C A V Judgment

1. Since both the appeals arise out of common judgment of conviction and order of sentence, as such the same have been clubbed together, heard together and are being decided by a common order.

2. The present appeals are directed against the judgment of conviction and order of sentence dated 24.09.2013 passed by the learned Upper Session Judge, Bemetara, Civil District Durg, Revenue District Bemetara (C.G.) in ST No.66/2012, whereby the appellant Nanda @ Lokesh has been convicted under Sections 363/34, 366/34 & 376 of IPC and sentenced to undergo RI for 1 year, RI for 2 years and RI for 7 years with default stipulations, whereas the appellants Shekhar Bharti and Lalu @ Sanjay have been convicted under Sections 363/34 & 366/34 of IPC and sentenced to undergo RI for 1 year & RI for 2 years, respectively, with default stipulations.

3. The prosecution case, in brief, is that on 09.07.2012 when the prosecutrix had gone for nature's call along with her friend, the accused persons forcefully took her on motorcycle to Raipur, where the accused Nanda stayed in aunt's house along with the prosecutrix and committed forcible sexual intercourse with her. On the next day, he left her near Bajrangbali Temple and ran away. The prosecutrix with the help of coconut selling vendor reached to her house, where she narrated the entire incident to her parents. Thereafter a case was registered against the accused persons at the police station concerned. After investigation, the charge sheet was filed before the concerned Magistrate and on the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted and sentenced the accused/appellants, as mentioned in para 2 of the judgment.

4. Learned counsel for the appellants submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The prosecutrix and the appellant Nanda were in relationship as such she went with the accused persons voluntarily and she did not raise any alarm or did not ask for any help while going with the accused persons and on the way also some policemen met them then also she did not tell anything to them. The father of the prosecutrix (PW-3) himself admitted that there is previous enmity between them and just to escape from the complaint made by the accused Nanda against him, a false report was lodged against the accused persons. The learned Trial Court has also wrongly held that the prosecutrix was minor on the date of incident, whereas no prudent evidence or any documentary evidence was produced by the prosecution in this regard that she was minor on the date of incident. The learned Trial Court has not considered the above said aspects of the matter and has wrongly convicted and sentenced the appellant for the aforesaid offence. Therefore, the appeals deserve to be allowed. Reliance has been placed on the judgments rendered by the Hon'ble Supreme Court in the matters of Ravindra Kumar Vaishnav vs State of Chhattisgarh, reported in 2024 SCC Online Chh 260, Tilku @ Tilak Singh vs State of Uttarakhand, reported in 2025 SCC Online SC 353 and this Court's judgment dated 13.01.2026 passed in CRA No.396/2007 in between Onkar Singh vs State of Chhattisgarh.

5. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted and sentenced the appellants for the aforesaid offence. Therefore, the appeals are liable to be dismissed.

6. Heard learned counsel for the parties and perused the material available on record.

7. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Sections 363 read with Section 34, Section 366 read with Section 34 and Section 376 of IPC against the appellant Nanda and against appellants Shekhar and Lalu under Sections 363 read with Section 34 and Section 366 read with Section 34 of IPC and after appreciation of oral and documentary evidence available on record, the learned Trial Court convicted and sentenced the appellants, as mentioned in para 1 of the judgment.

8. As per prosecution, the prosecutrix was aged about 17 years at the time of incident.

9. PW-1 prosecutrix stated that she is aged about 16 years but she does not remember her exact date of birth. In the cross- examination, she stated that she was admitted in school in 2006- 07 and after Class-3, she left the school.

10. The mother of prosecutrix (PW-02) stated that her daughter's age is about 17 years and her birth place is Village Dunda. In the cross-examination, she stated that she does not remember the date of birth of her children because she is uneducated.

11. Pusau (PW-6) stated that he is Kotwar of Village Dunda and as per birth register, prosecutrix date of birth is 29.12.1994. He entered this information on 10.01.1995 as per information of her father. The police seized the birth register as per seizure memo (Ex-P/9) and photocopy of register is Article-1. In the cross- examination, he admitted that for writing date of birth of prosecutrix, the mother of prosecutrix did not come to him.

