Orissa High Court
Agasta Singh vs State Of Odisha on 22 May, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No. 22 of 2020
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Agasta Singh .... Appellant
-versus-
State of Odisha .... Respondent
For Appellant : Mr. J. Kamila, Adv.
For Respondent : Mr. P.K. Panda, ASC
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:13.03.2026 & Date of Judgment: 21.05.2026
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Biraja Prasanna Satapathy, J.
The present Appeal has been filed inter alia challenging the order
of conviction and sentence passed by the learned Addl. Sessions Judge
-cum-Special Judge, Balasore vide judgment dated 17.02.2020 in
convicting the Appellant of the offence under Section 363/376(2)(n) of
the Indian Penal Code and by convicting and sentencing the Appellant
to undergo RI for a period of 20 years and pay a fine of Rs.25,000/-, in
// 2 //
default RI for one year for the offence under Section 376(2)(n) of the
IPC and to undergo RI for 5 years, pay a fine of Rs.5,000/-, in default
RI for one month for the offence under Section 363 of the IPC in
Special Case No.348 of 2017.
2. While assailing the impugned order of conviction and sentence
learned counsel appearing for the Appellant contended that basing on
the FIR lodged in Simulia PS Case No.219 of 2017 on dated
21.07.2017, the prosecution case was set into motion against the
Appellant for the offence under Section 363/376(2)(n) of the IPC read
with Section 4, 6 & 8 of the POCSO Act.
2.1. It is contended that after commitment, Petitioner faced the trial in
the Court of learned Special Judge, Balasore for the offence under
Section 363/376(2)(n) of the IPC read with Section 4,6 & 8 of the
POCSO Act. The prosecution story as narrated in the FIR reads as
follows:-
“2. The case of the prosecution in brief, is as follows:-
The informant is the father of the victim. The victim is aged
about 14 years and was a student of Class-VIII at
Padmabati Government School. On 15.08.2017 i.e. on the
date of Independence Day at about 3 pm and accused went
to the house of the informant and while the wife of the
informant was sleeping, the accused cleverly took away the
victim to Markona and from Markona station he took the
victim towards Rupsa by means of a train and caused her
senseless and thereafter the accused took the victim to his
house by means of a motorcycle. At his, the accused
committed sexual intercourse with the victim, physically
assaulted her and mentally tortured her and thereafter
Page 2 of 38
// 3 //while the accused was taking the victim with him towards
Panchalingeswar the cousin son-in-law of the informant
rescued the victim at Police Line, Balasore and brought the
victim to the house of the informant.
Alleging the aforesaid facts, the informant lodged a written
report before Simulia PS. The written report of the
informant was treated as FIR and this case was registered.
On the direction of the IIC of Simulia PS, SI Salhai
Marandi investigated into this case. After completion of
investigation, the Investigating Officer submitted charge
sheet. After submission of charge sheet, cognizance of the
offence under section 363, 376(2)(n) of IPC read with
section 4, 6 & 8 of POCSO Act was taken and the accused
was also charged for commission of the aforesaid offence
giving rise to the present trial.”
2.2. It is contended that prosecution in order to prove the charges
against the Appellant examined 11 P.Ws. and defense examined one
witness in support of its stand. While P.W.1 is the Doctor who
examined the accused, P.W. No.2 is the victim herself, P.W.3 is the
informant and P.W.4 is the teacher from whose possession Police
seized the School admission register, While P.W. 5 and 6 are the
seizure witnesses, P.W. 7 is the only independent witness. Similarly
P.W. 8 is the Doctor, who examined the victim and P.W. 9 is the
mother of the victim, P.W. 10 is the brother-in-law of the victim and
P.W. 11 is the I.O.
2.3. It is contended that even though in the FIR, the informant who
happens to be the father of the victim alleged that the victim was a
minor, but basing on the materials produced by the prosecution, learned
Page 3 of 38
// 4 //
Special Judge though held the Appellant guilty of the offence under
Section 4, 6 & 8 of the POCSO Act but, did not impose any sentence
for the said offences, taking into account the sentence imposed for the
offence under Section 376(2)(n) of the IPC.
2.4. It is also contended that even though learned trial Court taking into
account the evidence and materials placed before him held the victim
as a minor and allegation of rape was also proved, but taking into
account the medical report of the Doctor-P.W.8, it cannot be held that
the victim was subjected to any sexual intercourse during the period
involved. Statement of P.W.8 reads as follows:-
“On 22.08.2017 I was working as Paediatric specialist at
DHH, Balasore. On that day at about 11.15 a.m. on police
requisition I examined the victim and opined as follows:-
(i) There is no bodily injury suggestive of forcible sexual
intercourse.
(ii) Her genital examination does not show any sign and
symptom of recent sexual intercourse.
(iii) Vaginal swab examined by apthologist of DHH,
Balasore does not show any spermatozoa.
(iv) Her blood group is B +ve.
(v) According to Radiologist, the age of the victim is
between 15 to 16 years.
(vi) Public hair is not developed.
(vii) According to the above findings, there was no recent
sign and symptom of sexual intercourse.
This is the medical examination report already marked as
Ext.2 and Ext.2/3 is my signature. This is the report of the
radiologist marked as Ext.12 which I referred in preparing
Ext.2.”
2.5. It is also contended that in support of age of the victim though
prosecution relied on the evidence of P.W. 4 and the documents
Page 4 of 38
// 5 //
exhibited as Ext. 6 and 6/1, but while taking the age of the victim as a
minor, since the relevant provisions contained under Section 164-A of
the Cr.P.C. read with Section 27 of the POCSO Act and Section 94 of
the Juvenile Justice Act were not followed, the finding of the learned
Trial Court that the victim is a minor is vitiated and cannot be accepted.
Section 164-A Cr.P.C., Section 27 of the POCSO Act, and Section 94
of the J.J. Act reads as follows:
“SECTION 164 A
1. where during the stage when an offence of committing rape or
attempt to commit rape is under investigation, it is proposed to get the
person of the woman with whom rape is alleged or attempted to have
been committed or attempted, examined by a medical expert, such
examination shall be conducted by a registered medical practitioner
employed in a hospital run by the Government or a local authority
and in the absence of such a practitioner, by any other registered
medical practitioner, with the consent of such woman or of a person
competent to give such consent on her behalf and such woman shall
be sent to such registered medical practitioner within twenty-four
hours from the time of receiving the information relating to the
commission of such offence.
2. The registered medical practitioner, to whom such woman is sent
shall, without delay, examine her person and prepare a report of his
examination giving the following particulars, namely–
1. the name and address of the woman and of the person by whom
she was brought;
2. the age of the woman;
3. the description of material taken from the person of the woman
for DNA profiling;
4. marks of injury, if any, on the person of the woman;
5. general mental condition of the woman; and
6. other material particulars in reasonable detail,
3.The report shall state precisely the reasons for each conclusion
arrived at.
4.The report shall specifically record that the consent of the woman or
of the person competent, to give such consent on her behalf to such
examination had been obtained.
Page 5 of 38
// 6 //
5.The exact time of commencement and completion of the examination
shall also be noted in the report.
