Orissa High Court
Agasta Singh vs State Of Odisha on 22 May, 2026
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No. 22 of 2020
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Agasta Singh .... Appellant
-versus-
State of Odisha .... Respondent
For Appellant : Mr. J. Kamila, Adv.
For Respondent : Mr. P.K. Panda, ASC
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing:13.03.2026 & Date of Judgment: 21.05.2026
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Biraja Prasanna Satapathy, J.
The present Appeal has been filed inter alia challenging the order of conviction and sentence passed by the learned Addl. Sessions Judge
-cum-Special Judge, Balasore vide judgment dated 17.02.2020 in convicting the Appellant of the offence under Section 363/376(2)(n) of the Indian Penal Code and by convicting and sentencing the Appellant to undergo RI for a period of 20 years and pay a fine of Rs.25,000/-, in // 2 // default RI for one year for the offence under Section 376(2)(n) of the IPC and to undergo RI for 5 years, pay a fine of Rs.5,000/-, in default RI for one month for the offence under Section 363 of the IPC in Special Case No.348 of 2017.
2. While assailing the impugned order of conviction and sentence learned counsel appearing for the Appellant contended that basing on the FIR lodged in Simulia PS Case No.219 of 2017 on dated 21.07.2017, the prosecution case was set into motion against the Appellant for the offence under Section 363/376(2)(n) of the IPC read with Section 4, 6 & 8 of the POCSO Act.
2.1. It is contended that after commitment, Petitioner faced the trial in the Court of learned Special Judge, Balasore for the offence under Section 363/376(2)(n) of the IPC read with Section 4,6 & 8 of the POCSO Act. The prosecution story as narrated in the FIR reads as follows:-
"2. The case of the prosecution in brief, is as follows:-
The informant is the father of the victim. The victim is aged about 14 years and was a student of Class-VIII at Padmabati Government School. On 15.08.2017 i.e. on the date of Independence Day at about 3 pm and accused went to the house of the informant and while the wife of the informant was sleeping, the accused cleverly took away the victim to Markona and from Markona station he took the victim towards Rupsa by means of a train and caused her senseless and thereafter the accused took the victim to his house by means of a motorcycle. At his, the accused committed sexual intercourse with the victim, physically assaulted her and mentally tortured her and thereafter Page 2 of 38 // 3 // while the accused was taking the victim with him towards Panchalingeswar the cousin son-in-law of the informant rescued the victim at Police Line, Balasore and brought the victim to the house of the informant.
Alleging the aforesaid facts, the informant lodged a written report before Simulia PS. The written report of the informant was treated as FIR and this case was registered. On the direction of the IIC of Simulia PS, SI Salhai Marandi investigated into this case. After completion of investigation, the Investigating Officer submitted charge sheet. After submission of charge sheet, cognizance of the offence under section 363, 376(2)(n) of IPC read with section 4, 6 & 8 of POCSO Act was taken and the accused was also charged for commission of the aforesaid offence giving rise to the present trial."
2.2. It is contended that prosecution in order to prove the charges against the Appellant examined 11 P.Ws. and defense examined one witness in support of its stand. While P.W.1 is the Doctor who examined the accused, P.W. No.2 is the victim herself, P.W.3 is the informant and P.W.4 is the teacher from whose possession Police seized the School admission register, While P.W. 5 and 6 are the seizure witnesses, P.W. 7 is the only independent witness. Similarly P.W. 8 is the Doctor, who examined the victim and P.W. 9 is the mother of the victim, P.W. 10 is the brother-in-law of the victim and P.W. 11 is the I.O.
2.3. It is contended that even though in the FIR, the informant who happens to be the father of the victim alleged that the victim was a minor, but basing on the materials produced by the prosecution, learned Page 3 of 38 // 4 // Special Judge though held the Appellant guilty of the offence under Section 4, 6 & 8 of the POCSO Act but, did not impose any sentence for the said offences, taking into account the sentence imposed for the offence under Section 376(2)(n) of the IPC.
2.4. It is also contended that even though learned trial Court taking into account the evidence and materials placed before him held the victim as a minor and allegation of rape was also proved, but taking into account the medical report of the Doctor-P.W.8, it cannot be held that the victim was subjected to any sexual intercourse during the period involved. Statement of P.W.8 reads as follows:-
"On 22.08.2017 I was working as Paediatric specialist at DHH, Balasore. On that day at about 11.15 a.m. on police requisition I examined the victim and opined as follows:-
(i) There is no bodily injury suggestive of forcible sexual intercourse.
(ii) Her genital examination does not show any sign and symptom of recent sexual intercourse.
(iii) Vaginal swab examined by apthologist of DHH, Balasore does not show any spermatozoa.
(iv) Her blood group is B +ve.
(v) According to Radiologist, the age of the victim is between 15 to 16 years.
(vi) Public hair is not developed.
(vii) According to the above findings, there was no recent sign and symptom of sexual intercourse.
