Karnataka High Court
Yogesh S/O Maleppa Pattar vs The State Of Karnataka on 4 February, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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CRL.A No. 200152 of 2019
C/W CRL.A No. 200091 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 200152 OF 2019
(374(Cr.PC)/415(BNSS)
C/W
CRIMINAL APPEAL NO. 200091 OF 2019
IN CRL.A.NO.200152/2019:
BETWEEN:
SHARANABASAVA S/O SIDDAYYA HIREMATH
AGE: 28 YEARS, OCC: GYM TRAINER,
R/O: VILLAGE MALLA (B), TQ. SHAHAPUR,
DIST. YADGIR, NOW R/O KASHI GALLI,
CHITTAPUR, DIST: KALABURAGI - 585211.
Digitally signed by ...APPELLANT
BASALINGAPPA (BY SRI NANDKISHORE BOOB, ADVOCATE)
SHIVARAJ
DHUTTARGAON
Location: HIGH AND:
COURT OF
KARNATAKA
1. THE STATE THROUGH CHITTAPUR POLICE STATION,
NOW REPRESENTED BY ADDL. SPP
HCKB AT KALABURAGI.
2. BASAWARAJ S/O RAJASHEKHAR
AGE: 45, OCC: COOLIE, TAKALI VILLAGE,
TQ: AFZALPUR, DIST: KALABURGI - 585301.
...RESPONDENTS
(BY SRI SIDDALING P. PATIL, ADDL. SPP FOR R1;
SRI M.M. ALLUR & PANCHAL SANTOSHI, ADV'S FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C
1973, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
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CRL.A No. 200152 of 2019
C/W CRL.A No. 200091 of 2019
AND ORDER OF SENTENCE AND FINE IMPOSED ON THE
APPELLANT/ ACCUSED BY THE HON'BLE IIND ADDL. SESSIONS
JUDGE, KALABURAGI, IN SPECIAL CASE (POCSO) NO.55/2016,
DATED 06.07.2019, FOR THE OFFENCES PUNISHABLE U/S 377
IPC, SEC 4 OF POCSO ACT., 2012 AND 323 IPC, IN VIEW OF
THE REASONS AS STATED ABOVE.
IN CRL.A.NO.200091/2019:
BETWEEN:
YOGESH S/O MALEPPA PATTAR
AGED ABOUT 36 YEARS,
OCC: PHYSICAL TEACHER IN BASAVESHWARA
SCHOOL, CHITTAPUR,
R/O MALLIKARJUNA CHOWK, AFZALPUR,
NOW R/O: NEAR MARGAMMA TEMPLE, CHITTAPUR,
TQ: CHITTAPUR, DIST: KALABURAGI.
...APPELLANT
(BY SRI MAHANTESH H. DESAI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA BY,
CHITTAPUR POLICE STATION
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
KALABURAGI - 585107.
2. SRI AMBRISH S/O BASAWARAJ PATIL
AGE: 23, OCC: STUDENT,
R/O KAMARWADI,
NOW: AASARMOLLA CHITTAPUR
TQ: CHITTAPUR, DIST: KALABURGI - 585211.
...RESPONDENTS
(BY SRI SIDDALING P. PATIL, ADDL. SPP FOR R1;
SRI M.M. ALLUR & PANCHAL SANTOSHI, ADV'S FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C
1973, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 06.07.2019 PASSED BY THE
COURT OF II ADDL. SESSIONS JUDGE, KALABURAGI, IN
SPECIAL CASE (POCSO) NO.55/2016, CONVICTING THE
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CRL.A No. 200152 of 2019
C/W CRL.A No. 200091 of 2019
APPELLANT FOR THE OFFENCES UNDER SECTION 377 AND 506
OF I.P.C AND SECTION 6 OF POCSO ACT AND SENTENCING
HIM TO RIGOROUS IMPRISONMENT FOR LIFE AND TO PAY A
FINE OF RS.1,00,000/- IN DEFAULT, TO UNDERGO S.I FOR 2
YEARS FOR THE OFFENCE PUNISHABLE UNDER SECTION 377
OF I.P.C, AND SECTION 6 OF POCSO ACT AND ACQUIT HIM OF
THE CHARGES LEVELED AGAINST HIM.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE RAJESH RAI K.,) These appeals by the convicted accused Nos.1 and 2 is directed against the judgment of conviction and order of sentence dated 06.07.2019 passed in Special Case (POCSO) No.55/2016 by the learned II Addl. Sessions Judge, Kalaburagi (hereinafter referred to as the 'learned Sessions Judge), whereby the learned Sessions Judge convicted the appellants/accused Nos.1 and 2 and sentenced accused No.1 to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 377 of IPC and Section 6 of the POCSO Act, and in default to pay fine he shall undergo simple imprisonment for a period of two years. Further, accused No.1 is sentenced to undergo rigorous -4- NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 imprisonment for two years and to pay a fine of Rs.5000/- for the offence punishable under Section 506 of IPC and in default of fine, he shall undergo imprisonment for a period of six months. Further, accused No.2 is sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- for the offence punishable under Section 377 of IPC and Section 4 of the POCSO Act, and in default to pay fine he shall undergo simple imprisonment for a period of two years. Further, accused No.2 is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- for the offence punishable under Section 323 of IPC and in default of fine, he shall undergo imprisonment for a period of three months. Further, it is directed that all the substantive sentences shall run concurrently.