6. The registered medical practitioner shall, without delay forward the
report to the investigating officer who shall forward it to the
Magistrate referred to in section 173 as part of the documents
referred to in clause (a) of Sub-Section (5) of that section.
7. Nothing in this section shall be construed as rendering lawful any
examination without the consent of the woman or of any person
competent to give such consent on her behalf.
Section 27 of POCSO Act
1. the medical examination of a child in respect of whom any offence
has been committed under this act shall notwithstanding that a first
information report or complaint has not been registered for the
offences under this act be conducted in accordance with section 164a
of the code of criminal procedure 1973 2 of 1973
2 in case the victim is a girl child the medical examination shall be
conducted by a woman doctor
3 the medical examination shall be conducted in the presence of the
parent of the child or any other person in whom the child reposes trust
or confidence
4 where in case the parent of the child or other person referred to in
sub section 3 cannot be present for any reason during the medical
examination of the child the medical examination shall be conducted
in the presence of a woman nominated by the head of the medical
institution.
SECTION 94 OF J.J. ACT
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.
(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–
(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;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(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
Page 6 of 38
// 7 //
Board:
Provided 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.
(3) The age recorded by the Committee or the Board to be the age of
person so brought before it shall, for the purpose of this Act, be
deemed to be the true age of that person.”
2.6. It is further contended that as provided under Rule 12 of the
Juvenile Justice (Care and Protection of Children) Rules, 2007, the
required procedure has been prescribed for determination of the age of
victim. Rule 12 of the 2007 Rules reads as follows:
“12. Procedure to be followed in determination of Age.―
(1) In every case concerning a child or a juvenile in
conflict with law, the court or the Board or as the case may
be the Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the
date of making of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be 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 in jail.
(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 –
(a) (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;
Page 7 of 38
// 8 //
(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 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 lower side within the
margin of one year.
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.
(4) If the age of a juvenile or child or the juvenile in
conflict with law is found to be below 18 years on the date
of offence, on the basis of any of the conclusive proof
specified in sub-rule (3), the court or the Board or as the
case may be the Committee shall in writing pass an order
stating the age and declaring the status of juvenility or
otherwise, for the purpose of the Act and these rules and a
copy of the order shall be given to such juvenile or the
person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of the
Act and these rules, no further inquiry shall be conducted
by the court or the Board after examining and obtaining
the certificate or any other documentary proof referred to
in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to
those disposed off cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub- rule(3) and the Act, requiring
dispensation of the sentence under the Act for passing
appropriate order in the interest of the juvenile in conflict
with law.”
Page 8 of 38
// 9 //
2.7. Placing reliance on the aforesaid provisions it is contended that
since in support of the age of the victim, there is no evidence that the
documents exhibited vide the Ext.6 and 6/1 are the documents in
support of the age of the victim from the school she first attended, the
date of birth reflected in Ext. 6 and 6.1, should not have been relied on
by the learned Special Judge, while holding the victim as a minor.
2.8. In support of his aforesaid submission, reliance was placed to a
decision of the Hon’ble Apex Court in the case of State of Uttar
Pradesh Vs. Anurudh and Anr., 2026 SCC OnLine SC 40. Hon’ble
Apex Court in Para-5.3, 8.1 to 8.4, 9.2, 13.1 and 14.4 has held as
follows:-
“5.3. The statutory scheme was analysed to conclude that
Sections 164-ACrPC and 27 POCSO Act obligate police to
obtain the victim’s medical age report at the commencement of
investigation. Section 94 of the Juvenile Justice (Care and
Protection) Act 2015 [JJ Act] supplements this mechanism.
Failure to secure such a report rendered the statutory
framework futile and opens scope for false
implication via manipulated age claims.
xxx xxx xxx
8.1. Section 27 of the POCSO Act
“27. Medical examination of a child.–(1) The medical
examination of a child in respect of whom any offence has been
committed under this Act, shall, notwithstanding that a First
Information Report or complaint has not been registered for the
offences under this Act, be conducted in accordance with section
164A of the Criminal Procedure Code, 1973 (2 of 1973).
(2) In case the victim is a girl child, the medical examination
shall be conducted by a woman doctor.
(3) The medical examination shall be conducted in the presence
of the parent of the child or any other person in whom the child
reposes trust or confidence.
Page 9 of 38
// 10 //
(4) Where, in case the parent of the child or other person
referred to in sub-section (3) cannot be present, for any reason,
during the medical examination of the child, the medical
examination shall be conducted in the presence of a woman
nominated by the head of the medical institution.”
(emphasis supplied)
8.2. Section 164 of the CrPC
“[164A. Medical examination of the victim of rape.–
(1) Where, during the stage when an offence of committing rape
or attempt to commit rape is under investigation, it is proposed
to get the person of the woman with whom rape is alleged or
attempted to have been committed or attempted, examined by a
medical expert, such examination shall be conducted by a
registered medical practitioner employed in a hospital run by
the Government or a local authority and in the absence of such
a practitioner, by any other registered medical practitioner,
with the consent of such woman or of a person competent to give
such consent on her behalf and such woman shall be sent to
such registered medical practitioner within twenty-four hours
from the time of receiving the information relating to the
commission of such offence.
(2) The registered medical practitioner, to whom such woman is
sent, shall, without delay, examine her person and prepare a
report of his examination giving the following particulars,
namely:–
(i) the name and address of the woman and of the person by
whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the
woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each
conclusion arrived at.
(4) The report shall specifically record that the consent of the
woman or of the person competent to give such consent on her
behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the
examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay
forward the report to the investigating officer who shall forward
it to the Magistrate referred to in section 173 as part of the
documents referred to in clause (a) of sub-section (5) of that
section.
(7) Nothing in this section shall be construed as rendering
lawful any examination without the consent of the woman or of
Page 10 of 38
// 11 //any person competent to give such consent on her behalf.
Explanation.–For the purposes of this section, “examination”
and “registered medical practitioner” shall have the same
meanings as in section 53.]”
(emphasis supplied)
8.3. Section 94 of the Juvenile Justice (Care & Protection) Act
2015
“94.(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.
(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 —
(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;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(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: Provided 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.
(3) The age recorded by the Committee or the Board to be the
age of person so brought before it shall, for the purpose of this
Act, be deemed to be the true age of that person.
(emphasis supplied)
8.4. Section 29 of the POCSO Act
“29. Presumption as to certain offences.–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.”
xxx xxx xxx
What were the bases for the High Court’s Conclusions and
Directions?
9.2. Now, let us examine Aman (supra).
Page 11 of 38
// 12 //
The Court noted a recurring problem in POCSO cases: frequent
contradictions in the recorded age of victims and false depiction
of majority as minority, often leading to the weaponisation of
the legislation against young couples in consensual
relationships. Medical determinations of age, drawn per the
latest scientific protocols, were deemed more reliable and
essential to prevent injustice.
Referring to Sections 164-ACrPC and 27 POCSO Act, the Court
held that a medical report determining the victim’s age is a
mandatory component of investigation in every POCSO case.
Such reports assist Courts in making accurate findings,
preventing false implication, and ensuring fair application of
law.