This is the medical examination report already marked as Ext.2 and Ext.2/3 is my signature. This is the report of the radiologist marked as Ext.12 which I referred in preparing Ext.2."
2.5. It is also contended that in support of age of the victim though prosecution relied on the evidence of P.W. 4 and the documents Page 4 of 38 // 5 // exhibited as Ext. 6 and 6/1, but while taking the age of the victim as a minor, since the relevant provisions contained under Section 164-A of the Cr.P.C. read with Section 27 of the POCSO Act and Section 94 of the Juvenile Justice Act were not followed, the finding of the learned Trial Court that the victim is a minor is vitiated and cannot be accepted.
Section 164-A Cr.P.C., Section 27 of the POCSO Act, and Section 94 of the J.J. Act reads as follows:
"SECTION 164 A
1. where during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.
2. The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely--
1. the name and address of the woman and of the person by whom she was brought;
2. the age of the woman;
3. the description of material taken from the person of the woman for DNA profiling;
4. marks of injury, if any, on the person of the woman;
5. general mental condition of the woman; and
6. other material particulars in reasonable detail,
3.The report shall state precisely the reasons for each conclusion arrived at.
4.The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained.
Page 5 of 38// 6 //
5.The exact time of commencement and completion of the examination shall also be noted in the report.
6. The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section.
7. Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.
Section 27 of POCSO Act
1. the medical examination of a child in respect of whom any offence has been committed under this act shall notwithstanding that a first information report or complaint has not been registered for the offences under this act be conducted in accordance with section 164a of the code of criminal procedure 1973 2 of 1973 2 in case the victim is a girl child the medical examination shall be conducted by a woman doctor 3 the medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence 4 where in case the parent of the child or other person referred to in sub section 3 cannot be present for any reason during the medical examination of the child the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution.
SECTION 94 OF J.J. ACT
1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation Of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Page 6 of 38 // 7 // 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."
2.6. It is further contended that as provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, the required procedure has been prescribed for determination of the age of victim. Rule 12 of the 2007 Rules reads as follows:
"12. Procedure to be followed in determination of Age.― (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;Page 7 of 38
// 8 //
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub- rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
Page 8 of 38// 9 // 2.7. Placing reliance on the aforesaid provisions it is contended that since in support of the age of the victim, there is no evidence that the documents exhibited vide the Ext.6 and 6/1 are the documents in support of the age of the victim from the school she first attended, the date of birth reflected in Ext. 6 and 6.1, should not have been relied on by the learned Special Judge, while holding the victim as a minor.
2.8. In support of his aforesaid submission, reliance was placed to a decision of the Hon'ble Apex Court in the case of State of Uttar Pradesh Vs. Anurudh and Anr., 2026 SCC OnLine SC 40. Hon'ble Apex Court in Para-5.3, 8.1 to 8.4, 9.2, 13.1 and 14.4 has held as follows:-
"5.3. The statutory scheme was analysed to conclude that Sections 164-ACrPC and 27 POCSO Act obligate police to obtain the victim's medical age report at the commencement of investigation. Section 94 of the Juvenile Justice (Care and Protection) Act 2015 [JJ Act] supplements this mechanism. Failure to secure such a report rendered the statutory framework futile and opens scope for false implication via manipulated age claims.
xxx xxx xxx 8.1. Section 27 of the POCSO Act "27. Medical examination of a child.--(1) The medical examination of a child in respect of whom any offence has been committed under this Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act, be conducted in accordance with section 164A of the Criminal Procedure Code, 1973 (2 of 1973). (2) In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
(3) The medical examination shall be conducted in the presence of the parent of the child or any other person in whom the child reposes trust or confidence.Page 9 of 38
// 10 // (4) Where, in case the parent of the child or other person referred to in sub-section (3) cannot be present, for any reason, during the medical examination of the child, the medical examination shall be conducted in the presence of a woman nominated by the head of the medical institution." (emphasis supplied) 8.2. Section 164 of the CrPC "[164A. Medical examination of the victim of rape.-- (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:--
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained. (5) The exact time of commencement and completion of the examination shall also be noted in the report. (6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of Page 10 of 38 // 11 // any person competent to give such consent on her behalf.
Explanation.--For the purposes of this section, "examination" and "registered medical practitioner" shall have the same meanings as in section 53.]"
(emphasis supplied) 8.3. Section 94 of the Juvenile Justice (Care & Protection) Act 2015 "94.(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
(emphasis supplied) 8.4. Section 29 of the POCSO Act "29. Presumption as to certain offences.--Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
xxx xxx xxx What were the bases for the High Court's Conclusions and Directions?
9.2. Now, let us examine Aman (supra).
Page 11 of 38// 12 // The Court noted a recurring problem in POCSO cases: frequent contradictions in the recorded age of victims and false depiction of majority as minority, often leading to the weaponisation of the legislation against young couples in consensual relationships. Medical determinations of age, drawn per the latest scientific protocols, were deemed more reliable and essential to prevent injustice.