2. The abridged facts of the case are as under:
PW.1-victim in this case, lodged a complaint before the respondent-Police alleging that the accused No.1 was working as a Physical Education Instructor in Basaveshwara Higher Primary School and also owned a stationary store at Bajaj Market, where the accused No.2 frequently visited. When the victim-P.W.1 was studying in 10th grade at Bethany School, the -5- NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 accused No.1 identified him and had a conversation stating he had tutored him following which he invited the victim to his store. In the month of June 2016, when PW.1 visited the accused No.1's store he invited him to accompany him to Hyderabad for purchasing of materials. Accordingly, they both left for Hyderabad Begum Bazar and purchased stationeries, following their purchase they returned to the lodge, had their meals and they shared the bed as they slept. At night, the accused No.1 expressed his desire to have carnal intercourse with PW.1 and thereby, attempted to disrobe victim-PW.1, however, PW.1 resisted such advances and walked out of the room. Later, upon his return to the room the accused No.1 continued with such advances. The following night once again the accused No.1 attempted to have physical intimacy with PW.1 and thereby forcibly disrobed him and had carnal intercourse. Further, the accused No.1 threatened the victim not to divulge the same with anybody. Subsequently, after a lapse of one month, when PW.1 visited the accused No.1's store, he once again took PW.1 to his house and at about 12:00 noon, disrobed PW.1 and had carnal intercourse with him. Out of fear, the victim did not divulge the same to anybody. Later, in the month of August, 2016 on the day of -6- NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 Independence following the flag hoisting at the Tahsildar's office at about 09:30 a.m., when PW.1 visited accused No.1's store, the accused No.2 and other friends of accused No.1 who were present at the store decided to watch a movie at Mukta Theatre, Kalaburagi. At about 02:00 p.m., they left Chittapur and while on their way to Kalaburagi on a motorbike, the accused No.1, CWs.9 and 10 consumed alcohol and as all of them reached Kalaburagi late, the tickets at Mukta Theatre were sold out, therefore they visited Miraj Theatre, however, even in the said theatre the tickets were sold out. Upon being unsuccessful in procuring tickets they visited Samadhan Hotel for dinner. On finishing their meals, at about 07-08 p.m., PW.1 was at Tengali cross, PW.1 and CW.8 were on a motorbike, CW.8 stopped the bike and as they waited for others to arrive, the accused No.2 visited the spot on his bike and asked PW.1 to sit on his bike. Without awaiting others, the accused No.2 rode the bike, with a detour away from Chittapur, he took the victim to a land at Malkhed road where he forced the victim-
PW.1 to smoke cigarette and thereafter, assaulted and threatened him saying he knew what the accused No.1 did to him at Hyderabad and in his house and thereby forced the victim to have carnal intercourse with him. Since the accused -7- NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 No.2 also threatened him to not disclose the same to anybody, PW.1 remained silent. After two days, the victim was unable to either eat or urinate. As such, he revealed the said incident to his parents and lodged a complaint before PW.13 as per Ex.P1.
On the strength of Ex.P1-complaint, PW.13-PSI registered an FIR against the accused in Crime No.87/2016 dated 23.08.2016 for the offences punishable under Sections 323, 504, 506, 377 r/w Section 34 of IPC and Sections 4 and 6 of the POSCO Act.
Subsequent to registration of an FIR, PW-13 conducted further investigation by apprehending the accused and after recording their voluntary statement, recovered the motorbike used for commission of crime by drawing spot panchanama-Ex.P7, relevant mahazars and recorded the statements of other witnesses. PW.12 laid the charge sheet before the Sessions Court for the aforementioned offences.
