gulam Hossain v. State of West Bengal (2012) 9 SCR 224 , this court, through a threejudge 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.

¶147

A similar view was taken in Rajni v. State of U.P., 2025 SCC OnLine SC 1183 , wherein it was observed: -

¶148

Let us first deal with the issue of juvenility. The question for consideration is whether the learned Additional District and Sessions Judge and the High Court were justified in holding respondent No. 2 to be a juvenile and whether any interference is called for in such a decision? 22. Section 68 of the Juvenile Justice (Care and Protection of Children) Act, 2000, empowered the state government

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to make rules by notification in the official gazette to carry out the purposes of the Juvenile Justice (Care and Protection of Children) Act, 2000 (‘the JJ Act, 2000’). As per the proviso to sub-section (1) of Section 68, the central government was also empowered to frame model rules which would apply to the states also till such time rules were made in that behalf by the concerned state government; and while making any such rules so far as practicable to conform to the model rules framed by the central government.

¶152

With a view to provide for better implementation and administration of the provisions of the JJ Act, 2000 in its true spirit and substance, the central government in exercise of the powers conferred by the proviso to sub-section (1) of Section 68 of the JJ Act, 2000 made the Juvenile Justice (Care and Protection of Children) Rules, 2007 (briefly, ‘the JJ Rules, 2007’) laying down the fundamental principles to be applied in the administration of juvenile justice. Rule 12 dealt with the procedure to be followed in the determination of age. As per sub-rule (1), in every case concerning a child or juvenile in conflict with law, the court or JJB or the child welfare committee was required to determine the age of such juvenile or child or a juvenile in conflict with law within a period of 30 days from the date of making of the application for that purpose. As per sub-rule (2), the court or the JJB or the child welfare committee was required to decide the juvenility or otherwise of the juvenile or the child or the juvenile in conflict with law prima facie on the basis of physical appearance or documents if available and send him to the observation home or to jail, as the case may be.

¶153

23.1. Sub-rule (3) of Rule 12 is relevant. Therefore, the same is extracted hereunder:

¶154

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

¶155

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(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

¶158

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

¶159

(iii) the birth certificate given by a corporation or a municipal authority, or a panchayat;

¶160

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case an exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on the lower side within the margin of one year.

¶161

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

¶162

23.2. Thus, sub-rule (3) of Rule 12 provided that the age determination enquiry should be conducted firstly on the basis of matriculation or equivalent certificate. If such a certificate was not available, then the date of birth certificate from the school first attended (other than a play school). In the absence of such a certificate, the birth certificate given by a corporation or a municipal authority or a panchayat should be the basis. Clause (b) of subrule (3) made it clear that only in the absence of such certificates as enumerated above, medical opinion would be sought from a duly constituted medical board, which would declare the age of a juvenile or a child. In case an

¶163

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exact assessment of age could not be done, the court or JJB or the child welfare committee, for the reasons to be recorded, if considered necessary, had the discretion to give benefit to the child or the juvenile by considering his/her age on the lower side within the margin of one year. While passing orders in such a case, evidence as may be available or the medical opinion as provided should be taken into consideration before recording a finding in respect of age.

¶166

To consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care etc. by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation etc., the Juvenile Justice (Care and Protection of Children) Act, 2015 (already referred to as the JJ Act, 2015) came to be enacted. Section 111 is the repeal and savings clause. As per sub-section (1), the JJ Act, 2000, was repealed.

¶167

Section 94 deals with the presumption and determination of age. Section 94 reads thus:

¶168

Presumption and determination of age. —(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.

¶169

(2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining—

¶170

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(i) the date of birth certificate from the school, or the matriculation or equivalent from the concerned examination Board, if available; and in the absence thereof;

¶173

(ii) the birth certificate given by a corporation or a municipal authority, or a panchayat;

¶174

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

¶175

Provided that such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

¶176

(3) The age recorded by the Committee or the Board to be the age of a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

¶177

25.1. Thus, the process of age determination is provided in sub-section (2) of Section 94, which is identical to the procedure prescribed under sub-rule (3) of Rule 12 of the JJ Rules, 2007. Sub-section (2) of Section 94 says that to undertake the process of age determination, the child welfare committee or the JJB shall seek evidence in the following manner:

¶178

(i) the date of birth certificate from the school or the matriculation or equivalent certificate from the concerned Board, if available;

¶179

(ii) in the absence thereof, the birth certificate given by a corporation or a municipal authority or a panchayat;

¶180

(iii) in the absence of (i) and (ii), the age shall be determined by an ossification test or by any other latest medical age determination test conducted on the orders of the child welfare committee or the JJB.

¶181

Having noticed the relevant legal framework, let us examine as to how the case of respondent No. 2 vis-à-

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vis juvenility was dealt with by the JJB and thereafter by the learned Additional District and Sessions Judge. As already noted above, JJB had held respondent No. 2 to be not a juvenile, which decision was reversed by the learned Additional District and Sessions Judge and affirmed by the High Court.

