Chattisgarh High Court
Arjun Yadav @ Golu vs State Of Chhattisgarh on 24 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:18917-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 97 of 2025
Arjun Yadav @ Golu S/o- Balaram Yadav Aged About 34 Years R/o-
Karma Chowk Nimora, Police Station- Rakhi, Tahsil And District- Raipur
(C.G.)
... Appellant
versus
1 - State of Chhattisgarh Through Station House Officer Police of Police
Station- Rakhi, District- Raipur (C.G.)
2 - XYZ Nil
... Respondent
For Appellant : Mr. Ratnesh Kumar Agrawal, Advocate
For Respondent/State : Mr. Sourabh Sahu, Panel Lawyer.
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice.
24.04.2026
1. Heard Mr. Ratnesh Kumar Agrawal, learned counsel for the
appellant. Also heard Mr. Sourabh Sahu, learned Panel Lawyer,
appearing for the State/respondent.
ROHIT
2. Though the matter is listed today for hearing on I.A. No. 01 of
KUMAR
CHANDRA
Digitally signed
by ROHIT
KUMAR
2025 (application for suspension of sentence and grant of bail),
CHANDRA
however, with the consent of learned counsel for the parties, the appeal
is taken up for final hearing.
2
3. Learned State counsel submits that notice issued to the father of
the victim (PW-2) has been duly served; however, no one has appeared
on behalf of the victim to contest the present appeal.
4. The present criminal appeal, preferred under Section 415(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), is directed against
the impugned judgment of conviction and order of sentence dated
18.11.2024 passed by the learned Additional Sessions Judge 2nd
(POCSO) Fast Track Special Court, Raipur, District Raipur (C.G.) (for
short, ‘learned trial Court’) in Session Case No. 53 of 2020, whereby the
appellant has been convicted under Section 4(2) of the POCSO Act,
2012 and sentenced to undergo rigorous imprisonment for 20 years and
fine of Rs. 3,000/-, in default of payment of fine, additional RI for 01
month.
5. The prosecution case, in brief, is that the victim filed a written
report at Rakhi Police Station stating that on 31.12.2019, at
approximately 8:00 p.m., the accused, a resident of her village, came
and asked her to come to the Panchayat Bhawan, which she refused.
Subsequently, while she was returning home after purchasing groceries
from Dhannu Grocery Store, the accused forcibly took her to the Nimora
Health Center, hugged her, and began kissing her. He then began
undressing her. She refused, but the accused denied, lifting her up with
his hands raped her while standing. When she returned home, her
father and brother began assaulting her without question. However, she
refused to disclose the incident to anyone. On 02.01.2020, when her
father invited relatives to the house, she disclosed the incident to them.
3
Then a written complaint regarding the incident was lodged at Rakhi
police station.
6. On the basis of this written complaint Ex.P.-01, First Information
Report Ex.P.-02 was registered against the accused in Police Station
Rakhi in Crime No. 03/2020 under Section 376 of the Indian Penal
Code and Section 4, 6 of the Protection of Children from Sexual
Offences Act.
7. During the investigation, a site map of the incident Ex.P.-03, Ex.P.-
18 and a Patwari map Ex.P.-04 were prepared. Regarding the victim’s
date of birth, in which the victim’s date of birth is mentioned, the original
progress report of class 5th of the victim Ex.P.-06 and the attested copy
of the admission and rejection register of the victim’s school Ex.P-34’C’
were seized as per seizure memo Ex.P.-29. As per seizure memo Ex.P.-
10, the caste certificate of the victim Ex.P.-08 was seized. For the
examination of the private parts of the victim, after taking consent from
the victim and her mother as per Ex.P.-05 and Ex.P.-12, her private
parts were examined as per Ex.P.-14 and Ex.P.-15 respectively and the
clothes seized from her were examined. According to Ex.P.-16 and
Ex.P.-17, the private parts of the accused and the clothes seized from
him were examined. As per seizure memo Ex.P.-07, the cream colored
underwear of the victim was seized and as per seizure memo Ex.P.-19,
the grey colored underwear of the accused was seized. As per Ex.P.-09,
the statement of the victim under section 164 Cr.P.C. was recorded. The
accused was arrested and proceedings were initiated under arrest
memo Ex.P.-32. The seized exhibits were sent to State Forensic
4
Science Laboratory, Raipur for FSL, whose exhibit receipt is Ex.P.-3C
and test report is Ex.P.-31. During the investigation, statements of
witnesses were recorded under section 161 Cr.P.C. and after other
necessary proceedings of investigation, a case was registered against
the accused under section 376 IPC. A charge sheet was prepared under
Sections 4 and 6 of the Protection of Children from Sexual Offences Act,
2012, and Section 3(2)(v) of the SC/ST Act, and presented before the
Special Court for Atrocities, Raipur. Subsequently, the case was
transferred to the trial Court for trial.
