Chattisgarh High Court
Thakur Ram Sahu vs State Of Chhattisgarh on 19 August, 2025
1
CRA No. 937 of 2016
Digitally
signed by
JYOTI
JYOTI SHARMA
SHARMA Date:
2025.08.25
18:28:30
+0530
2025:CGHC:41840
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 937 of 2016
Thakur Ram Sahu S/o Jageshwar Ram Sahu Aged About 21 Years R/o
Village Sonamagar, Police Station Sihava, District Dhamtari
Chhattisgarh. , Chhattisgarh
... Appellant(s)
versus
State Of Chhattisgarh Through Station House Officer, Police Station
Sihava, District Dhamtari Chhattisgarh. , Chhattisgarh
... Respondent(s)
(Cause-title taken from the Case Information System)
For Appellant(s) : Mr. Sameer Rigri on behalf of Mr. Ajay
Chandra, Advocate
For Respondent(s) : Mr. R.C.S. Deo, Panel Lawyer
Hon'ble Shri Bibhu Datta Guru, Judge
Judgment on Board
19/08/2025
1. This criminal appeal preferred under Section 374(2) of the Cr.P.C
is against impugned judgment of conviction and order of sentence
dated 05.12.2015 passed in Special Criminal Case No. 27/2015
by the learned Additional Sessions Judge, Fast Track Special
Court, Dhamtari, District Dhamtari, C.G., whereby the appellant
has been convicted and sentenced as under:-
Conviction Sentence
U/s 4 of the POCSO Act Rigorous imprisonment for 10
years and fine of Rs. 2,000/- in
default of payment of fine amount
further R.I. for 6 months.
2. Case of the prosecution in brief is that on 28/06/2015 at Police
Station Sihava the prosecutrix lodged a report that she resides
along with her parents in village Sirsida and studying in 9th class.
Prior to one year i.e. on 07/04/2014 the prosecutrix visited the
house of her maternal aunt (Mami) at village Deurpara.
Thereafter, she has also visited at village Somanagar to attend
the marriage wherein she met with accused Thakur Ram Sahu
where they exchanged their Mobile Number and continued talk to
each other through Mobile. It is allegation that the accused on the
pretext of marriage made sexual relation with prosecutrix and
after passing of considerable time the accused has refused to
marry the prosecutrix. Therefore, the FIR was made.
3. Investigation was conducted. Statement of the Victim and the
Statements of witnesses were recorded. Subsequently after
completing the investigation, a charge-sheet was submitted
before the Court.
4. After framing the charges against the accused/appellant, the
charges were read out and explained to the appellant, he denied
committing the crime and demanded trial.
5. In order to bring home the offence, the prosecution has examined
7 witnesses in its support. Statement of the accused/appellant
under Section 313 Cr.P.C was recorded, wherein he has pleaded
his innocence and false implication in the matter.
6. The trial Court after appreciating oral and documentary evidence
available on record, by its judgment dated 05.12.2015 convicted
and sentenced the appellant as mentioned in paragraph one of
this judgment. Hence, this appeal.
7. Learned counsel for the appellant submits that the appellant has
been falsely implicated in the present case. He would submit that
the conviction against the appellant is bad in law and it is not
supported by the evidence of the prosecution beyond reasonable
doubt. He would submit that while passing the impugned
judgment, the trial Court failed to appreciate the fact that there are
material contradictions and omissions in the statements of the
prosecution witnesses. Learned counsel would submit that the
prosecution has failed to prove the fact that the prosecutrix/Victim
was below 18 years of age at the time of incident and without
there being any evidence with regard to the age of the Victim, the
conviction of the appellant is bad in the eyes of law. He further
submits that the victim was consenting party and they were in a
relationship for a long time.
8. Learned counsel appearing for the State opposes the submissions
made by the counsel for the appellant and submits that the
conviction of the appellant is well merited which does not call for
any interference. There is clear evidence regarding age of the
prosecutrix, therefore, this appeal deserves to be dismissed.
9. I have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
record with utmost circumspection.
10. The first question arises before this Court whether the victim
was minor on the date of incident or not?