¶185

At this stage, we need to mention that the date of the incident is 17.02.2021. On behalf of respondent No. 2, a certificate from the DPS Higher Secondary School, Parvesh Vihar, Meerut, was filed. The date of admission was mentioned as 04.04.2016. The date of birth of respondent No. 2 was mentioned as 08.09.2003. Respondent No. 2 had passed the high school examination in the year 2018 from the said DPS Higher Secondary School, Parvesh Vihar, Meerut. Thereafter, he was studying at CRK Inter College, Meerut. Therefore, on the date of the incident, respondent No. 2 was below 18 years of age. In the register of DPS Higher Secondary School and the marksheet of the high school examination, the date of birth of respondent No. 2 was mentioned as 08.09.2003. JJB in an earlier proceeding relating to respondent No. 2, i.e. Miscellaneous Case No. 9/2000 in respect of Crime Case No. 11/2000 under Section 307 IPC, Police Station Medical College, Meerut, had accepted the date of birth of respondent No. 2 as 08.09.2003. It is seen that in the present proceeding, JJB examined the mother of respondent No. 2, who had applied to declare her son, respondent No. 2, as a juvenile. JJB observed that she did not remember in which school respondent No. 2 had studied from Class 1 to Class 7 before taking admission in DPS Higher Secondary School in Class 8. In her statement, Principal of DPS Higher Secondary School, Smt. Manju Mala Sharma stated that she had been working in the same school since the year 1996 and asserted that respondent No. 2 had obtained his education from her school from Class 4 to High School, but the original records of Class 4 to Class 8 were not available as those were destroyed due to fire.

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27.1. JJB also rejected the birth certificate of Meerut Municipal Corporation, which showed the date of birth of respondent No. 2 as 08.09.2003 on the ground that it was issued on 08.06.2020.

¶189

27.2. As regards the earlier decision of JJB, it was observed that the present informant was not a party therein. Therefore, she had no opportunity to tender evidence or to rebut the claim of juvenility of respondent No. 2. Thus, the previous decision of JJB was not applicable.

¶190

27.3. It was in that context, JJB passed an order for medical examination of respondent No. 2. In compliance with such an order, the Medical Board submitted a report on 27.07.2021 assessing the age of respondent No. 2 as about 21 years.

¶191

27.4. JJB accepted the medical report dated 27.07.2021, wherein the age of respondent No. 2 was assessed as about 21 years. On that basis, respondent No. 2 was found to be more than 18 years of age on the date of the incident. Thus, respondent No. 2 was held to be an adult as on 17.02.2021, i.e. the date of the incident.

¶192

Admittedly, the line of reasoning adopted by the JJB is totally fallacious. When the concerned birth certificate from the school was available as well as the birth certificate issued by the Meerut Municipal Corporation, JJB could not have opted for ossification test. The statute is very clear that only in the absence of the certificates under clause (i) and clause (ii) of subsection (2) of Section 94 can the JJB order for an ossification test or any other medical test to determine the age of the juvenile. The certificate of the Meerut Municipal Corporation was issued on 08.06.2020, before the date of the incident. In any event, it was not open to the JJB to go behind the available school certificate or the birth certificate of the Corporation and record evidence to examine the correctness or otherwise of such certificate. This is not the mandate of Section 94(2) of the JJ Act, 2015. Therefore, the learned Additional District and Sessions Judge was justified in reversing such a decision of the JJB. Learned Addi-

¶193

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tional District and Sessions Judge gave preference to the date of birth of respondent No. 2 mentioned in the high school certificate, wherein his date of birth was mentioned as 08.09.2003. Thus, respondent No. 2 was 17 years, 3 months, 10 days on the date of the incident. Accordingly, he was declared a juvenile delinquent.

¶196

Therefore, as per Rule 12(3)(a)(ii) of Juvenile Justice,

¶197

Rule 2007 and Section 94 of the Juvenile Justice Act, 2015, the certificate from the school which was first attended by the victim has to be preferred to the birth certificate. It was rightly submitted on behalf of the State that the discrepancy between the certificate issued by the panchayat and the school is not material because the certificate issued by the school will prevail over the certificate issued by the panchayat or the registrar of the births and deaths. Thus, the victim’s date of birth certificate issued by the school (Ex. PW4/B) showing his date of birth as 08.10.2000, has to be preferred to the parivar register showing his date of birth as 19.08.2000.

¶198

Even otherwise, Manohar Lal (PW5) stated that the entry in the parivaar register was made on the basis of the birth register. However, the birth register mentions the victim's date of birth as 08.10.2000. The victim’s date of birth, recorded as

¶199

19.08.2000 in the parivar register, is contrary to the birth register and cannot be used for discarding the contents of the

¶200

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birth register. Thus, even on facts, entry in the parivar register cannot be used to discard the certificate issued by the school.

¶203

It was submitted that there was a delay in reporting the matter to the police, which is fatal to the prosecution. This submission cannot be accepted. The victim's mother (PW1) noticed the stains on the victim's pants, and she inquired about them from the victim, who narrated the incident to her. Her husband returned after 06-07 days, and she narrated the incident to him. Thus, the delay was satisfactorily explained.

¶204

The victim’s mother stated in her crossexamination that her husband had returned on 18.02.2015, and the incident was narrated the next morning. She admitted that F.I.R. was lodged on 26.02.2015. It was submitted based on this cross-examination that her husband had visited the home on 18^th but matter was reported to the police on 26.02.2015. This submission cannot be accepted. The informant had specifically stated in the F.I.R. (Ex. PW13/A) that the incident was narrated to him by his wife on the night before reporting the matter to the police. The victim's mother had also stated that she had narrated the incident after 6-7 days when her husband returned to his home. The incident occurred on 14.02.2015, and 06-07

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days from the incident would have been 20-21^st of February, 2015. Therefore, her statement that her husband had returned to his home on 18.02.2015 is not acceptable. Further, she stated that she had studied up to the 5^th class, which means that she could have erred regarding the dates. Therefore, not much advantage can be derived from the cross-examination of the victim's mother.

