Himachal Pradesh High Court
Reserved On: 11.3.2025 vs State Of H.P on 8 April, 2025
2025:HHC:9714
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.130 of 2022
Reserved on: 11.3.2025
Date of Decision: 08.04.2025
Sandeep Kumar
….Appellant
Versus
State of H.P.
….Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant : Mr. Abhishek Nagta, Advocate.
For the Respondent/ : Mr. Jitender Sharma, Additional State Advocate General. Rakesh Kainthla,Judge
The present appeal is directed against the judgment of
conviction dated 27.9.2021 and order of sentence dated 28.9.2021
passed by learned Special Judge, Fast Track Court, (POCSO),
Mandi, District Solan, H.P. (learned Trial Court)vide which the
appellant (accused before the learned Trial Court) was convicted
and sentenced as under: –
____________
Whether reporters of the local papers may be allowed to see the judgment? Yes
2 2025:HHC:9714
Sl.No. The offence for Substantive Fine Simple
which the sentence imposed imposed Imprisonment in
accused was default of payment
convicted of the fine.
1. Section 457 of IPC imprisonment for ₹2000/- Two months
three (3) years
2. Section 8 of the imprisonment for ₹2,000/- Two months
POCSO Act,2012 five (5) years
2. It was ordered that both the substantive sentences of
imprisonment would run concurrently.(The parties shall
hereinafter be referred to in the same manner as they were arrayed
before the learned Trial Court for convenience.)
3. Briefly stated, the facts giving rise to the present
appeal are that the police presented a challan against the accused
before the learned Trial Court for the commission of offences
punishable under Sections 457 & 354A of the Indian Penal
Code(IPC)and Section 8 of the Protection of Children from Sexual
Offences Act(POCSO)Act. It was asserted that the victim (name
being withheld to protect her identity) was studying in the B.Sc.
first year. She was sleeping in her room on 27.7.2015 at about
11.00 p.m. Her mother and younger brother had gone to attend a
Kirtan being held in the neighbourhood. Accused Sandeep Kumar
switched off the light of the house from the main switch and
entered the room through the kitchen. He caught hold of the
3 2025:HHC:9714
victim. The victim woke up. She shouted for help. The accused
threatened the victim not to raise a hue and cry. Her aunt visited
the spot after hearing her cries. The accused ran away from the
spot and left his mobile phone on the table. He bolted the door
from the outside, which was opened by the victim’s aunt. The
matter was reported to the police through an application
(Ext.PW-1/A).The police registered an FIR (Ext.PW-6/A). SI Vinod
Singh (PW-6) conducted the investigation. He sent the victim to
Civil Hospital, Dharampur,with anapplication (Ext.PW-6/C) for
conducting her medical examination. Dr Deepak (PW-8)
conducted her medical examination and found that she had
sustained simple injuries, which could have been caused within 12
hours of examination. He issued the MLC (Ext.PW-8/A). SI Vinod
Singh went to the spot and prepared the spot map (Ext.PW-6/D).
The victim’s mother handed over the mobile phone left by the
accused to the police, which was seized vide memo (Ext.PW-2/A).
It was put in a cloth parcel and the parcel was sealed with a seal
impression ‘O. SI Vinod Singh filed an application (Ext.PW-6/E)
for recording the statement of the victim under Section 164 of the
Cr.PC. Learned Judicial Magistrate First Class, Court No. II,
Sarkaghat recorded her statement (Ext.PW-1/B). An application
4 2025:HHC:9714
(Ext.PW-5/A) was filed before the Secretary Gram Panchayat,
Khanaur, who issued the birth certificate (Ext.PW-5/B). The
statements of witnesses were recorded,as per their version, and
after the investigation of the matter, the challan was prepared and
presented before the Court.
4. Learned Trial Court charged the accused with the
commission of offences punishable under Section 457 of IPC and
Section 8 of the POCSO Act, to which the accused pleaded not
guilty and claimed to be tried.
5. The prosecution examined eight witnesses to prove its
case. The victim (PW-1)narrated the incident. Her mother (PW-2)
reached the spot after some time. Her aunt (PW-3) reached the
spot after hearing the cries of the victim. Pal Singh (PW-4) went
to the spot and was told about the incident. Roshan Lal (PW-5)
produced the birth record of the victim. SI Vinod Singh (PW-6)
conducted the investigation. Inspector Amar Singh (PW-7)
prepared the challan. Dr. Deepak (PW-8) conducted the victim’s
medical examination.
