Orissa High Court
Siba Hans @ Shiba Hans vs State Of Odisha on 17 April, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.65 of 2018
In the matter of an application under Section 374(2) of the
Cr.P.C.
..................
Siba Hans @ Shiba Hans .... Appellant
-versus-
State of Odisha .... Respondent
For Petitioner : Mr. P.K. Nayak, Advocate
For Opp. Parties : Mr. S.P. Das, ASC
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:13.02.2026 and Date of Judgment:17.04.2026
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Biraja Prasanna Satapathy, J.
1. Heard P.K. Nayak, learned counsel for the
Appellant and Mr. S.P. Das, learned Addl. Standing
Counsel for the State.
2. The present appeal has been filed by the appellant
challenging judgment dated 18.12.2017, so passed by
the learned 1st Addl. Sessions Judge-cum-Special Court
// 2 //
(POCSO Act), Bolangir in Special G.R. Case No.11 of
2015 arising out of Bangomunda P.S. Case No.29 of
2015. Vide the said judgment, the appellant was
convicted and sentenced to undergo R.I. for 10 years
and a fine of Rs.1000/- in default R.I. for a period of 1
(one) year for the offence U/s.376(2)(n) of the IPC and
Section-6 of the POCSO Act. The appellant was also
convicted and sentenced to undergo R.I. for a period of
5 (five) years and to pay a fine of Rs.5000/- and in
default R.I. for 6 (six) months for the offence U/s.313 of
the IPC.
It is however directed that both the sentences are
to run concurrently and the period undergone as under
trial prisoner be set up in terms of the provisions
contained under Section 428 of the Code of Criminal
Procedure.
3. The prosecution story as narrated in the FIR
reads as follows:-
“The prosecution case, in short, is that, prior to one
year of lodging the FIR by the minor victim (PW 1) the
accused proposed her as a result of which they
developed love relationship and thereafter the accused
Page 2 of 51
// 3 //kept physical relationship repeatedly with the victim
against her will, during the said period. To victim’s
protest to such physical relationship, the accused
assured her to marry. Due to such physical relationship,
the victim got pregnant and informed the accused, who
again assured her to marry. After five months of
pregnancy the accused gave some medicines saying that
the said medicines are for better growth of the child in the
womb. Believing the accused, the victim took the
medicines. It is further alleged that on last Saturday
(14.03.2015) from the date of lodging F.I.R. (17.03.2015)
victim had gone to attend call of nature at 10 pm to the
field, where she suffered miscarriage of her child and got
unconscious at the spot. About 4 am she regained her
sense and found the child dead. Thereafter she returned
home. The next day when she went to the spot to look for
the dead child, the body was missing and the matter
spread in the village. Yesterday (16.03.2015) a village
meeting was held, where the victim narrated the entire
fact. In village meeting the accused admitted his
relationship with the victim but refused to marry her and
threatened her to kill if she attempts to marry her. On the
date of lodging FIR (17.03.2015) again a village meeting
was held in the morning at 10 am, in which the accused
did not participate and thereafter another village meeting
was held on the same day at 3 pm, where the accused
came and offered Rs.18000/- to the victim to remain
silent. When the victim refused to accept the same, he
threatened to kill her. Out of fear, the victim lodged a
written report at Bangomunda P.S. around 8 pm on
17.03.2015.
The then I.I.C of Bangomunda P.S. registered the
same as FIR, vide Bangomunda PS case no. 29 of 2015,
against the accused for offences u/Ss. 376/313/506 of
IPC r/w Sec. 6 of POCSO Act, 2012 and took up the
investigation in the matter. During the course of
investigation, he visited the spot; examined the
informant-victim and other witnesses; arrested the
accused & forwarded him to Court; send the victim as
well as the accused for medical examination to SDH,
Titilagarh, seize the School Admission Register of
Grampanchayat High School, Kapilabhata and
ascertained the date of birth of the victim to be
22.04.1997; got the statement of the victim recorded u/S.
164 of Cr.P.C. before the JMFC, Kantabanji; seized the
wearing apparels of the victim as well as the accused,
collected the biological materials from the medical officer
and sent the same to R.F.S.L, Sambalpur for chemical
examination and opinion. After completion of
investigation, the IO submitted charge sheet for offencesPage 3 of 51
// 4 //u/Ss. 376/313/506 of I.P.C r/w Sec. 6 of the POCSO
Act, 2012 against the accused.”