11. The Victim (PW/1) in her deposition has stated that her date of
birth is 21.08.2000. She further in her cross examination has
accepted the suggestion that she has told her date of birth on the
basis of her school certificates. She has also stated that she is
studying in class 10th and has started studying after a gap of one
year.
12. PW-2 mother of the victim stated that date of birth of victim is
21.08.2000. She further in her cross-examination has accepted
the suggestion that she is not educated enough. She also stated
that her daughter was admitted in school in Class-1 at the age of
6 years. She further stated that her husband went to the school to
get her daughter admitted. The father of the victim, who has
admitted her in school, has not been examined.
13. Further, PW-7 namely Dileshwari Navrang that the date of birth of
the victim in the Dakhil-khariz register is 21.08.2000, which has
been written as per information given by her father. She further in
her cross-examination has accepted the suggestion that she has
not made the entry regarding the date of birth of the victim in the
dahil-khariz register and do not know who made the entry and she
has also accepted the suggestion that if the date of birth
certificate is not available, generally the same is written on the
basis of assumption.
14. Perusal of the aforesaid statements of the witnesses would show
that though they have stated the date of birth of the victim as
21.08.2000, but there is no documentary proof or any certificate
has been attested to verify the age of the victim. As also there is
no medical evidence with regard to actual age of the victim.
15. The Hon'ble Supreme Court in paragraphs 40,42,43,44 and 48 of
its judgment in Alamelu and Another Vs. State, represented by
Inspector of Police, 2011(2) SCC 385, the Supreme Court has
observed as under:
"40.Undoubtedly, the transfer certificate, Ex.P16
indicates that the girl's date of birth was 15th June,
1977. Therefore, even according to the aforesaid
certificate, she would be above 16 years of age (16
years 1 month and 16 days) on the date of the alleged
incident, i.e., 31st July, 1993. The transfer certificate
has been issued by a Government School and has
been duly signed by the Headmaster. Therefore, it
would be admissible in evidence under Section 35 of
the Indian Evidence Act. However, the admissibility of
such a document would be of not much evidentiary
value to prove the age of the girl in the absence of the
material on the basis of which the age was recorded.
The date of birth mentioned in the transfer certificate
would have no evidentiary value unless the person,
who made the entry or who gave the date of birth
is examined.
42. Considering the manner in which the facts
recorded in a document may be proved, this Court in
the case of Birad Mal Singhvi Vs. Anand Purohit1 ,
observed as follows:-
"The date of birth mentioned in the scholars'
register has no evidentiary value unless the
person who made the entry or who gave the
date of birth is examined....Merely because the
documents Exs. 8, 9, 10, 11, and 12 were
proved, it does not mean that the contents of
documents were also proved. Mere proof of the
documents Exs. 8, 9, 10, 11 and 12 would not
tantamount to proof of all the contents or the
correctness of date of birth stated in the
documents. Since the truth of the fact, namely,
the date of birth of Hukmi Chand and Suraj
Prakash Joshi was in issue, mere proof of the
documents as produced by the aforesaid two
witnesses does not furnish evidence of the truth
of the facts or contents of the documents. The
truth or otherwise of the facts in issue, namely,
the date of birth of the two candidates as
mentioned in the documents could be proved by
admissible evidence i.e. by the evidence of
those persons who could vouchsafe for the truth
of the facts in issue. No evidence of any such
kind was produced by the respondent to prove
the truth of the facts, namely, the date of birth of
Hukmi Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as mentioned in
the aforesaid documents 1988 (Supp) SCC 604
have no probative value and the dates of birth as
mentioned therein could not be accepted."
43. The same proposition of law is reiterated by this
Court in the case of Narbada Devi Gupta Vs. Birendra
Kumar Jaiswal2, where this Court observed as
follows:-
"The legal position is not in dispute that mere
production and marking of a document as exhibit
by the court cannot be held to be a due proof of
its contents. Its execution has to be proved by
admissible evidence, that is, by the "evidence of
those persons who can vouchsafe for the truth of
the facts in issue"."