6. The accused in his statement recorded under Section
313 of Cr.PC denied the prosecution’s case in its entirety. He
5 2025:HHC:9714
claimed that the witnesses were related to each other and inimical
to the family of the accused. They made false statements due to
the enmity. He was falsely implicated in the present case. He did
not lead any defence evidence.
7. The learned Trial Court held that the statements of
prosecution witnesses were reliable. They consistently deposed
that the victim was sleeping in her room on 27.7.2017 at about
11.00 p.m. When the accused entered her room, the victim shouted
for help, and her aunt reached the room. The accused ran away
from the spot. He left his mobile phone in the victim’s room.
Minor discrepancies in the statements of the prosecution
witnesses were not sufficient to discard them. Dr Deepak
corroborated the victim’s version as he had found injuries on the
victim’s person. The defence version that a false case was made
against the accused due to the enmity was not probable.Therefore,
the accused was convicted and sentenced as aforesaid.
8. Feeling aggrieved and dissatisfied with the judgment
and order passed by learned Trial Court, the accused has filed the
present appeal, asserting that the learned Trial Court erred in
convicting and sentencing the accused. The prosecution’s version
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that the accused had left his mobile phone in the victim’s room
was improbable because no prudent person would leave his
belongings at the scene of the crime. The witnesses were
interested, and their testimonies were to be carefully scrutinized
by the Court. Learned Trial Court failed to do so. The medical
evidence only proved injuries which could have been caused by a
fall, and medical evidence was not sufficient to connect the
accused with the commission of a crime. The victim asserted that
it was dark at the time of the incident; hence, it was not possible
for her to identify the accused. It was prayed that the present
appeal be allowed and the judgment and order passed by the
learned Trial Court be set aside.
9. I have heard Mr. Abhishek Nagta, learned counsel for
the appellant and Mr. Jitender Sharma, learnedAdditional
Advocate General for the respondent-State.
10. Mr. Abhishek Nagta, learned counsel for the
appellant/accused, submitted that the learned Trial Court erred in
convicting and sentencing the accused. The victim was admittedly
studying in the B.Sc. first year. The prosecution had not produced
her matriculation certificate and relied upon the certificate issued
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by the Gram Panchayat, which is not admissible. The prosecution
should have proved the age of the victim by proving her
matriculation certificate. The victim changed her version in the
Court and asserted that the incident had taken place during the
day, which is contrary to the initial version that the incident had
taken place during the night. This makes the prosecution’s case
highly suspect, and the learned Trial Court overlooked this aspect.
Even as per the prosecution’s case, the light was switched off by
the accused, and it was not possible for the victim to identify the
accused. The prosecution’s version that the accused entered the
room through the service window of the kitchen is also not
probable. Learned Trial Court 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 Jitender Sharma, learned Additional Advocate
General for the respondent-State, submitted that the victim’s
testimony was rightly relied upon by the learned Trial Court. It
was duly corroborated by the statements of her aunt, her mother
and Pal Singh. The medical evidence also showed the injuries on
the person of the victim,which corroborated her version regarding
8 2025:HHC:9714
the accused gagging and molesting her. There is no infirmity in
the judgment passed by the learned Trial Court. Therefore, he
prayed that the present appeal be dismissed.
12. I have considered the submissions made at the bar and
have gone through the records carefully.
13. It was specifically asserted in the complaint
(Ext. PW1/A) that the victim was studying in the B.Sc. first year.
She stated on oath that she was studying in the B.Sc. final year on
the date of her deposition.
14. 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 the law and a child who is a
victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the 2007
Rules to determine the age of the prosecutrix VW, PW 6.
The manner of determining age conclusively has been
9 2025:HHC:9714expressed in sub-rule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child is ascertained by
adopting the first available basis out of a number of
options postulated in Rule 12(3). If, in the scheme of options
under Rule 12(3), an option is expressed in a preceding clause,
it has an overriding effect over an option expressed in a
subsequent clause. The highest-rated option available would
conclusively determine the age of a minor. In the scheme of
Rule 12(3), the matriculation (or equivalent) certificate of the
child concerned is the highest-rated option. In case the said
certificate is available, no other evidence can be relied upon.
