Reserved On: 30.12.2024 vs State Of H.P on 2 January, 2025

[Cites 43, Cited by 0]

Himachal Pradesh High Court

Reserved On: 30.12.2024 vs State Of H.P on 2 January, 2025

2025:HHC:165 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 110 of 2023 Reserved on: 30.12.2024 Date of Decision: 02.01.2025 Shehzad Ali Shah ....Appellant Versus State of H.P. ....Respondent Coram Hon'ble Mr Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. Karan Kapoor, Advocate. For the Respondent/ : Mr. I.N. Mehta, Senior Additional State Advocate General with Ms. Sharmila Patial, Additional Advocate General, and Mr. Raj Negi, Deputy Advocate General.

Rakesh Kainthla,Judge The present appeal is directed against the judgment of conviction dated 12.07.2022 and order of sentence dated 13.07.2022 passed by learned Additional District & Sessions Judge, Fast Track, Special Court (POCSO), Solan, District Solan, H.P. (learned Trial Court)vide which the appellant (accused before the learned Trial Court) was convicted of the commission of offences ____________ Whether reporters of the local papers may be allowed to see the judgment? Yes 2 2025:HHC:165 punishable under Sections 363& 366 of the Indian Penal Code (for short 'IPC) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') read with section 376 of IPC and sentenced as under:-

Sl.No. The offence Substantive Fine In default of for which sentence imposed payment of convicted imposed fine, simple imprisonment is imposed

1. Section 363 Rigorous ₹5000/- One month of IPC imprisonment for three (3) years

2. Section 366 Rigorous ₹10,000/- Two months of IPC imprisonment for five (5) years

3. Section 6 of Rigorous ₹10,000/- Two months the POCSO imprisonment Act read for ten (10) with Section years 376 of IPC

2. It was ordered that all the substantive sentences of imprisonment would run concurrently, and the victim would be paid 50% compensation out of the fine amount if realised.(The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

3 2025:HHC:165

3. Briefly stated, the facts giving rise to the present appeal are that the police filed a charge sheet before the learned Trial Court for the commission of offences punishable under Sections 363 & 366 of IPC, Section 4 of POCSO Act and Section 3(1) (xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC&ST Act'). It was asserted that the victim's father filed a complaint (Ext. PW-2/A) before the Superintendent of Police Baddi, District Solan, H.P., stating that his daughter (the victim) was residing with him. She returned from school on 08.11.2016 and complained about stomach ache. Accused Shehazad Ali Shah took her to the doctor at about 5:30 p.m. to get her treated. She left with the accused but did not return. The victim was born on 17.03.2002 and was aged 14 years on the date of the incident. The informant searched for the victim and the accused but could not trace them. The police registered the F.I.R. (Ext.PW-16/K). S.I Krishna Devi (PW-18) conducted the investigation. She prepared the spot map (Ext.PW-18/A), showing the place/hut from where the victim was taken. She received information that the accused and victim were residing in Maharashtra. The police team and the informant went to Vasai in Maharashtra, where the victim and accused were found in the fish 4 2025:HHC:165 market. The informant identified them. The victim was handed over to her father vide memo (Ext.PW-2/B). The accused made a disclosure statement (Ext.PW2/C) that he could show the room at Mangroli, where he was residing with the victim. He led the police to the room. SI Krishna Devi (PW-18) prepared the identification memo (Ext.PW-1/B) and site plan (Ext.PW-18/B). She took the photographs (Ext.PW-16/B1 and Ext.PW-16/B2). A bed sheet (Ext.P-2) was found in the room, which was sealed in a parcel with seven seals of seal 'T'. The parcel was seized vide memo (Ext.PW-1/A). Sample seal 'T' was retained on a piece of cloth (Ext.PW-18/C), and the seal was handed over to witness Ram Gopal after the use. An application (Ext.PW-7/A) was filed for conducting the medical examination of the victim. Dr. Geeta Gupta (PW-10) conducted her medical examination and found that there was nothing to suggest that sexual intercourse had not taken place. She preserved the victim's sample and her clothes. She obtained a blood sample of the victim on an FTA card for DNA profiling. She handed over all these articles to the police official accompanying the victim after properly sealing them. She issued MLC(Ext. PW-10/A). An application (Ext.PW-15/A) was filed for conducting the medical 5 2025:HHC:165 examination of the accused. Dr Vijay Kumar Kashyap (PW-15) medically examined the accused and found that there was nothing to suggest that he was incapable of performing sexual intercourse. He preserved the sample of the accused and handed it over to the police official accompanying the accused. He issued MLC (Ext.PW-15/B). Further investigation of the case was conducted by Inspector Rita (PW-16). She filed an application (Ext.PW-4/A) to obtain the birth record of the victim. Satinder Kumar Joshi (PW-4) issued the attested copy of the admission form (Ext.PW-4/B), school leaving certificate (Ext.PW-4/C) and an abstract of admission and withdrawal register (Ext.PW-4/D). These were seized vide memo (Ext.PW-4/E). The accused made a statement that he could identify the Jhuggi where he had committed sexual intercourse with the victim. He led the police and witnesses to the Jhuggi. Inspector Rita (PW-16) prepared the Identification memo (Ext.PW-1/B) and spot map (Ext.PW-16/A). She took the photographs (Ext.PW-16/B1 to Ext. PW-16/B3) and issued the certificate (Ext.PW-16/C). Ravi Kumar (PW-6) produced the motorcycle and the documents. The motorcycle was identified by the victim vide memo (Ext.PW-1/C). An application (Ext.P-10) was filed for recording the statement of the victim 6 2025:HHC:165 under Section 164 of Cr.P.C. The victim's statement (Ext.P-9) was recorded by the learned Judicial Magistrate First Class, Court No.2, Nalagarh. The case property was deposited with HC Bheem Singh, who entered it in the register of Malkhana at Sl. No. 1 (Ext.PW-11/A) and sent it to SFSL Junga through LC Leela Devi (PW-7) vide RC No. 1/16-17 (Ext. PW-11/B). LC Leela Devi (PW-7) deposited all the articles in a safe condition at SFSL, Junga. The result of the analysis (Ext.PW-16/E) was issued, showing that human semen was detected on the bed sheet and the underwear of the accused. Human blood was also detected on the underwear and vest of the victim. The result of the analysis (Ext.PW-16/J) was issued in which it was shown that the DNA profile obtained from the bed sheet matched completely with the DNA profile obtained from the blood sample of the accused. ASI Rajesh Kumar (PW-14) obtained the victim's Caste Certificate (Ext.PW14/A)and a copy of the notification Ext.PW-14/B (English version), Ext.PW-14/C (Hindi version). He obtained the abstract of the school admission register (Ext.PW-14/D), school registration (Ext.PW-14/E) and certificate (Ext.PW-14/F), showing the date of birth of the victim as 17.03.2002. The statements of the remaining witnesses were recorded as per their version, and after the 7 2025:HHC:165 completion of the investigation, a challan was prepared and presented before the learned Trial Court.