8. On framing of charges against the accused under sections 363,
366, 376(3) of the Indian Penal Code and Section 4(2) of the Protection
of Children from Sexual Offences Act, 2012 and Sections 3(1)(f)(i) and
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 2012, and being read out and explained to him, he
denied having committed the alleged crime and claimed trial.
9. The accused pleaded not guilty under Section 313 of the CrPC.
No witness was examined in his defense.
10. To prove the alleged crime against the accused, the prosecution
examined the witnesses namely the victim (PW-01), the victim’s father
(PW-02), the victim’s elder mother (PW-03), the victim’s aunt (PW-04),
Dr. Lily Sahu (PW-05), Dr. Sharda Prasad Sahu (PW-06), Ravi Shankar
Sahu Patwari (PW-07), Meena Yadav Assistant Sub Inspector (PW-08),
Satyendra Pandey retired Deputy Superintendent of Police (PW-09) and
the Headmaster of the victim’s school (PW-10).
5
11. The documents produced by the prosecution include written
complaint Ex.P.-01, First Information Report Ex.P.-02, site map of the
incident Ex.P.-03 and Ex.P.-18, Patwari map Ex.P.-04, consent letter
taken from the victim for examination of the private parts of the victim
Ex.P.-05, original progress report of class 5th of the victim Ex.P.-06,
seizure letter prepared regarding seizure of one cream coloured
underwear of the victim Ex.P.-07, caste certificate of the victim Ex.P.-08,
victim’s statement taken before the magistrate under section 164
Cr.P.C. Ex.P-09, seizure memo prepared regarding seizure of caste
certificate (Ex.P-08) of the victim Ex.P-10, notice given to the father of
the victim for production of caste certificate of the victim Ex.P-11 and
Ex.P-28, consent letter taken from the mother of the victim for private
part test of the victim Ex.P-12, police statement of the aunt of the victim
Ex.P-13, private part test report of the victim Ex.P-14, examination
report of the underwear seized from the victim Ex.P-15, private part test
report of the accused Ex.P-16. Application Ex.P.-17’A’ written to
Community Health Centre Rakhi for testing the underwear seized from
the accused and test report Ex.P.-17 on the back side, seizure memo
Ex.P.-19 prepared regarding seizure of one grey colour underwear from
the accused, application written to Community Health Centre Abhanpur
for examination of private parts of the victim and examination of clothes
seized from her, Ex.P.-20, Ex.P.-21, application written to Community
Health Centre Rakhi for examination of private parts of the accused
Ex.P.-22, application written to Community Health Centre Rakhi for
physical examination of the accused Ex.P.-23. Seizure memo Ex.P.-24
6
prepared regarding seizure of the victim’s underwear in a sealed packet
and slides of the victim in a sealed packet after examination of the
victim. Seizure memo Ex.P.-25 prepared regarding seizure of the
accused’s underwear in a sealed packet and pubic hair in a sealed
packet after examination of the accused. Application written to the Court
of Judicial Magistrate First Class, Raipur for recording the statement of
the victim under Section 164 Cr.P.C. Ex.P.-26, Application given by the
Patwari to the Tehsildar, Abhanpur for preparing the map of the incident
spot Ex.P.-27. Seizure memo Ex.P.-29 prepared regarding seizure of
admission rejection register of the victim’s school and original progress
report of class 5th of the victim Ex.P.-06. Regarding sending the seized
exhibits to the State Forensic Science Laboratory, Raipur for chemical
test, its exhibit receipt is Ex.P.-30, F.S.L. Report Ex.P.-31, Arrest memo
Ex.P.-32, Arrest intimation Ex.P.-33, Original Dakhil Kharij Register
Ex.P.-34 and its attested copy Ex.P.-34C.
