Chattisgarh High Court
Jogaram Kadti vs State Of Chhattisgarh on 24 March, 2025
1
2025:CGHC:14148
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1835 of 2024
1 - Jogaram Kadti S/o Shri Podiya Kadti Aged About 36 Years R/o Permapara
Madadhi, P.S. Kirandul, District Dantewada (C.G.) ... Appellant(s)
versus
1 - State Of Chhattisgarh Through Police Station - Kirandul, District Dantewada
(C.G.) ---- Respondent
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For the Appellant : Mr. Praveen Kumar Tulsyan, Advocate.
For the State/Respondent : Mr. Laxmeen Kashyap, Advocate
------------------------------------------------------------------------------------------
Hon'ble Shri Arvind Kumar Verma, Judge
Order on Board
24.03.2025
1. With the consent of the parties, the present matter is heard finally.
2. This criminal appeal has been preferred by the appellant against the
judgment of conviction and order of sentence dated 26.09.2024,
passed in Special Session (POCSO) Case No. 117/2023 by which
the learned Additional Session Judge (F.T.C.) South Bastar
Dantewada, (CG),whereby the appellant has been convicted and
sentenced as follows:-
Convicted under Sentenced to
Sections
363 of IPC R.I. for 3 years with fine of Rs. 500/-
and, in default of payment fine, addi-
tional R.I. for one year.
366 of IPC R.I. for 3 years with fine of Rs. 500/-
and, in default of payment fine, addi-
tional R.I. for one year.
4(1) of POCSO R/w S.R.I. for 10 years with fine of Rs. 1000/-
376 of IPC and, in default of payment fine, addi-
tional R.I. for one year.
All the sentences run concurrently
3. The prosecution case, in brief, is this that victim had lodged FIR
against the present appellant and alleged that on 07.11.2023, the
present appellant had called her outside the house by threatening
her and thereafter took her to Madadhi Gechapara Jungle and
committed forceful sexual intercourse. Based upon the said report,
FIR was registered against the appellant for the offence punishable
under Sections 376 of IPC & u/s 04, 06 of POCSO Act of Indian
Penal Code. On completion of investigation, final report/charge
sheet was filed against appellant.
4. Prosecution in order to prove its case examined total 11 witnesses.
Statements of appellant (accused) was also recorded under Section
313 of CrPC in which he denied all incriminating evidence appearing
against him, pleaded innocence and false implication. However, no
evidence was adduced by him in his defence.
5. After hearing counsel for the parties and appreciating evidence
available on record, the trial Court vide impugned judgment
convicted and sentenced the accused/appellant in the manner as
described above of this judgment. Hence this appeal.
6. Learned counsel for appellant submits that age of the prosecutrix
was 16 years, 9 months and 22 days at the time of alleged incident,
but no authentic documentary proof was filed in order to show that
the prosecutrix was a minor girl on the alleged date. The date of
birth mentioned as 15.01.2007 in 10th class mark-sheet (ExP-9)
cannot be said to be conclusive as the author of the said document
could not be examined and the basis on which the date of birth of
the victim is recorded in the said school register have also not been
proved. No any kotwar register, birth certificate or ossification test
have been produced by the prosecution for determination of the
actual age of the victim.
7. Learned counsel for the appellant would further submit that the
victim was having love affair with the appellant and she herself
eloped with him on her own sweet will and have not made any
complaint to anyone while going with the appellant by motorcycle.
She has also not raised any alarm while she has been taken by the
appellant and also while staying with him and making physical
relation with him. The evidence of the victim does not inspire the
confidence and therefore no offence under IPC and POCSO Act are
made out against the appellant.
8. Learned counsel further submits that trial Court convicted the
appellant relied upon the statement of PW-1/victim, but her
statement is not reliable as there are many contradictions, omissions
and development in her statement, which was not considered
properly by the learned trial court. From the statements of the
prosecutrix recorded before the police, Magistrate and the Court it
reflects that she is not a reliable witness and appears to be a
consenting party to the act of appellant. Trial Court also ignored the
fact that nothing has been found in the medical report of victim
though there is allegation that appellant has established forceful
physical relationship with her. In fact, there was love affair between
the appellant and the prosecutrix and therefore, she willingly went
with his place and had physical relation with him of her own free will.
Medical evidence also shows that there was no sign of forcible
sexual intercourse on the body of the prosecutrix. The prosecution
has failed to prove its case beyond all reasonable doubt against the
appellant and therefore, the appellant deserves to be acquitted of all
the charges.
9. On the other hand, learned counsel for the State supporting the
impugned judgment and submits that on the date of incident the
victim was minor and below 18 years of age which is proved by the
10th class mark-sheet in which the date of birth of the victim is
recorded as 15.01.2007. She being the minor girl, was kidnapped
by the appellant and kept away from the lawful guardianship of the
parents by threatening her and committed sexual intercourse with
her, thereby committed offence of rape defined under IPC and also
of POCSO Act. Considering the entire evidence, the learned trial
Court has convicted and sentenced the appellant which is justified
and the appeal of the appellant is liable to be dismissed.
10.Heard learned counsel for the respective parties and perused the
recorded placed on record.