3.1. It is contended that the prosecution in order to
establish the charges so framed against the appellant
by the learned Special Judge for the offence
U/s.376(2)(i)(n)/313/506 of the IPC read with Section 6
of the POCSO Act, examined 12 nos. of P.Ws. which
includes P.W.1 as the victim, P.W.2-father of the victim,
P.W.3-mother of the victim, P.W.4-Assistant Teacher of
Grama Panchayat High School who proved the High
School Register-Ext-4, P.W.10-the Doctor who
examined the victim and P.W.11-the Doctor who
examined the accused-appellant. P.W. 12 is the
Investigating Officer of the case.
3.2. Learned counsel appearing for the Appellant
taking into account the materials available on record,
contended that since the age of the victim was not duly
proved in accordance with law, the victim could not
have been treated as a minor and thereby holding the
appellant liable for the offence U/s.6 of the POCSO Act.
Page 4 of 51
// 5 //
3.3. It is contended that in order to prove the victim as
a minor, the School Admission Register so produced by
P.W. 4 and exhibited vide Ext.4, was relied on by the
learned Special Judge. Similarly, the School Leaving
Certificate of the victim vide Ext-5 was also produced
by P.W. 4. Statement of P.W.4 reads as follows:-
“1. On 17.04.2015, I was working as Asst. Teacher,
Gram Panchayat High School, Kapilabhata. On that day
police came to our school and ascertained the date of
birth of victim Nandini Putel as she was prosecuting her
study in that School. On that day police seized the
admission register of the School, which is continuing
since 2002. Nandini Putel was admitted in School in
Class-VIII as reveals from Sl. No.052/740, which finds
place at Folio No.113465. This is the admission register
which is marked as Ext-4 and the relevant entry at Folio
No.113465 is marked as Ext.4/1. It reveals that the date
of birth of Nandini Putel is 22.04.1997. Nandini Putel
was admitted on the basis of School Leaving Certificate
of Tetelpada Govt. U.P. School and this is the S.L.C. of
Nandini Putel which is marked as Ext.5. Police seized the
admission register along with the School Leaving
Certificate which is marked as Ext-6 and Ext.6/1 is my
signature therein. After seizure of both admission register
and S.L.C. was released in my zima and I executed a
zimanama which is marked as Ext.7 and Ext.7/1 is my
signature therein.
Cross-examination for the accused:
2. Nandini Putel was admitted in Class-I in Tetelpada
Govt. U.P. School on 31.08.2002 as reveals from Ext.5. I
cannot say who was made entry in Ext.5. I also cannot
say who was Headmaster-cum-Convenor of Govt. U.P.
School, Tetelpada. I was not examined by police.”
3.4. It is contended that in order to determine the age
of the victim and while treating the victim as a minor,
the provisions contained U/s.164-A of the Cr.P.C. and
Page 5 of 51
// 6 //Section-27 of the POCSO Act is required to be followed
at the initial stage of commencement of the
investigation. It is also contended that Section-94 of
the Juvenile Justice (Care and Protection) Act, 2015
supplements the mechanism in order to ascertain the
age of the victim. Section-27 of the POCSO Act and
Section-164-A of the Cr.P.C. reads as follows:-
“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 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.
Xxxx xxxxx xxxxx
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
Page 6 of 51
// 7 //
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 consentPage 7 of 51
// 8 //of the woman or of 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.”
3.5. Similarly, Section 94 of the Juvenile Justice Act
,provides the mechanism for determination of a victim
as minor, and the same reads as follows:-
“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
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
Page 8 of 51
// 9 //purpose of this Act, be deemed to be the true age of that
person.”
3.6. Relying on the aforesaid provision contained
under Section 164-A of the Cr.P.C. and Section-27 of
the POCSO Act read with Section 94 of the Juvenile
Justice Act, learned counsel appearing for the
appellant contended that since the victim admittedly
has not passed the Matriculation or Equivalent
examination, while accepting the age of the victim
basing on the documents exhibited vide Ext-4 and 5, so
produced by P.W. 4, learned Special Judge could not
have held the victim as a minor and thereby attracting
the provisions contained U/s.6 of the POCSO Act.
3.7. It is contended that where the Matriculation
Certificate is not available, for determination of the age
of the victim, Rule-12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 has to be followed.