44. In our opinion, the aforesaid burden of proof has
not been discharged by the prosecution. The father
says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined at
all. Therefore, the entry in the transfer certificate can
not be relied upon to definitely fix the age of the girl.
48. We may further notice that even with reference to
Section 35 of the Indian Evidence Act, a public
document has to be tested by applying the same
standard in civil as well as criminal proceedings. In this
context, it would be appropriate to notice the
observations made by this Court in the case of Ravinder
Singh Gorkhi Vs. State of U.P.4 held as follows:-
"The age of a person as recorded in the school
register or otherwise may be used for various
purposes, namely, for obtaining admission; for
obtaining an appointment; for contesting election;
registration of marriage; obtaining a separate
unit under the ceiling laws; and even for the
purpose of litigating before a civil forum e.g.
necessity of being represented in a court of law
by a guardian or where a suit is filed on the
ground that the plaintiff being a minor he was not
appropriately represented therein or any
transaction made on his behalf was void as he
was a minor. A court of law for the purpose of
determining the age of a (2006) 5 SCC 584 party
to the lis, having regard to the provisions of
Section 35 of the Evidence Act will have to apply
the same standard. No different standard can be
applied in case of an accused as in a case of
abduction or rape, or similar offence where
the victim or the prosecutrix although might have
consented with the accused, if on the basis of the
entries made in the register maintained by the
school, a judgment of conviction is recorded, the
accused would be deprived of his constitutional
right under Article 21 of the Constitution, as in that
case the accused may unjustly be convicted."
16. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments,
the Hon'ble Supreme Court has observed in para 33 as under:
"33. What emerges on a cumulative
consideration of the aforesaid catena of
judgments is as follows:
33.2. If an application is filed before the
Court claiming juvenility, the provision of
sub-section (2) of section 94 of the JJ Act,
2015 would have to be applied or read
along with sub-section (2) of section 9 so
as to seek evidence for the purpose of
recording a finding stating the age of the
person as nearly as may be.
XXXX XXXX XXXX
33.3. That when a claim for juvenility is
raised, the burden is on the person raising
the claim to satisfy the Court to discharge
the initial burden. However, the documents
mentioned in Rule 12(3)(a)(i), (ii), and (iii) of
the JJ Rules 2007 made under the JJ
Act, 2000 or sub- section (2) of section 94 of
JJ Act, 2015, shall be sufficient for prima
facie satisfaction of the Court. On the basis
of the aforesaid documents a presumption
of juvenility may be raised.
33.4. The said presumption is however not
conclusive proof of the age of
juvenility and the same may be rebutted by
contra evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a
Court is not the same thing as declaring the
age of the person as a juvenile sought
before the JJ Board when the case is
pending for trial before the concerned
criminal court. In case of an inquiry, the
Court records a prima facie conclusion but
when there is a determination of age as per
sub-section (2) of section 94 of 2015 Act, a
declaration is made on the basis of
evidence. Also the age recorded by the JJ
Board shall be deemed to be the true age
of the person brought before it. Thus, the
standard of proof in an inquiry is different
from that required in a proceeding where
the determination and declaration of the
age of a person has to be made on the
basis of evidence scrutinized and accepted
only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable
to lay down an abstract formula to
determine the age of a person. It has to be
on the basis of the material on record
and on appreciation of evidence adduced by
the parties in each case.
33.7 This Court has observed that a
hypertechnical approach should not be
adopted when evidence is adduced on
behalf of the accused in support of the plea
that he was a juvenile.
33.8. If two views are possible on the same
evidence, the court should lean in favour of
holding the accused to be a juvenile in
borderline cases. This is in order to ensure
that the benefit of the JJ Act, 2015 is made
applicable to the juvenile in conflict with law.
At the same time, the Court should ensure
that the JJ Act, 2015 is not misused by
persons to escape punishment after having
committed serious offences.
33.9. That when the determination of age is
on the basis of evidence such as school
records, it is necessary that the same would
have to be considered as per Section 35
of the Indian Evidence Act, inasmuch as any
public or official document maintained in
the discharge of official duty would have
greater credibility than private documents.