¶208

The delay in the case of sexual assault on a minor is not sufficient to discard the prosecution’s case because the minors do not report the sexual assault to anyone immediately, since they fail to comprehend the nature of the act. Further, the families do not report the matter to the police immediately because of the social taboos. Hence, the delay may put the Court on guard, but it cannot be used to discard the prosecution’s case.

¶209

The victim (PW2) stated that he was going to his maternal uncle’s house. The accused met him and took him on his scooter to a forest. The accused committed anal intercourse with him. He had a pain. He narrated the incident to Pawan, and Pawan told it to the victim’s mother. Matter was reported to the police, and he was medically examined. He admitted in his

¶210

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cross-examination that his pants had stains of pine resin. He admitted that there was a pine forest near his home. He used to go to the ‘jungle’ to collect firewood. He had told the police that he was made to sit on the scooter by the accused. He was going to the house of his maternal uncle on foot. He did not know the accused before the incident. A person whose house is located near the house of his maternal uncle had told the name of the accused. He had sustained scratches during the incident, which were shown to the doctor. He had told this incident to his maternal uncle. He denied that he was making a false statement to falsely implicate the accused.

¶213

It was submitted that there are various discrepancies in the victim’s testimony, and he was duly confronted with the previous statement recorded by the police. Hence, his testimony cannot be relied upon. Before appreciating this submission, it is pertinent to mention here that the victim suffered from moderate mental retardation as per the certificate (Ex.PW19/G). Therefore, the statement of the victim has to be appreciated while considering this fact in mind.

¶214

The learned defence counsel did not get the previous statement mark ‘B’ proved from the Investigating Officer,

¶215

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which is an essential requirement to contradict the witness.

¶218

Proviso to Section 162 of Cr.P.C. permits the use of the statement recorded by the police to contradict a witness. It reads:

¶219

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

¶220

25. Thus, the defence can use the statement to

¶221

contradict a witness only if it is proved. It was laid down by the Bombay High Court about a century ago in Emperor vs. Vithu

¶222

Balu Kharat (1924) 26 Bom. L.R. 965 that the previous statement has to be proved before it can be used. It was

¶223

observed:

¶224

“The words "if duly proved" in my opinion, clearly show that the record of the statement cannot be admitted in evidence straightaway but that the of fi cer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness; and the provisions of Section 67 of the Indian Evidence Act apply to this case, as well as to any other similar ease. Of course, I do not mean to say that, if the particular police of fi cer who recorded the

¶225

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¶227

statement is not available, other means of proving the statement may not be availed of, e.g., evidence that the statement is in the handwriting of that particular of fi cer.”

¶228

26. It was laid down by the Hon’ble Supreme Court in

¶229

Muthu Naicker and Others, etc. Versus State of T.N. (1978) 4

¶230

SCC 385, that if the witness afrms the previous statement, no fi proof is necessary, but if the witness denies or says that he did not remember the previous statement, the investigating ofcer fi should be asked about the same. It was observed: -

¶231

“52. This is the most objectionable manner of using the police statement, and we must record our emphatic disapproval of the same. The question should have been framed in a manner to point out that, from amongst those accused mentioned in examination-in-chief, there were some whose names were not mentioned in the police statement and if the witness af fi rms this, no further proof is necessary and if the witness denies or says that she does not remember, the investigation of fi cer should have been questioned about it.”

¶232

27. The Gauhati High Court held in Md. Badaruddin Ahmed v. State of Assam, 1989 SCC OnLine Gau 35: 1989 Cri LJ 1876, that if the witness denies having made the statement, the portion marked by the defence should be put to the investigating ofcer and his version should be elicited fi regarding the same. It was observed at page 1880: -

¶233

“ 13. The learned defence counsel has drawn our attention to the above statement of the Investigating Officer and submits that P.W. 4 never made his above statement

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before the police and that the same, being his improved version, cannot be relied upon. With the utmost respect to the learned defence counsel, we are unable to accept his above contention. Because, unless the particular matter or point in the previous statement sought to be contradicted is placed before the witness for explanation, the previous statement cannot be used in evidence. In other words, drawing the attention of the witness to his previous statement sought to be contradicted and giving all opportunities to him for explanation are compulsory. If any authority is to be cited on this point, we may conveniently refer to the case of Pangi Jogi Naik v. State reported in AIR 1965 Orissa 205: (1965 (2) Cri LJ 661). Further, in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012: (1959 Cri LJ 1231) it was also held that the statement not reduced to writing cannot be contradicted and, therefore, in order to show that the statement sought to be contradicted: was recorded by the police, it should be marked and exhibited. However, in the case at hand, there is nothing on the record to show that the previous statement of the witness was placed before him and that the witness was given the chance for explanation. Again, his previous statement was not marked and exhibited. Therefore, his previous statement to the police cannot be used. Hence, his evidence that when he turned back, he saw the accused Badaruddin lowering the gun from his chest is to be taken as his correct version.

¶237

The learned defence counsel has attempted to persuade us not to rely on the evidence of this witness on the ground that his evidence before the trial Court is contradicted by his previous statement made before the police. However, in view of the decisions made in the said cases we have been persuaded irresistibly to hold that the correct procedure to be followed which would be in conformity with S. 145 of the Evidence Act to contradict the evidence given by the prosecution witness at the trial with a statement made by him before the police during the investigation will be to draw the attention of the witness to that part of the contradictory statement which

¶238

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he made before the police, and questioned him whether he did, in fact, make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction. However, if, on the other hand, the witness denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc. (any identification mark) and when the investigating officer who had actually recorded the statements in question comes into the witness box, he should be questioned as to whether these particular statements had been made to him during the investigation by the particular witness, and obviously after refreshing his memory from the case diary the investigating officer would make his answer in the affirmative. The answer of the Investigating Officer would prove the statements B-1 to B-1, B-2 to B-2, which are then exhibited as Ext. D. 1, Ext. D. 2, etc. (exhibition mark) in the case and will go into evidence, and may, thereafter, be relied on by the accused as contradictions. In the case in hand, as was discussed above, the above procedure was not followed while cross-examining the witness to his previous statements, and, therefore, we have no alternative but to accept the statement given by this witness before the trial Court that he saw the accused Badaruddin lowering the gun from his chest to be his correct version.”