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
Page 9 of 51
// 10 //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;
(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.
Page 10 of 51
// 11 //
(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.”
3.8. It is contended that since admittedly victim does
not have the Matriculation or Equivalent Certificate,
the Date of Birth so recorded in the School 1st attended
by the victim and in absence thereof, the date of birth
certificate given by the Corporation or Municipality
authority or Panchayat can be relied on, in order to
ascertain the age of the victim. It is contended that Ext-
4 and 5 are not the documents supporting the date of
birth of the victim from the school she 1st attended.
3.9. Relying on the statement of P.W. 4, it is contended
that Ext-4 and 5 were produced by P.W.4, from a
School where the victim had taken admission after
taking T.C. from Tetelpada Govt. U.P. School. It is
accordingly contended that since Ext-4 and 5 are not
Page 11 of 51
// 12 //
the certificates showing the date of birth of the victim
from a School she 1st attended, relying on those
documents, the victim could not have been treated as a
minor and thereby holding the appellant guilty for the
offences U/s.6 of the POCSO Act. It is also contended
that as provided under Rule-12 of the 2007 Rules in
absence of the Matriculation Certificate and Date of
Birth recorded in the School Admission Register of the
victim from the school she 1st attended, medical
opinion of a duly constituted Medical Board, can be
taken into consideration in order to determine the age
of the victim.
3.10. Since no such report is available nor produced by
the prosecution from the Medical Board in terms of the
provisions contained under Rule 12 of the 2007 Rules,
the victim could not have been taken as a minor. 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
Page 12 of 51
// 13 //
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.
xxxx xxxx xxxx xxxx
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.
(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
Page 13 of 51
// 14 //
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 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
Page 14 of 51
// 15 //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.”
xxxx xxxx xxxx xxxx
9.2. Now, let us examine Aman (supra).
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 ChildrenPage 15 of 51
// 16 //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,”
xxxx xxxx xxxx xxxx
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:
“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 availablePage 16 of 51
// 17 //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.
(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 17 of 51
// 18 //
(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 sentence under the Act for
passing appropriate order in the interest of the juvenile
in conflict with law.”
xxxx xxxx xxxx xxxx
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 agePage 18 of 51
// 19 //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 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.
Page 19 of 51
// 20 //
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.
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 faciePage 20 of 51
// 21 //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.”
3.11. 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
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.
Page 21 of 51
// 22 //
(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.”
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
Page 22 of 51
// 23 //
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.
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)
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
Page 23 of 51
// 24 //
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.”
3.12. Similarly, Hon’ble Apex Court in the case of
Birka Shiva Vrs. State of Telengana reported in
Page 24 of 51
// 25 //
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 hadPage 25 of 51
// 26 //no special means of knowledge of the date of birth, such
an entry will have no evidentiary value. …
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 M.P. v. Munna13; 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.
Page 26 of 51
// 27 //
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 by
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
Page 27 of 51
// 28 //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 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 byPage 28 of 51
// 29 //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.”
3.13. Reliance was placed to a decision of the Hon’ble
Apex Court in the case of Mahadeo Vs. State of
Maharashtra and Another, reported 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
Page 29 of 51
// 30 //
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.”
3.14. Learned counsel for the appellant placing
reliance on the aforesaid decisions and the 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 read with Rule-12 of the J.J.
Rules, 2007, strenuously contended that since learned
Special Judge while holding the victim as a minor,
never followed the aforesaid provisions, the appellant
could not have been charged for the offence U/s.6 of
the POCSO Act and consequentially convicted and
sentenced under the said Act.
3.15. It is accordingly contended that since there was
no material available before the learned Special Judge
to hold the victim as a minor, the finding in that regard
Page 30 of 51
// 31 //
being unsustainable in the eye of law, requires judicial
interference of this Court.
3.16. It is also contended that the Doctor who
examined the victim P.W.10, since came to a
conclusion that the age of the victim is in between 16
to 18 years, in view of the decision of the Hon’ble Apex
Court in the case of Rajak Mohammad Vs. State of
Himanchal Pradesh, reported in 2018 9 SCC 248,
the victim could not have been taken as a minor and
benefit of doubt should go in favour of the appellant-
accused. Hon’ble Apex Court in the said decision in
Para-6, 8 and 9 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.
xxxxx xxxxx xxxx xxxxx
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 correctPage 31 of 51
// 32 //age of the prosecutrix. The benefit of the aforesaid doubt,
naturally, must go in favour of the accused.”
