Chattisgarh High Court
State Of Chhattisgarh vs Narayan Pardhi on 16 April, 2026
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 546 of 2019
Reserved on : 23.03.2026
Delivered on : 16.04.2026
State of Chhattisgarh Through Station House Officer, Police Station-
Sarangarh, District- Raigarh, Chhattisgarh.
... Appellant (s)
versus
Narayan Pardhi S/o Hemlal, Aged About 23 Years, R/o Village- Banjari, Police
Station- Sarangarh, District- Raigarh, Chhattisgarh.
... Respondent
For State/Appellant : Mr. Sanjeev Pandey, Dy. Advocate General.
For Respondent : Mr. Aman Kesharwani, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
CAV JUDGMENT
1. The State has preferred this Acquittal Appeal under Section 378 (1) of the Code of Criminal Procedure against the judgment of acquittal dated 28.09.2018 passed by the learned Additional Sessions Judge/ Special Judge under POCSO Act, Sarangarh, District- Raigarh (C.G.) in Special Criminal Case under POCSO Act No. 16/2017, whereby the respondent/accused has been acquitted from charges under Section 354 of IPC (three times) & Section 8 of Protection of Children from Sexual Offences Act, 2012 (for short "the Act, 2012").
2. The case of the prosecution, in brief, is that on 01.09.2017 victim's Digitally signed by ARUN ARUN KUMAR KUMAR DEWANGAN DEWANGAN Date:
2026.04.16 17:33:21 +0530 Page 2 of 20 mother lodged a report before Police Station- Sarangarh alleging that on 25.08.2017 at about 5.30 p.m. & 27.08.2017 at about 6.00 p.m., her daughter who was aged about 14 years had gone to Ganesh Puja Pandal where the respondent/accused caught her hand with intention to insult her, pressed her breast saying that come, I will teach you how to celebrate wedding night and tried to outrage her modesty. It is also alleged that on 29.08.2017 at about 7.00 p.m., the accused again pressed her daughter's breast by saying that she dances well and forced her to dance with him, caught hold her hand which was forcefully jerked by her due to which bangles worn by her were broken and also got an injury on her left wrist. The victim has informed her mother about these incidents which have necessitated her to file the complaint on 31.08.2017. On the basis of the complaint made by victim's mother, the offence under Section 354 of IPC & Section 8 of the Act, 2012 has been registered against the accused/ respondent.
3. After usual investigation, charge-sheet for commission of offence under Sections 354 of IPC & Section 8 of the Act, 2012 was filed against the accused before the learned Additional Sessions Judge/ Special Judge under POCSO Act, Sarangarh, District- Raigarh (C.G.) which has been registered as Special Criminal Case under POCSO Act No. 16/2017.
4. In order to bring home the guilt of accused/respondent the prosecution has examined as many as 11 witnesses namely Natthulal Chouhan (PW-1), Smt. Gomati Pardhi (PW-2), Headmaster Surendra Kumar Vaishnav (PW-3), Medical Officer Dr. Sunil Patel (PW-4), Teacher Smt. Sarita Gupta (PW-5), victim (PW-6), Somraj Singh (PW-7), Inspector Sushma Chelak (PW-8), Assistant Sub Inspector Jhamlal Marko (PW-
9), Krishna Kumar Jaiswal (PW-10), I.O./Inspector Gopal Dhurve (PW-
11) and exhibited documents i.e. property seizure memo (Ex.P/1), Page 3 of 20 written report (Ex.P/2), FIR (Ex.P/3), property seizure memo (Ex.P/4), supurdnama acknowledgment (Ex.P/5), doctor's examination report (Ex.P/6), dakhil kharij register along with marksheet (Ex.P/7), certificate issued by Headmaster (Ex.P/8), najri naksha (ExP/9), counciling report (Ex.P/10), court statement of victim (Ex.P/11), nalsi acknowledgment (Ex.P/12), order issued by S.P. Raigarh for recording statement of the victim (Ex.P/13), letter dated 08.09.2017 issued by P.S. Sarangarh regarding recording of statement (Ex.P/14 & 15), letter dated 14.09.2017 regarding arrest of the accused (Ex.P/16), arrest/surrender memo (Ex.P/17), information regarding arrest (Ex.P/18), doctor's examination report (Ex.P/19) & final report (Ex.P/20).