Accordingly, the Court issued directions:
“1. The police authorities/investigation officers shall ensure that
in every POCSO Act offence a medical report determining the
victim’s age shall be drawn up at the outset under Section 164A
of the Criminal Procedure Code read with Section 27 of the
Protection of Children from Sexual Offences Act, 2012. The
report may be dispensed with if medical opinion advises against
it in the interests of the victim’s health.
2. The medical report determining the age of the victim shall be
created as per established procedure of law and in adherence to
latest scientific parameters and medical protocol.
3. The medical report determining the age of the victim shall be
submitted under Section 164-A of the Code of Criminal
Procedure to the Court without delay.
4. The Director General (Health), Government of Uttar
Pradesh, Lucknow shall also ensure that the doctors who
comprise the Medical Board are duly trained and follow the
established medical protocol and scientific parameters for
determining the age of the victims in such cases. Constant
research shall be done in this field to keep the reports in line
with the latest scientific developments. A copy of this order be
communicated by the learned Government Advocate to the
Director General of Police, Lucknow, Uttar Pradesh for
compliance and Director General (Health), Government of
Uttar Pradesh,”
xxx xxx xxx
13.1. Section 2(d) of the POCSO Act defines a child as any
person below eighteen years. So, for the provisions of this Act to
be applied, the person against whom the offence in question has
been perpetrated must necessarily be below 18 years of age.
This is the sine qua non. The natural question which then arises
is how the age of victim is to be determined. Jarnail
Singh v. State of Haryana [(2013) 7 SCC 263] put this question
to rest as follows:
Page 12 of 38
// 13 //
“23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are of the
view that the aforesaid statutory provision should be the basis
for determining 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 minority is concerned, between a child in conflict with
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 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), 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 entry, Rule 12(3)
postulates reliance on a birth certificate issued by a corporation
or 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 Rule 12(3) postulates the determination of age of
the child concerned, on the basis of medical opinion.”
(emphasis supplied)
Rule 12 of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 [ Rules 2007] it must be noted, provides
the same hierarchy of documents as has been provided by
Section 94 of the JJ Act. The same is reproduced below for
felicity of reference:
“12.Procedure to be followed in determination of age.–(1) In
every case concerning a child or a juvenile in conflict with law,
the court or the Board or as the case may be, the Committee
referred to in Rule 19 of these Rules shall determine the age of
such juvenile or child or a juvenile in conflict with law within a
period of thirty days from the date of making of the application
for that purpose.
Page 13 of 38
// 14 //
(2) The court or the Board or as the case may be the Committee
shall decide the juvenility or otherwise of the juvenile or the
child or as the case may be 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 in jail.
(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–
(a)(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;
(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 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 lower side within the margin of one
year, 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.
(4) If the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of offence, on
the basis of any of the conclusive proof specified in sub-rule (3),
the court or the Board or as the case may be the Committee
shall in writing pass an order stating the age and declaring the
status of juvenility or otherwise, for the purpose of the Act and
these Rules and a copy of the order shall be given to such
juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of Section 7-A, Section 64 of the
Act and these Rules, no further inquiry shall be conducted by the
court or the Board after examining and obtaining the certificate
or any other documentary proof referred to in sub-rule (3) of
this Rule.
(6) The provisions contained in this Rule shall also apply to
those disposed of cases, where the status of juvenility has not
been determined in accordance with the provisions contained in
sub-rule (3) and the Act, requiring dispensation of the sentencePage 14 of 38
// 15 //under the Act for passing appropriate order in the interest of the
juvenile in conflict with law.”
xxx xxx xxx
14.4. In Rishipal Singh Solanki (supra) this Court while dealing
with an appeal filed by the father of the deceased noted the
difference between the Rules 2007 and the JJ Act 2015. It was
observed:
“29. The difference in the procedure under the two enactments
could be discerned as under:
29.1. As per the JJ Act, 2015 in the absence of requisite
documents as mentioned in clauses (i) and (ii) of Section 94(2),
there is provision for determination of the age by an ossification
test or any other medical age related test to be conducted on the
orders of the Committee or the JJ Board as per Section 94 of the
said Act; whereas, under Rule 12 of the JJ Rules, 2007, in the
absence of relevant documents, a medical opinion had to be
sought from a duly constituted Medical Board which would
declare the age of the juvenile or child.
29.2. With regard to the documents to be provided as evidence,
what was provided under Rule 12 of the JJ Rules, 2007 has been
provided under sub-section (2) of Section 94 of the JJ Act, 2015
as a substantive provision.
29.3. Under Section 49 of the JJ Act, 2000, where it appeared to
a competent authority that a person brought before it was a
juvenile or a child, then such authority could, after making an
inquiry and taking such evidence as was necessary, record a
finding as to the juvenility of such person and state the age of
such person as nearly as may be. Sub-section (2) of Section 49
stated that no order of a competent authority shall be deemed to
have become invalid merely by any subsequent proof that the
person in respect of whom the order had been made is not a
juvenile and the age recorded by the competent authority to be
the age of person so brought before it, for the purpose of the
Act, be deemed to be the true age of that person.
30. But, under Section 94 of the JJ Act, 2015, which also deals
with presumption and determination of age, the Committee or
the JJ Board has to record such observation stating the age of
the child as nearly as may be and proceed with the inquiry
without waiting for further confirmation of the age. It is only
when the Committee or the JJ Board has reasonable grounds for
doubt regarding whether the person brought before it is a child
or not, it can undertake the process of age determination, by
seeking evidence.
31. Sub-section (3) of Section 94 states that the age recorded by
the Committee or the JJ Board to be the age of the persons so
brought before it shall, for the purpose of the Act, be deemed to
be the true age of that person. Thus, there is a finality attached
to the determination of the age recorded and it is only in a case
Page 15 of 38
// 16 //where reasonable grounds exist for doubt as to whether the
person brought before the Committee or the Board is a child or
not, that a process of age determination by seeking evidence has
to be undertaken.”
Then further, it was held-
“33.1.A claim of juvenility may be raised at any stage of a
criminal proceeding, even after a final disposal of the case. A
delay in raising the claim of juvenility cannot be a ground for
rejection of such claim. It can also be raised for the first time
before this Court.
33.2.An application claiming juvenility could be made either
before the court or the JJ Board.
33.2.1.When the issue of juvenility arises before a court, it
would be under sub-sections (2) and (3) of Section 9 of the JJ
Act, 2015 but when a person is brought before a committee or JJ
Board, Section 94 of the JJ Act, 2015 applies.
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.
33.2.3. When an application claiming juvenility is made under
Section 94 of the JJ Act, 2015 before the JJ Board when the
matter regarding the alleged commission of offence is pending
before a court, then the procedure contemplated under Section
94 of the JJ Act, 2015 would apply. Under the said provision if
the JJ Board has reasonable grounds for doubt regarding
whether the person brought before it is a child or not, the Board
shall undertake the process of age determination by seeking
evidence and the age recorded by the JJ Board to be the age of
the person so brought before it shall, for the purpose of the JJ
Act, 2015, be deemed to be true age of that person. Hence the
degree of proof required in such a proceeding before the JJ
Board, when an application is filed seeking a claim of juvenility
when the trial is before the criminal court concerned, is higher
than when an inquiry is made by a court before which the case
regarding the commission of the offence is pending (vide Section
9 of the JJ Act, 2015).
