Himachal Pradesh High Court
Reserved On: 09.05.2025 vs State Of H.P on 25 June, 2025
2025:HHC:19716 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 255 of 2021 Reserved on: 09.05.2025 Date of Decision: 25.06.2025 Sham Kumar ..Petitioner Versus State of H.P. ...Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Vijender Katoch, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 03.07.2021 passed by the learned Special Judge, Fast Track Special Court under POCSO (Kangra at Dharamshala), vide which, the appellant (accused before the learned Trial Court) was convicted and sentenced as under:
Sections Sentence
Under Section 4 of POCSO Act To undergo rigorous imprisonment
for 07 years and to pay a fine of
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Page |2 2025:HHC:19716 ₹10,000/-, and in default of payment of fine to further undergo rigorous imprisonment for one year.
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 363, 366, 376 and 120B of the Indian Penal Code (in short 'IPC') and Section 4 and 17 of Protection of Children from Sexual Offences Act (in short 'POCSO Act'). It was asserted that the victim was found missing on 27.06.2017 from her home at about 5:00 am. A black car bearing registration No. HP-56 was also found outside the home. The victim's father searched for her, but could not find her. He suspected that the victim was kidnapped by accused Sham Kumar, who used to follow her. The police registered the FIR (Ext. PW18/A) and handed over the investigation to ASI Pal Singh (PW22). He searched for the accused and the victim. They were recovered on 06.07.2017 at the Railway Station, Kalupur, Ahmedabad. The victim made a statement to LC Suman. An application (Ext. PW11/A) was filed for the medical examination of Page |3 2025:HHC:19716 the accused. Dr. S. Chakarvarty (PW11) medically examined the accused. He did not find any injury on the person of the accused. As per his opinion, there was nothing to suggest that the accused was incapable of performing sexual intercourse. He issued the MLC (Ext. PW11/B) and handed over the samples to the police official accompanying the accused. ASI Pal Singh filed an application (Ext. PW13/A) for the medical examination of the victim. Dr. Priti Sood (PW13) conducted her medical examination. She found that there was nothing to suggest that the victim was not subjected to intercourse. She issued the MLC (Ext. PW13/B). She preserved the samples and handed them over to the police official accompanying the victim. Mobile Phone (Ext. P7) of the accused was seized vide memo (Ext. PW3/A). It was put in a parcel (Ext. P6) and the parcel was sealed with seal impression 'O. The vehicle bearing registration No. HP-29B-9000 was seized along with the RC (Ext. PA-1) and the driving license (Ext. PA-II) vide memo (Ext. PW19/C). An application (Ext. PW19/A) was made to the learned Judicial Magistrate First Class, Palampur, for recording the statement of the victim. Her statement (Ext. PW1/A) was recorded, which was also videographed, and the video recording was transferred to CD (Ext. PW19/B1). The room No.102 and 104 of Page |4 2025:HHC:19716 Hotel Neelkanth were identified by the accused. Memo of identification (Ext. PW5/D) was prepared. The abstract of the visitor's register (Ext. PW5/B) and copies of the Aadhar Card of the accused and the victim (Ext. PW5/C) were seized vide memo (Ext. PW5/A). The victim also identified room No. 104. Memo of identification (Ext. PW1/B) and spot map (Ext. PW19/E) were prepared. An application (Ext. PW16/A) was filed for obtaining the birth certificate of the victim. Raman Kumar (PW16) produced the birth certificate (Ext. PW16/B) showing that the victim was born on 29.08.2000. The photographs of the hotel (ExtPW1/D1 to Ext. PW1/D9) were taken. The call detail records (Ext PW19/F1 to Ext PW19/F10) were seized. The case property was sent to FSL, and the result of the analysis (Ext. PA) was issued, in which it was mentioned that blood and semen were not detected in the samples sent to the laboratory. Statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and it was presented before the Court.
3. Learned Trial Court charged the accused Sham Kumar with the commission of offences punishable under Sections 363, 366, and 376 read with Section 120-B of IPC and Section 4 of POCSO Page |5 2025:HHC:19716 Act and accused Akshay Kumar, Vinod Kumar and Ashwani with the commission of offences punishable under Section 363, 366 read with Section 120B of IPC and Section 17 read with Section 4 of POCSO Act.