5. Victim's mother (PW-2) has been examined before the trial Court wherein she has stated that during last Ganesh Puja, the accused harassed her 14 years old daughter for 2-3 days, he allegedly made obscene comments stating that he would "teach her how to celebrate wedding night", pressed her breast and twisted her hand, causing swelling on her wrist. She has further stated that near Ganesh Puja Pandal under a neem tree, the accused grabbed the victim's hand and pressed her breast while commenting on her dance. In the struggle to free herself, the victim's glass bangles were broken which have caused injury on her wrist. She has further stated that the victim informed her mother, her brother Somraj and one neighbour Krishna Kumar about the incident and thereafter a written report was lodged at Police Station- Sarangarh and broken bangles were seized by the Police. She has further stated that she could not recall the exact dates or days of the incidents. She also admitted that she is an illiterate and the Police wrote the report as they deemed proper without reading it before her. In the cross-examination, she has denied that she had taught her Page 4 of 20 daughter to give false statement. This witness has extensively cross- examined wherein she has admitted that against her and Krishna Kumar, the accused's father Hemlal Pawar has lodged complaint before the villagers but denied that because of that enmity she has lodged a false report against the accused. She has further admitted that the broken bangles were seized on the same day when they have lodged the report but she is not able to give the exact date. She has denied that the girls are now a days do not wear bangles and admitted that if the hand is pressed wherein bangles are worn by the woman then it will be broken which may cause injury and also stated that there was abrasion on the victim's hand and blood was oozing.
6. Surendra Kumar Vaishnav (PW-3) who was posted as Headmaster of the school has stated that the dakhil kharij register was seized from Smt. Sarita Gupta before him and in the seizure memo he has put his signature. In the cross-examination, he has admitted that after going through the seizure memo he has signed on it. He has stated that in the seizure memo, it has only been mentioned dakhil kharij register of Government Middle School and at the time of seizure, headmistress Sarita Gupta and Principal of the High School N.L. Chouhan were present. He has denied that the seizure was not done before him.
7. Dr. Sunil Patel (PW-4) who was posted as Medical Officer at Community Health Centre, Sarangarh and medically examined the victim has stated regarding injury No. 1 that the victim complained of pain in the forearm of the left hand, but no external injury was found at the said location. This witness has opined that the alleged injury could be caused by a hard and blunt object and was simple in nature. This witness was subjected to cross-examination wherein he has denied that he mentioned the age of the victim based solely on the requisition Page 5 of 20 form, in fact, he has ascertained the age of the victim as per information given by her. He has admitted that if a woman or girl wears glass bangles and someone presses them, causing them to break, it is possible that cuts, abrasions, or scratches may occur on hand due to broken glass. He has further admitted that such injuries would ordinarily remain visible on the body for about 4-5 days and he did not find any such injury on the hands of the victim at the time of her examination.
8. Smt. Sarita Gupta (PW-5) who was posted as In-charge Headmistress at Middle School, Village Banjari has stated that the dakhil-kharij register was seized by the Police wherein victim's date of birth was mentioned as 12.08.2003. This witness was subjected to cross- examination wherein she has admitted that who has made the entry regarding age of the victim in dakhil kharij register cannot be clarified today by her but voluntarily stated that at that time she was incharge therefore, the entry was made by her and also admitted in the cross- examination that in the dakhil kharij register while recording the date as 12.08.2003, she has not mentioned about any transfer certificate but stated that the same is kept in a different file which has not been brought by her. She has also admitted that she has not seen any certificate regarding the date of birth of the victim and also admitted that in the dakhil kharij register, she has not mentioned from which school, the victim has been transferred.