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 Rules
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 the 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.
Page 16 of 38
// 17 //
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
criminal court concerned. 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 the
2015 Act, a declaration is made on the basis of evidence. Also
the age recorded by the JJ Board shall be deemed to be the true
age of the person brought before it. Thus, the standard of proof
in an inquiry is different from that required in a proceeding
where the determination and declaration of the age of a person
has to be made on the basis of evidence scrutinised and
accepted only if worthy of such acceptance.
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.
33.11. 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.”
2.9. Reliance was also placed to a decision of the Hon’ble Apex Court
reported in (2024) 17 SCC 684 in the case of P. Yuvaprakash Vs. State
represented by Inspector of Police. Hon’ble Apex Court in Para-14 to 18,
21 and 23 has held as follows:-
“14. 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:
“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 Board shall record such
Page 17 of 38
// 18 //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.
(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–
(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;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(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:
Provided 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.
(3) The age recorded by the Committee or the Board to
be the age of person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of that
person.”
15. It is evident from 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 him being a 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 of which the Juvenile Justice Act requires consideration is
that the court concerned has to determine the age by
considering the following documents:
“94. (2)(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;
(ii) The birth certificate given by a corporation or a
municipal authority or a panchayat;
(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.”
Page 18 of 38
// 19 //
16. 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 examination board concerned 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 authority concerned i.e.
Committee or Board or Court.
17. In the present case, concededly, only a transfer certificate
and not the date of birth certificate or matriculation or
equivalent certificate was considered. Ext. C-1 i.e. the school
transfer certificate showed the date of birth of the victim as 11-
7-1997. 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 Revenue Official (Deputy
Tahsildar) concerned 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, Ext. C-1 could not have been relied upon to
hold that ‘M’ was below 18 years at the time of commission of
the offence.
xxxx xxxxx xxxxx xxxxx
18. In a recent decision, in Rishipal Singh Solanki v. State of
U.P. [Rishipal Singh Solanki v. State of U.P., (2022) 8 SCC 602
: (2022) 3 SCC (Cri) 703] , 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: (SCC p. 616, para 22)
“22. 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)
Page 19 of 38
// 20 //
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.”
xxxx xxxxx xxxxx
21. Reverting to the facts of this case, the headmaster of M’s
school, CW 1, was summoned by the court and produced a
Transfer Certificate (Ext. C-1). This witness produced a
Transfer Certificate Register containing M’s name. He deposed
that she had studied in the school for one year i.e. 2009-2010
and that the date of birth was based on the basis of the record
sheet given by the school where she studied in the 7th standard.
DW 2 TMT Poongothoi, Headmaster of Chinnasoalipalayam
Panchayat School, answered the summons served by the court
and deposed that ‘M’ had joined her school with effect from 3-4-
2002 and that her date of birth was recorded as 11-7-1997. She
admitted that though the date of birth was based on the birth
certificate, it would normally be recorded on the basis of
horoscope. She conceded to no knowledge about the basis on
which the document pertaining to the date of birth was
recorded. It is stated earlier on the same issue i.e. the date of
birth, Thiru Prakasam, DW 3 stated that the birth register
pertaining to the year 1997 was not available in the record
room of his office.
xxxxx xxxxx xxxxx
23. As held earlier, the documents produced i.e. a transfer
certificate and extracts of the admission register, are not what
Section 94(2)(i) mandates; nor are they in accord with Section
94(2)(ii) because DW 1 clearly deposed that there were no
records relating to the birth of the victim, ‘M’. In these
circumstances, the only piece of evidence, accorded with Section
94 of the JJ Act was the medical ossification test, based on
several x-rays of the victim, and on the basis of which PW 9
made her statement. She explained the details regarding
examination of the victim’s bones, stage of their development
and opined that she was between 18-20 years; in cross-
examination she said that the age might be 19 years. Given all
these circumstances, this Court is of the opinion that the result
of the ossification or bone test was the most authentic evidence,
corroborated by the examining doctor, PW 9.”
Page 20 of 38
// 21 //
2.10. Similarly, Hon’ble Apex Court in the case of Birka Shiva Vrs. State
of Telengana reported in 2025 SCC OnLine SC 1454. Hon’ble Apex Court
in Para-7 & 8 has held as follows:-
“7. The prosecution has relied primarily on Ex.P11, the
birth certificate issued by the Zilla Parishad High School, to
establish that the victim was below the age of sixteen years on
the date of the alleged offence, i.e., 4th August 2012. According
to Ex.P11, the victim’s date of birth was 3rd November 1996,
which, if accepted, would make her approximately 15 years 9
months old at the relevant time.\
8. The evidentiary value of such an entry made in public or
official registers may be admissible in evidence under
Section 35 of the Indian Evidence Act, 18727. However,
admissibility is distinct from probative value. While such
documents may be admitted into evidence, their evidentiary
weight depends on proof of their authenticity and the source of
the underlying information. Mere production and marking of a
document as exhibited by the Court does not amount to proof of
its contents. Its execution has to be proved by leading
substantive evidence, that is, by the ‘evidence of those persons
who can vouchsafe for the truth of the facts in issue’. [See
: Narbada Devi Gupta v. Birendra Kumar Jaiswal8] We may
refer to a few judicial pronouncements of this Court in this
regard:
8.1. This Court, in Birad Mal Singhvi v. Anand Purohit9, held
that the entries contained in the school register are relevant and
admissible but have no probative value unless the person who
made the entry or provided the date of birth is examined. It was
observed:
“14. … If entry regarding date of birth in the scholar’s register
is made on the information given by parents or someone having
special knowledge of the fact, the same would have probative
value. … 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. The entry contained
in the admission form or the scholar’s register must be shown to
be made on the basis of information given by the parents or a
person having special knowledge about the date of birth of the
person concerned. If the entry in the scholar’s register regarding
date of birth is made on the basis of information given by
parents, the entry would have evidentiary value, but if it is given
by a stranger or by someone else who had no special means of
knowledge of the date of birth, such an entry will have no
evidentiary value. …
Page 21 of 38
// 22 //
15. Section 35 of the Indian Evidence Act lays down that entry in
any public, official book, register, record stating a fact in issue
or relevant fact and made by a public servant in the discharge of
his official duty specially enjoined by the law of the country is
itself the relevant fact. 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 the 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. … The
courts have consistently held that the date of birth mentioned in
the scholar’s register or secondary school certificate has no
probative value unless either the parents are examined or the
person on whose information the entry may have been made is
examined…”
(Emphasis Supplied)
This decision has been consistently followed by this Court
in Pratap Singh v. State of Jharkhand10; Babloo Pasi v. State of
Jharkhand11; Murugan v. State of T.N.12; State of
13
M.P. v. Munna ; C. Doddanarayana Reddy v. C. Jayarama
Reddy14; and Manak Chand v. State of Haryana15.