4. The prosecution examined 22 witnesses to prove its case. PW1 is the victim. PW2 is the victim's mother, and PW4 is the victim's father. LC-Suman (PW3) was with the police party when the accused and victim were recovered. She also recorded the statement of the victim. Deepak Kumar (PW5) was working as a Manager in the Hotel Neel Kanth. Rajesh Kumar (PW6) and Pradeep Kumar (PW7) did not support the prosecution's case. LC Veena Devi (PW8) accompanied the police to Neel Kanth Hotel, where the victim identified the room in which she had stayed with the accused, Sham Kumar. Nirmal Patial (PW9) was posted as MHC with whom the case property was deposited. HASI Ranjeet Singh (PW10) was a member of the police team who witnessed the identification of Hotel Neel Kanth by accused Sham Kumar. Dr. S. Chakarvorty (PW11) medically examined the accused. Anil Kumar (PW12) developed the photographs. Dr. Priti Sood (PW13) conducted the medical examination of the victim. Arun Kumar (PW14) is the brother-in-law of the victim. Ajay Bhushan (PW15) Page |6 2025:HHC:19716 was a member of the police team who had effected the recovery of the victim and the accused. Raman Kumar (PW16) produced the birth certificate of the victim. LHC Sudarshana Kumari (PW17) carried the case property to RFSL Dharamshala. ASI Harbans Kumar (PW18) signed the FIR. Gambhir Chand (PW19) conducted the investigations in part. Rajni Sood (PW20) prepared the birth certificate of the victim. HASI Harbans Singh (PW21) is the witness to the recovery of the mobile phone. ASI-Pal Singh (PW22) conducted the initial investigation.
5. The accused, Sham Kumar, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution's case in its entirety. He stated that a false FIR was registered against him. He was arrested wrongly. No defence was sought to be adduced by the accused. The rest of the accused persons also denied the prosecution's case in its entirety.
6. Learned Trial Court held that the victim was below 18 years on the date of the incident. The victim stated that the accused, Sham Kumar, had taken her in the vehicle. Vinod Kumar and Akshay Kumar were also sitting in the vehicle. Her testimony that she was allured by the accused to accompany him was not Page |7 2025:HHC:19716 believable. There was a love affair between the victim and the accused, Sham Kumar, and the possibility of the victim accompanying the accused on her own could not be ruled out. The abetment by the other accused of the kidnapping was not established. The victim specifically stated that accused, Sham Kumar, had raped her. This was corroborated by the MLC. There was no reason to disbelieve the testimony of the victim; hence, the accused, Sham Kumar, was convicted of the commission of an offence punishable under Section 4 of the POCSO Act. He was sentenced to undergo rigorous imprisonment for 7 years, pay a fine of ₹10,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year for the commission of the aforesaid offences. The other accused were ordered to be acquitted. A compensation of ₹3,00,000/- was awarded to the victim.
7. Being aggrieved from the judgment passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing him. There were material contradictions in the statements of prosecution witnesses regarding their visit to Ahmedabad and the recovery of the victim and the accused. Different dates of birth of the victim were mentioned in the school Page |8 2025:HHC:19716 record and birth certificate, and the date of birth of the victim was not established satisfactorily. The testimonies of the police officials contradicted each other regarding the recovery and recording of the victim's statement. The independent witnesses turned hostile and this made the prosecution's case doubtful. The victim represented herself to be more than 18 years. She had not made any complaint to any person. It was a case of misrepresentation by the victim for which the accused cannot be penalised; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
8. I have heard Mr. Vijender Katoch, learned counsel for the appellant/accused, and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.
9. Mr. Vijender Katoch, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting and sentencing the accused. The victim did not raise any hue and cry; which shows that she had voluntarily accompanied the accused to Chandigarh and Ahmedabad. The various documents produced on record show different dates of birth of the victim and her date of birth was not proved with certainty on record. The Page |9 2025:HHC:19716 benefit of the same should have been granted to the accused. The victim made a statement under the influence of her parents, and there was no independent corroboration to her testimony. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. He relied upon the judgments of Manak Chand @ Mani vs. State of Haryana, AIR 2023 SC 5600, Prem Bahadur versus State of H.P, 2009:HHC:2948, XY Versus State of Chhattisgarh in Criminal Appeal No.390/2023 decided on 8.02.2024, Tarun Sen versus State of Chhattisgarh, 2025:CGHC:16015 and Ravinder Singh @ Kaku Versus State of Punjab, 2002 LiveLaw SC 461 in support of his submission.
10. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the victim was proved to be a minor and her consent is immaterial. The accused cannot take advantage of the fact that the victim had not raised any hue and cry. He did not claim in his statement recorded under Section 313 of Cr.P.C. that the victim had misrepresented her age, and this plea is not available to him. In any case, it was an offence of strict liability and representation by the victim is immaterial in the present case; hence, he prayed that the present appeal be dismissed.
P a g e | 10 2025:HHC:19716
11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
12. Mr. Vijender Katoch, learned counsel for the petitioner/accused, submitted that different dates of birth of the victim were mentioned in various documents produced by the prosecution. The birth certificate (Ext. PW16/B) mentions the date of birth as 29.08.2000. The matriculation certificate mentions her date of birth as 27.8.2001, and the MLC (Ext. PW13/B) mentions that the victim was referred to the dental surgeon and radiologist for obtaining the opinion about the age; however, this opinion was never obtained as per Dr. Priti Sood (PW13). Therefore, the age of the victim was not proved beyond a reasonable doubt, and the learned Trial Court erred in holding that the victim was a minor. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Jarnail Singh versus State of Haryana (2013) 7 SCC 263 that the provisions of the Juvenile Justice Act (JJ Act) should be followed to determine the age of the victim under the POCSO Act. It was observed:
"23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with the law, we are of the view that the aforesaid statutory provision should be the basis for determining the age, even of a child who is a victim P a g e | 11 2025:HHC:19716 of crime. For, in our view, there is hardly any difference insofar as the issue of the minority is concerned between a child in conflict with the 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 an 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), the 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, 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 the age of the child concerned on the basis of medical opinion.
24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6, could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution, in the facts and circumstances of this case, had endeavoured to establish the age P a g e | 12 2025:HHC:19716 of the prosecutrix VW, PW 6, on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix, VW, PW 6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6, had studied up to Class 3. Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records indicating that the prosecutrix VW, PW 6, was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are, therefore, of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6. It would also be relevant to mention that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material, including the ossification test, for determining the age of the prosecutrix VW, PW 6. The deposition of Satpal, PW 4, has not been contested. Therefore, the date of birth of the prosecutrix VW, PW 6 (indicated in Ext. PG as 15-7- 1977) assumes finality. Accordingly, it is clear that the prosecutrix VW, PW 6, was less than 15 years old on the date of occurrence, i.e. on 25-3-1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW, PW 6, was a minor on the date of the occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court that even if the prosecutrix VW, PW 6, had accompanied the appellant-accused Jarnail Singh of her own free will and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor." (Emphasis supplied)
13. It was held in Sanjeev Kumar Gupta versus State of U.P.& Ors (2019) 12 SCC 370 that the matriculation certificate or the certificate from the school first attended by the victim has to be preferred to the birth certificate issued by the local authority as per the Juvenile Justice Act 2015,. It was observed:
P a g e | 13 2025:HHC:19716 "17. The 2015 Act came into force on 15-1-2016. Section 111 repeals the earlier 2000 Act but stipulates that, despite the repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of the new legislation. Section 94 contains provisions in regard to the determination of age in the following terms:
"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 Examination Board concerned, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation, 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 that such age determination test conducted on the order of the Committee or the Board shall be P a g e | 14 2025:HHC:19716 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 a person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the Examination Board concerned 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)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. Under Rule 12(3)(a)(i), the matriculation or equivalent certificate was given precedence, and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended could be obtained. In Section 94(2)(i), both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
14. It was held in Vinod Katara versus State of U.P., 2022 SCC OnLine SC 1204, that clause (a) of Rule 12(3) of 2007 Rules contains a hierarchical order, which means that if the matriculation certificate is available the certificate from the local authority or the medical evidence regarding the age cannot be admitted. It was observed:
48. Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident from the use of the language "in the absence whereof". This indicates that where a P a g e | 15 2025:HHC:19716 matriculation or equivalent certificate is available, the documents adverted to in (ii) and (iii) cannot be relied upon.
The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained.
49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751, this Court, while examining the scope of Rule 12 of the 2007 Rules, had reiterated that medical opinion from the Medical Board should be sought only when the matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended, or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available. This Court had held that the entry related to the date of birth entered in the mark sheet is valid evidence for determining the age of the accused person, so also the school leaving certificate for determining the age of the appellant.
15. A similar view was taken in P. Yuvaprakash v. State, 2023 SCC OnLine SC 846, wherein it was observed :
"11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act, which reads as follows:
"34. Procedure in case of commission of offence by a child and determination of age by the Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).