¶241

28. Andhra Pradesh High Court held in Shaik Subhani v.

¶242

State of A.P., 1999 SCC OnLine AP 413: (1999) 5 ALD 284: 2000

¶243

Cri LJ 321: (1999) 2 ALT (Cri) 208 that putting a suggestion to the witness and the witness denying the same does not amount to putting the contradiction to the witness. The attention of the witness has to be drawn to the previous statement, and if he

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denies it, the statement is to be proved by the investigating ofcer. It was observed at page 290: - fi

¶247

“ 24… As far as the contradictions put by the defence are concerned, we would like to say that the defence Counsel did not put the contradictions in the manner in which they ought to have been put. By putting suggestions to the witness and the witness denying the same will not amount to putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under Section 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention has to be drawn to the statement made by such witness before the Police or any other previous statement and he must be given a reasonable opportunity to explain as to why such contradiction appears and he may give any answer if the statement made by him is shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the Investigation Officer. Then, it only amounts to putting the contradiction to the witness and getting it proved through the Investigation Officer.”

¶248

29. The Calcutta High Court took a similar view in Anjan

¶249

Ganguly v. State of West Bengal, 2013 SCC OnLine Cal 22948: (2013) 2 Cal LJ 144: (2013) 3 Cal LT 193: (2013) 128 AIC 546: (2014) 2 RCR (Cri) 970: (2013) 3 DMC 760 and held at page 151: -

¶250

“21. It was held in State of Karnataka v. Bhaskar Kushali Kothakar, reported as (2004) 7 SCC 487, that if any statement of the witness is contrary to the previous statement recorded under Section 161, Cr.P.C. or suffers from omission of certain material particulars, then the previous statement can be proved by examining the Investigating Officer who had recorded the same. Thus, there is no doubt that for proving the previous statement

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Investigating Officer ought to be examined, and the statement of the witness recorded by him can only be proved by him, and he has to depose to the extent that he had correctly recorded the statement, without adding or omitting, as to what was stated by the witness.

¶254

Proviso to Section 162(1), Cr.P.C. states in clear terms that the statement of the witness ought to be duly proved. The words, if duly proved, cast a duty upon the accused who wants to highlight the contradictions by confronting the witness to prove the previous statement of a witness through the police officer who has recorded the same in the ordinary way. If the witness in the crossexamination admits contradictions, then there is no need to prove the statement. But if the witness denies a contradiction and the police officer who had recorded the statement is called by the prosecution, the previous statement of the witness on this point may be proved by the police officer. In case the prosecution fails to call the police officer in a given situation Court can call this witness, or the accused can call the police officer to give evidence in defence. There is no doubt that unless the statement as per the proviso to sub-section (1) of Section 162, Cr.P.C. is duly proved, the contradiction in terms of Section 145 of the Indian Evidence Act cannot be taken into consideration by the Court.

¶255

To elaborate on this further, it will be necessary to reproduce Section 145 of the Indian Evidence Act.

¶256

“S. 145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

¶257

Therefore, it is appropriate that before the previous statement or statement under Section 161, Cr.P.C. is proved, the attention of the witness must be drawn to the

¶258

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( 2025:HHC:30454 )

¶260

portion in the statement recorded by the Investigating Officer to bring to light the contradiction, a process called confrontation.

¶261

Let us first understand what is proper procedure is. A witness may have stated in the statement under Section 161, Cr.P.C. that ‘X murdered Y’. In the Court witness states ‘Z murdered Y This is a contradiction. Defence Counsel or Court, and even prosecution if the witness is declared hostile, having resiled from a previous statement, is to be confronted to bring contradiction on record. The attention of the witness must be drawn to the previous statement or statement under Section 161, Cr.P.C., where it was stated that ‘X murdered Y’. Since Section 145 of the Indian Evidence Act uses the word being proved, therefore, in the course of examination of the witness, a previous statement or statement under Section 161, Cr.P.C. will not be exhibited but shall be assigned a mark, and the portion contradicted will be specified. The trial Court, in the event of contradiction, has to record as under.

¶262

The attention of the witness has been drawn to portions A to A of the statement marked as 1, and confronted with the portion where it is recorded that ‘X murdered Y’. In this manner, by way of confrontation, contradiction is brought on record. Later, when the Investigating Officer is examined, the prosecution or defence may prove the statement, after the Investigating Officer testifies that the statement assigned mark was correctly recorded by him, at that stage statement will be exhibited by the Court. Then the contradiction will be proved by the Investigating Officer by stating that the witness had informed or told him that ‘X murdered Y’ and he had correctly recorded this fact.