11.In order to consider the age of prosecutrix, this Court has to
examine the evidence/material placed on record by the
prosecution. The prosecution has mainly relied upon the 10 th class
mark-sheet (Ex.P-9) which has been submitted by the police vide
seizure memo (Ex.P-8), wherein date of birth of the prosecutrix is
mentioned as 15.01.2007. However, no author has examined on
what basis the date of birth has been mentioned in the mark-sheet.
There is also no Dakhil Kharij Register and no other document is
available regarding the age of the victim.
12. PW-1 victim has stated in her deposition that she is in 11 th class
and her date of birth is 15.01.2007. She has not stated anything in
her deposition as to on what basis she is saying that her date of birth
is 15.01.2007. PW-2 mother and PW- 3 father of the prosecutrix has
deposed in their deposition that they do not know about the date of
birth of the prosecutrix on what basis the date of birth has been
registered in school at the time of admission. From the evidence, it
appears that Class-X certificate is available in support of date of
birth of the victim.
13.In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC
584, relying upon its earlier judgment in case of Birad Mal Singhvi
Vs. Anand Purohit, 1988 supp. SCC 604, the Hon'ble Supreme
Court has held as under :
"26. To render a document admissible under
Section 35, three conditions must be satisfied,
firstly, entry that is relied on must be one in a
public or other official book, register or record;
secondly, it must be an entry stating a fact in
issue or relevant fact; and thirdly, it must be made
by a public servant in discharge of his official duty,
or any other person in performance of a duty
specially enjoined by law. An entry relating to date
of birth made in the school register is relevant and
admissible under Section 35 of the Act but the
entry regarding the age of a person in a school
register is of not much evidentiary value to prove
the age of the person in the absence of the
material on which the age was recorded."
14.In case of Alamelu and Another Vs. State, represented by
Inspector of Police, 2011(2)SCC-385, the Hon'ble Supreme Court
has held that the transfer certificate which is issued by government
school and is duly signed by the Headmaster would be admissible in
evidence under Section 35 of the Evidence Act 1872. However, the
admissibility of such a document would be of not much evidentiary
value to prove the age of the victim in the absence of any material on
the basis of which the age was recorded. The Hon'ble Supreme
court held that 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. In paragraphs
40,42,43,44 and 48 of its judgment in Alamelu (Supra), 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 Jaiswal, 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 party10 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
victim 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."
15.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:
33.2.2. 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."
16.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.
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 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."
17.Reverting to the facts of the present case, on due consideration of
the prosecution evidence with respect to age of the victim, this Court
finds no clinching and legally admissible evidence has been brought
by the prosecution to prove the fact that the prosecutrix/victim was
minor and less than 18 years of age on the date of incident, despite
the fact that the Trial Court has held her minor in the impugned
judgment . Accordingly, this Court finds it appropriate to set aside
the findings given by the trial Court that on the date of incident, the
victim was minor.
18.So far as issue of kidnapping and forceful sexual intercourse by the
appellant with victim is concerned, this Court has carefully perused
the evidence of the victim. In her evidence PW-1 the prosecutrix has
admitted in her statement under Section 164 of Cr.P.C. that she
knew the appellant and they are in relationship. When he brought
the victim to forest area, she did not resist the same and she with
her own will joined his company and thereafter established physical
relationship. She further stated that there is love affair between
them.
19.Close scrutiny of the evidence led by the prosecution would make it
clear that the prosecutrix has nowhere disclosed that at any point of
time, the appellant has committed any forceful sexual intercourse
with her. Dr. Nidhi Meshram (PW-11) in her deposition has stated
that she did not found any external or internal injury on the body of
the victim. The secondary sexual organs were fully developed and
the prosecutrix was habitual to sexual intercourse.
20.Thus, considering the entire facts and circumstances of the case
particularly, the evidence with regard to the age and conduct of the
prosecutrix, this Court is of the opinion that the age of the
prosecutrix is not verified and not proved by the prosecution that
prosecutrix was minor at the time of incident. Conduct of prosecutrix
is seen in its entirety, it is clear that she had been a consenting party
to the act of the appellant having developed an intimacy with him.
The evidence of the witnesses of the case does not prove that the
accused kidnapped the victim by luring or kidnapping her from the
lawful protection of her father without her consent with the intention
of marrying or having illicit sexual intercourse with her. She went
along with the applicant to his place and thereafter she established
physical relationship without any resistance. Therefore, in the above
facts and circumstances of the case, offence under Section 363 and
366 of the IPC and 4(1) of POCSO r/w S. 376 of IPC would not be
made out against the appellant.
21.The appeal is allowed accordingly. The judgment of conviction and
order of sentence dated 26.09.2024 is hereby set aside. The
appellant stands acquitted of all the charges levelled against him.
22. The appellant is reported to be in jail. He be released forthwith, if
not required in any other case.
23.The Trial Court record (TCR) along with a copy of this judgment be
sent back immediately to the trial court concerned for compliance
and necessary action.
Sd/-
(Arvind Kumar Verma)
Judge
Digitally
signed by
JYOTI JHA
Date:
Jyoti
2025.04.17
11:56:26
+0530