Referring to Sections 164-ACrPC and 27 POCSO Act, the Court held that a medical report determining the victim's age is a mandatory component of investigation in every POCSO case. Such reports assist Courts in making accurate findings, preventing false implication, and ensuring fair application of law.
Accordingly, the Court issued directions:
"1. The police authorities/investigation officers shall ensure that in every POCSO Act offence a medical report determining the victim's age shall be drawn up at the outset under Section 164A of the Criminal Procedure Code read with Section 27 of the Protection of Children from Sexual Offences Act, 2012. The report may be dispensed with if medical opinion advises against it in the interests of the victim's health.
2. The medical report determining the age of the victim shall be created as per established procedure of law and in adherence to latest scientific parameters and medical protocol.
3. The medical report determining the age of the victim shall be submitted under Section 164-A of the Code of Criminal Procedure to the Court without delay.
4. The Director General (Health), Government of Uttar Pradesh, Lucknow shall also ensure that the doctors who comprise the Medical Board are duly trained and follow the established medical protocol and scientific parameters for determining the age of the victims in such cases. Constant research shall be done in this field to keep the reports in line with the latest scientific developments. A copy of this order be communicated by the learned Government Advocate to the Director General of Police, Lucknow, Uttar Pradesh for compliance and Director General (Health), Government of Uttar Pradesh,"
xxx xxx xxx 13.1. Section 2(d) of the POCSO Act defines a child as any person below eighteen years. So, for the provisions of this Act to be applied, the person against whom the offence in question has been perpetrated must necessarily be below 18 years of age. This is the sine qua non. The natural question which then arises is how the age of victim is to be determined. Jarnail Singh v. State of Haryana [(2013) 7 SCC 263] put this question to rest as follows:Page 12 of 38
// 13 // "23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime.
For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion." (emphasis supplied) Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 [ Rules 2007] it must be noted, provides the same hierarchy of documents as has been provided by Section 94 of the JJ Act. The same is reproduced below for felicity of reference:
"12.Procedure to be followed in determination of age.--(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be, the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.Page 13 of 38
// 14 // (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence Page 14 of 38 // 15 // under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
xxx xxx xxx 14.4. In Rishipal Singh Solanki (supra) this Court while dealing with an appeal filed by the father of the deceased noted the difference between the Rules 2007 and the JJ Act 2015. It was observed:
"29. The difference in the procedure under the two enactments could be discerned as under:
29.1. As per the JJ Act, 2015 in the absence of requisite documents as mentioned in clauses (i) and (ii) of Section 94(2), there is provision for determination of the age by an ossification test or any other medical age related test to be conducted on the orders of the Committee or the JJ Board as per Section 94 of the said Act; whereas, under Rule 12 of the JJ Rules, 2007, in the absence of relevant documents, a medical opinion had to be sought from a duly constituted Medical Board which would declare the age of the juvenile or child.
29.2. With regard to the documents to be provided as evidence, what was provided under Rule 12 of the JJ Rules, 2007 has been provided under sub-section (2) of Section 94 of the JJ Act, 2015 as a substantive provision.
29.3. Under Section 49 of the JJ Act, 2000, where it appeared to a competent authority that a person brought before it was a juvenile or a child, then such authority could, after making an inquiry and taking such evidence as was necessary, record a finding as to the juvenility of such person and state the age of such person as nearly as may be. Sub-section (2) of Section 49 stated that no order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order had been made is not a juvenile and the age recorded by the competent authority to be the age of person so brought before it, for the purpose of the Act, be deemed to be the true age of that person.
30. But, under Section 94 of the JJ Act, 2015, which also deals with presumption and determination of age, the Committee or the JJ Board has to record such observation stating the age of the child as nearly as may be and proceed with the inquiry without waiting for further confirmation of the age. It is only when the Committee or the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, it can undertake the process of age determination, by seeking evidence.
31. Sub-section (3) of Section 94 states that the age recorded by the Committee or the JJ Board to be the age of the persons so brought before it shall, for the purpose of the Act, be deemed to be the true age of that person. Thus, there is a finality attached to the determination of the age recorded and it is only in a case Page 15 of 38 // 16 // where reasonable grounds exist for doubt as to whether the person brought before the Committee or the Board is a child or not, that a process of age determination by seeking evidence has to be undertaken."
Then further, it was held-
"33.1.A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court.
33.2.An application claiming juvenility could be made either before the court or the JJ Board.
33.2.1.When the issue of juvenility arises before a court, it would be under sub-sections (2) and (3) of Section 9 of the JJ Act, 2015 but when a person is brought before a committee or JJ Board, Section 94 of the JJ Act, 2015 applies. 33.2.2.If an application is filed before the court claiming juvenility, the provision of sub-section (2) of Section 94 of the JJ Act, 2015 would have to be applied or read along with sub- section (2) of Section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
33.2.3. When an application claiming juvenility is made under Section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a court, then the procedure contemplated under Section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the criminal court concerned, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015).