(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after P a g e | 16 2025:HHC:19716 satisfying itself about the age of such person, and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person."
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, 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:
P a g e | 17 2025:HHC:19716 Provided that 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 a 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 a 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 his 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 in which the Juvenile Justice Act requires consideration are 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, 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 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, matriculation or equivalent certificate was P a g e | 18 2025:HHC:19716 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 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 with 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 the commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh (2021) 12 SCR 502, 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 the determination of age. The juvenility of a person in conflict with the law had to be decided prima facie on the basis of physical appearance or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, the benefit could be given to the child or juvenile by P a g e | 19 2025:HHC:19716 considering the age on the 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 (2019) 9 SCR 735 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 from the school first attended could be obtained. In Section 94(2)(i), both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain v. State of West Bengal (2012) 9 SCR 224, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.
16. This position was reiterated in Vinod Katara v. State of U.P., (2024) 4 SCC 150: 2024 SCC OnLine SC 233 wherein it was observed at page 155:
P a g e | 20 2025:HHC:19716 "22. Section 94(2) of the JJ Act provides for the mode of determination of age. In the order of priorities, the date of birth certificate from the school stands at the highest pedestal whereas the ossification test has been kept at the last rung to be considered, only in the absence of Criteria Nos. 1 and 2 i.e. in the absence of both certificate from school and birth certificate issued by a Corporation/Municipal Authority/Panchayat."
17. Therefore, as per Rule 12(3)(a)(ii) of Juvenile Justice, Rule 2007 and Section 94 of the Juvenile Justice Act, 2015, the matriculation certificate has to be preferred to the birth certificate which falls within Rule 12 (iii)(a) of the Juvenile Justice Rule, 2007 or Section 94 (ii) of the JJ Act. The matriculation certificate mentions the date of birth as 27.08.2001, and the same has to be preferred over the date of birth mentioned in the birth certificate issued by the local authority. Hence, the submission that there is discrepancy in the date of birth mentioned in two certificates is not acceptable.
18. The victim's mother (PW2) stated in her cross- examination that the date of birth of the victim was recorded in the Panchayat as 29.08.2000, and the date of birth of the victim was mentioned as 27.08.2001 in the school record. She volunteered to say that this was wrongly recorded. Similarly, the victim's father (PW4) stated that the victim was born on 29.08.2000 and her date P a g e | 21 2025:HHC:19716 of birth was recorded as 27.08.2001 in the school record. He volunteered to say that her grandfather had recorded her date of birth in the school. It was submitted that these admissions in the cross-examination show the date of birth recorded in the matriculation certificate cannot be correct because it was admittedly mentioned wrongly. Even if this certificate is ignored, the certificate issued by the Registrar of Birth and Deaths cannot be ignored, in which it was mentioned that the date of birth of the victim was 29.08.2000. The parents of the victim categorically affirmed this date of birth. Further, Rajni Sood (PW20) stated that the date of birth certificate was prepared by her. The entry was made in the register on 31.08.2000 vide registration No.1173. Her statement shows that the entry was made immediately after the birth, and there can be no chance of any error.
19. Raman Kumar (PW16) stated that the birth certificate (Ext. PW16/B) was issued. Its date of registration is 31.08.2000. The date of birth was recorded as 29.08.2000. The entry was made by the Sub Divisional Hospital, Palampur. His statement shows that the entry was recorded by the hospital; hence, there can be no error in the same. Thus, even if the matriculation certificate is ignored, P a g e | 22 2025:HHC:19716 the conclusion can be drawn that the victim was born on 29.08.2000.
20. It was laid down by the Hon'ble Supreme Court in Pawan Kumar v. State of U.P., (2023) 15 SCC 683: 2023 SCC OnLine SC 1492 that where two views are possible, the Court has to take a liberal approach in favour of the juvenile. It was observed at page 699:
"40. In a case of juvenility where two views are possible, this Court has held that a liberal approach should be undertaken. This position was laid down by this Court in Arnit Das (1) v. State of Bihar [Arnit Das (1) v. State of Bihar, (2000) 5 SCC 488: 2000 SCC (Cri) 962] where it was held that: (SCC p. 498, para 19) "19. ... (ii) a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases; and"
41. This proposition of taking a liberal view and about extending the benefit of juvenility where two views are available has been reiterated by this Court in numerous subsequent decisions such as Mukarrab v. State of U.P. [Mukarrab v. State of U.P., (2017) 2 SCC 210 : (2017) 1 SCC (Cri) 710], Ashwani Kumar Saxena v. State of M.P. [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750, para 13 :
(2013) 1 SCC (Cri) 594] as well as 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] which concluded as follows in para 33.8 : (Rishipal Singh Solanki case [Rishipal Singh Solanki v. State of U.P., (2022) 8 SCC 602 : (2022) 3 SCC (Cri) 703], SCC p. 628) P a g e | 23 2025:HHC:19716 "33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015, is made applicable to the juvenile in conflict with the law. At the same time, the court should ensure that the JJ Act, 2015, is not misused by persons to escape punishment after having committed serious offences."