4. The learned Trial Court charged the accused with the commission of offences punishable under Sections 363, 366, &376 of IPC, Section 6 of the POCSO Act and Section 3(1)(xii) of SC& ST Act to which the accused pleaded not guilty and claimed to be tried.

5. The prosecution examined twenty-two (22) witnesses to prove its case. The victim (PW-1), narrated the incident. Her father (PW-2) testified about the fact that the victim was found missing after she had gone with the accused. Rinku (PW-3) accompanied the police party to Vasai (Maharashtra), from where the victim and accused were recovered. Satinder Kumar Joshi (PW-4) issued a school record of the victim, where the victim was studying atthe time when she was found missing. Raj Kumar (PW-5) did not support the prosecution case. Ravi Kumar (PW-6) was running a Dhaba, who had handed over the motorcycle to the accused. LC Leela Devi (PW-7) accompanied the victim to the hospital and brought the sample to MHC. She carried the case property to SFSL, Junga. PW-8 is the sister of the victim. LC 8 2025:HHC:165 Godawari (PW-9) entered the F.I.R. in the computer.Dr Geeta Gupta (PW-10) medically examined the victim. HC Bheem Singh (PW-11) was working as MHC with whom the case property was deposited. Mohmood Aalam (PW-12) is the person to whom the accused had handed over the motorcycle. Constable Parveen Kumar (PW-13) is the witness to the disclosure statement made by the accused and the recovery of the motorcycle. ASI Rajesh Kumar (PW-14) brought the caste certificate and abstract of the school record of the victim.Dr Vijay Kumar Kashyap (PW-15) medically examined the accused. Inspector Rita (PW-16) andSI Krishna Devi (PW-18) conducted the investigation. Dy. S.P. Khajana Ram (PW-17) prepared the challan.Kunji Lal Raghuvashi (PW-19) proved the record of the school first attended by the victim. Munni Bai (PW-20) proved that the birth of the victim was not recorded in the Panchayat record. Ram Sahai (PW-21) issued the victim's caste certificate. ASI Dhyan Singh (PW-22) collected the report and the notification.

6. The accused, in his statement recorded under Section 313 of Cr.P.C., admitted that the victim had complained about the stomach ache and he had taken her to the Doctor on the motorcycle. He admitted that he was working in the factory in 9 2025:HHC:165 which the victim's parents were working. He stated that he had gone to Maharashtra but denied that the victim was with him. He admitted that blood and other samples were taken. He denied the rest of the prosecution case. He stated that he was residing at Baddi. The victim's father borrowed money from him. The wife of the accused became pregnant, and he left her in Gujarat. He needed money, so he demanded money from the victim's father; however, he refused. He arranged money from someone and went to Gujarat and Mumbai. He was falsely implicated in the case. No defence was sought to be adduced by the accused.

7. The learned Trial Court held that the victim was proved to be minor on the date of the incident. The accused had taken her on a motorcycle on the pretext of taking her to a doctor.Instead, he took her with him to Maharashtra, where he raped her. The victim's testimony was corroborated by her previous statement recorded by learned Judicial Magistrate First Class, Court No.2, Nalagarh, District Solan, H.P., the report of the analysis issued by State Forensic Science Laboratory, and testimonies of her father and her sister. The accused had taken the victim without the consent of her legal guardian. There was no evidence that the offence was committed upon the victim because she belonged to a 10 2025:HHC:165 scheduled caste. Hence, the accused was convicted of the commission of offences punishable under Sections 363, 366 of IPC, and Section 6 of the POCSO Act, read with Section 376 of IPC and sentenced as aforesaid. He was acquitted of the commission of an offence punishable under Section 3(1) (xii) of the SC&ST Act.

8. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that the learned Trial Court misconstrued and misinterpreted the material on record. There is no documentary evidence to show that the victim was below 18 years of age at the time of the incident. The documents collected by the prosecution do not establish the minority of the victim. The documents produced by Satinder Kumar Joshi (PW-4) were not proved as per law. There was cutting/overwriting regarding the class, which made the authenticity of the documents suspicious. The victim was not admitted to the school by her father, and reliance could not be placed upon the record issued by Kunji Lal Raghuvanshi (PW-19). The birth certificate from the Panchayat was not obtained. The victim had not raised a hue and cry while she was being taken to Maharashtra. Hence, it was prayed that the 11 2025:HHC:165 present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

9. We have heard Mr Karan Kapoor, learned counsel for the appellant and Mr I.N. Mehta, learned Senior Additional Advocate General assisted by Ms. Sharmila Patial, learned Additional Advocate General and Mr Raj Negi, learned Deputy Advocate General for the respondent-State.

10. Mr. Karan Kappoor, learned counsel for the appellant, submitted that the learned Trial Court erred in convicting and sentencing the accused. There was insufficient evidence to show the victim's date of birth. The testimony of Satinder Kumar Joshi (PW-4) is highly unsatisfactory. There is no evidence that the victim's date of birth was recorded in the Gram Panchayat. The statement of Kunji Lal Raghuvanshi (PW-19) does not show that the date of birth recorded in the admission register was based upon some evidence. Learned Trial Court erred in relying upon these documents and holding that the victim was a minor. The victim admitted that she was taken on a bus to Maharashtra. She was found in a fish market, where many people were present. The victim did not make any hue and cry while she was being taken or 12 2025:HHC:165 when she was in the market, which shows her consent. Learned Trial Court ignored the evidence in favour of the accused and erred in convicting and sentencing the accused. Hence, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

11. Mr I.N. Mehta, learned Senior Additional Advocate General for the respondent-State, submitted that the date of birth of the victim was duly proved by the record of the school first attended by her. There is no suspicion regarding the same. Learned Trial Court had rightly held that the victim's testimony was acceptable as the same was duly corroborated by the material on record. There is no infirmity in the judgment passed by the learned Trial Court. Therefore, he prayed that the present appeal be dismissed.

12. We have considered the submissions made at the bar and have gone through the records carefully.

13. Mr Karan Kapoor, learned counsel for the appellant/defence, submitted that the age of the victim has not been proved as per law. He relied upon the judgment of the Hon'ble Supreme Court in P. Yuvaprakash vs State Rep. by Inspector 13 2025:HHC:165 of Police 2023 INC 676 in support of his submission. He submitted that the birth record from Panchayat was not obtained, and learned Trial Court erred in relying upon the birth certificate issued by the school. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Jarnail Singh versus State of Haryana (2013) 7 SCC 263 that the provisions of the Juvenile Justice Act (JJ Act) should be followed to determine the age of the victim under the POCSO Act. It was observed:

"23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with the law, we are of the view that the aforesaid statutory provision should be the basis for determining the age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of the minority is concerned between a child in conflict with law and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has an overriding effect over an option expressed in a subsequent clause. The highest-rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), the matriculation (or equivalent) certificate of the child concerned is the highest-rated option. In case the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages

14 2025:HHC:165 consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation, a municipal authority, or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid that Rule 12(3) postulates the determination of the age of the child concerned on the basis of medical opinion.

24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6, could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution, in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6, on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix VW, PW 6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6, had studied up to Class 3. Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records indicating that the prosecutrix VW, PW 6 was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are, therefore, of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6. It would also be relevant to mention that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other 15 2025:HHC:165 material, including the ossification test, for determining the age of the prosecutrix VW, PW 6. The deposition of Satpal, PW 4, has not been contested. Therefore, the date of birth of the prosecutrix VW, PW 6 (indicated in Ext. PG as 15-7-1977) assumes finality. Accordingly, it is clear that the prosecutrix VW, PW 6, was less than 15 years old on the date of occurrence, i.e. on 25-3-1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW, PW 6, was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court that even if the prosecutrix VW, PW 6, had accompanied the appellant- accused Jarnail Singh of her own free will and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor." (Emphasis supplied)

14. It was held in Sanjeev Kumar Gupta versus State of U.P.& Ors (2019) 12 SCC 370 that the Juvenile Justice Act 2015 came into force w.e.f. 15.01.2016. As per the Act, the matriculation certificate or the certificate from the school first attended by the victim was put at par. It was observed:

"17. The 2015 Act came into force on 15-1-2016. Section 111 repeals the earlier 2000 Act but stipulates that despite the repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of the new legislation. Section 94 contains provisions in regard to the determination of age, is in the following terms:

"94. Presumption and determination of age.--(1) Where it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence), that the said person is a child, the Committee or the Board shall record such observation stating the 16 2025:HHC:165 age of the child as nearly as may be and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining--

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the Examination Board concerned, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided 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."

Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the Examination Board concerned in the same category [namely (i) above]. In the absence thereof, category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age 17 2025:HHC:165 determination by means of medical analysis is provided. Section 94(2)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the 2007 Rules made under the 2000 Act. Under Rule 12(3)(a)(i), the matriculation or equivalent certificate was given precedence, and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended could be obtained. In Section 94(2)(i), both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

15. It was held in Vinod Katara versus State of U.P., 2022 SCC OnLine SC 1204, that clause (a) of Rule 12(3) of 2007 Rules contains a hierarchal order. It was observed:

48. Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident from the use of the language "in the absence whereof". This indicates that where a matriculation or equivalent certificate is available, the documents adverted to in (ii) and (iii) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained.

49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751, this Court, while examining the scope of Rule 12 of the 2007 Rules, had reiterated that medical opinion from the Medical Board should be sought only when the matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended, or any birth certificate issued by a corporation or a municipal 18 2025:HHC:165 authority or a panchayat or municipality is not available.

This Court had held that the entry related to the date of birth entered in the mark sheet is valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant.

16. A similar view was taken in P. Yuvaprakash v. State, 2023 SCC OnLine SC 846, wherein it was observed that:

11. Before discussing the merits of the contentions and evidence in this case, it is necessary to extract Section 34 of the POCSO Act, which reads as follows:

"34. Procedure in case of commission of offence by child and determination of age by Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person, and it shall record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person."

12. In view of Section 34(1) of the POCSO Act, Section 94 of the JJ Act 2015 becomes relevant and applicable. That provision is extracted below:

"94. Presumption and determination of age. - (1) Where it is obvious to the Committee or the Board, 19 2025:HHC:165 based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence), that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination by seeking evidence by obtaining -

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available;

and in the absence thereof;

(ii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the 20 2025:HHC:165 age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:

"(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation, a municipal authority, or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board".

14. Section 94(2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate, matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate, showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court-summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have 21 2025:HHC:165 fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar), had stated on oath that the records for the year 1997 with respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C- 1 could not have been relied upon to hold that M was below 18 years at the time of the commission of the offence.

15. In a recent decision, in Rishipal Singh Solanki v. State of Uttar Pradesh (2021) 12 SCR 502, this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in parimateria) with Section 94 of the JJ Act and held as follows:

"20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in the determination of age. The juvenility of a person in conflict with the law had to be decided prima facie on the basis of physical appearance or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. It was also provided that while determination was being made, the benefit could be given to the child or juvenile by considering the age on the lower side within the margin of one year."

22 2025:HHC:165

16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94(2) of the JJ Act, this court held in Sanjeev Kumar Gupta v. The State of Uttar Pradesh (2019) 9 SCR 735 that:

"Clause (i) of Section 94(2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the concerned examination board in the same category (namely (i) above). In the absence thereof, category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i), the matriculation or equivalent certificate was given precedence, and it was only in the event of the certificate not being available that the date of birth certificate from the school first attended could be obtained. In Section 94(2)(i), both the date of birth certificate from the school as well as the matriculation or equivalent certificate are placed in the same category.

17. In Abuzar Hossain @ Gulam Hossain v. State of West Bengal (2012) 9 SCR 224, this court, through a three-judge bench, held that the burden of proving that someone is a juvenile (or below the prescribed age) is upon the person claiming it. Further, in that decision, the court indicated the hierarchy of documents that would be accepted in order of preference.

17. Therefore, as per Rule 12(3)(a)(ii) of Juvenile Justice, Rule 2007 and Section 94 of the Juvenile Justice Act, 2015, the certificate from the school which was first attended by the victim has to be preferred to the birth certificate which falls within Rule 23 2025:HHC:165 12 (iii)(a) of the Juvenile Justice Rule, 2007 or Section 94 (ii) of the JJ Act.

18. In the present case, the prosecution has relied upon the birth certificate obtained from the school first attended by the victim, and there was no requirement to obtain the birth certificate from the panchayat or the municipal council of the area where the victim was born. This is the position of law laid down in P. Yuvaprakash (supra), and this judgment will not assist the defence in any manner.

19. Kunji Lal Rgahuvanshi (PW-19) produced the original admission and withdrawal register of the school, first attended by the victim. As per entry No. 1491, the victim was admitted to the first class on 05.07.2009. She remained a student of the school till 05.07.2014. As per the record, her date of birth was recorded as 17.03.2002. He proved a copy of the school admission register (Ext.PW-14/E). He stated in his cross-examination that no document regarding the victim's date of birth was submitted at the time of admission of the victim to the school. He volunteered to say that the victim's father had admitted her to the school, and her date of birth was recorded as per his disclosure.

24 2025:HHC:165

20. There is nothing in his cross-examination to show that he was making a false statement. The copy of the school record shows the victim's date of birth as 17.03.2002. The learned Trial Court had rightly pointed out that the document was prepared ante litem motam and had a great probative value.

21. It was submitted that it is highly improbable that a girl of seven (7) years would be admitted to the first class,and this shows that the birth recorded in the school is not correct. This submission does not help the defence. The defence wants this Court to believe that she was born much before 2002, and if it was so, she would have been admitted to the school much after seven (7) years, which is unnatural as per the arguments of the defence; therefore, this argument will not assist the accused in any manner.