Only in the absence of the said certificate, Rule 12(3) envisages
consideration of the date of birth entered in the school first
attended by the child. In case such an entry of date of birth is
available, the date of birth depicted therein is liable to be
treated as final and conclusive, and no other material is to be
relied upon. Only in the absence of such entry, Rule 12(3)
postulates reliance on a birth certificate issued by a
corporation, a municipal authority, or a panchayat. Yet again,
if such a certificate is available, then no other material
whatsoever is to be taken into consideration for determining
the age of the child concerned, as the said certificate would
conclusively determine the age of the child. It is only in the
absence of any of the aforesaid that Rule 12(3) postulates the
determination of the age of the child concerned on the basis of
medical opinion.
24. Following the scheme of Rule 12 of the 2007 Rules, it is
apparent that the age of the prosecutrix VW, PW 6, could not be
determined on the basis of the matriculation (or equivalent)
certificate as she had herself deposed, that she had studied up
to Class 3 only, and thereafter, had left her school and had
started to do household work. The prosecution, in the facts and
circumstances of this case, had endeavoured to establish the
age 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
10 2025:HHC:9714prosecutrix VW, PW 6, had studied up to Class 3. Satpal (PW 4)
had proved the certificate Ext. PG, as having been made on the
basis of the school records indicating that the prosecutrix VW,
PW 6, was born on 15-5-1977. In the scheme contemplated
under Rule 12(3) of the 2007 Rules, it is not permissible to
determine age in any other manner, and certainly not on the
basis of an option mentioned in a subsequent clause. We are,
therefore, of the view that the High Court was fully justified in
relying on the aforesaid basis for establishing the age of the
prosecutrix VW, PW 6. It would also be relevant to mention
that under the scheme of Rule 12 of the 2007 Rules, it would
have been improper for the High Court to rely on any other
material, including the ossification test, for determining the
age of the prosecutrix VW, PW 6. The deposition of Satpal, PW
4, has not been contested. Therefore, the date of birth of the
prosecutrix VW, PW 6 (indicated in Ext. PG as 15-7-1977)
assumes finality. Accordingly, it is clear that the prosecutrix
VW, PW 6, was less than 15 years old on the date of occurrence,
i.e. on 25-3-1993. In the said view of the matter, there is no
room for any doubt that the prosecutrix VW, PW 6, was a
minor on the date of the occurrence. Accordingly, we hereby
endorse the conclusions recorded by the High Court that even
if the prosecutrix VW, PW 6, had accompanied the appellant-
accused Jarnail Singh of her own free will and had had
consensual sex with him, the same would have been clearly
inconsequential, as she was a minor.” (Emphasis supplied)
15. It was held in Sanjeev Kumar Gupta versus State of U.P.&
Ors (2019) 12 SCC 370 thatas per the Juvenile Justice Act 2015, the
matriculation certificate or the certificate from the school first
attended by the victim has to be preferred to the birth certificate
issued by the local authority. 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
11 2025:HHC:9714Acts 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
age of the child as nearly as may be and proceed
with the inquiry under Section 14 or Section 36, as
the case may be, without waiting for further
confirmation of the age.
(2) In case the Committee or the Board has
reasonable grounds for doubt regarding whether
the person brought before it is a child or not, the
Committee or the Board, as the case may be, shall
undertake the process of age determination by
seeking evidence by obtaining–
(i) the date of birth certificate from the school,
or the matriculation or equivalent certificate
from the Examination Board concerned, if
available; and in the absence thereof;
(ii) the birth certificate given by a corporation,
a municipal authority, or a panchayat;
(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an
ossification test or any other latest medical age
determination test conducted on the orders of
the Committee or the Board:
Provided that such age determination test conducted
on the order of the Committee or the Board shall be
completed within fifteen days from the date of such
order.
12 2025:HHC:9714
(3) The age recorded by the Committee or the Board
to be the age of a person so brought before it shall,
for the purpose of this Act, be deemed to be the true
age of that person.”
Clause (i) of Section 94(2) places the date of birth
certificate from the school and the matriculation or
equivalent certificate from the Examination Board
concerned in the same category [namely (i) above]. In the
absence thereof, category (ii) provides for obtaining the
birth certificate of the corporation, municipal authority or
panchayat. It is only in the absence of (i) and (ii) that age
determination by means of medical analysis is provided.
Section 94(2)(i) indicates a significant change over the
provisions which were contained in Rule 12(3)(a) of the
2007 Rules made under the 2000 Act. Under Rule
12(3)(a)(i), the matriculation or equivalent certificate was
given precedence, and it was only in the event of the
certificate not being available that the date of birth
certificate from the school first attended could be
obtained. In Section 94(2)(i), both the date of birth
certificate from the school as well as the matriculation or
equivalent certificate are placed in the same category.