3.17. Reliance was placed to the decision in the case of
Jyoti Prakash Rai Vs. State of Bihar, reported in
(2008) 15 SCC 223. 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 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.”
3.18. Reliance was placed to the decision in the case of
Ram Suresh Singh Vrs. Prabhat Singh, reported in
(2009) 6 SCC 681. Hon’ble Apex Court in Para-13 of
the judgment has held as follows:-
“13. Even if we had to consider the medical report, it is
now well known that an error of two years in determining
Page 32 of 51
// 33 //the age is possible. In Jaya Mala v. Govt. of J&K [(1982) 2
SCC 538 : 1982 SCC (Cri) 502 : AIR 1982 SC 1297] this
Court held: (SCC p. 541, para 9)
“9. … However, it is notorious and one can take judicial
notice that the margin of error in age ascertained by
radiological examination is two years on either side.”
3.19. It is also contended that parents of the victim so
examined as P.W.2 and 3 in their evidence clearly
stated that they do not know the date of birth of the
victim and there exists no birth certificate and they
only rely on the School Leaving Certificate so produced
by P.W. 4 vide Ext-4 and 5. In view of such statements
of the parents of the victim, the victim also could not
have been treated as a minor. Statement of P.W.2 in
Para-6 reads as follows:-
“6. It is not a fact that I have not stated to police
that a dead male child was lying. It is not a fact that I
have not stated to police that the accused first offered
Rs.18,000/- for compromise. I being an illiterate, I
cannot say the date of birth of my daughter. It is not a
fact that my daughter Nandini has completed 19 years
of age.”
3.20. Similarly, P.W. 3 in Para-4 of her Cross-
examination has stated as follows:-
“4. It is not a fact that my daughter has completed
19 years of age. I don’t have birth certificate of my
daughter as I am illiterate. It is not a fact that I have
not stated to police that children of village found the
dead child in the morning at 7 a.m. while they had
gone outside to attend call of nature.”
Page 33 of 51
// 34 //
3.21. It is accordingly contended that since the age
of the victim has never been proved in accordance with
law, by holding the victim as a minor, the order of
conviction and sentence passed against the appellant
for the offence U/s.6 of the POCSO Act, is not at all
sustainable in the eye of law and liable to be set-aside.
3.22. With regard to conviction and sentence for
the offence U/s.376(2)(n) of the IPC, learned counsel for
the appellant contended that since the victim-P.W.1 in
her evidence has clearly stated that she was having
love affair with the accused and victim being not a
minor, offence U/s.376(2)(n) of the IPC cannot be
attracted against the appellant. Statement of the victim
in Para-2, 3, 16 and 17 reads as follows:-
“2. Since one and half years back the accused
Siba Hansa was having love affairs with me. About six
months thereafter (which means about one year back)
the accused Siba Hansa kept physical relation with me
giving an assurance to marry me in course of time. He
kept such physical relationship with me regularly for a
considerable length of time with the above assurance as
a result of which I became pregnant. Then I informed
about my pregnancy to the accused when the console
me to remain confident on his assurance. Then he gave
me five tablets stating that it will keep me well in
health. In good faith, I consumed it but I experienced
pain in my stomach/belly and while attending call of
nature, a dead prematured child came out of my belly
and fell on the ground. Because of the pain, I
Page 34 of 51
// 35 //experienced, I turned unconscious and fell down. On
regaining sense, I went home and washed my hands
and legs and went to school for my study.
3. On my return from school, I learnt that the matter of
birth of the prematured dead child was being discussed
among my villagers it was then decided to check all the
girls of the village to ascertain as to whose child it was.
I then disclosed everything before the co-villagers about
the birth of the dead child from me. A meeting was thus
called in the village. The accused was called to the
meeting but he took time. Likewise he availed time three
times and finally told before the villagers that he would
not keep me as his wife. The accused also offered
before the members representing the meeting that he
would pay money and give a bike to me for the overt
acts committed by him, but under no circumstances he
would accept me as his wife.
xxxxx xxxxx xxxx
16. During the period of the love affairs between
me and the accused I had not disclosed it before
anybody.
17. Before my disclosure in the meeting I had no
informed anybody about any of the occurrence of this
case.”