12. Among the documents produced, the police statement of the
victim has been exhibited by the defence as Ex.D.-01.
13. Upon appreciation of the oral and documentary evidence adduced
by the prosecution, the learned trial Court convicted and sentenced the
appellant under Section 4(2) of the POCSO Act in the manner detailed
in paragraph 04 of this judgment. Aggrieved thereby, the appellant has
preferred the present appeal.
14. Learned counsel for the appellant vehemently argued that the
appellant has been falsely implicated and that the prosecution has
7
utterly failed to establish his guilt beyond reasonable doubt. It is
contended that the prosecution case is full of material contradictions,
omissions, and inherent inconsistencies, which strike at the very root of
the case and render it wholly unreliable. It is further urged that the
learned trial Court has committed a grave error in convicting the
appellant under the provisions of the POCSO Act, as the prosecution
has failed to conclusively prove that the victim was a minor at the time
of the alleged incident. The reliance placed on the Admission-Discharge
Register (Ex.P/34C) and Marksheet of Class-V, is wholly misplaced as
the Headmaster (PW-10), in his cross-examination, has categorically
admitted that he is neither the author of the said entry nor in a position
to testify for its correctness or authenticity. It is further contended that
the medical evidence does not bring any support to the prosecution
version. As per the MLC report (Ex.P/12), no external or internal injuries
were found on the private part of the victim, though the FSL report
(Ex.P/31) is found to be positive, thus it does not corroborate the
allegations, which creates a serious doubt regarding the veracity of the
allegations. In such circumstances, the appellant is clearly entitled to
the benefit of doubt. Accordingly, it is prayed that the present appeal be
allowed and the appellant be acquitted of all the charges.
15. Per contra, learned counsel for the State has opposed the
aforesaid submissions and supported the impugned judgment. It is
submitted that the offences alleged are grave and heinous in nature,
and that the learned trial Court has rightly recorded the conviction after
a thorough and proper appreciation of the evidence on record. It is
8
further contended that the testimony of the victim is cogent, consistent,
and inspires confidence. It is a settled principle of law that conviction
can be based solely on the testimony of the victim, if it is found to be
reliable and trustworthy, even in the absence of corroboration. It is also
submitted that the learned trial Court has duly considered all the
contentions raised on behalf of the appellant and has recorded findings
based on sound reasoning and evidence. Therefore, it is urged that no
illegality, perversity, or infirmity is discernible in the impugned judgment
of conviction and order of sentence, warranting interference by this
Court. The appeal, being devoid of merit, deserves to be dismissed.
16. We have heard learned counsel for the parties at length and have
perused the entire record of the learned trial Court with due care and
circumspection.
17. The foremost question that arises for consideration in the present
appeal is whether the victim was a minor, i.e., below 18 years of age, on
the date of the alleged incident.
18. For the purpose of determination of the age of the victim, this
Court has carefully scrutinized the evidence available on record. The
prosecution has primarily relied upon the entry in the Admission-
Discharge Register (Ex.P/34C), the progress report of Class-V of the
victim (Ex.P-6), and the testimony of the victim (PW-1). As per the
Admission-Discharge Register (Ex.P/34C) and the progress report
(Ex.P-6), the date of birth of the victim is recorded as 28.11.2004, but,
the victim (PW-1) in her deposition has not stated anything about her
9
date of birth as well as the father of the victim (PW-2), in his testimony,
has specifically admitted that he is illiterate and unaware of the precise
date of birth of the victim.