9. Victim (PW-6) in his examination-in-chief has reiterated the incident taken place as mentioned in the FIR. She has further stated that the following day, near a neem tree, the accused allegedly grabbed her hand by force and started pressing her breast. She screamed, but due to the secluded spot (at that moment), no one heard her, and she ran Page 6 of 20 away. She has further stated that the accused continued to threat her time to time to prevent her from identifying in court. She identified her signatures on the Police Site Map (Ex. P-9) and the Counseling Report of the District Child Protection Committee (Ex. P-10). She has further stated that she told her mother about the breast-pressing incident upon reaching home and she went to the Police Station with her mother to lodge the report. The victim was subjected to cross-examination wherein she has admitted that her father lives separately with second wife. She has further admitted that her mother, Gomti was in jail for three months for an assault case as well as involved in selling illegal liquor. She has further admitted that the incident took place near Ganesh Puja Pandal and a neem tree, which are in a densely populated residential area. She has further admitted that during the festival, men, women, and children are present in the Pandal till late night for Puja and Bhajans. She has further stated that she screamed, but no one heard her because of loud DJ sound. She has further admitted that she did not immediately inform the people sitting at the Pandal or the neighbors; she only told her mother at home. She has further admitted that she does not talk to her neighbors.
10. Somraj Singh (PW-7) who is elder brother of the victim has supported the case of the prosecution and has stated that the victim has informed him about the incident.
11. Sushma Chelak (PW-8)-Inspector who has recorded the statement of the victim has stated that she recorded the statement of the victim as narrated by her without adding or omitting any facts. In the cross- examination, she has admitted that the victim has neither disclosed her date of birth at the time of recording the statement, nor was any documentary proof regarding her age was produced before her. Page 7 of 20
12. Investigating Officer- Gopal Dhurve (PW-11) who was posted as Station House Officer (Inspector) at Police Station Sarangarh has admitted that during investigation he has recorded statement of the victim, victim's brother and Krishna Kumar as per their version and nothing has been added or subtracted. This witness was extensively cross-examined but nothing was brought on record to rebut the evidence of this witness.
13. Statement of accused/respondent has been recorded under Section 313 Cr.P.C., in which he denied the allegations leveled against him and pleaded innocence and false implication and exhibited copy of statement of one Krishna Kumar Ijardar.
14. Learned Special Judge after appreciating the evidence and material available on record, vide its judgment dated 28.09.2018 has held that the prosecution failed to prove case against accused/respondent beyond reasonable doubt and thereby acquitted him for the offences for which he was charged. Being aggrieved and dissatisfied with the aforesaid judgment of acquittal, the State has filed this Acquittal Appeal.
15. Learned State counsel would submit that the learned trial court has failed to appreciate the victim's evidence regarding commission of offence by the appellant which cannot be disbelieved. He would further submit that the learned trial Court has failed to appreciate the fact that the victim was minor on the date of incident as victim's date of birth is 12.08.2003. He would further submit that the learned trial Court has committed illegality in disbelieving the documentary evidence i.e. dakhil kharij register (Ex. P/7) and has not relied upon as the same is authentic and sufficient material for determining the victim's age as held by Hon'ble the Supreme Court in this regard. He would further Page 8 of 20 submit that the prosecution has proved its case beyond reasonable doubt even though the learned trial Court has committed error in not considering the prosecution case in its proper perspective. He would further submit that the learned trial Court has failed to take into consideration the gravity of the offence as the offence relating to woman is an offence against the society which is of serious nature and also the evidence, particularly the victim's evidence which confers confidence as she remained unshaken despite extensive cross- examination by the defence counsel and would pray for setting aside the impugned order.
16. Per contra, learned counsel for the respondent/accused would submit that the judgment of the learned trial Court is well-reasoned and does not suffer from any perversity or illegality. He would further submit that the prosecution has miserably failed to prove the age of the victim beyond reasonable doubt. He would further contend that the dakhil kharij register (Ex. P/7) produced by the prosecution is not a reliable document as the source of the date of birth mentioned therein was never established nor victim's mother who examined before the Court has admitted during evidence that she has orally submitted date of birth of the victim without any documentary evidence in this regard and on her version only, the date of birth has been recorded in the dakhil kharij register. He would further submit that in absence of birth certificate from a municipal body or a medical ossification test, mere entry in a school register cannot be treated as conclusive proof of age.
17. He would further submit that there are material contradictions and omission in the testimony of the victim which make her version unreliable, the learned trial Court after thorough appreciation of documentary and oral evidence has rightly concluded that the Page 9 of 20 prosecution story is full of doubts and the prosecution is unable to prove the case beyond reasonable doubt and has rightly acquitted the respondent. He would further submit that since two views are possible and the trial Court has taken a view which is more favourable for the accused, the same should not be disturbed in an appeal against acquittal unless there is a gross miscarriage of justice, if one view of conviction is possible otherwise not and would pray for the dismissal of the appeal.