12. Gyan Prasad (PW-8) Principal of School Dunda stated that he brought dakhil kharij register of school (Ex-P/13), where date of birth of prosecutrix is mentioned as 29.12.1994 at Sr. No.504. She was admitted in Class-1 on 04.07.2003 and she left school on 30.09.2008. In the cross-examination, he admitted this suggestion of defence that entry was not made by him and he told the date of birth of prosecutrix as per entry mentioned in the register. He also admitted that no document in respect of age of prosecutrix was submitted in school. In Article-1, date of birth of prosecutrix is written as 29.12.1994 and this entry was made after one month on 10.01.1995.

13. Pusau Das (PW-6) stated that he informed the police station on 10.01.1995 regarding entry of date of birth of the prosecutrix on birth register on 10.01.1995 itself, but prosecution did not file any document from concerned police station so Article-1 is not supported by any competent officer or police station register and PW-8 Principal admitted that he is not author of entry made in the dakhil kharij register.

14. This Court in Ravindra Kumar Vaishnav (supra) held in paras 18 to 21 as under:-

          "18. The relevancy of school admission and discharge register came for hearing before Hon'ble Supreme Court in Alamelu & Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded.

          19. In paragraphs 40 and 48 of its judgment in Alamelu (Supra), the Supreme Court has observed as under:

          "40.Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded.

          48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-

          "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

          20. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble Supreme Court has observed in para 33 as under:

          "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

          33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

          XXX

          33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.

          33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

          33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence 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.

          33.7 This Court has observed that a hypertechnical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

          33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

          33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

          33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public provisions of the Indian Evidence Act viz., section 35 and other provisions.

          33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."

          21. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under :

          "14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to thedescription of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.

          15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows:

          "20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining:

          (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."

          16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (I) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (I) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

          17. In Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference."

15. In light of the above, in the present case also, date of birth of prosecutrix is mentioned in school discharge register and though the Kotwar registered date of birth of prosecutrix in birth register and also informed about the same to the police station concerned but no document from the concerned police station was filed by the prosecution, thus it would not be safe to hold that the prosecutrix was minor and below 18 years of age on the date of incident as such the finding recorded by the learned Trial Court in this regard is not sustainable.

16. As regards other charges, it is clear that the prosecutrix (PW-1) admitted in para 11 of her cross-examination that when she reached near Police Station Khamtarai, then also she did not cry for help. In para 13, she admitted that she did not tell about the incident to nearby people. She admitted in paras 16, 17 & 18 of her cross-examination that when she was going with accused, she did not ask for help or shout help-help and accused persons did not gag her mouth. She also admitted that she is giving her statement as per instructions of her lawyer. She also admitted that she is telling her age as per assumption. Thus, the statement and conduct of the prosecutrix clearly shows that she is consenting party and she voluntarily went with the accused persons and stayed with the accused Nanda.

17. The Hon'ble Supreme Court in the matter of Tilku @ Tilak Singh (supra) held in paras 17, 18 & 19 as under:-

          "17. This Court in the case of S. Vardarajan v. State of Madras1 had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus:

          "7. .....It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that.

          On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her......."

          18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her.

          19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun."

18. In light of above, it is clear that the prosecution has failed to prove the age of prosecutrix below 18 years of age and it is also clear that the prosecutrix went with the appellants voluntarily and did not raise any alarm on the way even then she found some policemen so the finding recorded by the learned Trial Court is not sustainable.

19. Consequently, both the appeals are allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellants are acquitted of the charges under Sections 363/34, 366/34 & 376 of IPC.

20. The appellants are reported to be on bail.

21. Keeping in view the provisions of section 481 of BNSS 2023, the appellants are directed to furnish a personal bond for a sum of Rs.25,000/- each before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.

22. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.