19. The Headmaster (PW-10) of the victim’s school deposed that the
particulars of the victim were entered at Serial No. 431 in the
Admission-Discharge Register (Ex.P/34C), and that the victim was
admitted to Class I on 16.06.2010. As per the said register, the date of
birth of the victim is recorded as 28.11.2004. However, in his cross-
examination, he candidly admitted that the said entries were not made
by him and that he could not state the basis or the document on which
the date of birth of the victim had been recorded. This admission
substantially diminishes the evidentiary value and reliability of the said
document.
20. Upon an overall and cumulative consideration of the facts and
circumstances of the case, as well as the evidence on record, it
becomes apparent that the prosecution has failed to produce cogent,
reliable, and legally admissible evidence to conclusively establish the
date of birth or age of the victim so as to prove that she was below 18
years of age at the time of the alleged incident. Mere reliance on the
school Admission-Discharge Register (Ex.P/34C) and the progress
report (Ex.P-6), in the absence of any foundational evidence regarding
their authenticity or the source of the recorded date of birth, is
insufficient to safely conclude that the victim was a minor.
21. Furthermore, the oral testimonies of the prosecution witnesses on
10
the aspect of age are neither consistent nor definite and do not inspire
confidence. In such circumstances, this Court is not persuaded to
accept the prosecution’s assertion that the victim’s date of birth was
28.11.2004 or that she was a minor at the relevant point of time. The
benefit of doubt, therefore, must necessarily ensure to the appellant.
22. In the matter 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.”
23. The Hon’ble Supreme Court in paragraphs 40, 42, 43, 44 and 48
of its judgment in Alamelu and Another Vs. State, represented by
Inspector of Police, reported in (2011) 2 SCC 385, 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
11alleged 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
12circumstances the dates of birth as
mentioned in the aforesaid documents 1988
(Supp) SCC 604 have no probative value
and the dates of birth as mentioned therein
could not be accepted.”
43. The same proposition of law is reiterated by this
Court in the case of Narbada Devi Gupta Vs.
Birendra Kumar Jaiswal2, where this Court observed
as follows:-
“The legal position is not in dispute that
mere production and marking of a
document as exhibit by the court cannot be
held to be a due proof of its contents. Its
execution has to be proved by admissible
evidence, that is, by the “evidence of those
persons who can vouchsafe for the truth of
the facts in issue.”
44. In our opinion, the aforesaid burden of proof has
not been discharged by the prosecution. The father
says nothing about the transfer certificate in his
evidence. The Headmaster has not been examined
at all. Therefore, the entry in the transfer certificate
can not be relied upon to definitely fix the age of the
girl.
48. We may further notice that even with reference to
Section 35 of the Indian Evidence Act, a public
document has to be tested by applying the same
standard in civil as well as criminal proceedings. In
this context, it would be appropriate to notice the
observations made by this Court in the case of
Ravinder Singh Gorkhi Vs. State of U.P.4 held as
follows:-
“The age of a person as recorded in the
school register or otherwise may be used
for various purposes, namely, for obtaining
admission; for obtaining an appointment;
for contesting election; registration of
marriage; obtaining a separate unit under
the ceiling laws; and even for the purpose
of litigating before a civil forum e.g.
necessity of being represented in a court of
13law by a guardian or where a suit is filed on
the ground that the plaintiff being a minor
he was not appropriately represented
therein or any transaction made on his
behalf was void as he was a minor. A court
of law for the purpose of determining the
age of a (2006) 5 SCC 584 party to the lis,
having regard to the provisions of Section
35 of the Evidence Act will have to apply
the same standard. No different standard
can be applied in case of an accused as in
a case of abduction or rape, or similar
offence where the victim or the prosecutrix
although might have consented with the
accused, if on the basis of the entries made
in the register maintained by the school, a
judgment of conviction is recorded, the
accused would be deprived of his
constitutional right under Article 21 of the
Constitution, as in that case the accused
may unjustly be convicted.”
24. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh &
Others, 2022 (8) SCC 602, while considering various judgments, the
Hon’ble Supreme Court has observed in para 33 as under:-
“33. What emerges on a cumulative consideration of
the aforesaid catena of judgments is as follows:
33.2. If an application is filed before the
Court claiming juvenility, the provision of
sub-section (2) of section 94 of the JJ Act,
2015 would have to be applied or read
along with sub-section (2) of section 9 so
as to seek evidence for the purpose of
recording a finding stating the age of the
person as nearly as may be.
XXXX
XXXX
XXXX
14
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
15
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
25. 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 paras 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
thedescription of any class of documents mentioned
in Section 94(2)(i) as it was a mere transfer
certificate, Ex C-1 could not have been relied upon
to hold that M was below 18 years at the time of
commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki
vs. State of Uttar Pradesh & Ors. this court outlined
the procedure to be followed in cases where age
determination is required. The court was dealing
with Rule 12 of the erstwhile Juvenile Justice Rules
17
(which is in pari materia) with Section 94 of the JJ
Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals
with the procedure to be followed in
determination of age. The juvenility of a
person in conflict with law had to be
decided prima facie on the basis of
physical appearance, or documents, if
available. But an inquiry into the
determination of age by the Court or the JJ
Board was by seeking evidence by
obtaining: (i) the matriculation or
equivalent certificates, if available and in
the absence whereof; (ii) the date of birth
certificate from the school (other than a
play school) first attended; and in the
absence whereof; (iii) the birth certificate
given by a corporation or a municipal
authority or a panchayat. Only in the
absence of either (i), (ii) and (iii) above,
the medical opinion could be sought from
a duly constituted Medical Board to
declare the age of the juvenile or child. It
was also provided that while determination
was being made, benefit could be given to
the child or juvenile by considering the age
on lower side within the margin of one
year.”
16. Speaking about provisions of the Juvenile
Justice Act, especially the various options in Section
94 (2) of the JJ Act, this court held in Sanjeev
Kumar Gupta vs. The State of Uttar Pradesh & Ors
that:
“Clause (i) of Section 94 (2) places the
date of birth certificate from the school and
the matriculation or equivalent certificate
from the 2021 (12) SCR 502 [2019] 9 SCR
735 concerned examination board in the
same category (namely (i) above). In the
absence thereof category (ii) provides for
obtaining the birth certificate of the
18corporation, 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 fromthe 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.”
26. Upon an appreciation of the evidence on record, it emerges that
the victim (PW-1) has not stated anything in her deposition regarding
her date of birth. Further, PW-2, the father of the victim, in his testimony,
has specifically admitted that he is illiterate and unaware of the precise
date of birth of the victim. PW-10, the Headmaster of the victim’s school,
referred to the Admission-Discharge Register (Ex.P/34C), wherein the
date of birth of the victim is recorded as 28.11.2004. However, in his
cross-examination, PW-10 candidly admitted that the relevant entries
were not made by him and that he could not state the basis or the
document on which the said date of birth had been recorded.
19
27. In view of the aforesaid evidence, this Court is of the considered
opinion that the prosecution has failed to produce reliable, cogent, and
legally admissible evidence to conclusively establish the age of the
victim. The age of the victim has, therefore, not been proved in
accordance with law, giving rise to a serious doubt in the prosecution
case on this crucial aspect.
28. Apart from the aforesaid evidence, no primary or foundational
document, such as a birth certificate or any contemporaneous public
record (for instance, entries in a Kotwari Register) has been produced
by the prosecution to establish that the victim was below 18 years of
age on the date of the incident. The oral testimonies of PW-1 (victim)
and PW-2 (father of the victim), coupled with the school records,
including the Admission-Discharge Register (Ex.P/34C) and the
progress report of the victim (Ex.P-6), do not inspire confidence in the
absence of proof regarding the source or basis of the recorded date of
birth.
29. In the absence of any foundational evidence, it cannot be ruled
out that the date of birth recorded in the school documents was based
on approximation or assumption. The prosecution has also failed to
produce the underlying documents on the basis of which such entries
were originally made in the school records. Consequently, the evidence
relating to the age of the victim falls short of the standard required to
conclusively establish her minority. Despite these deficiencies, the
learned trial Court proceeded to hold the victim to be a minor, which, in
the considered opinion of this Court, is unsustainable in law.