18. I have heard learned counsel for the parties and perused the material available on record.
19. From submissions made by the parties, the Point emerges for determination of this Court is:-
"Whether the judgment of acquittal passed by the learned trial Court for the offence under Section 354 of IPC read with Section 8 of the Act, 2012, is legal and justify?"
20. To appreciate the Point for determination, it is expedient for this Court to extract Section 354 of IPC and Section 8 of the Act, 2012 which are as under:-
"Section 354 of IPC- Assault or criminal force to woman with intent to outrage her modesty.-- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
Section 8 of the Act, 2012- Punishment for sexual assault.-- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."Page 10 of 20
21. A bear perusal of Section 354 of IPC reveals that for it's application, the offence must be committed against a woman, criminal force must be applied against her and such application of force must be committed with intent to outrage modesty of woman. Hon'ble the Supreme Court in case of Raju Pandurang Mahale Vs. State of Maharashtra [(2004) 4 SCC 371] has examined the provisions of Section 354 of IPC and in paragraph 11 has held as under:-
"11. Coming, to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force on her.
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty."
22. 'Criminal force' has been defined in Section 350 of IPC which reads as under:-
"Section 350 of IPC- Criminal force- Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other."
23. From perusal of Section 354 of IPC, one of the essential ingredients for commission of offence under Section 354 of IPC is that any criminal force or assault must be used on a woman, by a person with intent to outrage her modesty or knowledge that they will likely outrage her modesty. The 'modesty' has not been defined in the Indian Penal Code but the 'modesty' is always subject to consideration and examination before Hon'ble the Supreme Court. Few of the cases are as under:- Page 11 of 20
(i) Rupan Deol Bajaj Vs. Kunwar Pal Singh Gill [(1995) (6) SCC 194] wherein it has been observed in paragraphs 14 & 15 as under:-
"14. Since the word `modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word `modest' in relation to woman is defined in the above dictionary as "decorous in manner and conduct; not forward or lewd; shamefast". Webster's Third New International Dictionary of the English language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Ed) the meaning of the word `modesty' is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".
15. In State of Punjab vs. Major Singh (AIR 1967 Sc 63) a question arose whether a female child of seven and a half months could be said to be possessed of `modesty' which could be outraged. In answering the above question Mudholkar J., who along with Bachawat J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the `common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of `modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to `outraging of her modesty' for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady - "sexual overtones" or not, notwithstanding." Page 12 of 20
(ii) In case of Attorney General Vs. Satish [(2022) 5 SCC 145], it has been held in paragraph 66 as under:-
"66. To gather the mischief which Parliament wished to eliminate, it would be necessary to briefly trace the history of the law, which existed before POCSO was enacted. The Indian Penal Code ("IPC" hereafter) criminalizes assault or use of criminal force which outrages a woman's modesty (by Section
354). The expression "criminal force" is defined in Section 350 and "assault" is defined in Section 351. These require an element of application of physical force, to women. The expression "modesty" was another limitation as older decisions show that such a state was associated with decorousness6 of women. This added a dimension of patriarchy and class.7 One cannot be unmindful of the circumstances in which these provisions were enacted by a colonial power, at a time, when women's agency itself was unacknowledged, or had limited recognition. Further, women in India were traditionally - during the time of enactment of IPC, in the mid nineteenth century -
subordinated to the care of their fathers, or their husbands, or other male relatives. They had no share in immovable property; notions of gender equality were unheard of, or not permitted. Women had no right to vote. Quite naturally, the dignity of women - or indeed their autonomy, was not provided for. "
24. Now in light of above stated position of law and evidence brought on record by the prosecution viz-a-viz, the finding of the trial Court has been scrutinized by this Court and following perversity and illegality have been recorded by the learned trial Court in it's judgment:-
(i) As the victim in unequivocal term has narrated the incidents committed by the accused which has not been rebutted by the defence despite extensive cross-examination as the victim in his cross-
examination has clearly stated in paragraphs 11 & 12 that the incident has been taken place and in paragraph 13 she has given plausible explanation about non-hearing of her shout because of playing of musical system i.e. DJ (Disk Jockey) by the people who were standing at Ganesh Puja Pandal or nearby the residence.