¶263

Now, a reference to the explanation to Section 162, Cr.P.C., which says that an omission to state a fact or circumstance may amount to contradiction. Say, for instance, if a witness omits to state in Court that ‘X murdered Y’, what he had stated in a statement under Section 161, Cr.P.C. will be material? Contradiction, for the Public Prosecutor, as the witness has resiled from

¶264

42

¶265

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¶266

the previous statement, or if he has been sent for trial for the charge of murder, omission to state ‘X murdered Y’ will be a material omission, and amount to contradiction so far defence of ‘W is concerned. At that stage, also attention of the witness will also be drawn to a significant portion of the statement recorded under Section 161, Cr.P.C., which the witness had omitted to state, and note shall be given that attention of the witness was drawn to the portion A to A wherein it is recorded that ‘X murdered Y’. In this way, the omission is brought to on record. The rest of the procedure stated earlier, qua confrontation, shall be followed to prove the statement of the witness and the fact stated by the witness.

¶267

Therefore, to prove the statement for the purpose of contradiction, it is necessary that the contradiction or omission must be brought to the notice of the witness. His or her attention must be drawn to the portion of the previous statement (in the present case statement under Section 161, Cr.P.C).”

¶268

Thus, the submission that the victim’s credibility has been shaken by confronting him with the previous statement is not acceptable.

¶269

It was submitted that the victim did not know the accused before the incident, no test identification parade was conducted and the identity of the accused is not established. This submission is not acceptable. The victim remained with the accused for some time, and he had ample chances to see the accused and identify him. It was laid down by the Hon’ble Supreme Court of India in Malkhansingh v. State of M.P., (2003) 5 SCC 746: 2003 SCC (Cri) 1247: 2003 SCC OnLine SC 676 that

¶270

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¶272

when the victim was raped in broad day light, she would have ample opportunity to see him and the test identification parade is not required. It was observed at page 755:

¶273

16… .The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact, on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on 4-3-1992, and she deposed in court on 27-8-1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed, and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence….”

¶274

Therefore, the victim’s testimony cannot be discarded because no test identification parade was conducted.

¶275

Pawan Kumar (PW9) stated that the victim had visited his shop. He noticed some spots on the victim’s pants. He inquired from the victim about the spots. The victim disclosed that one boy took him on a scooter towards the ‘jungle’ and forcibly committed anal intercourse with him. He

¶276

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¶278

(Pawan) informed the victim’s mother about the incident. He stated in his cross-examination that he found out the name of the accused on 26^th -27^th February, 2015, from the victim’s parents. He did not know the name of the accused before that day, and he only knew that someone had committed anal intercourse with the victim. He admitted that he had cordial relations with the victim’s parents.

¶279

It was submitted that there is a material contradiction between the statement of the victim’s mother and the statement of Pawan Kumar. Pawan Kumar said that the name of the accused was disclosed by the victim’s mother, whereas the victim’s mother stated that the name of the accused was revealed by Pawan. This discrepancy will not make the prosecution’s case suspect. Learned Trial court had rightly pointed out that the incident had occurred in February 2015, whereas the statements of the victim’s mother and Pawan were recorded in the year 2017 and 2018. The long interval between the incident and the recording statement of the victim can lead to failure of memory with the passage of time, and is not sufficient to discard the prosecution’s case.

¶280

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¶282

Dr. Dinesh Sharma (PW16) conducted the victim’s medical examination. He found no sign of external injury in the perineum. Anus was torn on the insertion of a small finger. He obtained the samples, and as per his opinion, there was no evidence of any sexual act of sodomy, and the possibility of the penetrative sexual act could not be ruled out. The possibility of injury and its healing also could not be ruled out because ten days were sufficient for healing. He stated in his crossexamination that he did not find any scar of healing on the anus of the victim. It was submitted that the victim had not sustained any injury, which is highly suspicious. Reliance was placed upon the judgment of Tsewang’s case (supra) in support of this submission. This judgment will not help the accused because in the cited judgment, reference has been made to Modi’s Medical Jurisprudence, 23^rd Edition. In the present case, the Medical Officer was not shown the book, and his opinion was not ascertained regarding the contents of the book. It was laid down by the Hon’ble Supreme Court in Sunderlal v. State of M.P., (1952) 2 SCC 464: 1952 SCC OnLine SC 117 that it is impermissible to rely upon the opinions of the authors without inviting the attention of a medical expert towards the opinion. It was observed at page 466:-

¶283

46

¶284

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¶285

“7… The conviction of the accused by the High Court was mainly based on passages from the textbook of Modi on Medical Jurisprudence and Toxicology, and these passages had not been put to Dr Dube when he was in the witness box, with the result that the High Court was not right in coming to the conclusion adverse to the accused by merely relying upon these passages.”

¶286

36. This judgment was followed in Bhagwan Das v. State

¶287

of Rajasthan, 1957 SCC OnLine SC 118: AIR 1957 SC 589 and it was observed:

¶288

“13. The learned Sessions Judge was of the opinion that the evidence of the doctor, PW 11, made the story that Shivlal could walk for a little distance up to the Khala of Hukma or was able to talk so as to make a dying declaration, improbable. But the learned Judges of the High Court disposed of this matter by saying that the doctor was comparatively young and that his statement was not in accord with the opinion expressed in books on Medical Jurisprudence by authors like Modi and Lyon. But it cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us, nor is this a satisfactory way of disposing of the evidence of an expert unless the passages which are sought to discredit his opinion are put to him. This Court in Sundarlal v. State of Madhya Pradesh [(1952) 2 SCC 464: AIR 1954 SC 28] disapproved of Judges drawing conclusions adverse to the accused by relying upon such passages in the absence of their being put to medical witnesses. The learned Judges of the High Court were, therefore, in error in accepting the testimony of these witnesses in support of the correctness of the two dying declarations, nor could the statement of the deceased, alleged to have been made in the circumstances of this case, be considered sufficient to support the conviction of the accused. The recovery of the kassi is a wholly neutral circumstance because it has not been proved that it belonged to Bhagwandas.”