22. The victim stated that she went to the Jhuggi of the accused to give water, and the accused subjected her to forcible sexual intercourse. He took her on a motorcycle on the pretext of taking her to the Doctor as she was not feeling well. He dropped her near a Pharmaceutical Company and returned after leaving the motorcycle. The accused took her to Maharashtra. She stayed 25 2025:HHC:165 with the accused for 20 days. The accused subjected her to sexual intercourse during her stay. Her father and police came to Maharashtra and recovered a bed sheet.

23. Her testimony is duly corroborated by Rinku (PW-3), who drove the vehicle to Maharashtra. He stated that the informant identified the victim and accused in the bazaar. The police apprehended them. The accused showed the premises where the victim and the accused had stayed together. The police seized the bed sheet from the premises.

24. The victim's father (PW-2) stated that the victim was recovered along with the accused from Vasai (Maharashtra) after one month. He identified her and the accused. The police handed over the victim to him vide memo (Ext.PW-2/B). The police also recovered clothes from the premises.

25. The victim's sister (PW-8) stated that she went to call her father from his workplace. She met the accused, who told her she should not call her father and he would take the victim to the doctor. He took the victim on a motorcycle to the doctor.

26. Ravi Kumar (PW-6) stated that the accused borrowed the motorcycle from him on 08.11.2016 by saying that the wife of 26 2025:HHC:165 the accused was not feeling well and he had to take her to the Doctor. The accused did not return the motorcycle. The motorcycle was brought by Kulwinder Singh from a mobile shopkeeper.

27. Mahmood Aalam (PW-12) stated that he was running a mobile shop. The accused came to his shop and parked the motorcycle in front of his shop on 08.11.2016, and said that he would return in 1- 1 ½ hours.

28. These statements clearly show that the accused had taken the victim with her on a motorcycle on 8.11.2016. The accused has also not disputed this fact in his statement recorded under Section 313 of Cr.P.C. It was laid down by the Hon'ble Supreme Court in State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700: 1992 SCC (Cri) 705: 1992 SCC OnLine SC 421 that the Courts can rely upon the statement of the accused made under Section 313 Cr.P.C. It was observed at page 742:

"51. That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub- section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes sub-section (4), which reads:

27 2025:HHC:165 "313. (4) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed."

Thus, the answers given by the accused in response to his examination under Section 313 can be taken into consideration in such an inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari [(1967) 3 SCR 708:

AIR 1968 SC 110: 1968 Cri LJ 95]. This Court, in the case of Hate Singh Bhagat Singh v. State of M.B. [1951 SCC 1060:

1953 Cri LJ 1933: AIR 1953 SC 468], held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab [(1963) 3 SCR 678: (1964) 1 Cri LJ 730], this Court held that if the accused confesses to the commission of the offence with which he is charged, the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-judge bench answered the question, it would be advantageous to reproduce the relevant observations at pages 684-685:

"Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation -- if any, of the incident which forms the subject matter of the charge and his defence. By sub- section (3), the answers given by the accused may 'be 28 2025:HHC:165 taken into consideration' at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him, the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining the circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety."(emphasis supplied) Sub-section (1) of Section 313 corresponds to sub-section (1) of Section 342 of the old Code, except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under clause (b) may also be dispensed with. Sub-section (2) of Section 313 reproduces the old sub-section (4), and the present sub-

section (3) corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old sub- section (3). Therefore, the aforestated observations apply with equal force.

29. This question was again considered by the Hon'ble Supreme Court in Mohan Singh v. Prem Singh (2002) 10 SCC 236:

2003 SCC (Cri) 1514: 2002 SCC OnLine SC 933, and it was held that the statement made by the accused under Section 313 Cr.P.C. can be used to lend credence to the evidence led by the prosecution, but a part of such statement cannot form the sole basis for conviction. It was observed at page 244:-

"27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend 29 2025:HHC:165 credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that the statement under Section 313 CrPC of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha v. State of Bihar [(1969) 1 SCC 347: AIR 1969 SC 422]: (SCC pp. 357-58, para 23) "23. In this case, the exculpatory part of the statement in Exhibit 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Section 342 CrPC to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13-10-1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in River Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to attract the attention of Ram Kishore Pandey, PW 17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that, the knife which was discovered on his person was found to have been stained with blood, according to the report of the Chemical Examiner. According to the post-mortem report, this knife could have been the cause of the injuries on the victim. In circumstances like these, there being enough evidence to reject the exculpatory part of the statement of the appellant in Exhibit 6, the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion

30 2025:HHC:165 that the appellant was the person responsible for the crime."(emphasis supplied)

30. It was laid down in Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257: (2012) 2 SCC (Cri) 382: 2012 SCC OnLine SC 213, that the statement of the accused under Section 313 Cr.P.C. in so far as it supports the case of the prosecution can be used against him for rendering conviction. It was observed at page 275: -

"52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in the law."