3.23. Similarly, with regard to the conviction and
sentence for the offence U/s.313 of the IPC, learned
counsel for the appellant contended that in view of the
statement of the victim so stated in Para-18, 20 & 21,
allegation of offence U/s.313 of IPC cannot be
attracted. The victim in Para-18, 20 and 21 has stated
as follows:-
“18. On the date of the abortion of the child I had
gone to attend the call of nature at about 10 p.m. to a place
in the vicinity of my house. That place belonged to the
Ward Member of my village. It was a dark night.
Page 35 of 51
// 36 //
xxxx xxxxx xxxx xxxx
20. The place of my abortion was about 200 feet
away from my house. I did not call my mother to
accompany me.
21. After the above abortion, I did not say the
matter before anybody including my parents for about two
days. Also I had not taken any medicines for any pain
during that period and also not undergone any treatment
with any doctor.
3.24. With regard to conviction and sentence of the
appellant for the offence U/s.376(2)(n) is concerned,
learned counsel for the appellant further contended
that taking into account the testimony of the victim
and the inconsistencies in her statement, no conviction
under the aforesaid offence could have been passed
against the appellant.
3.25. It is further contended that the victim in every
stage of the proceeding has made contradictory
statements. Victim in Para-23 of her cross-
examination, clearly admits that she was having
consent to the alleged act but in her 164 statement, no
such allegation was made. Para-23 of cross-
examination of the victim reads as follows:-
“23. It is a fact that I had consent to the offending (sexual)
acts of the accused on me..”
Page 36 of 51
// 37 //
3.26. In her 164 statement the victim fairly admits
that she was having love affair with the appellant and
on the ground of promise of marry, the victim allowed
the appellant to have sexual relationship with her. Not
only that in her 164 statements, the victim also admits
that on being called, she on her own went away with
the appellant and there also the appellant kept physical
relationship with her. Not only that in her 164
statements, victim also admits that after eloping with
the appellant, the appellant took her to different places
and also kept physical relationship with her. But in the
FIR so lodged by the victim, she made allegation that
the appellant on the face of her unwillingness, kept
physical relationship with her for around one year.
3.27. With regard to conviction and sentence for the
offence under Section 313 of the IPC, it is also
contended that the victim since has given contradictory
statements with regard to the alleged abortion and
giving birth to a dead child, while attending the call of
Page 37 of 51
// 38 //
nature, such conviction and sentence is also not
maintainable.
To be specific, learned counsel for the appellant
contended that in her 161 statement, the victim made
the allegation that after about 6 (six) months when the
victim came to know that she has become pregnant
and informed the same to the appellant, the appellant
took her to a medicine shop and gave some medicine
with the impression that by taking such medicine, the
appellant will give birth to a well to do child.
3.28. Basing on such impression given by the
appellant, the victim consumed the medicine and 2
(two) days thereafter, while attending call of nature, she
gave birth to a dead male child. But the victim in her
164 statements, submitted that when the appellant
was informed about her pregnancy, the appellant gave
her a tablet and after taking the tablet, while attending
call of nature, the dead child came out and the victim
lost her sense.
Page 38 of 51
// 39 //
3.29. But in her deposition before the Court, she gave
the statement that appellant gave her 5(five) tablets
stating that it will keep her in good health. In good
faith, she consumed the same and experienced pain in
her stomach and belly while attending call of nature, a
dead premature child come out of her belly and fell on
the ground.
3.30. It is accordingly contended that in view of such
contradictory statement of the victim, no offence
U/s.376(2)(n) and 313 of IPC is made out and appellant
has been wrongly convicted for the said offences vide
the impugned judgment. In support of the aforesaid
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).”
3.31. Hon’ble Apex Court in the case of Keshav in
Para-9 has held as follows:-
Page 39 of 51
// 40 //
“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.”
3.32. 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
Page 40 of 51
// 41 //
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 hold 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.”
3.33. 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.”
Page 41 of 51
// 42 //
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 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
Page 42 of 51
// 43 //
allegations made in the FIR and materials collected
and produced along with the chargesheet, 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.”
3.34. It is further contended that the prosecution
story is very much doubtful as, as per the statement of
the victim she kept physical relationship with the
appellant for around 1 year and became pregnant. Not
only that the prosecution case is that the victim when
came to know that she has become pregnant by 6 (six)
months, the appellant gave her some medicine and
because of that the pregnancy was aborted and she
gave birth to a dead child.