33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the court to discharge the initial burden. However, the documents mentioned in Rules 12(3)(a)(i), (ii) and (iii) of the JJ Rules, 2007 made under the JJ Act, 2000 or sub-section (2) of Section 94 of the JJ Act, 2015, shall be sufficient for prima facie satisfaction of the court. On the basis of the aforesaid documents a presumption of juvenility may be raised.Page 16 of 38
// 17 // 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
33.5.That the procedure of an inquiry by a court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the criminal court concerned. In case of an inquiry, the court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of Section 94 of the 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.11. Ossification test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
2.9. Reliance was also placed to a decision of the Hon'ble Apex Court reported in (2024) 17 SCC 684 in the case of P. Yuvaprakash Vs. State represented by Inspector of Police. Hon'ble Apex Court in Para-14 to 18, 21 and 23 has held as follows:-
"14. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act, 2015 becomes relevant, and applicable. That provision is extracted below:
"94. Presumption and determination of age.--(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such Page 17 of 38 // 18 // 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 or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
15. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the court concerned has to determine the age by considering the following documents:
"94. (2)(i) The date of birth certificate from the school, or the matriculation or equivalent certificate from the examination Board concerned, if available; and in the absence thereof;
(ii) The birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) And only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board."Page 18 of 38
// 19 //
16. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the examination board concerned has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test"
conducted on the orders of the authority concerned i.e. Committee or Board or Court.
17. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ext. C-1 i.e. the school transfer certificate showed the date of birth of the victim as 11- 7-1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness i.e. CW 1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW 3, the Revenue Official (Deputy Tahsildar) concerned had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ext. C-1 could not have been relied upon to hold that 'M' was below 18 years at the time of commission of the offence.
xxxx xxxxx xxxxx xxxxx
18. In a recent decision, in Rishipal Singh Solanki v. State of U.P. [Rishipal Singh Solanki v. State of U.P., (2022) 8 SCC 602 : (2022) 3 SCC (Cri) 703] , this Court outlined the procedure to be followed in cases where age determination is required. The Court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: (SCC p. 616, para 22) "22. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) Page 19 of 38 // 20 // 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."
xxxx xxxxx xxxxx
21. Reverting to the facts of this case, the headmaster of M's school, CW 1, was summoned by the court and produced a Transfer Certificate (Ext. C-1). This witness produced a Transfer Certificate Register containing M's name. He deposed that she had studied in the school for one year i.e. 2009-2010 and that the date of birth was based on the basis of the record sheet given by the school where she studied in the 7th standard. DW 2 TMT Poongothoi, Headmaster of Chinnasoalipalayam Panchayat School, answered the summons served by the court and deposed that 'M' had joined her school with effect from 3-4- 2002 and that her date of birth was recorded as 11-7-1997. She admitted that though the date of birth was based on the birth certificate, it would normally be recorded on the basis of horoscope. She conceded to no knowledge about the basis on which the document pertaining to the date of birth was recorded. It is stated earlier on the same issue i.e. the date of birth, Thiru Prakasam, DW 3 stated that the birth register pertaining to the year 1997 was not available in the record room of his office.
xxxxx xxxxx xxxxx
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."
Page 20 of 38// 21 // 2.10. Similarly, Hon'ble Apex Court in the case of Birka Shiva Vrs. State of Telengana reported in 2025 SCC OnLine SC 1454. Hon'ble Apex Court in Para-7 & 8 has held as follows:-
"7. The prosecution has relied primarily on Ex.P11, the birth certificate issued by the Zilla Parishad High School, to establish that the victim was below the age of sixteen years on the date of the alleged offence, i.e., 4th August 2012. According to Ex.P11, the victim's date of birth was 3rd November 1996, which, if accepted, would make her approximately 15 years 9 months old at the relevant time.\
8. The evidentiary value of such an entry made in public or official registers may be admissible in evidence under Section 35 of the Indian Evidence Act, 18727. However, admissibility is distinct from probative value. While such documents may be admitted into evidence, their evidentiary weight depends on proof of their authenticity and the source of the underlying information. Mere production and marking of a document as exhibited by the Court does not amount to proof of its contents. Its execution has to be proved by leading substantive evidence, that is, by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. [See : Narbada Devi Gupta v. Birendra Kumar Jaiswal8] We may refer to a few judicial pronouncements of this Court in this regard:
8.1. This Court, in Birad Mal Singhvi v. Anand Purohit9, held that the entries contained in the school register are relevant and admissible but have no probative value unless the person who made the entry or provided the date of birth is examined. It was observed:
"14. ... If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. ... The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value, but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. ...Page 21 of 38
// 22 //
15. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to the date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. ... The courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined..."
(Emphasis Supplied) This decision has been consistently followed by this Court in Pratap Singh v. State of Jharkhand10; Babloo Pasi v. State of Jharkhand11; Murugan v. State of T.N.12; State of 13 M.P. v. Munna ; C. Doddanarayana Reddy v. C. Jayarama Reddy14; and Manak Chand v. State of Haryana15. 8.2. A coordinate Bench of this Court in State of Chhattisgarh v. Lekhram16, through S.B. Sinha, J., clarified that though entries in school registers are admissible under Section 35 of the Evidence Act, their evidentiary value improves only when corroborated by oral testimony of persons who are aware of its content, such as parents or the person who made the entry at the time of admission. It held as under:
"12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect.