8.2. A coordinate Bench of this Court in State of
Chhattisgarh v. Lekhram16, through S.B. Sinha, J., clarified that
though entries in school registers are admissible under Section
35 of the Evidence Act, their evidentiary value improves only
when corroborated by oral testimony of persons who are aware
of its content, such as parents or the person who made the entry
at the time of admission. It held as under:
“12. A register maintained in a school is admissible in evidence
to prove date of birth of the person concerned in terms of
Section 35 of the Evidence Act. Such dates of births are
recorded in the school register by the authorities in discharge of
their public duty. PW 5, who was an Assistant Teacher in the
said school in the year 1977, categorically stated that the
mother of the prosecutrix disclosed her date of birth. The father
of the prosecutrix also deposed to the said effect.
13. …The materials on record as regards the age of the
prosecutrix were, therefore, required to be considered in the
aforementioned backdrop. It may be true that an entry in the
school register is not conclusive, but it has evidentiary value.
Such evidentiary value of a school register is corroborated byPage 22 of 38
// 23 //oral evidence as the same was recorded on the basis of the
statement of the mother of the prosecutrix.”
8.3. Similarly, this Court in Satpal Singh v. State of Haryana17,
stated that though a document may be admissible, but to
determine whether the entry contained therein has any probative
value, may still be required to be examined in the facts and
circumstances of a particular case. It held as follows:
“26. In Vishnu v. State of Maharashtra, [(2006) 1 SCC
283 : (2006) 1 SCC (Cri) 217] while dealing with a similar
issue, this Court observed that very often parents furnish
incorrect date of birth to the school authorities to make up the
age in order to secure admission for their children. For
determining the age of the child, the best evidence is of his/her
parents, if it is supported by unimpeccable documents. In case
the date of birth depicted in the school register/certificate stands
belied by the unimpeccable evidence of reliable persons and
contemporaneous documents like the date of birth register of the
municipal corporation, government hospital/nursing home, etc.,
the entry in the school register is to be discarded.
28. Thus, the law on the issue can be summarised that the entry
made in the official record by an official or person authorised in
performance of an official duty is admissible under Section 35 of
the Evidence Act but the party may still ask the court/authority
to examine its probative value. The authenticity of the entry
would depend as to on whose instruction/information such entry
stood recorded and what was his source of information. Thus,
entry in school register/certificate requires to be proved in
accordance with law. Standard of proof for the same remains as
in any other civil and criminal case.”
8.4. In Madan Mohan Singh v. Rajni Kant18, this Court held that
the entries made in the official record may be admissible under
Section 35 of the Evidence Act, but the Court has a right to
examine their probative value. The authenticity of the entries
would depend on whose information such entries stood
recorded. It was held as follows:
“20. So far as the entries made in the official record by an
official or person authorised in performance of official duties
are concerned, they may be admissible under Section 35 of the
Evidence Act but the Court has a right to examine their
probative value. The authenticity of the entries would depend on
whose information such entries stood recorded and what was his
source of information. The entries in school register/school
leaving certificate require to be proved in accordance with law
and the standard of proof required in such cases remained the
same as in any other civil or criminal cases.
21. … For determining the age of a person, the best evidence is
of his/her parents, if it is supported by unimpeachable
documents. In case the date of birth depicted in the school
Page 23 of 38
// 24 //register/certificate stands belied by the unimpeachable evidence
of reliable persons and contemporaneous documents like the
date of birth register of the Municipal Corporation, government
hospital/nursing home, etc., the entry in the school register is to
be discarded. …”
8.5. This Court, in Alamelu v. State19, while dealing with a
similar factual matrix, held that the prosecution had failed to
prove that the girl was a minor at the relevant date since the
transfer certificate of a Government School showing age was
not duly proved by witnesses. It observed as under:
“40. Undoubtedly, the transfer certificate, Ext. P-16 indicates
that the girl’s date of birth was 15-6-1977. 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. 31-7-1993. 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 Evidence Act, 1872. 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.
41. We may notice here that PW 1 was examined in the Court on
9-8-1999. In his evidence, he made no reference to the transfer
certificate (Ext. P-16). He did not mention the girl’s age or date
of birth. PW 2 was also examined on 9-8-1999. She had also
made no reference either to her age or to the transfer certificate.
It appears from the record that a petition was filed by the
complainant under Section 311 CrPC seeking permission to
produce the transfer certificate and to recall PW 2. This petition
was allowed. … In her cross-examination, she had merely stated
that she had signed on the transfer certificate, Ext. P-16 issued
by the school and accordingly her date of birth was noticed as
15-6-1977. She also stated that the certificate has been signed
by the father as well as the Headmaster. But the Headmaster
has not been examined. Therefore, in our opinion, there was no
reliable evidence to vouchsafe for the truth of the facts stated in
the transfer certificate.”
2.11. Reliance was placed to a decision of the Hon’ble Apex Court in
the case of Mahadeo Vs. State of Maharashtra and Another, reported
Page 24 of 38
// 25 //
in (2013) 14 SCC 637. Hon’ble Apex Court in Para-12 & 13 has held
as follows:-
“12. We can also in this connection make reference to a
statutory provision contained in the Juvenile Justice (Care and
Protection of Children) Rules, 2007, where under Rule 12, the
procedure to be followed in determining the age of a juvenile
has been set out. We can usefully refer to the said provision in
this context, inasmuch as under Rule 12(3) of the said Rules, it
is stated that:
“12. (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, by the Committee
by seeking evidence by obtaining–
(a)(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;”
Under Rule 12(3)(b), it is specifically provided that only in the
absence of alternative methods described under Rules
12(3)(a)(i) to (iii), the medical opinion can be sought for. In the
light of such a statutory rule prevailing for ascertainment of the
age of a juvenile, in our considered opinion, the same yardstick
can be rightly followed by the courts for the purpose of
ascertaining the age of a victim as well.
13. In the light of our above reasoning, in the case on hand,
there were certificates issued by the school in which the
prosecutrix did her Vth standard and in the school leaving
certificate issued by the said school under Exhibit 54, the date of
birth of the prosecutrix has been clearly noted as 20-5-1990,
and this document was also proved by PW 11. Apart from that
the transfer certificate as well as the admission form maintained
by the Primary School, Latur, where the prosecutrix had her
initial education, also confirmed the date of birth as 20-5-1990.
The reliance placed upon the said evidence by the courts below
to arrive at the age of the prosecutrix to hold that the
prosecutrix was below 18 years of age at the time of the
occurrence was perfectly justified and we do not find any good
grounds to interfere with the same.”
2.12. It is also contended that in view of age mentioned in the report
submitted by P.W.8 holding the age of the victim between 15 to 16
Page 25 of 38
// 26 //
years, in view of decision of the Apex Court in the case of Rajak
Mohammed V. State of Himanchal Pradesh, reported in (2018) 9 SCC
248 and Jyotiprakash V. State of Bihar, reported in (2008) 15 SCC
223, the victim could not have been treated as a minor.
2.13. In case of Rajak Mohammed, Hon’ble Apex Court in Para 6, 8
and 9 of the decision has held as follows:-
6. In cross-examination, PW 5 had stated that the details
mentioned in Ext. PW 5/A have been obtained from the school
leaving certificate issued by the Government Primary School,
Tambol. The certificate issued by the Government Primary
School, Tambol on the basis of which the details in the
admission form (Ext. PW 5/A) was filled up by PW 5 has not
been exhibited by the prosecution.