20
30. The next question that arises for consideration is whether the
appellant has committed rape upon the victim.
31. The victim (PW-1), in her deposition, stated that while she was
returning home after purchasing groceries from Dhannu Grocery Store
at 8.00 to 8.30 PM, the accused caught her hand near the road, pulled
her and closed her mouth and kissed her. She was scared. She was
wearing salwar suit at that time, so the accused took off her clothes and
leggings. She was shouting, and when she shouted, the accused closed
her mouth. After that, the accused did wrong things to her while
standing. By wrong things, she mean the accused raped her. She
further stated that after returning to home, she told about the incident to
her sister, but since it was occasion of new year, her sister did not told
anyone about the incident and her sister informed about the incident to
other family members on 02.01.2020, thereafter, the FIR has lodged
against the accused. In her cross-examination, she has specially
admitted that she was not injured at the time of the incident. While the
accused was raping her, she tried to break free to protect herself. She
further admitted that despite that attempt, she did not receive any cuts
or scratches. However, she denied that the accused did not rape her.
She has also admitted that on the next day of incident, she has washed
the clothes worn at the time of incident while bathing.
32. The medical examination of the victim was conducted on
02.01.2020 by Dr. Lilly Sahu (PW-5), and her report Ex.P/14 and
Ex.P/15 are on record. The Doctor deposed that during the examination
of victim, she found that the victim was fully conscious. Her mental and
21
physical condition was normal. Her last menstrual period was on
03.12.2019. She began menstruating at the age of 14. The victim was
unmarried. Her secondary sexual characteristics were fully developed.
There were no external injuries on the victim’s body. She further
deposed that no injuries were found on the victim’s genitals. Her hymen
was torn and pink in color. During the examination, the victim
experienced pain in the internal parts of her genitals. Two slides were
made from the victim’s genital secretions and were sealed and handed
to Assistant Sub-Inspector Meena Yadav, who was advised to conduct a
chemical examination. She opined that based on the examination, she
found signs of sexual intercourse with the victim, but no signs of forced
intercourse. She recommended chemical testing of two slides to confirm
immediate sexual intercourse. In her cross-examination, this witness
has admitted that there were no visible injuries on the victim’s body, she
cannot determine how long ago the victim had been sexually assaulted.
She also admitted that the pain, which the victim described, would have
occurred without sexual intercourse.
33. Dr. Sharda Prasad Sahu (PW-6), who examined the appellant,
deposed that he conducted the medical examination on 02.01.2020,
and his reports are exhibited as Exs.P/16 and P/17. On examination, he
found the accused to be fully conscious, there were no external injuries
on his body and opined that the accused was capable of performing
sexual intercourse. He further stated that the underwear of the accused
was duly sealed and handed over to the concerned constable for
chemical examination. However, the Doctor did not render any opinion
22
linking the appellant with the alleged act, nor do the findings indicate the
time or occurrence of any sexual activity. It is well settled that the mere
opinion regarding potency is not conclusive proof of commission of
rape, and in the absence of any corroborative forensic evidence, such
medical findings do not materially advance the prosecution case.
34. As per the report of the State Forensic Science Laboratory
(Ex.P/31), though semen stains and human spermatozoa are found in
the slides of the victim, her undergarment as well as in the underwear of
the accused, but as per the report, semen stains and human
spermatozoa found in the undergarment of the victim as well as in the
underwear of the accused were not found to be sufficient for serological
examination.
35. After a thorough examination of the entire record, including the
testimonies of witnesses, medical and forensic evidence, and the
arguments advanced by both parties, this Court finds significant gaps in
the prosecution’s case that cast serious doubt on the conviction of the
appellant. The trial court’s judgment, convicting the appellant for the
offense of rape, is flawed for the following reasons:
1. Inconsistent and uncorroborated Testimony of the
Victim:
While the victim (PW-1) claims that the appellant
forcibly assaulted her, there are several inconsistencies in
her testimony that raise doubts about the veracity of her
allegations. The victim admitted that she had no external
23injuries despite her claims of resisting the accused, including
shouting and trying to break free. The absence of physical
injuries in cases where the victim allegedly resisted sexual
assault is highly unusual and requires careful scrutiny.