16. It was held in Vinod Katara versus State of U.P., 2022 SCC
OnLine SC 1204, that clause (a) of Rule 12(3) of 2007 Rules contains
a hierarchical order, which means that if the matriculation
certificate is available the certificate from the local authority or
the medical evidence regarding the age cannot be admitted. It was
observed:
48. Clause (a) of Rule 12(3) of the 2007 Rules contains a
hierarchical ordering, evident from the use of the language
“in the absence whereof”. This indicates that where a
matriculation or equivalent certificate is available, the
13 2025:HHC:9714documents adverted to in (ii) and (iii) cannot be relied
upon. The matriculation certificate, in other words, is
given precedence. It is in the absence of a matriculation
certificate that the date of birth certificate of the school
first attended can be relied upon. It is in the absence of
both the matriculation and the birth certificates of the first
school attended that a birth certificate issued by the
corporation, municipal authority or panchayat could be
obtained.
49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC
751, this Court, while examining the scope of Rule 12 of the
2007 Rules, had reiterated that medical opinion from the
Medical Board should be sought only when the
matriculation certificate or equivalent certificate or the
date of birth certificate from the school first attended, or
any birth certificate issued by a corporation or a municipal
authority or a panchayat or municipality is not available.
This Court had held that the entry related to the date of
birth entered in the mark sheet is valid evidence for
determining the age of the accused person, so also the
school leaving certificate for determining the age of the
appellant.
17. 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 a
child and determination of age by the Special Court. –
(1) Where any offence under this Act is committed by a
child, such child shall be dealt with under the provisions
of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (2 of 2016).
(2) If any question arises in any proceeding before the
Special Court whether a person is a child or not, such
14 2025:HHC:9714question 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,
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
15 2025:HHC:9714conducted on the orders of the Committee or the
Board:
Provided that such age determination test conducted on
the order of the Committee or the Board shall be
completed within fifteen days from the date of such
order.
(3) The age recorded by the Committee or the Board to
be the age of a person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of that
person.”
13. It is evident from a conjoint reading of the above
provisions that wherever the dispute with respect to the
age of a person arises in the context of her or his being a
victim under the POCSO Act, the courts have to take
recourse to the steps indicated in Section 94 of the JJ Act.
The three documents in order in which the Juvenile Justice
Act requires consideration are that 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
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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
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
17 2025:HHC:9714from 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.”
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
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the hierarchy of documents that would be accepted in
order of preference.
18. This position was reiterated in Vinod Katara v. State of
U.P., (2024) 4 SCC 150: 2024 SCC OnLine SC 233wherein it was
observed at page 155:
“22. Section 94(2) of the JJ Act provides for the mode of
determination of age. In the order of priorities, the date of
birth certificate from the school stands at the highest
pedestal whereas the ossification test has been kept at the
last rung to be considered, only in the absence of Criteria
Nos. 1 and 2 i.e. in the absence of both certificate from
school and birth certificate issued by a
Corporation/Municipal Authority/Panchayat.”
19. 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
12 (iii)(a) of the Juvenile Justice Rule, 2007 or Section 94 (ii) of the
JJ Act.
20. In the present case, the victim was studying in the
B.Sc. first year on the date of the incident, and her matriculation
certificate is available. Therefore, the prosecution was supposed
to produce the matriculation certificate to prove the victim’s date
of birth. However, the prosecution relied upon the birth
certificate issued by the Secretary, Gram Panchayat, Khanaur,
19 2025:HHC:9714
which is not admissible,as mentioned above, in the presence of a
matriculation certificate. Hence, there is no legally admissible
evidence to show that the victim was a minor on the date of the
incident and the conviction recorded by the learned Trial Court for
the commission of an offence punishable under Section 8 of the
POCSO Act is not sustainable.
21. It was asserted in the complaint (Ext.PW1/A) that the
victim was sleeping in her room on 27.7.2015 at 11.00 p.m. The
victim (PW-1), on the other hand, stated on oath that she was
sleeping in her room on 27.7.2015 at 11.00 a.m. Therefore, she has
changed the time of the incident from 11.00 p.m. to 11.00 a.m. It is
not a typographical error, as is apparent from the fact that she
subsequently stated that she identified the accused from his short
hair in the dim solar light coming from outside her room. This
clearly shows that the victim has stated that the incident had
taken place in the morning, which is contrary to the prosecution’s
version. The shift in the time of the incident from the night to the
morning would affect her testimony adversely and it is difficult to
rely upon her testimony due to this major contradiction.