13. ...The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive, but it has evidentiary value. Such evidentiary value of a school register is corroborated by Page 22 of 38 // 23 // oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix."
8.3. Similarly, this Court in Satpal Singh v. State of Haryana17, stated that though a document may be admissible, but to determine whether the entry contained therein has any probative value, may still be required to be examined in the facts and circumstances of a particular case. It held as follows:
"26. In Vishnu v. State of Maharashtra, [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded.
28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case."
8.4. In Madan Mohan Singh v. Rajni Kant18, this Court held that the entries made in the official record may be admissible under Section 35 of the Evidence Act, but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded. It was held as follows:
"20. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in school register/school leaving certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.
21. ... For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school Page 23 of 38 // 24 // register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. ..."
8.5. This Court, in Alamelu v. State19, while dealing with a similar factual matrix, held that the prosecution had failed to prove that the girl was a minor at the relevant date since the transfer certificate of a Government School showing age was not duly proved by witnesses. It observed as under:
"40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident i.e. 31-7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined.
41. We may notice here that PW 1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate (Ext. P-16). He did not mention the girl's age or date of birth. PW 2 was also examined on 9-8-1999. She had also made no reference either to her age or to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certificate and to recall PW 2. This petition was allowed. ... In her cross-examination, she had merely stated that she had signed on the transfer certificate, Ext. P-16 issued by the school and accordingly her date of birth was noticed as 15-6-1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate."
2.11. Reliance was placed to a decision of the Hon'ble Apex Court in the case of Mahadeo Vs. State of Maharashtra and Another, reported Page 24 of 38 // 25 // in (2013) 14 SCC 637. Hon'ble Apex Court in Para-12 & 13 has held as follows:-
"12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:
"12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;"
Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well.
13. In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20-5-1990, and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20-5-1990. The reliance placed upon the said evidence by the courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same."
2.12. It is also contended that in view of age mentioned in the report submitted by P.W.8 holding the age of the victim between 15 to 16 Page 25 of 38 // 26 // years, in view of decision of the Apex Court in the case of Rajak Mohammed V. State of Himanchal Pradesh, reported in (2018) 9 SCC 248 and Jyotiprakash V. State of Bihar, reported in (2008) 15 SCC 223, the victim could not have been treated as a minor.
2.13. In case of Rajak Mohammed, Hon'ble Apex Court in Para 6, 8 and 9 of the decision has held as follows:-
6. In cross-examination, PW 5 had stated that the details mentioned in Ext. PW 5/A have been obtained from the school leaving certificate issued by the Government Primary School, Tambol. The certificate issued by the Government Primary School, Tambol on the basis of which the details in the admission form (Ext. PW 5/A) was filled up by PW 5 has not been exhibited by the prosecution.
8. On the other hand, we have on record the evidence of Dr Neelam Gupta (PW 8), a Radiologist working in the Civil Hospital, Nalagarh who had given an opinion that the age of the prosecutrix was between 17 to 18 years.
9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused."
2.14. In the case of Jyotiprakash, Hon'ble Apex Court in Para 13 of the judgment has held as follows:-
13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After a certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] opined: (SCC p. 290, para 20) "20. It is urged before us by Mr Lalit that the determination of the age of the prosecutrix by conducting ossification test is Page 26 of 38 // 27 // scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence.
The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact."
In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side.
2.15. It is also contended that even though the victim while being examined as P.W.2, supported the allegation of rape, but in view of the medical report so exhibited with the evidence of P.W.8, such statement of the victim being not trustworthy, learned Special Judge could not have relied on to statement of the victim while convicting the appellant for the offence U/s 376 (2) (n) of the IPC. It is also contended that in support of the prosecution allegation, since no independent witness was examined save and except P.W.7, basing on the testimony of the P.W.2 and the statement of P.W. 3 and 9 who happens to be the parents of the victim, the Appellant could not have been convicted for the offence U/s. 376(2)(n) of IPC. In support of such submission reliance was placed on the following decisions:-
"(1) (2025) 99 OCR (SC)P-114 (Keshav S/o. Laxman Rupnar and Anr. Vs. State of Maharashtra).
(2) (2012) 8 SCC 21 (Rai Sandeep Alias Deepu Vs. State (NCT of Delhi), (3) (2025) 98 OCR 211 (K. Dinesh Kumar v. State of Odisha and Another)."Page 27 of 38
// 28 // 2.13 . Hon'ble Apex Court in the case of Keshav in Para-9 has held as follows:-
"9. State of Punjab v. Gurmit Singh (1996) 2 SCC 384, held that even without any corroboration, if the evidence of the prosecutrix inspires confidence, it can be relied on and can also be the sole ground for conviction. However, if it is difficult to place implicit reliance on the testimony of the prosecutrix, then the Court has to look for evidence to lend assurance to her testimony which would be short of corroboration required in the case. The testimony of the prosecutrix must be appreciated in the background of the entire case, was the finding. Raju v. State of M.P.(2008) 15 SCC 133, while reiterating the above principle also cautioned that while rape causes the greatest distress and humiliation, a false allegation of rape also can cause equal distress, humiliation and damage to the accused as well The Court should be equally careful in protecting the accused from a false implication. While applying the broad principle that an injured witness, whose presence cannot be doubted, as she would ordinarily not lie, still there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishments."
