Chattisgarh High Court
Dinesh Kumar Jurri vs State Of Chhattisgarh on 22 July, 2025
1
CRA No. 697 of 2016
Digitally
signed by
SHOAIB
2025:CGHC:34909
SHOAIB ANWAR
ANWAR Date:
2025.07.24
14:13:12
+0530
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 697 of 2016
1 - Dinesh Kumar Jurri S/o Shukauram Jurri Aged About 31 Years R/o
Village Kuralthemli, Police Station Narharpur, Distt. Kanker,
Chhattisgarh
... Appellant
versus
1 - State Of Chhattisgarh Through District Magistrate, Uttar Bastar
Kanker, Distt. Kanker Chhattisgarh. , Chhattisgarh
... Respondent(s)
(Cause-title taken from the Case Information System)
For Appellant(s) : Ms. Indira Tripathi, Advocate
For Respondent(s) : Ms. Isha Jajodiya, Panel Lawyer
Hon'ble Shri Justice Bibhu Datta Guru
Judgment on Board
22/07/2025
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 20.04.2016 passed in Special Sessions Trial
No. 05/2015 by the learned Additional Sessions Judge (F.T.C.) &
Special Judge (POCSO), North Bastar Kanker, C.G., whereby the
appellant has been convicted and sentenced as under:-
Conviction Sentence
U/s 363 of the IPC Rigorous imprisonment for 03
years and fine of Rs. 500/- with
default stipulation.
U/s 366 of the IPC Rigorous imprisonment for 05
years and fine of Rs. 1,000/-
with default stipulation.
U/s 376(2) (n) of the IPC Rigorous imprisonment for 10
years and fine of Rs. 2,000/-
with default stipulation.
All the sentences were directed to run concurrently.
2. Case of the prosecution in brief is that the father of the victim
(PW-2) lodged the report before the police alleging therein
that on 25.10.2014 at about 04:00 PM his daughter/victim
aged about 17 years left the house by stating that she will
collect harra thereafter she could not return till 06:00 PM for
which they searched her when her whereabouts were not
known the complainant sent his son along with others for
searching the victim. At that time they came to know that on
30.10.2014 the accused eloped the victim. During the course
investigation, the police recovered the victim and after
following the due process of law seizure memo was prepared
and her knickers were sent for medical examination.
3. During investigation, Spot Map (Ex.P/6) was prepared. With
regard to date of birth of the Victim, Dakhil Kharij register
(Ex.P/11C) was seized. 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 14 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
20.04.2016 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. Learned
counsel for the appellant would submit that the evidence of
the prosecutrix clearly establish the fact that she willingly left
the house and residing with the appellant for a considerable
period of more than one month and even in the light of 161
statement of the prosecutrix, she admitted that she is in love
affair with the appellant and in the court statement she
admitted the fact that she went to Dhamtari Court for
marriage and she moved with the accused here to there, but
she has not disclosed the aforesaid fact to any one. 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. He
would submit that the medical report is not supported the
version of the prosecution. In the evidence of the witnesses, it
can be seen that there are material contradiction and
omissions. 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.
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 24.06.2025. In her cross-examination she has stated
in paragraph 4 that when she was in Class 1, her age was 06
years; and 03 years before, her evidence dated 09.02.2015 i.e.
on or around 09.02.2012, she had left her studies and at the
time of leaving studies, she was studying in Class-6.
12. PW/2 father of the prosecutrix has stated in his deposition
that her daughter is 18 years old. In his cross-examination he
has admitted that he don't know the actual date of birth of his
children and accepted that when he took the prosecutrix to
school for admission, he did not tell the date of birth, the
teacher has himself entered the date of birth of the
prosecutrix. Her mother PW-5 also corroborated the evidence
of PW-2 i.e. father of victim.
13. PW/8 Siyaram Nishad posted as Teacher in the Primary School
has stated in his statement that according to Dakhil Kharij
Register, the date of birth of the victim is 24.06.1997. he has
admitted that he has not entered the date of birth in the
Dakhil Kharij Register and stated that he don't know who was
the author of the entry made in the register. He has further
admitted that he had not admitted the prosecutrix in school
and also don't know on what basis her date of birth was
recorded.
14. Perusal of the aforesaid statements of the witnesses would
show that though there is entry regarding date of birth of the
victim in the Dakhil Kharij register, but on what basis, the
entry was made, is not mentioned in the register, whatsoever
mentioned in the register is ordeal in nature. Even the author
of the entry made in the register is also not examined
whereas the actual author who made the entry was not
examined. 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 in her cross-examination stated that she had
gone from her house to the field to collect Harra, from there
the accused took her to village Sureli saying that he will marry
her, from there accused took her to Gokulpur Dhamtari and
then towards Pakhanjur. She has admitted in her cross-
examination that she used to talk to the accused over mobile
and they both used to visit each other house. She admitted
that her brother used to forbid her from talking to the
accused and scolded her, because he did not like the accused.
She further admitted that she herself went everywhere with
the accused on motorcycle and did not tell anyone on the way
that accused is taking her forcibly. She further admitted that
whenever she had corporeal relation with the accused, she did
not tell anybody about it. In her 164 Cr.P.C. statement she has
stated that accused came to meet her in the field and said he
will marry her come with him; accused lured her; took her to
Gokulpur Dhamtari and married the prosecutrix, thereafter
she has stated that she did not went with the accused on her
own will, accused took her to Pakhanjoor and kept her there
as his wife and further stated that her parents lodged the
reported against the accused. In Police statement she has
stated that she started loving the accused and used to talk
him over phone due to which my brother used to get angry
and forbids her to talk with the accused. PW/2, father of the
victim and PW/5, mother of the victim turned hostile and
stated that the accused/appellant has not committed anything
with their daughter.
21. Dr. K.L. Thakur (PW/10) in his statement stated that after
examining the victim, he did not find any mark of struggle
that should have been made during commitment of rape on
any part her body. while examining the victim it is found that
hymen membrane to be old and she is found to be habitual in
sexual intercourse.
22. 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 forcibly,
rather it reflects from the evidence that they are in love affair
and liking each other.
23. 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.
24. 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, I am of the view
that the appellant is entitled to be acquitted.
25. The accused is acquitted of the charges for which he was
tried. 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.
26. The trial court record along with a copy of this judgment be
sent back immediately to the trial court concerned for
compliance and necessary action.
Sd/-
(Bibhu Datta Guru)
Judge
Shoaib