Page 13 of 20
(ii) The victim in her evidence has stated that she has not informed anything to the persons who were sitting in the Pandal but she has voluntarily stated that she had told the incident to her mother. The conduct of the victim cannot be held to be abnormal as if a young girl's modesty is in danger, she will definitely first tell to her mother only.
(iii) The further finding of the learned trial Court that the victim has deposed in the court statement regarding broken bangles and injury caused in her left wrist as supported by victim's mother evidence but in her report to the Police, no such averment was made. This finding is illegal as the victim in her statement recorded under Section 164 of the Cr.P.C. has reiterated the same incident and there is no contradiction and omission between the court statement and the statement recorded under Section 164 of the Cr.P.C.
(iv) The finding of the learned trial Court in paragraph 41 that in written report (Ex. P/2) and in the statement under Section 164 of Cr.P.C., the victim has stated once about pressing of her breast but in the court statement she has stated twice about the incident, thus the statement of the victim is doubtful regarding commission of offence by the accused.
(v) The finding of learned trial Court is that the statement of the victim and her mother is not supported by medical evidence (PW-4) and has disbelieved the version of the victim without considering the fact that the broken bangles have been seized by the prosecution as evident from Ex. P/4.
As such, these findings are contrary to the evidence, material and the law laid down by Hon'ble the Supreme Court in case of Rupan (supra) and Satish (supra) as even if offence has been committed Page 14 of 20 once, the accused is liable to be convicted. From victim's evidence which is of a sterling quality, it is proved beyond reasonable doubt that the offence has been committed.
25. Thus, the impugned order suffers from perversity or illegality as the learned trial Court has not considered that the accused by using criminal force has caught hold victim's hand which is using of criminal force as defined in Section 350 of IPC and from evidence of the victim, it is quite vivid that the accused has intended or knowing it that it is likely that he will thereby outraged victim's modesty, has used the criminal force, as such the accused has committed offence of Section 354 of IPC. Despite clinching evidence, material on record without considering the law, the learned trial Court has acquitted the accused by recording its finding that the offence under Section 354 of IPC has not been made out. Learned trial Court has unnecessary struggle to record a finding of acquittal without considering true aspect of commission of offence under Section 354 of IPC and its ingredients, thus, the impugned order is liable to be set aside.
26. Learned trial Court has further committed illegality in recording its finding that due to personal enmity with accused's father, the victim and her mother have falsely implicated the accused/respondent, as such the prosecution case is doubtful, accordingly, it has acquitted the accused by granting benefit of doubt without any foundation led by the accused regarding false implication and enmity between the families.
27. From the evidence brought on record by the prosecution, it is quite vivid that the victim's statement inspires confidence and on the basis of victim's evidence, the conviction can be recorded very well if it is of sterling quality. In the present case the statement of the victim Page 15 of 20 supported by her mother evidence, seizure of broken bangles and the explanation given by the victim, are sufficient material to record finding of guilt of the respondent. Hon'ble the Supreme Court in case of State of Himachal Pradesh vs. Manga Singh [(2019) 16 SCC 759] has examined this issue and has recorded its finding as under :-
"10. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law; but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.
(11) It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the court.
12. In State of Punjab v. Gurmit Singh and Others - (1996) 2 SCC 384, it was held as under:-
"8. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no Page 16 of 20 difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?........".
28. Thus, the acquittal of the accused for commission of offence under Section 354 of IPC, deserves to be set aside and accordingly it is set aside and it is held that the prosecution is able to prove the offence under Section 354 of IPC (three times) against the accused/respondent beyond reasonable doubt, therefore, the respondent is convicted for the offence under Section 354 of IPC (three times).
29. So far as acquittal of the accused under Section 8 of the Act, 2012 is concerned, the learned trial Court has not given any finding regarding commission of offence under Section 8 of the Act, 2012, therefore, this Court is analyzing itself whether the offence under Section 8 of the Act, 2012 has been committed by the accused or not. For application of the provision of the Act, 2012, it is essential that the victim should be below 18 years and the prosecution should prove that the victim is below 18 years. Section 34 (2) of the Act, 2012 provides that in case of commission of offence with child and determination of age by Special Court, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "the Act, 2015").