21. Learned Trial Court also proceeded by taking the date of birth as 29.08.2000, and there is no infirmity in the same.
22. The incident occurred on 27.06.2017 when the victim was less than 18 years of age and incapable of consent; therefore, the arguments advanced at the bar that the victim had not protested at Chandigarh, where she was taken, she had not called her parents even though she had a mobile phone, and no hue and cry was raised by her when she was taken to Ahmedabad, will not help the accused because it was rightly submitted on behalf of the State that the victim was a minor and incapable of consenting. These facts would have shown her consent, but since she was incapable of consent, therefore, these facts will not make the prosecution's case doubtful.
23. It was submitted that the victim represented her age as more than 18 years, and the accused was misled by this misrepresentation. This submission cannot be accepted. First, it P a g e | 24 2025:HHC:19716 was rightly submitted on behalf of the State that the accused did not state any such fact in his statement recorded under Section 313 of CrPC, and there is no foundation for this submission. Secondly, the representation by the victim is immaterial. In a classic case of Reg. V. Prince., [L.R.] 2 C.C.R. 154, the prisoner Prince unlawfully took an unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father. The jury found that the girl went with the prisoner willingly; she told the prisoner that she was aged 18 years, and the prisoner believed that she was aged 18 years, and he had a reasonable cause for doing so. It was held that this finding, recorded by the jury, would not help the prisoner. The act of the prisoner was unlawful per se, and if the girl was found to be less than sixteen years, the representation by the girl or the belief of the prisoner was immaterial. Brett J observed:
In all the cases, I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. Then comes the question: What is the true meaning of the phrase? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end by bringing the offence within a more serious class of crime. If a man strikes with a dangerous weapon, with intent to do grievous bodily harm, and kills, the result makes the crime murder. The prisoner has run the risk. So, if a prisoner does the prohibited acts without caring to consider what the truth is as to facts, as if a P a g e | 25 2025:HHC:19716 prisoner were to abduct a girl under sixteen without caring to consider whether she was, in truth, under sixteen, he runs the risk. So if he, without abduction, defiles a girl who is, in fact, under ten years old, with a belief that she is between ten and twelve. If the facts were as he believed, he would be committing the lesser crime. Then, he runs the risk of committing a crime, resulting in greater crime. It is clear that ignorance of the law is not an excuse. It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe and does believe to be the facts, would, if true, make his acts no criminal offence at all.
24. Blackburn J observed:
"It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had a carnal connection with a girl, in reality not quite ten years old, but whom he, on reasonable grounds, believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour, because she was in fact not above the age of ten. It seems to us that the intention of the legislature was to punish those who had bad connections with young girls, though with their consent, unless the girl was, in fact, old enough to give valid consent. The man who has a connection with a child, relying on her consent, does it at his peril if she is below the statutable age."