20 2025:HHC:9714
22. Her mother (PW-2),her aunt (PW-3) and Pal Singh
stated that the incident had taken place on 27.07.2015 at 11.00 p.m.
However, the victim has deposed that the incident had taken place
at 11.00 a.m. when the solar light was coming into her room,
therefore, the testimonies of these witnesses that the incident had
taken place at 11 pm cannot be used to corroborate the victim’s
testimony.
23. The victim stated that the accused left the mobile
phone on the TV table, which was handed over to the
police.However, the police failed to connect the mobile phone to
the accused. Vinod Singh (PW-6) stated in his cross-examination
that the call detail record of the recovered mobile was not
procured by him. He volunteered to say that SHO Amar Singh had
procured it. Amar Singh (PW-7) stated in his cross-examination
that he had not investigated the case. Thus, the SIM number of
the mobile phone was not ascertained and the customer
application form of the SIM was also not taken into possession to
show that the SIM in the mobile was issued to the accused.
Therefore, there is no evidence that the mobile phone belonged to
the accused.
21 2025:HHC:9714
24. Even the identity of the accused has also not been
established satisfactorily. The victim (PW-1) stated that she
identified the accused from his short hair in dim solar light
coming from outside her room. Her initial version was that the
incident had taken place during the night, and the other witnesses
also said so. Therefore, it was not possible for the victim to
identify the accused with the help of a dim solar light. Further, it
was not possible to identify the accused with short hair in the
absence of any evidence that no other person had short hair at the
time of the incident.
25. The victim’s aunt (PW-3) stated that she saw the
accused while running away from the victim’s house after bolting
the door from outside. She did not claim that she knew the
accused before the incident or had seen him before the incident.
Therefore, it was essential that her power of identification should
have been tested by a test identification parade. However, no test
identification parade was conducted in the present case.
26. Pal Singh (PW-4) stated that he saw the accused
running away from the victim’s house. He has also not stated that
he knew the accused or he had seen him before the incident.
22 2025:HHC:9714
Therefore, his identification made for the first time in the Court
without a previous identification parade is not sufficient.
27. It was laid down by the Hon’ble Supreme Court in P.
Sasikumar v. State of T.N., (2024) 8 SCC 600: (2024) 3 SCC (Cri) 791:
2024 SCC OnLine SC 1652 that where the witness had not seen the
accused before the date of the incident, the identification of the
accused made in the dock is not acceptable. It was observed on
page 605:
“17. The admitted position in this case is that the test
identification parade (hereinafter referred to as “TIP”)
was not conducted. All the prosecution witnesses who
identified the accused in the Court, such as PW 1 and PW 5,
were not known to the present appellant, i.e. Accused 2.
They had not seen the present appellant before the said
incident. He was a stranger to both of them. More
importantly, both of them have seen the
appellant/Accused 2 on the date of the crime while he was
wearing a “green-coloured monkey cap”!
xxx
21. It is well settled that TIP is only a part of the police
investigation. The identification in TIP of an accused is not
a substantive piece of evidence. The substantive piece of
evidence, or what can be called evidence, is only dock
identification, that is, identification made by a witness in
court during the trial. This identification has been made in
court by PW 1 and PW 5. The High Court rightly dismisses
the identification made by PW 1 for the reason that the
appellant i.e. Accused 2 was a stranger to PW 1 and PW 1
had seen the appellant for the first time when he was
wearing a monkey cap, and in the absence of TIP to admit
23 2025:HHC:9714the identification by PW 1 made for the first time in the
court was not proper.
xxxx
23. We are afraid the High Court has gone completely
wrong in believing the testimony of PW 5 as to the
identification of the appellant. In cases where the accused
is a stranger to a witness and there has been no TIP, the
trial court should be very cautious while accepting the
dock identification by such a witness
(see: Kunjumon v. State of Kerala [Kunjumon v. State of
Kerala, (2012) 13 SCC 750: (2012) 4 SCC (Cri) 406]).
xxx
27. In the facts of the present case, the identification of
the accused before the court ought to have been
corroborated by the previous TIP, which has not been
done. The emphasis of TIP in a given case is of vital
importance as has been shown by this Court in recent two
cases of Jayan v. State of Kerala [Jayan v. State of Kerala,
(2021) 20 SCC 38] and Amrik Singh v. State of Punjab [Amrik
Singh v. State of Punjab, (2022) 9 SCC 402: (2023) 2 SCC
(Cri) 404].