¶289

47

¶290

( 2025:HHC:30454 )

¶291

37. This position was reiterated in Pratap Misra v. State of Orissa, (1977) 3 SCC 41: 1977 SCC (Cri) 447: 1977 SCC OnLine

¶292

SC 98 , wherein it was observed at page 45: -

¶293

“5… . The learned Sessions Judge tried to demolish the two reasons given by the Doctor on the basis of the medical opinions referred to by some authors. In the first place, it is well-settled that medical jurisprudence is not an exact science, and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused and in the instant case, as to the exact time when the appellants may have had sexual intercourse with the prosecutrix. The period of 24 hours prior to examination was given by the Doctor only roughly and would also include 20 or 18 hours before. According to the prosecution, the incident of rape took place near about 10 p.m. on April 19, 1972, and the prosecutrix was produced before the Doctor on April 20, 1972, at about 5 p.m., i.e. about 18 to 19 hours after the incident. In these circumstances, therefore, the possibility that the sexual intercourse may have been committed by the appellants with the prosecutrix even before 24 hours but more than 18 to 19 hours before she was produced before the Doctor cannot be ruled out. In these circumstances, it was not at all necessary either for the Sessions Judge or for the High Court to have made a detailed research on this point, which was more or less futile. The High Court has itself pointed out that this Court in Bhagwandas v. State of Rajasthan [AIR 1957 SC 589: 1957 SCR 854: 1957 SCJ 515] and Sunderlal v. State of Madhya Pradesh [(1952) 2 SCC 464: AIR 1954 SC 28: 1954 Cr LJ 257] had deprecated the approach of Judges in drawing adverse conclusions by relying upon the particular passages in Medical Books without drawing attention of the Doctor who has examined the victims to such passages. It is evident that the Doctor who has examined the victims is in the best

¶294

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¶296

position to depose about the medico-legal aspects of the offence committed on the victim. In these circumstances, we are not at all impressed with the finding of the learned Sessions Judge that PWs 8 and 14 ought to have been disbelieved on this ground alone….”

¶297

Therefore, it is impermissible to rely upon Medical Jurisprudence to discard the statement of a Medical Officer in the Court without showing the book to him.

¶298

It was submitted that the report of chemical analysis does not show any semen or blood stains, which makes the prosecution’s case suspect. This submission cannot be accepted. The victim’s testimony was found to be credible. Therefore, the fact that the report of the RFSL has not shown any blood or human semen does not discredit his testimony. Moreover, the samples were taken after a long delay, and the absence of blood or human semen is not sufficient to discard the prosecution’s case.

¶299

The victim’s testimony was corroborated by statements of his mother and Pawan Kumar. It is also corroborated by the statement of the Medical Officer, who stated that the possibility of anal intercourse could not be ruled out. Therefore, the learned Trial Court had rightly placed reliance on the victim’s testimony.

¶300

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¶301

( 2025:HHC:30454 )

¶302

In Nasib Kumar’s case (supra), the Court held that the uncorroborated testimony of the victim, if contradicted by other evidence on record, is not sufficient to record the conviction. In the present case, the victim’s testimony is corroborated, and this judgment does not apply to the present case. In Prahlad’s case (supra), a reliance was placed upon the statement of the Medical Officer, and there was no other evidence. In the present case, the victim has supported the prosecution’s case, and this judgment does not apply to the present case. In Rahul Rajabhau Pistulkar’s case (supra), the question of identification was held to be material, but the identification is not significant in the present case, because the victim had sufficient time to see the accused. Therefore, none of the cited judgments applied to the present case.

¶303

The accused had taken the victim out of the guardianship of his father. There is no evidence that the informant had consented to the victim’s taking. The victim was proven to be less than sixteen years of age on the date of the incident. Therefore, the offence of kidnapping was duly proved.

¶304

Section 29 of the Protection of Children from Sexual Of f ences Act, 2012 reads that where a person is prosecuted for

¶305

50 ( 2025:HHC:30454 )

¶306

committing or abetting or attempting to commit any of f ence under Sections 3, 5, 7 & 9 of the Act, the Special Court shall presume that such person had committed or abetted or attempted to commit the of f ence as the case may be unless the contrary is proved. This Section was considered by the Bombay High Court in Amol Dudhram Barsagade vs. State of Maharashtra 2019 AllMR(Cri) 435, and it was held that once the foundation of the prosecution case is laid by legally admissible evidence, it becomes incumbent upon the accused to establish from the record that he has not committed the of f ence. It was observed:-

¶307

"5. The learned Additional Public Prosecutor Shri S.S. Doifode would strenuously contend that the statutory presumption under Section 29 of the POCSO Act is absolute. The date of birth of the victim, 12.10.2001, is duly proved and is indeed not challenged by the accused, and the victim, therefore, was a child within the meaning of Section 2(d) of the POCSO Act, it is the submission. The submission that the statutory presumption under Section 29 of the POCSO Act is absolute must be rejected if the suggestion is that even if foundational facts are not established, the prosecution can invoke the statutory presumption. Such an interpretation of Section 29 of the POCSO Act would render the said provision vulnerable to the vice of unconstitutionality. The statutory presumption would stand activated only if the prosecution proves the foundational facts, and then, even if the statutory presumption is activated, the burden on the accused is not to rebut the presumption beyond a reasonable doubt. Suf fi ce it if the accused is in a position to create a serious doubt about the veracity of the

¶308

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( 2025:HHC:30454 )

¶310

prosecution's case or the accused brings on record material to render the prosecution's version highly improbable."