25. Bramwell B said:
"I have used the word "knowingly;" but it will, perhaps, be said that here the prisoner not only did not do the act knowingly, but knew, as he would have said, or believed, that the fact was otherwise than such as would have made his act a crime; that here the prisoner did not say to himself, "I do P a g e | 26 2025:HHC:19716 not know how the fact is, whether she is under sixteen or not, and will take the chance," but acted on the reasonable belief that she was over sixteen; and that though if he had done what he did, knowing or believing neither way, but hazarding it, there would be a mens rea, there is not one when, as he believes, he knows that she is over sixteen. It is impossible to suppose that, to bring the case within the statute, a person taking a girl out of her father's possession against his will is guilty of no offence unless he, the taker, knows she is under sixteen, that he would not be guilty if the jury were of opinion he knew neither one way nor the other. Let it be, then, that the question is whether he is guilty where he knows, as he thinks, that she is over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever shall take any unmarried girl, being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession," &c. Those words are not there, and the question is whether we are bound to construe the statute as though they were, on account of the rule that the mens rea is necessary to make an act a crime. I am of the opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons: The act forbidden is wrong in itself, if without lawful cause; I do not say illegal, but wrong. I have not lost sight of this, that though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female with a good motive. Nevertheless, though there may be such cases, which are not immoral in one sense, I say that the act forbidden is wrong"
26. Denman J said:
"The belief that she was eighteen would be no justification to the defendant for taking her out of his possession, and against his will. By taking her, even with her own consent, he must at least have been guilty of aiding and abetting her in doing an unlawful act, viz., in escaping against the will of her natural guardian from his lawful care and charge. This, in my opinion, leaves him wholly without lawful excuse or P a g e | 27 2025:HHC:19716 justification for the act he did, even though he believed that the girl was eighteen, and therefore unable to allege that what he has done was not unlawfully done, within the meaning of the clause. In other words, having knowingly done a wrongful act, viz. in taking the girl away from the lawful possession of her father against his will, and in violation of his rights as guardian by nature, he cannot be heard to say that he thought the girl was of an age beyond that limited by the statute for the offence charged against him. He had wrongfully done the very thing contemplated by the legislature: He had wrongfully and knowingly violated the father's rights against the father's will. And he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing."
27. This judgment has become a locus classicus and is cited in all the law books on the Indian Penal Code. Therefore, the fact that the victim represented herself aged more than 18 years old will not help the accused.
28. The victim stated in her cross-examination that the accused, Shyam, is a friend of her brother-in-law. He used to come to her house along with her sister and her brother-in-law. Her mother (PW2) denied that the accused used to accompany her daughter and her son-in-law. It was submitted that this is a major contradiction in the statements of these witnesses, which will make the prosecution's case highly suspect. This submission is only stated to be rejected. This contradiction relates to a matter not P a g e | 28 2025:HHC:19716 connected to the rape of the victim and will not make her testimony regarding the rape suspect.
29. The victim specifically stated that the accused took her to a hotel. She and the accused stayed in Room No.102, and the accused had sex with her. This was not suggested to be incorrect in the cross-examination. Rather, it was suggested to her that she had a love affair with the accused, who was known to her being the friend of her brother-in-law. It was also suggested to her that she was aged more than 18 years and had voluntarily accompanied the accused; therefore, her testimony that she was taken to the hotel where the accused had sex with her has to be accepted as correct. Her statement was duly corroborated by the statement of Dr. Priti Sood (PW13), who stated that as per the medical examination, there was nothing to suggest that sexual intercourse had not taken place. Thus, the learned Trial Court had rightly convicted the accused of the commission of an offence punishable under Section 4 of the POCSO Act.
30. In Manak Chand @ Mani (supra), the Hon'ble Supreme Court held that the victim was aged more than 16 years and her date of birth was not proved. It was a case under the IPC. In the present P a g e | 29 2025:HHC:19716 case, the date of birth has been duly proved. Hence, no advantage can be derived from the cited judgment.
31. In Prem Bahadur (supra), it was held that the examination of the Registrar of Birth and Death is necessary. In the present case, two witnesses were cited and examined on behalf of the Registrar of Birth and Death; therefore, this judgment will not help the accused.
32. In XY (supra) and Tarun Sen (supra), it was held that the transfer certificate does not carry much value. In the present case, reliance has been placed upon the matriculation certificate and the certificate issued by the Registrar of the Death and Birth; therefore, this judgment does not apply to the present case.
33. Ravinder Singh @ Kaku (supra) deals with the circumstantial evidence. The present case is based upon the direct evidence, and this judgment does not help the accused.
34. The learned Trial Court had sentenced the accused to undergo rigorous imprisonment for a period of seven years which was the minimum sentence on the date of the incident. Learned Trial Court has already taken a lenient view while imposing P a g e | 30 2025:HHC:19716 sentence, and no interference is required with the sentence imposed by the learned Trial Court.
35. No other point was urged.
36. In view of the above, the judgment and order passed by the learned Trial Court are fully sustainable and no inference is required with the same.
37. Hence, the present appeal fails, and the same is dismissed.
38. Records of the learned Courts below be sent back forthwith, along with a copy of this judgment.
(Rakesh Kainthla) Judge 25th June, 2025 (Saurav pathania)