33.10. Any document which is in
consonance with public documents, such as
matriculation certificate, could be accepted
by the Court or the JJ Board provided such
public document is credible and authentic as
per the provisions of the Indian Evidence
Act viz., section 35 and other provisions.
33.11. Ossification Test cannot be the sole
criterion for age determination and a
mechanical view regarding the age of a
person cannot be adopted solely on the
basis of medical opinion by radiological
examination. Such evidence is not
conclusive evidence but only a very useful
guiding factor to be considered in the
absence of documents mentioned in Section
94(2) of the JJ Act, 2015."
17. Recently, in case of P. Yuvaprakash Vs. State represented by
Inspector of Police, 2023 (SCC Online) SC 846 , Hon'ble
Supreme Court has held in para 14 to 17 as under :
"14. Section 94 (2)(iii) of the JJ Act clearly
indicates that the date of birth certificate from the
school or matriculation or equivalent certificate
by the concerned examination board has to be
firstly preferred in the absence of which the birth
certificate issued by the Corporation or Municipal
Authority or Panchayat and it is only thereafter in
the absence of these such documents the age is
to be determined through "an ossification test" or
"any other latest medical age determination test"
conducted on the orders of the concerned
authority, i.e. Committee or Board or Court. In
the present case, concededly, only a transfer
certificate and not the date of birth certificate or
matriculation or equivalent certificate was
considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the victim
as 11.07.1997. Significantly, the transfer
certificate was produced not by the prosecution
but instead by the court summoned witness, i.e.,
CW-1. The burden is always upon the
prosecution to establish what it alleges;
therefore, the prosecution could not have been
fallen back upon a document which it had never
relied upon. Furthermore, DW-3, the concerned
Revenue Official (Deputy Tahsildar) had stated
on oath that the records for the year 1997 in
respect to the births and deaths were missing.
Since it did not answer to the description of any
class of documents mentioned in Section 94(2)(i)
as it was a mere transfer certificate, Ex C-1
could not have been relied upon to hold that M
was below 18 years at the time of commission of
the offence.
15. In a recent decision, in Rishipal Singh Solanki
vs. State of Uttar Pradesh & Ors. this court
outlined the procedure to be followed in cases
where age determination is required. The court
was dealing with Rule 12 of the erstwhile
Juvenile Justice Rules (which is in pari materia)
with Section 94 of the JJ Act, and held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals
with the procedure to be followed in
determination of age. The juvenility of a
person in conflict with law had to be decided
prima facie on the basis of physical
appearance, or documents, if available. But
an inquiry into the determination of age by
the Court or the JJ Board was by seeking
evidence by obtaining: (i) the matriculation
or equivalent certificates, if available and in
the absence whereof; (ii) the date of birth
certificate from the school (other than a play
school) first attended; and in the absence
whereof; (iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat. Only in the absence of either (i),
(ii) and (iii) above, the medical opinion could
be sought from a duly constituted Medical
Board to declare the age of the juvenile or
child. It was also provided that while
determination was being made, benefit
could be given to the child or juvenile by
considering the age on lower side within the
margin of one year."
16. Speaking about provisions of the Juvenile
Justice Act, especially the various options in
Section 94 (2) of the JJ Act, this court held in
Sanjeev Kumar Gupta vs. The State of Uttar
Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date
of birth certificate from the school and the
matriculation or equivalent certificate from
the 2021 (12) SCR 502 [2019] 9 SCR 735
concerned examination board in the same
category (namely (i) above). In the absence
thereof category (ii) provides for obtaining
the birth certificate of the corporation,
municipal authority or panchayat. It is only
in the absence of (i) and (ii) that age
determination by means of medical analysis
is provided. Section 94(2) (a)(i) indicates a
significant change over the provisions
which were contained in Rule 12(3)(a) of
the Rules of 2007 made under the Act of
2000. Under Rule 12(3)(a) (i) the
matriculation or equivalent certificate was
given precedence and it was only in the
event of the certificate not being available
that the date of birth certificate from the
school first attended, could be obtained. In
Section 94(2)(i) both the date of birth
certificate from the school as well as the
matriculation or equivalent certificate are
placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs.