28. In Jayan [Jayan v. State of Kerala, (2021) 20 SCC 38],
this Court disbelieved the dock identification of the
accused therein by a witness, and while doing so, this
Court discussed the aspect of TIP in the following words:
(Jayan case [Jayan v. State of Kerala, (2021) 20 SCC 38], SCC
p. 44, para 18)
“18. It is well settled that the TI parade is a part of
the investigation, and it is not substantive evidence.
The question of holding a TI parade arises when the
accused is not known to the witness beforehand.
The identification by a witness of the accused in the
Court who has, for the first time, seen the accused
in the incident of the offence is a weak piece of
evidence, especially when there is a large timegap
between the date of the incident and the date of
recording of his evidence. In such a case, the TI
24 2025:HHC:9714
parade may make the identification of the accused
by the witness before the Court trustworthy.”
28. In the present case, there is no evidence that the
witnesses knew the accused or had seen him before the incident;
therefore, his identification made in the dock for the first time in
the Court without any previous test identification parade cannot
be relied upon.
29. The mother of the victim had not seen the accused.
She was told about the incident by the victim. Hence, her
statement does not establish the identity of the accused.
30. Therefore, there is unsatisfactory evidence regarding
the identity of the accused and learned Trial Court overlooked this
aspect.
31. The victim stated that the accused visited her room
again because she had forgotten her mobile, but she had bolted
the door from inside, so the accused left the place and was seen by
her aunt. Her aunt (PW-3) and Pal Singh (PW/4) have not stated
that the accused had returned to the place of incident to pick up
his mobile phone; rather, Pal Singh stated that the accused ran
away after the victim had raised a hue and cry and he bolted the
door from outside. Her aunt (PW-3) stated that she had seen the
25 2025:HHC:9714
accused running away from the victim’s house after bolting the
door from outside. Thus as per her aunt and Pal Singh, they had
seen the accused only once when he was running away from the
victim’s room after bolting the door from outside. This
contradicts the victim’s testimony that the accused bolted the
door from outside and returned to pick up his mobile. This aspect
also makes the testimony of the victim highly suspect.
32. Dr Deepak (PW-8) noticed scratch marks on the right
arm,the knee joint and on the right lateral side of the face just
below the right eye, which could have been caused within 12 hours
of the examination. These injuries do not corroborate the
prosecution’s version that the accused had caught hold of the
wrists of the victim and made her lie on the floor because no
injuries were noticed on the wrist or the back.
33. The learned Trial Court was only swayed by the fact
that the witnesses had made consistent statements, which is not
correct because the statements are not consistent, but the
statement of the victim contains major contradictions regarding
the time and return of the accused. Learned Trial Court failed to
notice that the identity of the accused was also not satisfactorily
26 2025:HHC:9714
established. The mobile phone was never analysed to find the SIM
number or to trace the ownership of the SIM. These infirmities
made the prosecution’s case unreliable. Learned Trial Court erred
in overlooking these aspects and in relying upon the statements of
the victim and other witnesses to hold that the offence of criminal
trespass and outraging the modesty of the victim was established
by such statements.
34. Consequently, the present appeal is allowed, and the
judgment and order passed by the learned Trial Court are ordered
to be set aside. The accused is acquitted of the commission of the
charged offences. The fine amount, if deposited, be refunded after
the expiry of the period of limitation for filing the appeal in case
no appeal is preferred, and in case of appeal, the same be dealt
with as per the orders of the Hon’ble Supreme Court.
35. In view of the provisions of Section 437-A of the
Code of Criminal Procedure [Section 481 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS)], the respondent/accused is
directed to furnish his personal bond in the sum of ₹25,000/-
with one surety in the like amount to the satisfaction of the
learned Registrar (Judicial) of this Court/learned Trial Court,
27 2025:HHC:9714
within four weeks, which shall be effective for six months with
stipulation that in the event of Special Leave Petition being filed
against this judgment, or on grant of the leave, the
respondent/accused, on receipt of notice thereof, shall appear
before the Hon’ble Supreme Court.
36. A copy of this judgment, along with the records of the
learned Trial Court, be sent back forthwith. Pending
miscellaneous application(s), if any, also stand(s) disposed of.
(Rakesh Kainthla)
Judge
8th April, 2025
(mamta)
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