31. This position was reiterated in Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747: (2014) 2 SCC (Cri) 417: 2014 SCC OnLine SC 199, and it was held that the statement of the accused recorded under Section 313 Cr.P.C. can be used to lend corroboration to the statements of prosecution witnesses. It was observed at page 761:-

"24. We are of the view that, under Section 313 statement, if the accused admits that from the evidence of various 31 2025:HHC:165 witnesses, four persons sustained severe bullet injuries by the firing by the accused and his associates, that admission of guilt in Section 313 statement cannot be brushed aside. This Court in State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700: 1992 SCC (Cri) 705] held that since no oath is administered to the accused, the statement made by the accused under Section 313 CrPC will not be evidence stricto sensu and the accused, of course, shall not render himself liable to punishment merely on the basis of answers given while he was being examined under Section 313 CrPC. But, sub-section (4) says that the answers given by the accused in response to his examination under Section 313 CrPC can be taken into consideration in such an inquiry or trial. This Court in Hate Singh Bhagat Singh [Hate Singh Bhagat Singh v. State of Madhya Bharat, 1951 SCC 1060: AIR 1953 SC 468: 1953 Cri LJ 1933] held that the answers given by the accused under Section 313 examination can be used for proving his guilt as much as the evidence given by the prosecution witness. In Narain Singh v. State of Punjab [(1964) 1 Cri LJ 730 : (1963) 3 SCR 678], this Court held that when the accused confesses to the commission of the offence with which he is charged, the court may rely upon the confession and proceed to convict him.

25. This Court in Mohan Singh v. Prem Singh [(2002) 10 SCC 236: 2003 SCC (Cri) 1514] held that: (SCC p. 244, para 27) "27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 CrPC cannot be made the sole basis of his conviction."

In this connection, reference may also be made to the judgments of this Court in Devender Kumar Singla v. Baldev Krishan Singla [(2005) 9 SCC 15: 2005 SCC (Cri) 1185] and Bishnu Prasad Sinha v. State of Assam [(2007) 11 SCC 467 : (2008) 1 SCC (Cri) 766]. The abovementioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the 32 2025:HHC:165 accused guilty, the reason being he is not making the statement on oath, but all the same, the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.

32. This position was reiterated in Darshan Singh v. State of Punjab(2024) 3 SCC 164: 2024 SCC OnLine SC 17, wherein it was observed:

37. The learned counsel for the respondent State has argued that no specific plea of alibi was taken in the statement of the appellant recorded under Section 313CrPC. In fact, it is submitted that there is an implicit admission as to his presence in the house. It is too well settled that the statement of an accused under Section 313CrPC is no "evidence" because, firstly, it is not on oath and, secondly, the other party, i.e. the prosecution, does not get an opportunity to cross-examine the accused. [Manu Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385: AIR 2010 SC 2352] ]

38. It is trite law that the statement recorded under Section 313CrPC cannot form the sole basis of conviction. Therefore, the presence of the appellant cannot be found solely based on his statement, notwithstanding the lack of independent evidence led by the prosecution. Further, this Court has previously considered the consequences when a particular defence plea was not taken by the accused under Section 313CrPC and held that mere omission to take a specific plea by the accused when examined under Section 313CrPC is not enough to denude him of his right if the same can be made out otherwise.

(See : Periasami v. State of T.N. [Periasami v. State of T.N., (1996) 6 SCC 457: 1997 SCC (Cri) 121] ) 33 2025:HHC:165

33. Medical Officer Dr. Geeta Gupta (PW-10) conducted the medical examination of the victim. She preserved the sample and found that there was nothing to suggest that the victim was not subjected to sexual intercourse. She stated in her cross- examination that there was no evidence of any forcible sexual intercourse; however, that is not material, keeping in view the fact that the victim was minor on the date of the incident and her consent was immaterial.

34. Dr. Vijay Kumar Kashyap (PW-15) medically examined the accused and collected the sample. He found that there was nothing to suggest that the accused was incapable of performing intercourse. The accused did not dispute the fact that the samples were taken by the Doctor, and this part of the prosecution case is duly proved.

35. The samples were sent to SFSL, Junga and as per the result of analysis (Ext.PW-16/E), the bed sheet had semen stains, and as per the report of analysis (Ext.PW-16/J), the DNA taken from the bedsheet matched with the DNA of the accused.It was laid down by the Hon'ble Supreme Court in Manoj v. State of M.P., (2023) 2 SCC 353: 2022 SCC OnLine SC 677 that the report of DNA 34 2025:HHC:165 analysis can be used to corroborate the version of the witness. It was observed at page 431:

"151. During the hearing, an article published by the Central Forensic Science Laboratory, Kolkata [ DNA Profiling in Justice Delivery System, Central Forensic Science Laboratory, Directorate of Forensic Science, Kolkata (2007).] was relied upon. The relevant extracts of the article are reproduced below:

"Deoxyribonucleic acid (DNA) is genetic material present in the nuclei of cells of living organisms. The average human body is composed of about 100 trillion cells. DNA is present in the nucleus of a cell as a double helix, supercoiled to form chromosomes along with intercalated proteins. Twenty-three pairs of chromosomes are present in each nucleated cell, and an individual inherits 23 chromosomes from the mother and 23 from the father transmitted through the ova and sperm, respectively. At the time of each cell division, chromosomes replicate, and one set goes to each daughter cell. All information about internal organisation, physical characteristics, and physiological functions of the body is encoded in DNA molecules in a language (sequence) of alphabets of four nucleotides or bases: Adenine (A), Guanine (G), Thymine (T) and Cytosine (C) along with the sugar-phosphate backbone. A human haploid cell contains 3 billion bases approx. All cells of the body have the same DNA, but it varies from individual to individual in the sequence of nucleotides.