¶311

Similar is the judgment of the Tripura High Court in

¶312

Joubansen Tripura v. State of Tripura, 2021 SCC OnLine Tri 176 ,

¶313

wherein it was observed:

¶314

“12. Upon meticulous reading of Section 29 and 30 of the POCSO Act, according to us, prosecution will commence the trial with an additional advantage that there will be presumption of guilt against the accused person, but, in our considered view, such presumption cannot form the basis of conviction, if that be so, it would offend Article 20(3) and 21 of the Constitution of India. Perhaps, it is not the object of the legislature to incorporate Sections 29 and 30 under the POCSO Act.

¶315

As we have said in the first part of this paragraph, the prosecution will commence trial with an additional advantage of presumption against the accused, but the prosecution is legally bound to establish foundational facts which set the prosecution's case in motion. If the prosecution succeeds in establishing the foundational facts, then it will be the obligation of the accused to prove his innocence, but the standard of proof again will be on the basis of preponderance of probabilities. Keeping in view the aforesaid principles, we shall proceed to decide as to whether the prosecution has been able to establish the foundational facts of the instant case. Foundational facts in the POCSO Act include:—

¶316

(i) the proof that the victim is a child;

¶317

(ii) that the alleged incident has taken place;

¶318

(iii) that the accused has committed the offence; and (iv) whenever physical injury is caused, to establish it with supporting medical evidence.

¶319

If the fundamental facts of the prosecution case are laid by the prosecution by leading legally admissible

¶320

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¶321

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¶322

evidence, the duty of the accused is to rebut it by establishing from the evidence on record that he has not committed the offence. This can be achieved by eliciting patent absurdities or inherent infirmities in the version of prosecution or the oral testimony of witnesses or the existence of enmity between the accused and victim or bring out material contradictions and omissions in the evidence of witnesses, or to establish that the victim and witnesses are unreliable or that there is considerable and unexplained delay in lodging the complaint or that the victim is not a child. The accused may reach that end by discrediting and demolishing the prosecution witnesses by effective cross-examination. Only if he is not fully able to do so, he needs only to rebut the presumption by leading defence evidence. Still, whether to offer himself as a witness is the choice of the accused. Fundamentally, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial, except that in a trial under the POCSO Act, the prosecution is additionally armed with the presumptions and the corresponding obligation on the accused to rebut the presumption. It is imperative to mention that in POCSO cases, considering the gravity of sentence and the stringency of the provisions, an onerous duty is cast on the trial court to ensure a more careful scrutiny of evidence, especially, when the evidence let in is the nature of oral testimony of the victim alone and not corroborated by any other evidence—oral, documentary and medical. (emphasis supplied)

¶323

Legally, the duty of the accused to rebut the presumption as arises only after the prosecution has established the foundational facts of the offence alleged against the accused. The yardstick for evaluating the rebuttable evidence is limited to the scale of preponderance of probability. Once the burden to rebut the presumption is discharged by the accused through effective cross-examination or by adducing defence evidence or by the accused himself tendering oral evidence, what remains is the appreciation of the evidence let in. Though it may appear that, in the light of

¶324

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¶326

presumptions, the burden of proof oscillates between the prosecution and the accused, depending on the quality of evidence let in, in practice, the process of adducing evidence in a POCSO case does not substantially differ from any other criminal case. Once the recording of prosecution evidence starts, the cross-examination of the witnesses will have to be undertaken by the accused, keeping in mind the duty of the accused to demolish the prosecution case by an effective cross-examination and additionally to elicit facts to rebut the statutory presumption that may arise from the evidence of prosecution witnesses. Practically, the duty of prosecution to establish the foundational facts and the duty of the accused to rebut presumption arise, with the commencement of the trial, progress forward along with the trial and the establishment of one, extinguishes the other. To that extent, the presumptions and the duty to rebut presumptions are coextensive. (emphasis supplied)

¶327

If an accused is convicted only on the basis of a presumption as contemplated in Sections 29 and 30 of the POCSO Act, then it would definitely offend Articles 20(3) and 21 of the Constitution of India. In my opinion, it was not the object of the legislature. Presumption of innocence is a human right and cannot per se be equated with the fundamental right under Article 21 of the Constitution of India. The Supreme Court, in various decisions, has held that provisions imposing the reverse burden must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the Statute. [ See State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10: AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 ].

¶328

It may safely be said that presumptions under Sections 29 and 30 of the POCSO Act do not take away the primary duty of prosecution to establish the fundamental facts. This duty is always on the prosecution and never shifts to the accused. POCSO Act has no different connotations. Parliament is competent to place a burden on certain aspects on the accused, especially those which are within his exclusive knowledge. It is justified on the

¶329

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¶331

ground that prosecution cannot, in the very nature of things, be expected to know the affairs of the accused. This is specifically so in the case of sexual offences, where there may not be any eyewitnesses to the incident. Even the burden on the accused is also a partial one and is justifiable on the larger public interest. [ State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10: AIR 1961 SC 1808: (1961) 2 Cri LJ 856; Noor Aga v. State of Punjab, (2008) 16 SCC 417; Abdul Rashid Ibrahim v. State of Gujarat, (2000) 2 SCC 513]

¶332

It was laid down by the Hon’ble Supreme Court in Sambhubhai Raisangbhai Padhiyar v. State of Gujarat, (2025) 2 SCC 399: 2024 SCC OnLine SC 3769 that when the prosecution has established the foundational facts, the burden shifts upon the accused to rebut the presumption. It was observed at page 413:

¶333

34. Sections 29 and 30 of the P OCSO Act read as under:

¶334

“ 29. Presumption as to certain of f ences .—Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

¶335

Presumption of culpable mental state .—(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

¶336

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to

¶337

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( 2025:HHC:30454 )

¶339

exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.”