8. On the other hand, we have on record the evidence of Dr
Neelam Gupta (PW 8), a Radiologist working in the Civil
Hospital, Nalagarh who had given an opinion that the age of the
prosecutrix was between 17 to 18 years.
9. While it is correct that the age determined on the basis of a
radiological examination may not be an accurate determination
and sufficient margin either way has to be allowed, yet the
totality of the facts stated above read with the report of the
radiological examination leaves room for ample doubt with
regard to the correct age of the prosecutrix. The benefit of the
aforesaid doubt, naturally, must go in favour of the accused.”
2.14. In the case of Jyotiprakash, Hon’ble Apex Court in Para 13 of the
judgment has held as follows:-
13. A medical report determining the age of a person has never
been considered by the courts of law as also by the medical
scientists to be conclusive in nature. After a certain age it is
difficult to determine the exact age of the person concerned on
the basis of ossification test or other tests. This Court
in Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1
SCC (Cri) 217] opined: (SCC p. 290, para 20)
“20. It is urged before us by Mr Lalit that the determination of
the age of the prosecutrix by conducting ossification test is
Page 26 of 38
// 27 //scientifically proved and, therefore, the opinion of the doctor
that the girl was of 18-19 years of age should be accepted. We
are unable to accept this contention for the reasons that the
expert medical evidence is not binding on the ocular evidence.
The opinion of the Medical Officer is to assist the court as he is
not a witness of fact and the evidence given by the Medical
Officer is really of an advisory character and not binding on the
witness of fact.”
In the aforementioned situation, this Court in a number of
judgments has held that the age determined by the doctors
should be given flexibility of two years on either side.
2.15. It is also contended that even though the victim while being
examined as P.W.2, supported the allegation of rape, but in view of the
medical report so exhibited with the evidence of P.W.8, such statement
of the victim being not trustworthy, learned Special Judge could not
have relied on to statement of the victim while convicting the appellant
for the offence U/s 376 (2) (n) of the IPC. It is also contended that in
support of the prosecution allegation, since no independent witness was
examined save and except P.W.7, basing on the testimony of the P.W.2
and the statement of P.W. 3 and 9 who happens to be the parents of the
victim, the Appellant could not have been convicted for the offence
U/s. 376(2)(n) of IPC. In support of such submission reliance was
placed on the following decisions:-
“(1) (2025) 99 OCR (SC)P-114 (Keshav S/o. Laxman Rupnar and Anr.
Vs. State of Maharashtra).
(2) (2012) 8 SCC 21 (Rai Sandeep Alias Deepu Vs. State (NCT of
Delhi),
(3) (2025) 98 OCR 211 (K. Dinesh Kumar v. State of Odisha and
Another).”
Page 27 of 38
// 28 //
2.13 . Hon’ble Apex Court in the case of Keshav in Para-9 has
held as follows:-
“9. State of Punjab v. Gurmit Singh (1996) 2 SCC 384, held that
even without any corroboration, if the evidence of the prosecutrix
inspires confidence, it can be relied on and can also be the sole
ground for conviction. However, if it is difficult to place implicit
reliance on the testimony of the prosecutrix, then the Court has to
look for evidence to lend assurance to her testimony which would
be short of corroboration required in the case. The testimony of the
prosecutrix must be appreciated in the background of the entire
case, was the finding. Raju v. State of M.P.(2008) 15 SCC 133,
while reiterating the above principle also cautioned that while rape
causes the greatest distress and humiliation, a false allegation of
rape also can cause equal distress, humiliation and damage to the
accused as well The Court should be equally careful in protecting
the accused from a false implication. While applying the broad
principle that an injured witness, whose presence cannot be
doubted, as she would ordinarily not lie, still there is no
presumption or any basis for assuming that the statement of such a
witness is always correct or without any embellishments.”
2.14. Hon’ble Apex Court in the case of Rai Sandeep Alias Deepu in Para-
22 has held as follows:-
“22. In our considered opinion, the “sterling witness” should be of
a very high quality and calibre whose version should, therefore, be
unassailable. The court considering the version of such witness
should be in a position to accept it for its face value without any
hesitation. To test the quality of such a witness, the status of the
witness would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness. What would
be more relevant would be the consistency of the statement right
from the starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before the court.
It should be natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in the
version of such a witness. The witness should be in a position to
withstand the cross-examination of any length and howsoever
strenuous it may be and under no circumstance should give room
for any doubt as to the factum of the occurrence, the persons
involved, as well as the sequence of it. Such a version should have
co-relation with each and every one of other supporting material
such as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert opinion.
The said version should consistently match with the version of
every other witness. It can even be stated that it should be akin to
the test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to holdPage 28 of 38
// 29 //the accused guilty of the offence alleged against him. Only if the
version of such a witness qualifies the above test as well as all
other such similar tests to be applied, can it be held that such a
witness can be called as a “sterling witness” whose version can be
accepted by the court without any corroboration and based on
which the guilty can be punished. To be more precise, the version
of the said witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said version in
material particulars in order to enable the court trying the offence
to rely on the core version to sieve the other supporting materials
for holding the offender guilty of the charge alleged.”
2.15. This Court in the case of K. Dinesh Kumar in Para-14, 15 and 17 has
held as follows:-
“14. In Sonu alias Subhash Kumar (supra), the Apex Court, in case
where the parties had a friendship initially and thereafter, the
accused assured to marry the victim and both having had a
relationship for one and half years, considering an allegation of
sexual exploitation, concluded as hereunder:
“10. Bearing in mind the tests which have been enunciated in the
above decision, we are of the view that even assuming that all the
allegations in the FIR are correct for the purposes of considering
the application for quashing under Section 482 of CrPC, no offence
has been established. There is no allegation to the effect that the
promise to marry given to the second respondent was false at the
inception. On the contrary, it would appear from the contents of the
FIR that there was a subsequent refusal on the part of the appellant
to marry the second respondent which gave rise to the registration
of the FIR. On these facts, we are of the view that the High Court
was in error in declining to entertain the petition under Section 482
of CrPC on the basis that it was only the evidence at trial which
would lead to a determination as to whether an offence was
established.”
15. The sum and substance of the above decision is that if there is
merely a breach of promise to marry the victim, no case of rape is
made out, but where, under a misconception of fact, the consent is
obtained and it was on account of a false promise having a direct
nexus with the victim’s decision to engage in sexual act, it would be
an offence under Section 376(2)(n) IPC.