Additionally, the victim washed her clothes worn during the
incident the next day, which severely hampers the ability to
corroborate her version through forensic evidence. Such
actions suggest a lack of immediacy in reporting the crime
and weaken the reliability of the victim’s account
2. Delay in Lodging the FIR:
The delay of several days in reporting the incident,
until 02.01.2020, without a convincing explanation, raises
doubts about the authenticity of the allegations. While the
victim has claimed that she told her sister but did not report
it immediately due to the New Year celebrations, this
explanation appears insufficient to justify the delay in lodging
the FIR. In cases of sexual assault, prompt reporting is often
critical for both the credibility of the victim’s story and the
preservation of evidence. The unexplained delay in this case
casts a shadow over the truthfulness of the victim’s
statements.
3. Inconclusive Medical and Forensic Evidence:
The medical examination of the victim revealed no
external injuries or definitive signs of forced intercourse.
24While the doctor (PW-5) observed that the victim’s hymen
was torn, this finding does not necessarily establish the
occurrence of recent rape, particularly in the absence of any
visible injuries. Furthermore, the doctor’s report failed to
conclusively link the appellant to the alleged sexual act. The
forensic report, though indicating the presence of semen
and spermatozoa on the victim’s undergarment and the
appellant’s underwear, also clarified that the samples were
insufficient for detailed serological analysis. This absence of
definitive DNA or serological evidence linking the appellant
to the crime raises reasonable doubt regarding his
involvement.
4. Lack of Corroborative Evidence:
The prosecution’s case relies heavily on the
uncorroborated testimony of the victim, with no corroborative
physical evidence or reliable forensic analysis to
substantiate the claim of rape. The absence of any injuries,
the washing of clothes, and the lack of timely reporting
further diminish the weight of the victim’s testimony. In cases
of rape, the law recognizes that the testimony of the victim
can be sufficient for conviction, provided it is credible and
consistent. However, in this case, the lack of supporting
evidence and the inconsistencies in the victim’s account
undermine the reliability of her testimony.
25
5. Defence not disproven :
The appellant has consistently denied the allegations,
and the prosecution has failed to provide concrete evidence
to disprove his version. The medical examination of the
appellant found no injuries or signs of recent sexual activity,
and there was no conclusive forensic evidence to link him to
the crime. The mere presence of semen does not
conclusively prove that the appellant was involved in the
sexual act, particularly when no force or coercion can be
established through the available evidence.
36. Given the inconsistencies in the victim’s testimony, the delay in
lodging the FIR, the lack of physical injuries, the inconclusive medical
and forensic evidence, and the absence of any corroborative evidence,
this Court finds that the prosecution has failed to prove the guilt of the
appellant beyond reasonable doubt.
37. The conviction of the appellant is based on a fragile foundation
that does not meet the legal standard required for a criminal conviction.
Consequently, the appeal is allowed. The impugned judgment of
conviction and order of sentence dated 18.11.2024 are hereby set
aside. The appellant is acquitted of all the charges levelled against him.
He is reported to be in custody, he shall be released forthwith, if not
required in any other case.
38. Keeping in view the provisions of Section 437-A of the CrPC (now
Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the
26
appellant is directed to forthwith furnish a personal bond in terms of
Form No. 45 prescribed in the Code of Criminal Procedure of sum of
Rs.25,000/- with one surety in the like amount before the Court
concerned which shall be effective for a period of six months along with
an undertaking that in the event of filing of Special Leave Petition
against the instant judgment or for grant of leave, the aforesaid
appellant on receipt of notice thereof shall appear before the Hon’ble
Supreme Court.
39. The learned trial Court record along with the copy of this judgment
be sent back immediately to the trial court concerned for compliance
and necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Chandra