Mitochondrial DNA (mtDNA) found in a large number of copies in the mitochondria is circular, double- stranded, 16,569 base pairs in length and shows maternal inheritance. It is particularly useful in the study of people related through the maternal line. Also, being in a larger number of copies than nuclear DNA, it can be used in the analysis of degraded 35 2025:HHC:165 samples. Similarly, the Y chromosome shows paternal inheritance and is employed to trace the male lineage and resolve DNA from males in sexual assault mixtures.

Only 0.1 % of DNA (about 3 million bases) differs from one person to another. Forensic DNA Scientists analyse only a few variable regions to generate a DNA profile of an individual to compare with biological clue materials or control samples.

*** DNA Profiling Methodology A DNA profile is generated from the body fluids, stains, and other biological specimens recovered from evidence, and the results are compared with the results obtained from reference samples. Thus, a link among victim(s) and/or suspect(s) with one another or with the crime scene can be established. DNA profiling is a complex process of analyses of some highly variable regions of DNA. The variable areas of DNA are termed genetic markers. The current genetic markers of choice for forensic purposes are Short Tandem Repeats (STRs). Analysis of a set of 15 STRs employing an Automated DNA Sequencer gives a DNA profile unique to an individual (except for monozygotic twins). Similarly, STRs present on the Y chromosome (Y-STR) can also be used in sexual assault cases or determining paternal lineage. In cases of sexual assaults, Y-STRs are helpful in the detection of male profile even in the presence of high level of female portion or in case of azoo11permic or vasectomised" male. In cases in which DNA had undergone environmental stress and biochemical degradation, min lists can be used for over routine STR because of shorter amplicon size.

DNA profiling is a complicated process, and each sequential step involved in generating a profile can vary depending on the facilities available in the 36 2025:HHC:165 laboratory. The analysis principles, however, remain similar, which include:

1. isolation, purification & quantitation of DNA

2. amplification of selected genetic markers

3. visualising the fragments and genotyping

4. statistical analysis & interpretation.

In mtDNA analysis, variations in Hypervariable Region I & II (HVR I & II) are detected by sequencing and comparing results with control samples:

Statistical Analysis Atypical DNA case involves a comparison of evidence samples, such as semen from a rape, and known or reference samples, such as a blood sample from a suspect. Generally, there are three possible outcomes of profile comparison:

(1) Match: If the DNA profiles obtained from the two samples are indistinguishable, they are said to have matched.

(2) Exclusion: If the comparison of profiles shows differences, it can only be explained by the two samples originating from different sources.

(3) Inconclusive: The data does not support a conclusion of the three possible outcomes, only the "match" between samples needs to be supported by statistical calculation. Statistics attempt to provide meaning to the match. The match statistics are usually provided as an estimate of the Random Match Probability (RMP) or, in other words, the frequency of the particular DNA profile in a population.

In the case of paternity/maternity testing, exclusion at more than two loci is considered an exclusion. An allowance of 1 or 2 loci possible mutations should be taken into consideration while reporting a match.

37 2025:HHC:165 Paternity or Maternity indices and likelihood ratios are calculated further to support the match. Collection and Preservation of Evidence If DNA evidence is not properly documented, collected, packaged, and preserved, it will not meet the legal and scientific requirements for admissibility in a court of law. Because extremely small samples of DNA can be used as evidence, greater attention to contamination issues is necessary while locating, collecting, and preserving. DNA evidence can be contaminated when DNA from another source gets mixed with DNA relevant to the case. This can happen when someone sneezes or coughs over the evidence or touches his/her mouth, nose, or other part of the face and then touches an area that may contain the DNA to be tested. The exhibits having biological specimen, which can establish a link among victim(s), suspect(s), scene of the crime for solving the case should be identified, preserved, packed and sent for DNA profiling."

152. In an earlier judgment, R v. Dohoney & Adams [R v. Dohoney & Adams, (1997) 1 Crl App Rep 369 (CA)] the UK Court of Appeal laid down the following guidelines concerning the procedure for introducing DNA evidence in trials : (1) the scientist should adduce the evidence of the DNA comparisons together with his calculations of the random occurrence ratio; (2) whenever such evidence is to be adduced, the Crown (prosecution) should serve upon the defence details as to how the calculations have been carried out, which are sufficient for the defence to scrutinise the basis of the calculations; (3) the Forensic Science Service should make available to a defence expert if requested, the databases upon which the calculations have been based.

153. The Law Commission of India in its Report [ 185th Report, on Review of the Indian Evidence Act, 2003.], observed as follows:

38 2025:HHC:165 "DNA evidence involves a comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not "match", then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples an approximate number reflecting how often a similar DNA "profile" or "fingerprint" is found. It may be, for example, that the relevant profile is found in 1 person in every 1,00,000: This is described as the "random occurrence ratio" (Phipson 1999, 15thEdn., Para 14.32).

Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law."(emphasis in original)

154. In Dharam Deo Yadav v. State of U.P. [Dharam Deo Yadav v. State of U.P., (2014) 5 SCC 509 : (2014) 2 SCC (Cri) 626] this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows : (SCC pp. 528-29, para

36) "36. The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made up of a double-stranded structure consisting of a deoxyribose sugar and phosphate backbone, cross- linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. ... DNA usually can be obtained from any biological material, such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be moot, but the fact remains that such tests has come to stay and is being used extensively in the investigation of crimes, and the court often accepts the views of the experts, especially when cases rest 39 2025:HHC:165 on circumstantial evidence. More than half a century ago, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory."

155. The US Supreme Court in District Attorney's Office for the Third Judicial District v. Osborne [District Attorney's Office for the Third Judicial District v. Osborne, 2009 SCC OnLine US SC 73: 557 US 52 (2009)] dealt with a post-conviction claim to access evidence, at the behest of the convict, who wished to prove his innocence, through new DNA techniques. It was observed, in the context of the facts, that: (SCC OnLine US SC) "Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While, of course, many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. ... DNA testing has exonerated wrongly convicted people and has confirmed the convictions of many others."

156. Several decisions of this Court -- Pantangi Balarama Venkata Ganesh v. State of A.P. [Pantangi Balarama Venkata Ganesh v. State of A.P., (2009) 14 SCC 607 : (2010) 2 SCC (Cri) 190] , Santosh Kumar Singh v. State [Santosh Kumar Singh v. State, (2010) 9 SCC 747 : (2010) 3 SCC (Cri) 1469], State of T.N. v. John David [State of T.N. v. John David, (2011)5 SCC 509 : (2011) 2 SCC (Cri) 647] , Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of 40 2025:HHC:165 Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , Surendra Koli v. State of U.P. [Surendra Koli v. State of U.P., (2011) 4 SCC 80 : (2011) 2 SCC (Cri) 92] , Sandeep v. State of U.P. [Sandeep v. State of U.P., (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18] , Rajkumar v. State of M.P. [Rajkumar v. State of M.P., (2014) 5 SCC 353 : (2014) 2 SCC (Cri) 570] and Mukesh v. State (NCT of Delhi) [Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] have dealt with the increasing importance of DNA evidence. This Court has also emphasised the need toensure quality control about the samples, as well as the technique for testing in Anil v. State of Maharashtra [Anil v. State of Maharashtra, (2014) 4 SCC 69: (2014) 2 SCC (Cri) 266] : (Anil case [Anil v. State of Maharashtra, (2014) 4 SCC 69 : (2014) 2 SCC (Cri) 266], SCC p. 81, para 18) "18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profiles has also shown a tremendous impact on forensic investigation. Generally, when the DNA profile of a sample found at the scene of a crime matches the DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. A DNA profile is valid and reliable, but the variance in a particular result depends on the quality control and quality procedure in the laboratory."

157. This Court, in one of its recent decisions, Pattu Rajan v. State of T.N. [Pattu Rajan v. State of T.N., (2019) 4 SCC 771: (2019) 2 SCC (Cri) 354], considered the value and weight to be attached to a DNA report: (SCC p. 791, para 52) "52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the 41 2025:HHC:165 more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."

158. This Court, therefore, has relied on DNA reports in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case."

36. The report of FSL provides valuable corroboration to the testimony of the victim that the accused had raped her in Maharashtra.

37. It was submitted that the victim had not raised any hue and cry when she was being taken on a motorcycle, was made to stand at a lonely place, taken in a bus or when she was in the fish market. The conduct of the victim would have been material had she been major because this conduct implies the consent of the victim; however, the victim was minor, and her conduct is immaterial; therefore, no advantage can be derived from the conduct of the victim.

42 2025:HHC:165

38. Thus, the learned Trial Court had rightly held that the victim was a minor on the date of the incident when she was taken out of the custody of her father, she was subjected to sexual intercourse; therefore, the accused was rightly held guilty for the commission of offences punishable under Sections 363, 366 of IPC and Section 6 of the POCSO Act read with Section 376 of IPC.

39. Learned Trial Court had sentenced the accused to undergo rigorous imprisonment for 10 years, which is the minimum prescribed sentence for the commission of an offence punishable under Section 6 of the POCSO Act. The learned Trial Court had also sentenced the accused to undergo rigorous imprisonment for three years for the commission of an offence punishable under Section 363 of the IPC and five years for the commission of an offence punishable under Section 366 of the IPC. The offence under Section 363 of the IPC can be punished with imprisonment, which may extend to seven years, and the offence punishable under Section 366 of the IPC can be punished with imprisonment, which may extend to 10 years. Keeping in view the age of the victim, the sentence of three years and five years is not excessive, and no interference is required with it.

43 2025:HHC:165

40. No other point was urged.

41. In view of the aforesaid discussion, the present appeal fails, and the same is dismissed.

42. A copy of this judgment along with the record of the learned Trial Court be sent back forthwith. Pending applications, if any, also stand disposed of.

(Tarlok Singh Chauhan) Judge (Rakesh Kainthla) Judge 02nd January, 2025 (ravinder)

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