2.14. Hon'ble Apex Court in the case of Rai Sandeep Alias Deepu in Para-
22 has held as follows:-
"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold Page 28 of 38 // 29 // the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
2.15. This Court in the case of K. Dinesh Kumar in Para-14, 15 and 17 has held as follows:-
"14. In Sonu alias Subhash Kumar (supra), the Apex Court, in case where the parties had a friendship initially and thereafter, the accused assured to marry the victim and both having had a relationship for one and half years, considering an allegation of sexual exploitation, concluded as hereunder:
"10. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established."
15. The sum and substance of the above decision is that if there is merely a breach of promise to marry the victim, no case of rape is made out, but where, under a misconception of fact, the consent is obtained and it was on account of a false promise having a direct nexus with the victim's decision to engage in sexual act, it would be an offence under Section 376(2)(n) IPC.
Xxxx xxxx xxxx xxxx
17. In the present case, the Court finds that the informant though claims to be slightly hesitant initially but accepted the proposal of the petitioner and even developed physical relationship with him and continued to remain so, till the time, it ended with the untoward events, which took place shortly before the report was lodged Merely, denying to keep up the promise is not sufficient and Page 29 of 38 // 30 // the same would result in breach of such promise, which is not a criminal act but to presume that an offence under Section 376(2)(n) IPC is committed, the promise has to be held as false and given in bad faith having no intention at all to adhere to the same Such conduct of the accused is to be examined considering the material evidence with a prima facie view that the intention was otherwise and not in good faith at the time when the promise was offered. As far as the petitioner is concerned and also the victim, the Court finds that everything started inoffensively including the physical relationship followed by a promise of marriage, which failed to be materialized at last Since, the promise failed and the petitioner avoided the informant and subsequently, declined to marry her, is the reason behind lodging of the FIR with an allegation of rape, which in the considered view of the Court, may not be sufficient to hold that such consent was no consent in the eye of law having been vitiated by misconception of fact or fraud arising out of promise to marry. Such sexual relationship between the parties, consequent upon, a promise of marriage during the continuance of the same by itself not to be sufficient to hold that the promise was given in bad faith. It is again not found to be a case where a false promise of the petitioner and subsequent consent of the victim was obtained with such promise. It is further not revealed that the informant consented to the sexual act only upon the promise of the petitioner to marry her. If such was the intention and false promise shown to be having a direct nexus with the consent obtained for the sexual act and then, it is broken, an offence of rape could be made out, since, it may be said to have been vitiated by fraud. However, having regard to the nature of allegations made in the FIR and materials collected and produced along with the charge sheet, the informant after having a relationship with the petitioner and the marriage between them having not taken place, alleged sexual exploitation and rape, which, in view of the discussion as aforesaid and keeping in view the ratio laid down by the Apex Court in Sonu alias Subhash Kumar, cannot be the basis to hold that an offence under Section 376(2)(n) IPC is made out.""
2.16. It is also contended that since from the statement of the victim, it transpires that the victim accompanied the Appellant-accused, on her own conviction of the Appellant for the offences U/s 363/376(2)(n) of the IPC needs interference of this Court. Victim in her statement has submitted as follows:-
"The informant is my father and I am the victim of this case. I know the accused August Singh. The incident took place on 15.8.2017 Page 30 of 38 // 31 // near the school gate of Padmabati High Shool. Theo accused is my related uncle. While returning on the said date at about 9am, I made the accused who asked me to bring some money from him and accordingly, I went to my house and as my mother was sleeping, I came back and told that I will bring money on the next day as my mother was sleeping. Thereafter he gave me two chocolates and I took one of them and thereafter I lost my sense. Thereafter I do not know anything. I regained my sense in the train at Rupsa and therefore I got down with the accused. Another person was in the station with the motorcycle and the accused make her sit in the motorcycle and took him to his village and another person had not accompanied us. In theo said house, the sister in law of the accused was also present with another boy. But I have not seen him. On the said day night, the accused committed sexual assault on me without my consent. In the early morning the accused brought me to Panchalingeswar to his in-laws house in the said motorcycle and also committed sexual assault on me in the said house as there was no one there then. After some time a lady came to the said room to whom he called Bhauja and thereafter the accused also committed rape on him. After some hours, on the same day when I asked the accused to drop me in my house, he brought me to Balasore by walking as his friend has taken away his motorcycle. While coming my brother in law saw me and brought me back and the accused fled away from the spot. I disclosed the entire fact before my parents in my house and after my return my father lodged information in the PS. I was medically examined in this case vide Ext.2 and Ext.2/1 is my signature is my signature therein. Ext.3 is my statement recorded in the Court vide Ext.3/1 is my signature therein. Police seized my wearing apparels under Ext.4 and Ext.4/1 is my signature therein.