¶340

It will be seen that a presumption under Section 29 is available where the foundational facts exist for the commission of an offence under Section 5 of the POCSO Act. Section 5 of the POCSO Act deals with aggravated penetrative sexual assault, and Section 6 speaks of punishment for aggravated penetrative sexual assault. Section 3 of the POCSO Act defines what penetrative sexual assault is. The relevant sections are extracted herein below:

¶341

“ 3. Penetrative sexual assault .—A person is said to commit “penetrative sexual assault” if—

¶342

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child do so with him or any other person; or

¶343

5. Aggravated penetrative sexual assault .—

¶344

(a)-(h) * * *

¶345

(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

¶346

¶347

(m) whoever commits penetrative sexual assault on a child below twelve years; or

¶348

Punishment for aggravated penetrative sexual assault .—(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the natural life of that person, and shall also be liable to fine, or with death.

¶349

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet

¶350

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¶351

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¶352

the medical expenses and rehabilitation of such victim.”

¶353

The manner in which the appellant enticed the deceased child under the pretext of buying ice cream in spite of being dissuaded by the aunt (PW 10) and without the consent of the lawful guardians also makes out an offence under Section 364 IPC. The aggravated penetrative sexual assault clearly establishes an offence under Section 377 IPC and Sections 4 and 6 of the POCSO Act. The appellant has not rebutted the presumption by adducing proof to the contrary.”

¶354

The foundational facts were explained by the Madras

¶355

High Court in B. Mooventhan v. State of T.N., 2023 SCC OnLine Mad 5241 as under:

¶356

In Criminal jurisprudence, the prosecution has to prove the case. However, in view of Section 29 of the POCSO Act, where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the POCSO Act, the Court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved. The presumption to be drawn under Sections 29 and 30 of the POCSO do not absolve the prosecution of its duty to establish the foundational facts. The prosecution has to establish the prima facie case by adducing evidence. Only when the fundamental and primary facts are established by the prosecution will the accused be under an obligation to rebut the presumptions by adducing cogent evidence, where the standard of proof required to rebut the presumption is a preponderance of probabilities. In short, the basic, primary and fundamental facts are to be established by the prosecution.

¶357

The term ‘foundational facts’ in the POCSO Act includes the following:

¶358

(i) The victim is a child

¶359

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¶360

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¶361

(ii) The alleged incident has occurred

¶362

(iii) The accused has committed the offence

¶363

(iv) Medical evidence to support the physical injury, if any.”

¶364

Similar is the judgment in State of Haryana v. Vishal,

¶365

2022 SCC OnLine P&H 3827, wherein it was observed:

¶366

17. Learned counsel for the State argued that, in view of provision of Sections 29 and 30 of the POCSO Act, a statutory presumption arises against the respondent/accused, and, the onus is upon him to prove his innocence, and that, in the present case, he has failed to prove his innocence, therefore, the statutory presumptions stand against him and he is liable to be convicted for the charges framed against him. A cumulative reading of Sections 29 and 30 of the POCSO Act would provide that, once the foundational facts have been proved by the prosecution, only then is the statutory presumption raised against the accused, and the onus shifts upon the accused to prove his innocence. In the present case, as we have discussed above in detail, the prosecution has failed to prove the foundational facts upon which a statutory presumption can be raised. “Presumption” is a rule of law which enables the Court to presume the existence of a fact on the basis of certain proved facts. The Court cannot presume the existence of certain facts in a vacuum. The prosecution has to discharge its initial burden by proving those facts which are essential to raise the statutory presumption. In the case at hand, the prosecution has failed to discharge its initial onus; therefore, the statutory presumption cannot be raised at the instance of the prosecution.

¶367

48. In the present case, the accused did not lead any

¶368

evidence to rebut the presumption, and there is no infrmity in i

¶369

58

¶370

( 2025:HHC:30454 ) holding the accused guilty of the commission of an of f ence punishable under Section 4 of the POCSO Act.

¶371

49. Learned Trial Court had sentenced the accused to undergo simple imprisonment for seven years for the commission of an of f ence punishable under Section 363 of the IPC. Section 363 provides maximum imprisonment for seven years. Learned Trial Court held that a heinous crime was committed upon a small boy aged 15 years; however, that is not a reason to award the maximum sentence. Keeping in view the age of the accused and the victim’s condition, the sentence of seven years is excessive and is reduced to three years for the commission of an of f ence punishable under Section 363 of the IPC. The amount of fne is adequate, and no interference is i required with it.

¶372

50. Learned Trial Court had imposed a sentence of seven years for the commission of an of f ence punishable under Section 4 of the POCSO Act. This is the minimum sentence prescribed by the legislature. Since the learned Trial Court has imposed the minimum sentence, therefore, no interference is required with the sentence imposed by the learned Trial Court.

¶373

51. No other point was urged.

¶374

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¶375

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¶376

In view of the above, the present appeal is partly allowed, and the sentence of seven years imposed by the learned Trial Court for the commission of an offence punishable under Section 363 of IPC is reduced to three years. Subject to this modification, the rest of the judgment and order passed by the learned Trial Court is upheld.

¶377

A modified warrant be prepared accordingly.

¶378

A copy of this judgment, along with the records of the learned Courts below, be sent back forthwith. Pending applications, if any, also stand disposed of.

¶379

(Rakesh Kainthla) Judge

¶380

08^th September, 2025

¶381

(Yogesh)

Ramesh Chand Alias Baag v. State of Hp

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