State of West Bengal, this court, through a three-
judge bench, held that the burden of proving that
someone is a juvenile (or below the prescribed
age) is upon the person claiming it. Further, in that
decision, the court indicated the hierarchy of
documents that would be accepted in order of
preference."
18. Thus, the evidence brought on record by the prosecution with
regard to the age of the victim cannot be held reliable in absence
of the proposition laid down by the Supreme Court in the above
judgment.
19. The next question for consideration would be whether the
appellant has committed rape upon her or not ?
20. PW/1 -victim stated in her statement that she knows the accused
Thakur Ram Sahu. She stated that when she was returning from
her maternal aunt's house to her village Sirsiva, the accused
present in the court was coming from Sonamagar and he wrote
his mobile number on a piece of paper and gave it to her. After
coming home, she called him from her mother's mobile. After that,
they kept talking on the phone for about a year. She further stated
that on 24 April 2014, the accused called her to meet him near
Khorababa Dongri hill and when she went there, the accused
established physical relations with her three to four times by
saying that he will make her his wife. Thereafter, on 25.06.2015,
accused called her to meet near the the anicut and when her
mother saw her talking to the accused, so she did not go home at
night due to fear. She stayed with accused at anicut the whole
night. That day also the accused forcefully made physical
relations with her. Thereafter, she stated that the village people
came to know about their relationship so the accused avoiding her
thereafter she told about the incident to her family and lodged the
report.
In cross-examination, PW/1 has categorically stated that
she had a love affair with the accused and they used to talk to
each other on phone. She further stated that she wanted to marry
the accused because she had a love affair with him. She also
stated that her parents knew about her love affair with the
accused and did not support her. She further stated that the
accused did not take her with him forcibly instead she went with
him on her own free will and did not have sex with her forcibly or
without her consent.
21. PW/ 2 is the mother of the victim who has stated in his cross-
examination that her daughter used to talk to the accused on
mobile, which she was aware of. She further stated that she used
to forbid her daughter from talking to the accused on mobile and
also scolded her. She also stated that when the accused used to
call her daughter on mobile she used to talk to him and went to
meet her whenever he called her.
22. Dr. R. K. Thakur (PW/4) in his statement stated that no marks of
injury were found on her body. There were no marks of injury
anywhere in the genitals. From the statement of this witness, it is
clear that the sexual intercourse has been done with the consent.
23. Therefore, in the facts and circumstances of the case, as also the
evidence on record, it would not be safe for this Court to hold that
the appellant has committed rape upon her, rather it reflects from
the evidence that the victim herself had made consented sexual
intercourse with the appellant. It is also clear from the statements
of the prosecution witnesses that the physical relation they made
was consensual in nature, thus, it cannot be said that the
appellant committed the offence.
24. The law is well settled that in case of rape, conviction can be
maintained even on the basis of sole testimony of the victim.
However, there is an important caveat which is that the testimony
of the victim must inspire confidence. Even though the testimony
of the victim is not required to be corroborated, if her statement is
not believable, then the accused cannot be convicted. The
prosecution has to bring home the charges leveled against the
appellant beyond reasonable doubt, which the prosecution has
failed to do in the instant case.
25. For the foregoing reasons, the prosecution has not proved that the
appellant had forcefully taken away the Victim, and from the
evidence of the victim the same creates doubt and also the fact
that since, it has also not proved that at the time of incident the
Victim was minor, therefore, we are of the view that the appellant
is entitled to be acquitted.
26. The accused is acquitted of the charges for which he was tried.
The impugned judgment of conviction and sentence is set aside.
The appellant is acquitted from the charge leveled against him.
The appellant is reported to be on bail. His bail bonds are not
discharged at this stage and the bonds shall remain operative for
a period of six months in view of Section 481 of the BNSS.
Accordingly, the Criminal appeal is allowed.
27. The trial Court record along with the copy of this judgment be sent
back immediately to the trial court concerned for compliance and
necessary action.
Sd/-
(Bibhu Datta Guru)
Judge
Jyoti