Cross-examination by the accused person(s)
2. It is not a fact that I have stated before the police that I had gone to my friends house namely Sangita. The accused used to work in our house in our BILA being a related uncle (mamu). I woke up my mother who told me to tell the accused to take the money on the next day and accordingly I informed the accused about the same and at that time it was raining. The accused asked me to bring my aadhar card and accordingly I had given him. I have not stated about anything to my mother relating to the aadhar card. I had been to my school in my cycle. I do not remember how I reached Markona station as I lost my sense after taking chocolate. The- chocolate was a cream chocolate of Rupees five, but cannot say its company name. It was a black in colour. I do not remember the exact time when I reached at Balasore station. We reached at Rupsa in the evening time. When I was in the train, no outsider was present in my boggy. I regained my sense at Balasore station. The Page 31 of 38 // 32 // accused had wrapped a stall on my face for which I could not disclose anything before the persons present at Rupsa station. I reached in the house of accused at Rupsa within 10 minutes. The motorcycle was a red colour, but cannot say its registration number. The house of the accused was a thatched house. I was wearing a saree of bhauja of August when I went to Panchalingeswar on his direction. My brother in law had been to Balasore for road work as a Mistri. Police seized my saree.
3. It is not a fact that I am deposing falsehood against the accused about giving me chocolate and I voluntarily went with the accused without informing my parents and the accused had not committed any sexual assault on me and that I am deposing falsehood."
2.17. It is also contended that Petitioner because of the initiation of the proceeding was arrested on 31.08.2017 and is continuing as such as on date. It is further contended that even though the incident happened on 15.08.2017, and the victim was rescued on 18.08.2017, but the FIR was only lodged on 21.08.2017, without explaining the delay in lodging the FIR. Not only that even though the victim after being rescued on 18.08.2017, was examined by P.W.8 on 22.08.2017, but from the medical report so available, there is no sign of recent sexual intercourse. In support of the submission that delay having not been explained, it is fatal to the case of prosecution, reliance was placed to a decision of the Hon'ble Apex Court in the case of State of H.P. Vs. Gian Chand, reported in (2001) 6 SCC 71. Hon'ble Apex Court in Para-12 has held as follows:-
"12If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution."Page 32 of 38
// 33 // 2.18. Reliance was placed to a decision of the Hon'ble Apex Court in the case of Ramdas Vs. State of Maharashtra, reported in (2007) 2 SCC 170. Hon'ble Apex Court in Para-24 has held as follows:-
"24. . However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice."
2.19. Reliance was placed to a decision of the Hon'ble Apex Court in the case of Ashok Kumar Chaudhary Vs. State of Bihar, reported in (2008) 12 SCC 173. Hon'ble Apex Court in Para-16 has held as follows:-
"16 . Nevertheless, it is a relevant factor of which the court is obliged to take notice and examine whether any explanation for the delay has been offered and if offered, whether it is satisfactory or not. If no satisfactory explanation is forthcoming, an adverse inference may be drawn against the prosecution."
2.20. It is accordingly contended that since delay in lodging the FIR has not at all being explained, adverse view has to be taken against the prosecution, and learned Special Judge should have taken note of the same. It is also contended that even though the victim went missing w.e.f. 15.08.2017 and was rescued on 18.08.2017, but no missing report was lodged before the concerned local Police Station by the parents of the victim. Therefore, it cannot be held that victim was Page 33 of 38 // 34 // kidnapped and accordingly liable for punishment for the office U/s. 363 IPC.
2.21. It is accordingly contended that, the prosecution since has failed to prove the charges against the appellant beyond all reasonable doubt, order of conviction and sentence so passed against the Appellant needs interference of this Court.
3. Learned Addl. Standing Counsel on the other hand while supporting the impugned order of conviction and sentence contended that since the victim who was examined as P.W.2, has proved the allegation of rape, no further evidence is required to be laid in support of the allegation of rape. It is contended that in the case of allegation of rape, sole testimony of the victim is sufficient to convict the accused. Since the victim in her deposition as P.W. No.2 as well as in her 164 statement has clearly proved the allegation of rape, no illegality or irregularity can be found with the order of conviction and sentence for the offence u/s. 376(2)(n) of the IPC. In support of the submission, learned Addl.