3. On taking cognizance of the offences and securing the presence of the accused, the learned Sessions Judge framed the charges against the accused for the offences punishable under Sections 323, 504, 506, 377 r/w Section 34 of IPC, Sections 4 and 6 of the POSCO Act. The same was read over verbatim to the accused. However, the accused denied the charges and claimed to be tried.
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4. In order to prove the charges levelled against the accused, the prosecution collectively examined 13 witnesses before the Sessions Court as PW.1 to PW.13, marked 22 documents as Exs.P1 to P22 and identified 2 material objects as M.Os.1 and 2.
5. On completion of the prosecution evidence, the learned Sessions Judge read over the incriminating evidence of the material witnesses to the accused as stipulated under Section 313 of Cr.P.C. However, the accused denied the same. The defence of the accused is one of total denial and that of false implication. However, the accused neither examined any witnesses nor marked any documents on their behalf.
6. On assessment of the oral and documentary evidence placed before the learned Sessions Judge convicted the appellants/accused for the charges leveled against them and sentenced them as stated supra.
7. The validity and legality of the judgment passed by the learned Sessions Judge is called-in for scrutiny by both the accused by way of filing separate appeals. More particularly, the accused No.1 (Yogesh) filed Criminal Appeal -9- NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 No.200091/2019 and the accused No.2 (Sharanabasava) filed Criminal Appeal No.200152/2019.
8. We have heard the learned counsel Sri. Nandkishore Boob for the appellant in Crl.A.No.200152/2019, the learned counsel Sri. Mahantesh H. Desai for the appellant in Crl.A.No.200091/2019, the learned Additional State Public Prosecutor Sri. Siddaling P. Patil for the respondent No.1 in both the appeals and Sri M.M. Allur & Sri. Panchal Santoshi S, for respondent No.2 in both the appeals.
9. The learned counsel for the respective appellant in both the appeals vehemently argued that the judgment challenged under these appeals suffers from perversity and illegality as the learned Sessions Judge grossly failed to appreciate the evidence on record in right perspective and passed the impugned judgment based on surmises and conjuncture. They further submitted that, the prosecution failed to prove the age of victim PW.1 by neither placing credible document nor by attempting to conduct Radiology examination and ossification test of victim to determine his age that he was a minor at the time of incident. The learned Sessions Judge solely relied on Ex.P17-age certificate issued by PW.11-Head
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 Master in convicting the accused under the provisions of the POCSO Act. They further contended that there is an inordinate delay of 8 days in lodging the complaint after the last alleged incident. However, according to PW.1, the incident was said to have occurred on 01.06.2016 and the complaint was lodged on 23.08.2016, in such circumstances, the version of PW.1 cannot be believed. They also contended that, PW.4-uncle of victim a practicing advocate was active in local politics and that there was ill-will between them prior to the incident, as such, he falsely implicated these accused in the incident. They further submitted that on perusal of evidence of the Doctor-PW.9, there were no such injuries or signs of carnal intercourse forthcoming in the report as per Ex.P13 and PW.9 did not depose to that effect. Further, the evidence of PW.2-father of victim and PWs.3 and 4 the close relatives of the victim cannot be taken into consideration as they are the partisan witnesses to the incident. With these submissions, they pray to allow the appeals and to set-aside the impugned judgment passed by the Sessions Court.
10. Refuting the above submissions made by the learned counsel for the appellants, the learned Additional SPP contended that, the judgment challenged in these appeals
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 neither suffers from perversity nor illegality and no exception can be taken from the judgment passed by the Sessions Court for the reasons assigned by the Sessions Court under a well- reasoned judgment. He contended that, the learned Sessions Judge elaborately appreciated the evidence of PW.1-victim. P.W.1 has categorically deposed that initially the accused No.1 perpetrated the act on 01.06.2016 and subsequently he repeated it after one month and later on 15.08.2016, the accused No.2 had carnal intercourse with PW.1. Though there is a delay in lodging the complaint, the reason for delay is duly explained by PW.1, that owing to threat foisted by the accused, he felt intimidated to lodge a complaint. He further contended that the Doctor-PW.9 who examined the victim has stated in his evidence that there is no possibility of ruling out carnal sexual intercourse to the victim. As such, the oral testimony of PW.1 clearly corroborates with the medical evidence of PW.9. Further, the prosecution also proved the age of the victim that he was minor at the time of incident by placing the evidence of PW.11-Head Master and the document Ex.P17-age certificate of the victim which clearly enumerates that the victim was aged below 16 years at the time of incident. He further contended that PWs.2 to 4-hearsay witnesses to the incident before whom
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 the victim narrated the incident, following which they lodged a complaint. In such circumstances, there is no reason to discard the evidence of the victim and the evidence of PWs.2 to 4. Accordingly, the learned Sessions Judge has duly appreciated the evidence on record and convicted the accused for the charges leveled against them and no interference is warranted in the impugned judgment. Accordingly, he prays to dismiss the appeals.