Xxxx xxxx xxxx xxxx
17. In the present case, the Court finds that the informant though
claims to be slightly hesitant initially but accepted the proposal of
the petitioner and even developed physical relationship with him
and continued to remain so, till the time, it ended with the
untoward events, which took place shortly before the report was
lodged Merely, denying to keep up the promise is not sufficient and
Page 29 of 38
// 30 //
the same would result in breach of such promise, which is not a
criminal act but to presume that an offence under Section 376(2)(n)
IPC is committed, the promise has to be held as false and given in
bad faith having no intention at all to adhere to the same Such
conduct of the accused is to be examined considering the material
evidence with a prima facie view that the intention was otherwise
and not in good faith at the time when the promise was offered. As
far as the petitioner is concerned and also the victim, the Court
finds that everything started inoffensively including the physical
relationship followed by a promise of marriage, which failed to be
materialized at last Since, the promise failed and the petitioner
avoided the informant and subsequently, declined to marry her, is
the reason behind lodging of the FIR with an allegation of rape,
which in the considered view of the Court, may not be sufficient to
hold that such consent was no consent in the eye of law having
been vitiated by misconception of fact or fraud arising out of
promise to marry. Such sexual relationship between the parties,
consequent upon, a promise of marriage during the continuance of
the same by itself not to be sufficient to hold that the promise was
given in bad faith. It is again not found to be a case where a false
promise of the petitioner and subsequent consent of the victim was
obtained with such promise. It is further not revealed that the
informant consented to the sexual act only upon the promise of the
petitioner to marry her. If such was the intention and false promise
shown to be having a direct nexus with the consent obtained for the
sexual act and then, it is broken, an offence of rape could be made
out, since, it may be said to have been vitiated by fraud. However,
having regard to the nature of allegations made in the FIR and
materials collected and produced along with the charge sheet, the
informant after having a relationship with the petitioner and the
marriage between them having not taken place, alleged sexual
exploitation and rape, which, in view of the discussion as aforesaid
and keeping in view the ratio laid down by the Apex Court in Sonu
alias Subhash Kumar, cannot be the basis to hold that an offence
under Section 376(2)(n) IPC is made out.””
2.16. It is also contended that since from the statement of the victim, it
transpires that the victim accompanied the Appellant-accused, on her
own conviction of the Appellant for the offences U/s 363/376(2)(n) of
the IPC needs interference of this Court. Victim in her statement has
submitted as follows:-
“The informant is my father and I am the victim of this case. I know
the accused August Singh. The incident took place on 15.8.2017
Page 30 of 38
// 31 //near the school gate of Padmabati High Shool. Theo accused is my
related uncle. While returning on the said date at about 9am, I
made the accused who asked me to bring some money from him
and accordingly, I went to my house and as my mother was
sleeping, I came back and told that I will bring money on the next
day as my mother was sleeping. Thereafter he gave me two
chocolates and I took one of them and thereafter I lost my sense.
Thereafter I do not know anything. I regained my sense in the train
at Rupsa and therefore I got down with the accused. Another
person was in the station with the motorcycle and the accused
make her sit in the motorcycle and took him to his village and
another person had not accompanied us. In theo said house, the
sister in law of the accused was also present with another boy. But
I have not seen him. On the said day
night, the accused committed sexual assault on me without my
consent. In the early morning the accused brought me to
Panchalingeswar to his in-laws house in the said motorcycle and
also committed sexual assault on me in the said house as there was
no one there then. After some time a lady came to the said room to
whom he called Bhauja and thereafter the accused also committed
rape on him. After some hours, on the same day when I asked the
accused to drop me in my house, he brought me to Balasore by
walking as his friend has taken away his motorcycle. While coming
my brother in law saw me and brought me back and the accused
fled away from the spot. I disclosed the entire fact before my
parents in my house and after my return my father lodged
information in the PS. I was medically examined in this case vide
Ext.2 and Ext.2/1 is my signature is my signature therein. Ext.3 is
my statement recorded in the Court vide Ext.3/1 is my signature
therein. Police seized my wearing apparels under Ext.4 and Ext.4/1
is my signature therein.
Cross-examination by the accused person(s)
2. It is not a fact that I have stated before the police that I had gone
to my friends house namely Sangita. The accused used to work in
our house in our BILA being a related uncle (mamu). I woke up my
mother who told me to tell the accused to take the money on the
next day and accordingly I informed the accused about the same
and at that time it was raining. The accused asked me to bring my
aadhar card and accordingly I had given him. I have not stated
about anything to my mother relating to the aadhar card. I had
been to my school in my cycle. I do not remember how I reached
Markona station as I lost my sense after taking chocolate. The-
chocolate was a cream chocolate of Rupees five, but cannot say its
company name. It was a black in colour. I do not remember the
exact time when I reached at Balasore station. We reached at
Rupsa in the evening time. When I was in the train, no outsider was
present in my boggy. I regained my sense at Balasore station. ThePage 31 of 38
// 32 //accused had wrapped a stall on my face for which I could not
disclose anything before the persons present at Rupsa station. I
reached in the house of accused at Rupsa within 10 minutes. The
motorcycle was a red colour, but cannot say its registration
number. The house of the accused was a thatched house. I was
wearing a saree of bhauja of August when I went to
Panchalingeswar on his direction. My brother in law had been to
Balasore for road work as a Mistri. Police seized my saree.
3. It is not a fact that I am deposing falsehood against the accused
about giving me chocolate and I voluntarily went with the accused
without informing my parents and the accused had not committed
any sexual assault on me and that I am deposing falsehood.”
2.17. It is also contended that Petitioner because of the initiation of the
proceeding was arrested on 31.08.2017 and is continuing as such as on
date. It is further contended that even though the incident happened on
15.08.2017, and the victim was rescued on 18.08.2017, but the FIR was
only lodged on 21.08.2017, without explaining the delay in lodging the
FIR. Not only that even though the victim after being rescued on
18.08.2017, was examined by P.W.8 on 22.08.2017, but from the
medical report so available, there is no sign of recent sexual
intercourse. In support of the submission that delay having not been
explained, it is fatal to the case of prosecution, reliance was placed to a
decision of the Hon’ble Apex Court in the case of State of H.P. Vs.
Gian Chand, reported in (2001) 6 SCC 71. Hon’ble Apex Court in
Para-12 has held as follows:-
“12If the prosecution fails to satisfactorily explain the delay and
there is a possibility of embellishment in the prosecution version
on account of such delay, the delay would be fatal to the
prosecution.”
Page 32 of 38
// 33 //
2.18. Reliance was placed to a decision of the Hon’ble Apex Court in
the case of Ramdas Vs. State of Maharashtra, reported in (2007) 2
SCC 170. Hon’ble Apex Court in Para-24 has held as follows:-
“24. . However, the fact that the report was lodged belatedly is a
relevant fact of which the court must take notice.”
2.19. Reliance was placed to a decision of the Hon’ble Apex Court in
the case of Ashok Kumar Chaudhary Vs. State of Bihar, reported in
(2008) 12 SCC 173. Hon’ble Apex Court in Para-16 has held as
follows:-
“16 . Nevertheless, it is a relevant factor of which the court is
obliged to take notice and examine whether any explanation for
the delay has been offered and if offered, whether it is
satisfactory or not. If no satisfactory explanation is forthcoming,
an adverse inference may be drawn against the prosecution.”
