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 offences Page 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 consent Page 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 Children Page 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 available Page 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 age Page 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 facie Page 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."
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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.
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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 had Page 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 by Page 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 correct Page 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// 51 // 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