11. The learned counsel for the respondent No.2 adopts the submission made by the learned Addl. SPP for the respondent-State.
12. Having heard the learned counsel for the respective parties and on perusal of the entire evidence on record including the impugned judgment passed by the learned Sessions Judge, the points that arise for our consideration are:
(i) Whether the judgment under these appeals suffers from perversity and illegality?
(ii) Whether the learned Sessions Judge is justified in convicting the accused No.1/appellant for the offences punishable under Sections 377, 506 of IPC and Section 6 of POSCO Act and accused No.2/appellant for the offences punishable under Sections 377, 323 of IPC and Section 4 of POSCO Act?
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13. In order to bring home the guilt of the accused, the prosecution has predominantly relied on the evidence of PW.1- victim, PWs.2 to 4-the father and close relatives of PW.1, the medical evidence of PW.9-Doctor and PW.11-Head Master who issued the age certificate of the victim. On careful analysis of evidence of PW.1, he has categorically deposed that in the year 2016 the accused No.1 asked him to visit his store stating that he tutored him in his 4th and 5th grade. Thereafter, in the month of June, 2016, he took PW.1 to Hyderabad under the pretext of purchasing materials for his store. After such purchase, the accused No.1 forcibly had carnal intercourse with PW.1 in the room. Later, after one month, the accused No.1 once again had carnal intercourse with him at his residence. Following which, PW.1 was threatened with dire consequences should he disclose the same to anybody. PW.1 further deposed that, taking undue advantage of the actions of the accused No.1 and upon learning this the accused No.2 also took advantage of the victim by having carnal intercourse with him on 15.08.2016 on a field situated on Malkhed road. This evidence of PW.1 clearly corroborated with the evidence of PW.3-cousin of PW.1. According to PW.3, on 15.08.2016, PW.1 divulged to him about the act perpetrated by the accused No.2
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 and accused No.1. PW.2-father of the victim and PW.4-uncle of the victim also reiterated the evidence of PWs.1 and 3. On careful examination of the evidence of PWs.1 to 4, albeit there is delay in lodging the complaint, however, there is no reason to discard their evidence as far as the act of carnal intercourse committed by the accused on PW.1.
14. In order to prove the age of the victim that he was a minor at the time of incident, the prosecution has relied on the age certificate issued by PW.11-Head Master of the Higher Primary School, Chittapura where PW.1 studied. On perusal of Ex.P17, the date of birth of PW.1 is mentioned as 18.10.2000. According to PW.11, the said certificate was issued by him based on the request made by the Investigating Officer. However, the original register is not marked in the evidence. Further, the Doctor-PW.9 who examined the victim also has remained silent regarding the age of the victim. Admittedly, PW.9 has neither referred PW.1 to radiologist nor to Dentist for determining the victim's age. It is forthcoming in the evidence of PW.1 that he graduated his 10th grade at the time of incident. In such circumstances, the prosecution also failed to place the matriculation certificate issued by the School authority to prove the age of the victim. Admittedly, there is no
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 such authenticated document like birth certificate placed by the prosecution in its evidence or in the charge sheet materials. Except Ex.P17, absolutely no other credible documents were placed by the prosecution to prove the age of victim that he was a minor at the time of incident. In such circumstances, the Division Bench of this Court in Criminal Appeal No.200109/2014 dated 05.11.2024 held regarding determination of the age of the victim at paragraph Nos.40 and 41 as under:
"40. As regards the age of the victim, it is the settled position of law that the same test of juvenility vis - a-vis an accused who seeks benefit of being a juvenile would be sufficient test to determine age of the victim. The Apex Court in Jarnail Singh v. State of Haryana, [(2013) 7 SCC 263] at para 23 has observed 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
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion."
41. Under Rule 12 of Juvenile Justice Rules, the documents that could be relied for the determination of the age are as follows:
"12. Procedure to be followed in determination of Age.--
Xxx (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 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;"
15. On perusal of the above judgment passed by the Division Bench of this Court, it is relatively clear that as per Rule 12 of the Juvenile Justice Rules, in order to prove the age of the child or juvenile, the procedure to be followed and the documents to be relied by the prosecution are the matriculation or equivalent certificates if available, in the absence the date of birth certificate from the school (other than a pay school) first attended and in the absence the birth certificate given by a Corporation or a Municipal Authority or a Panchayat. Hence, considering the above aspect, we are of the considered view that, the prosecution also failed to prove that the victim was a minor as on the date of incident.