Section 94 of the Act, 2015 provides that age will be determined by following manners:- (i) the birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and (ii) in the absence thereof; the birth certificate given by a corporation or a municipal authority or a panchayat; and Page 17 of 20 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.
30. In the present case, the prosecution has not annexed any record as mentioned in Section 94 of the Act, 2015, only dakhil kharij register has been placed on record. Smt. Sarita Gupta (PW-5) has stated in her evidence that she has not annexed any date of birth certificate of the victim while recording the date of birth as 12.08.2003 in the dakhil kharij register and also not brought any transfer certificate of the victim before the Court which has taken into consideration by her while recording victim's age. Thus, it is quite vivid that the prosecution has not proved victim's age below 18 years to attract the offence under the Act, 2012. As such, the prosecution is unable to prove the age of the victim that she is below 18 years on the date of incident to convict the respondent for commission of office under Section 8 of the Act, 2012, therefore, the acquittal of the accused by granting benefit of doubt for commission of offence under Section 8 of the Act, 2012 is neither perverse nor illegal which warrants any interference by this Court.
31. The said view taken by this Court is fortified by the judgment of Hon'ble the Supreme Court in case of Yuvaprakash Vs. State represented by Inspector of Police [(2024) 17 SCC 684] wherein it has been held in paragraphs 22 & 23 as under:-
"22. It is clear from the above narrative that none of the documents produced during the trial answered the description of "the date of birth certificate from the school" or "the matriculation or equivalent certificate" from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat. In these circumstances, it was incumbent for the prosecution to prove through acceptable medical tests/examination that the victim's age was below 18 years as Page 18 of 20 per Section 94(2)(iii) of the JJ Act. PW-9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital at Vellore, produced the X-ray reports and deposed that in terms of the examination of M, a certificate was issued stating "that the age of the said girl would be more than 18 years and less than 20 years". In the cross-examination, she admitted that M's age could be taken as 19 years. However, the High Court rejected this evidence, saying that "when the precise date of birth is available from out of the school records, the approximate age estimated by the medical expert cannot be the determining factor". This finding is, in this court's considered view, incorrect and erroneous.
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. "
32. Accordingly, it is held that the acquittal of the accused for the charge under Section 8 of the Act, 2012 by granting benefit of doubt by the trial Court, is affirmed.
33. Further submission of the learned counsel for the respondent/accused that in case of acquittal, the power of interference of appellate Court is very limited as provided under Section 386 of the Cr.P.C./Section 427 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), is being considered by this Court.
34. It is well settled position of law that in a case of acquittal, the power of appellate Court is very limited and also that if two view are available then the view which is favourable to the accused has to be taken into Page 19 of 20 consideration by the appellate Court but if there is only one view for conviction then only the appellate court can interfere with the findings of the trial Court acquitting the accused and can reverse the same. Thus, submission made by the learned counsel for the appellant that if two views can be taken then view which is more favourable to the accused should be considered by the Court and should not interfere in the finding of the acquittal deserves to be rejected and accordingly it is rejected. Hon'ble the Supreme Court in case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka [2024 (8) SCC 149] has examined in which circumstances the findings can be reversed and observed in paragraphs 41 and 42 as under:-
"41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
41.1 That the judgment of acquittal suffers from patent perversity;
41.2 That the same is based on a misreading/omission to consider material evidence on record;
41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
35. Thus, this Court in exercise of power conferred under Section 386 of Cr.P.C. (Section 427 in the Bharatiya Nagarik Suraksha Sanhita (BNSS) can very well interfere in the findings recorded by the trial Court and can reverse such finding by convicting the accused for commission of offence under Section 354 of IPC.
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36. Consequently, the acquittal appeal deserves to be allowed in part by convicting the accused for commission of offence under Section 354 of IPC (three times).
37. Since this Court is reversing the order of acquittal for commission of offence under Section 354 of IPC (three times), therefore, in compliance of Section 235 (2) of the Cr.P.C./Section 254(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, this Court has to hear the accused or his counsel on the question of sentence. Accordingly, the matter be listed on 17th April, 2026 on that date, the accused or his counsel is directed to remain present before this Court for hearing on sentence.
Sd/-
(Narendra Kumar Vyas) Judge Arun