Standing Counsel relied on a decision of the Hon'ble Apex Court in the case of Deepak Kumar Sahu Vs. State of Chhatisgarh, reported in 2025 SCC Online SC 1610. Hon'ble Apex Court in Para-5.5, 5.5.2, 5.5.6 and 5.6 has held as follows:-
Page 34 of 38// 35 // "5.5. In cases of offences committed under Section 376, IPC, when the story of the victim girl as told in the evidence is found credit-worthy, the apparent insufficiency of medical evidence pitted against acceptable testimony of the victim, the latter would prevail. In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384] it was observed:
In the absence of injury on the private part of the prosecutrix, it cannot be concluded that the incident had not taken place or the sexual intercourse was committed with the consent of the prosecutrix. The prosecutrix being a small child of about nine years of age, there could be no question of her giving consent to sexual intercourse. The absence of injuries on the private part of the prosecutrix can be of no consequence in the facts and circumstances of the present case.
xxx xxx xxx 5.5.2. This Court observed that if the evidence of the victim does not suffer from any basic infirmities and the factor of probability does not render it unworthy evidence, the conviction could base solely on the evidence of the prosecutrix. It was further observed that as a general rule there is no reason to insist on the corroboration accept in certain cases, it was stated.
xxx xxx xxx 5.5.6. The credible and reliable evidence of prosecutrix could not be jettisoned for want of corroboration including the corroboration by medical report or evidence. The Court observed in Manga Singh (supra) that "in absence of injury on the private part of the prosecutrix, it cannot be concluded that the incident had not taken place or the sexual intercourse was committed with the consent of the prosecutrix". It was stated that it is well settled that in the cases of rape it is not always necessary that external injury is to be found on the body of the victim.
xxx xxx xxx 5.6. It is an opt-reiterated dictum of law that in cases of rape, the testimony of the prosecutrix alone may be sufficient and sole evidence of the victim, when cogent and consistent, could be properly used to arrive at a finding of the guilt. In the State of Himachal Pradesh v. Manga Singh, (2019) 16 SCC 759, this Court in terms stated that conviction can be rested on the testimony of the prosecutrix alone.
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 Page 35 of 38 // 36 // 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."
3.1. It is also contended that since through examination of P.W.4 and the documents exhibited vide Ext.6 and 6/1, it was well proved that the victim is a minor, no illegality or irregularity can be found with regard to the conviction and sentence for the offence u/s.4, 6 and 8 of the POCSO Act. Making all these submission, it is contended that, the impugned order of conviction and sentence so passed vide judgment dated 17.02.2020, needs no interference.
4. Having heard the learned counsel appearing for the Parties and the submission made, it is found that the prosecution was set into motion basing on the FIR lodged by the informant, P.W.3 on 21.08.2017 in Simulia PS Case No.219 dated 21.08.2017. Though the victim went missing on 15.08.2017 and was rescued by P.W.10 on 18.08.2017 but the FIR was only lodged on 21.08.2017 without explaining the delay in lodging the FIR. Since the delay in lodging the FIR has not at all been explained, in view of the decision of Apex Court in State of H.P. Vs. Gian Chand, Ramdas Vs. State of Maharashtra , Ashok Kumar Page 36 of 38 // 37 // Chaudhary Vs. State of Bihar, so citied supra, adverse view is required to be taken against the prosecution.
4.1. It is also found from the record that, in support of the age of the victim since no evidence is available that Ext.6 and 6/1, so produced by P.W.4 are the documents where the victim first attended the school, relying on the said documents the victim could not have been treated as a minor in view of the decision of the Apex Court in the case of State of Uttar Pradesh Vs. Anurudh and Anr., P. Yuvaprakash Vs. State represented by Inspector of Police , Birka Shiva Vrs. State of Telengana , Mahadeo Vs. State of Maharashtra and Another, so cited (supra) and the provisions contained under Section 94 of the J.J. Act r/w Rule 12 of the J.J. Rules, 2007.
4.2. Not only that in view of the statement of P.W.8 and the age of the victim being reflected as 15 to 16 years, in view of the decisions of the Apex Court in the case of Rajak Mohammed V. State of Himachal Pradesh, the victim could not have been treated as a minor.
4.3. Not only that perusal of the statement of the victim P.W.2 vis-à-vis the statement of P.W.3 and 9 and the medical report along with the testimony of P.W.8, it is the view of this Court that, prosecution has failed to prove the allegation of rape against the appellant beyond all reasonable doubt.
Page 37 of 38// 38 // 4.4. In view of the aforesaid analysis, this Court is of the view that prosecution has failed to prove the charges against the Appellant beyond all reasonable doubt.
4.5. In view of the aforesaid analysis, this Court is inclined to interfere with the impugned order of conviction and sentence, so passed against the Appellant by the learned Special Judge, Balasore in Special Case No.348 of 2017. While interfering with the order of conviction and sentence passed vide the impugned Judgment dated 17.02.2020, this Court is inclined to quash the same. While quashing the impugned order of conviction and sentence so passed vide judgment dated 17.02.2020, this Court allows the Appeal. Appellant be released from custody immediately, if his detention is not required in any other case.
5. The Appeal accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the, 21st May, 2026/Jyoti Signature Not Verified Digitally Signed Signed by: JYOTIPRAVA BHOL Reason: Authentication Location: HIGH COURT OF ORISSA Date: 22-May-2026 17:32:36 Page 38 of 38