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16. Further the Hon'ble Apex Court in the case of P. Yuvaprakash v. State reported in 2023 SCC OnLine SC 846 held in paragraphs No.12 to 16 as under:
"12. 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.
(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
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 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."
13. 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 concerned court has to determine the age by considering the following documents:
"(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".
14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test"
conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh,3 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:
"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i),
(ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, benefit could be given to the child or juvenile by considering the age on lower side within the margin of one year."
16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94(2) of the JJ Act, this court held in Sanjeev Kumar Gupta v. The State of Uttar Pradesh that:
"Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 from the school first attended, could be obtained. In Section 94(2)(i) both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category."
17. Against this backdrop, applying the findings of the Hon'ble Apex Court in the above judgment to the facts and circumstances of this case, we are of the considered view that the prosecution has failed to place any such credible documents to prove the age of the victim that he was a minor at the time of incident. In such circumstances, though the prosecution has successfully proved the act of carnal intercourse committed by the accused on PW.1, the said act of the accused squarely falls within the ambit of Section 377 of IPC instead of Sections 4 and 6 of the POCSO Act. In order to attract the provisions of Section 4 and 6 of POCSO Act, the victim must be a child as defined under Section 2(d) of the act i.e., below the age of 18 years. Even on careful perusal of the impugned judgment passed by the Sessions Court, the learned Sessions judge has also failed to give such findings regarding the age of the victim that he was a minor at the time of incident. Hence, in our view, the conviction and sentence imposed by the Sessions Court for the offences punishable under Sections 4 and 6 of the POCSO Act needs interference and is liable to be set-aside.
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 However, on perusal of evidence of PW.1, PWs.2 to 4 and PW.9-Doctor, we are of the considered view that the prosecution has successfully proved and established the guilt of the accused for the offences punishable under Sections 377, 323 and 506 of IPC. However, the learned Sessions Judge has sentenced the accused for life imprisonment for the offence punishable under Section 377. The punishment defined under Section 377 of IPC is 'the imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine'. In this case, since both the accused are in incarceration for a period of 8 years 6 months as on date, we are of the view that, it is sufficient to sentence the accused for the period they have already undergone for the offence punishable under Section 377 of IPC by imposing reasonable fine amount.
18. In that view of the matter, interference in the impugned judgment is called for and accordingly, we answer Point No.1 in the negative and Point No.2 in partly affirmative and proceed to pass the following:
ORDER i. The Criminal Appeals are allowed in part.
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 ii. The judgment of conviction and order of sentence dated 06.07.2019 passed in Special Case (POCSO) No.55/2016 by the Court of II Additional Sessions Judge, Kalaburagi is set-aside for the offences punishable under Sections 6 and 4 of the POCSO Act, 2012.
iii. The appellants/accused No.1 and 2 are acquitted for the offences punishable under Sections 6 and 4 of the POCSO Act, 2012 respectively.
iv. The conviction and sentence imposed by the Sessions Judge for the offence punishable under Section 377 of IPC is modified. The accused are sentenced for a period which they have already undergone i.e., 8 years 6 months and they shall pay a fine of Rs.1,00,000/- each (Rupees One Lakh only), before the Sessions Court and in default of payment of fine, they shall undergo simple imprisonment for a period of two years for the offence punishable under Section 377 of IPC.
v. If the fine amount is deposited by the accused, the learned Sessions Judge is directed to notify and disburse the same to PW.1 as compensation stipulated under Section 357(1) of Cr.P.C on due identification. The balance amount shall be submitted to the State Treasury.
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NC: 2025:KHC-K:811-DB CRL.A No. 200152 of 2019 C/W CRL.A No. 200091 of 2019 vi. The sentence imposed by the Sessions Court for the offences punishable under Sections 323 and 506 of IPC against accused are kept intact. vii. All the sentences shall run concurrently. viii. The accused shall be released on payment of fine amount as above or shall undergo the default sentence.
ix. Registry is directed to send back the Trial Court records along with copy of this judgment to the Trial Court, forthwith.
Sd/-
(S.SUNIL DUTT YADAV) JUDGE Sd/-
(RAJESH RAI K) JUDGE MSR,HKV List No.: 1 Sl No.: 34 CT: PS