3.35. It is contended that since it is not the case of
the prosecution that the victim was staying with the
appellant, the stand of the prosecution that victim
came to know about the pregnancy after 6(six) months
is not believable. It is also contended that even though
the prosecution relying on the statement of the victim
took a stand that the victim gave birth to the dead child
Page 43 of 51
// 44 //
in an open field while attending call of nature, but the
said dead child was only recovered from a well.
3.36. It is accordingly contended that allegation made
by the prosecution that the victim became pregnant
because of the physical relationship with the appellant
cannot be believed. It is quite unbelievable that the
victim though became pregnant, because of the sexual
relationship with the appellant, her family members
could not know about the same for around 6(six)
months.
3.37. It is accordingly contended that not only the
prosecution has failed to prove the age of the victim as
a minor, but also has failed to substantiate the
allegation of rape and abortion. Accordingly, conviction
and sentence of the appellant under any of the
offences, is not at all maintainable and appellant is
liable for his acquittal with quashing of the impugned
judgment.
4. Mr. S.P. Das, learned Addl. Standing Counsel on
the other hand while supporting the impugned
Page 44 of 51
// 45 //
conviction and sentence, contended that since in
support of the date of birth of the victim, the
prosecution through P.W.4, exhibited the School
Admission Register as well as the School Leaving
Certificate of the victim showing her date of birth as
22.04.1997 under Ext.4 & 5 and the date of occurrence
being 14.03.2015, there is no iota of doubt, that the
victim was a minor on the alleged date of occurrence.
4.1. It is also contended that since the prosecution has
proved the date of birth of the victim as 22.04.1997
through Ext-4 and 5 and the same having been proved
by P.W. 4, who happens to be the Assistant Teacher of
Grama Panchayat High School, Kapilabhata, no
illegality or irregularity can be found with regard to the
finding of the learned Special Judge in holding the
victim as a minor and the appellant guilty for the
offence U/s.6 of the POCSO Act.
4.2. It is also contended that in view of the statement
of P.W.1 and statement of Doctor-P.W.10, who
examined the victim, allegation of rape having been
Page 45 of 51
// 46 //
proved against the appellant, the appellant has been
rightly convicted for the offence U/s.376(2)(n) of the
IPC. It is also contended that in view of the statement
of victim and P.W. 10 as well as P.W. 2 and 3, since it
is well proved that the victim was pregnant and a dead
child was born because of the medicine taken by the
victim at the instance of the appellant, allegation of
offence U/s.313 of the IPC is also well proved and the
appellant has been rightly convicted for the said
offences. Reliance was placed to the statement of
P.W.10 in Para-1 and 2, and the same reads as
follows:-
“1. 18.03.2015, I was in my present post
i.e. working as Gynic Specialist, Govt. Hospital,
Titilagarh. On that day on police requisition, I
examined Nandini Putel, aged about 15 years D/o-
Satyananda Putel, R/o. Village Tetelpada, P.S.
Bangomunda and my findings are as follows:-
i) There was no external bodily injury on her
body.
ii) On genetial examination there was
bleeding in the vagina.
iii) There was tear on the posterior commissure
at 5′ O Clock position and bleeding from tear, Old
tear at 3 and 9′ O clock position of hymen.
iv) Vagina canal was wide, blood present in
the vagina. Cervise was present, product of
conception felt through cervical OS.
Page 46 of 51
// 47 //
v) There was recent sign of abortion.
2. Vagina swab collected and kept in separate
vial. Ossification test reveals that age of the victim
was 16 to 18 years. This is my report marked as Ext-
11 and Ext.11/1 is my signature therein.”
4.3. It is also contended that immediately after
initiation of the proceeding, statement of the victim was
recorded under Section-164 and in her statement she
clearly stated that the appellant kept physical
relationship with her. By keeping such physical
relationship, when the victim conceived, the appellant
gave some tablets and thereby causing the mis-
carriage. In support of the same, reliance was placed to
Para-18 of the deposition of P.W. 1, which reads as
follows:-
“18. On the date of the abortion of the child I had
gone to attend the call of nature at about 10 p.m. to a
place in the vicinity of my house. That place belonged to
the Ward Member of my village. It was a dark night. ”
4.4. It is accordingly contended that appellant has been
rightly convicted and sentenced and the appeal is liable for
dismissal.