2.20. It is accordingly contended that since delay in lodging the FIR has
not at all being explained, adverse view has to be taken against the
prosecution, and learned Special Judge should have taken note of the
same. It is also contended that even though the victim went missing
w.e.f. 15.08.2017 and was rescued on 18.08.2017, but no missing
report was lodged before the concerned local Police Station by the
parents of the victim. Therefore, it cannot be held that victim was
Page 33 of 38
// 34 //
kidnapped and accordingly liable for punishment for the office U/s. 363
IPC.
2.21. It is accordingly contended that, the prosecution since has failed
to prove the charges against the appellant beyond all reasonable doubt,
order of conviction and sentence so passed against the Appellant needs
interference of this Court.
3. Learned Addl. Standing Counsel on the other hand while supporting
the impugned order of conviction and sentence contended that since the
victim who was examined as P.W.2, has proved the allegation of rape,
no further evidence is required to be laid in support of the allegation of
rape. It is contended that in the case of allegation of rape, sole
testimony of the victim is sufficient to convict the accused. Since the
victim in her deposition as P.W. No.2 as well as in her 164 statement
has clearly proved the allegation of rape, no illegality or irregularity
can be found with the order of conviction and sentence for the offence
u/s. 376(2)(n) of the IPC. In support of the submission, learned Addl.
Standing Counsel relied on a decision of the Hon’ble Apex Court in the
case of Deepak Kumar Sahu Vs. State of Chhatisgarh, reported in
2025 SCC Online SC 1610. Hon’ble Apex Court in Para-5.5, 5.5.2,
5.5.6 and 5.6 has held as follows:-
Page 34 of 38
// 35 //
“5.5. In cases of offences committed under
Section 376, IPC, when the story of the victim girl as told in the
evidence is found credit-worthy, the apparent insufficiency of
medical evidence pitted against acceptable testimony of the
victim, the latter would prevail. In State of Punjab v. Gurmit
Singh [(1996) 2 SCC 384] it was observed:
In the absence of injury on the private part of the prosecutrix, it
cannot be concluded that the incident had not taken place or the
sexual intercourse was committed with the consent of the
prosecutrix. The prosecutrix being a small child of about nine
years of age, there could be no question of her giving consent to
sexual intercourse. The absence of injuries on the private part of
the prosecutrix can be of no consequence in the facts and
circumstances of the present case.
xxx xxx xxx
5.5.2. This Court observed that if the evidence of the victim does
not suffer from any basic infirmities and the factor of probability
does not render it unworthy evidence, the conviction could base
solely on the evidence of the prosecutrix. It was further observed
that as a general rule there is no reason to insist on the
corroboration accept in certain cases, it was stated.
xxx xxx xxx
5.5.6. The credible and reliable evidence of prosecutrix could
not be jettisoned for want of corroboration including the
corroboration by medical report or evidence. The Court
observed in Manga Singh (supra) that “in absence of injury on
the private part of the prosecutrix, it cannot be concluded that
the incident had not taken place or the sexual intercourse was
committed with the consent of the prosecutrix”. It was stated
that it is well settled that in the cases of rape it is not always
necessary that external injury is to be found on the body of the
victim.
xxx xxx xxx
5.6. It is an opt-reiterated dictum of law that in cases of rape,
the testimony of the prosecutrix alone may be sufficient and sole
evidence of the victim, when cogent and consistent, could be
properly used to arrive at a finding of the guilt. In the State of
Himachal Pradesh v. Manga Singh, (2019) 16 SCC 759, this
Court in terms stated that conviction can be rested on the
testimony of the prosecutrix alone.
The conviction can be sustained on the sole testimony of the
prosecutrix, if it inspires confidence. The conviction can be
based solely on the solitary evidence of the prosecutrix and no
Page 35 of 38
// 36 //
corroboration be required unless there are compelling reasons
which necessitate the courts to insist for corroboration of her
statement. Corroboration of the testimony of the prosecutrix is
not a requirement of law, but a guidance of prudence under the
given facts and circumstances. Minor contractions or small
discrepancies should not be a ground for throwing the evidence
of the prosecutrix.”
3.1. It is also contended that since through examination of P.W.4 and
the documents exhibited vide Ext.6 and 6/1, it was well proved that the
victim is a minor, no illegality or irregularity can be found with regard
to the conviction and sentence for the offence u/s.4, 6 and 8 of the
POCSO Act. Making all these submission, it is contended that, the
impugned order of conviction and sentence so passed vide judgment
dated 17.02.2020, needs no interference.
4. Having heard the learned counsel appearing for the Parties and the
submission made, it is found that the prosecution was set into motion
basing on the FIR lodged by the informant, P.W.3 on 21.08.2017 in
Simulia PS Case No.219 dated 21.08.2017. Though the victim went
missing on 15.08.2017 and was rescued by P.W.10 on 18.08.2017 but
the FIR was only lodged on 21.08.2017 without explaining the delay in
lodging the FIR. Since the delay in lodging the FIR has not at all been
explained, in view of the decision of Apex Court in State of H.P. Vs.
Gian Chand, Ramdas Vs. State of Maharashtra , Ashok Kumar
Page 36 of 38
// 37 //
Chaudhary Vs. State of Bihar, so citied supra, adverse view is required
to be taken against the prosecution.
4.1. It is also found from the record that, in support of the age of the
victim since no evidence is available that Ext.6 and 6/1, so produced by
P.W.4 are the documents where the victim first attended the school,
relying on the said documents the victim could not have been treated as
a minor in view of the decision of the Apex Court in the case of State
of Uttar Pradesh Vs. Anurudh and Anr., P. Yuvaprakash Vs. State
represented by Inspector of Police , Birka Shiva Vrs. State of
Telengana , Mahadeo Vs. State of Maharashtra and Another, so
cited (supra) and the provisions contained under Section 94 of the J.J.
Act r/w Rule 12 of the J.J. Rules, 2007.
4.2. Not only that in view of the statement of P.W.8 and the age of the
victim being reflected as 15 to 16 years, in view of the decisions of the
Apex Court in the case of Rajak Mohammed V. State of Himachal
Pradesh, the victim could not have been treated as a minor.
4.3. Not only that perusal of the statement of the victim P.W.2 vis-Ã -vis
the statement of P.W.3 and 9 and the medical report along with the
testimony of P.W.8, it is the view of this Court that, prosecution has
failed to prove the allegation of rape against the appellant beyond all
reasonable doubt.
Page 37 of 38
// 38 //
4.4. In view of the aforesaid analysis, this Court is of the view that
prosecution has failed to prove the charges against the Appellant
beyond all reasonable doubt.
4.5. In view of the aforesaid analysis, this Court is inclined to interfere
with the impugned order of conviction and sentence, so passed against
the Appellant by the learned Special Judge, Balasore in Special Case
No.348 of 2017. While interfering with the order of conviction and
sentence passed vide the impugned Judgment dated 17.02.2020, this
Court is inclined to quash the same. While quashing the impugned
order of conviction and sentence so passed vide judgment dated
17.02.2020, this Court allows the Appeal. Appellant be released from
custody immediately, if his detention is not required in any other case.
5. The Appeal accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
Dated the, 21st May, 2026/Jyoti
Signature Not Verified
Digitally Signed
Signed by: JYOTIPRAVA BHOL
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 22-May-2026 17:32:36
Page 38 of 38