5. Having heard learned counsel for the parties and
considering the submissions made, this Court finds
Page 47 of 51
// 48 //
that the prosecution case was set into motion with
registration of the FIR, giving rise to Bongomunda P.S.
Case No.29 dated 17.03.2015 for the offence
U/s.376/313/506 of the IPC read with Section-6 of the
POCSO Act.
5.1. As found, the appellant was charged for the
offence U/s.376(2)(i)(n)/313/506 of the IPC and
Section-6 of the POCSO Act and faced the trial for the
aforesaid offences. Prosecution in order to prove the
charges against the appellant, examined 12 nos. of
witnesses. which includes P.W. 1 as the victim P.W. 2
and 3-parents of the victim, P.W. 10-Doctor who
examined victim and P.W. 4 who produced Ext-4 and 5
in support of the date of birth of the victim.
5.2. This Court after going through the materials
available on record, finds that learned Special Judge
relying on Ext-4 and 5, held the victim as a minor and
accordingly convicted the appellant for the offence
U/s.6 of the POCSO Act. However, it is found that date
of birth taken by the learned Special Judge, by treating
Page 48 of 51
// 49 //
the victim as a minor, basing on Ext-4 and 5, since is
not in accordance with the provisions contained U/s.94
of the J.J. Act read with Rule-12 of the J.J. Rules, 2007
and author of Ext-4 and 5 having not been examined
as a witness by the prosecution, relying on Ext-4 and 5
as per the considered view of this Court, the victim
could not have been treated as a minor.
5.3. Since no document in support of the age of the
victim as a minor has been exhibited in terms of the
provisions contained under Rule-12 of the J.J. Rules,
2007 and the author of Ext-4 and 5, having not been
examined as a prosecution witness, relying on Ext-4
and 5, the victim could not have been treated as a
minor. Placing reliance on the decisions of the Hon’ble
Apex Court in the case of Anurudh, P. Yuvaprakash,
Birka Shiva and Mahadeo so cited (supra), it is the
view of this Court that learned Special Judge
committed gross illegality and irregularity in holding
the victim as a minor and consequentially convicting
Page 49 of 51
// 50 //
and sentencing the appellant for the offence U/s.6 of
the POCSO Act.
5.4. In view of the provisions contained under Section-
164-A Cr.P.C. read with Section 27 of the POCSO Act
and the provisions contained under Section-72 of the
J.J. Act read with Rule-12 of the J.J. Rules, it is the
view of this Court that the victim is not a minor on the
date of alleged occurrence. Accordingly it is the view of
this Court that the appellant could not have been
charged and convicted and sentenced for the offence
U/s.6 of the POCSO Act and this Court is inclined to
acquit the appellant from the said offence.
5.5. With regard to the charge U/s.376(2)(i)(n)/313 of
the IPC, this Court taking into account the
contradictory statement of victim and the materials
available on record and the decisions in the case of
Keshav, Rai Sandeep Alias Deepu and K. Dinesh
Kumar so cited (supra), is also of the view that
prosecution has not proved the aforesaid charges
against the appellant beyond all reasonable doubt.
Page 50 of 51
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5.6. Considering the statement of the victim-P.W. 1
and statement of the parents-P.W. 2 and 3 read with
the statement of P.W. 10, it is the view of this Court
that offence U/s.376(2)(i)(n) and 313 of IPC is not made
out against the appellant.
5.7. In view of the aforesaid analysis, this Court is of
the view that the appellant has been illegally convicted
for the offence U/s.376(2)(i)(n)/313 of IPC and Section-
6 of the POCSO Act. While quashing the aforesaid
conviction and sentence so passed by the learned
Special Judge in Special G.R. Case No.11 of 2015 vide
judgment dated 18.12.2017, this Court is inclined to
acquit the appellant from the aforesaid offences and
allow the appeal accordingly. The appellant be released
from custody immediately if his detention is not
required in any other case.
6. The appeal accordingly disposed of.
Signature Not Verified
Digitally Signed
Signed by: BASUDEV SWAIN
(Biraja Prasanna Satapathy)
Reason: Authentication Judge
Location: High Court of Orissa, Orissa
Cuttack High Court, Cuttack
Date: 17-Apr-2026 17:05:22
Dated the 17th April, 2026/Basudev
Page 51 of 51
