Uttarakhand High Court
Rahul Kumar vs State Of Uttarakhand on 5 March, 2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE THE CHIEF JUSTICE MR. G. NARENDAR
AND
HON'BLE SRI JUSTICE ALOK MAHRA
05TH MARCH, 2025
CRIMINAL APPEALNO.379 Of 2022
Rahul Kumar ......Appellant
Versus
State of Uttarakhand .......Respondent
Counsel for the Appellant : Mr. Akshay Pradhan, learned counsel.
Counsel for the State : Mr. J.S. Virk, learned Deputy
Advocate General with Mr. R.K. Joshi,
learned Brief Holder for the State of
Uttarakhand.
ORDER :
(per Mr. G. Narendar, C.J.)
Heard learned counsel for the appellant-
applicant and learned Deputy Advocate General for the
State.
2. Learned counsel for the appellant submits
that this case has been assigned to him by Legal Aid
Board. The appellant/applicant is undergoing
imprisonment pursuant to the judgment and the order
of sentencing, both dated 08.08.2022, whereby the
Trial court has been pleased to hold the appellant guilty
of the offences punishable under Sections 363, 366 and
376 (2)(n) of the Indian Penal Code, and Section
5(j)(ii) r/w Section 6 of the Protection of Children from
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Sexual Offences Act.
3. Learned counsel for the appellant/applicant would
contend that the trial is vitiated on account of the
erroneous procedure followed by the Trial Court in
respect of determination of the age of the victim. It is
submitted that the said issue goes to the very root of
the matter and vitiates the trial.
4. He would contend that the procedure adopted
by the Trial Court is contrary to the mandate of sub-
section (2) of Section 94 of the Juvenile Justice (Care
and Protection of Children) Act, 2015(for short “the
2015 Act”). He would also contend that the Trail Court
failed to appreciate the statement recorded under
Section 164 of the Code of Criminal Procedure.
Elaborating further, learned counsel would submit that
statement recorded under Section 164 of Cr.P.C. would
reveal that the victim has declared that she had
voluntarily travelled to Delhi without any coercion and
force and that the statement has not been construed
and appreciated in a proper manner. He would further
contend that the Trial Court failed to see that the
victim, even as per Exhibit-3, was aged almost about
17 years; that the Trial Court also failed to appreciate
that no material was placed before it to show that the
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appellant was aware and conscious of the fact that the
victim was a minor; that it was incumbent on the
prosecution to establish the said fact in order to sustain
the charge under Section 5 of the POCSO Act or under
Section 376(2)(n) of the IPC. He would contend that
there is absolutely no material to substantiate the
charge u/s 376.
5. Elaborating further, he would submit that in
terms of Section 94 of the 2015 Act, the determination
of the age of a child is required to be done by the
Board, as the statute has cast the duty on the Board in
terms of sub-section (2) of Section 94 of the 2015 Act.
He would further contend that Exhibit-3 is a xerox copy
and it is neither the case of the prosecution, nor the
complainant that no record, particularly, date of birth
certificate, was unavailable to demonstrate the age of
the victim. He would further submit that as per the
order of priority assigned under the provisions of
Section 94 of the 2015 Act, the date of birth certificate
issued by school assumes priority and the use of word
“or” in clause (i) of sub-section (2) of Section 94 of the
2015 Act makes it clear that the matriculation or
equivalent certificate is secondary, and becomes
admissible only in the event of the prosecution making
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out a case that the date of birth certificate from the
school was not available. He would further contend that
every school maintains a date of birth register, in which
date of birth is recorded at the time of admission of
achild into the school for the first time, and hence, the
statute has conferred priority on such a document.
6. Learned counsel for the appellant-applicant
would also contend that the victim had represented to
the appellant-applicant that she was major and; that
she had reiterated same before the Mandir authorities
where the marriage was performed. Thus, he would
contend that the subsequent turnaround is on the
threat and coercion of the prosecution and the parents.
7. The said contention is not without substance.
He would further place reliance on the ruling of the
Hon’ble Apex Court rendered in Jarnail Singh vs.
State of Haryana, (2013) 7 SCC 263, more
particularly, on Paragraph Nos.23 and 24, which read
as under:-
“23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are of
the view that the aforesaid statutory provision should be
the basis for determining age, even for a child who is a
victim of crime. For, in our view, there is hardly any
difference insofar as the issue of minority is concerned,
between a child in conflict with law, and a child who is a
victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the prosecutrix VW, PW6.
The manner of determining age conclusively has been
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expressed in sub-rule (3) of Rule 12 extracted above.
Under the aforesaid provision, the age of a child is
ascertained by adopting the first available basis out of a
number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect
over an option expressed in a subsequent clause. The
highest rated option available, would conclusively
determine the age of a minor. In the scheme of Rule
12(3), matriculation (or equivalent) certificate of the child
concerned is the highest rated option. In case, the said
certificate is available, no other evidence can be relied
upon. Only in the absence of the said certificate, Rule
12(3), envisages consideration of the date of birth entered
in the school first attended by the child. In case such an
entry of date of birth is available, the date of birth depicted
therein is liable to be treated as final and conclusive, and
no other material is to be relied upon. Only in the absence
of such entry, Rule 12(3) postulates reliance on a birth
certificate issued by a corporation or a municipal authority
or a panchayat. Yet again, if such a certificate is available,
then no other material whatsoever is to be taken into
consideration for determining the age of the child
concerned, as the said certificate would conclusively
determine the age of the child. It is only in the absence of
any of the aforesaid, that Rule 12(3) postulates the
determination of age of the child concerned, on the basis
of medical opinion.
24. Following the scheme of Rule 12 of the 2007 Rules, it
is apparent that the age of the prosecutrix VW, PW6 could
not be determined on the basis of the matriculation (or
equivalent) certificate as she had herself deposed, that she
had studied upto 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, PW6, on the next available basis, in the sequence of
options expressed in Rule 12(3) of the 2007 Rules. The
prosecution produced Satpal (PW4) to prove the age of the
prosecutrix VW, PW6. Satpal (PW4) was the Head Master
of the Government High School, Jathlana, where the
prosecutrix VW, PW6 had studied upto class 3. Satpal
(PW4) had proved the certificate Ext.PG, as having been
made on the basis of the school records indicating that the
prosecutrix VW, PW6 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, PW6.
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, PW6. The deposition of Satpal, PW4
has not been contested. Therefore, the date of birth of the
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prosecutrix VW, PW6 (indicated in Ext.PG, as 15.7.1977)
assumes finality. Accordingly it is clear that the prosecutrix
VW, PW6, 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, PW6 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, PW6
had accompanied the accused-appellant 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.”
8. He would further place reliance on the ruling
of the Hon’ble Apex Court rendered in the case of
Mahadeo vs. State of Maharashtra & another,
(2013) 14 SCC 637, more particularly on Paragraph
Nos.12 and 13, wherein the Hon’ble Apex Court has
observed and held thus:-
“12. We can also in this connection make reference to a
statutory provision contained in the Juvenile Justice (Care
and Protection of Children) Rules, 2007, whereunder Rule
12, the procedure to be followed in determining the age of
a juvenile has been set out. We can usefully refer to the
said provision in this context, inasmuch as under Rule 12
(3) of the said Rules, it is stated that:
“12.(3) In every case concerning a child or juvenile
in conflict with law, the age determination enquiry
shall be conducted by the Court or the Board or, as
the case may be, by the committee by seeking
evidence by obtaining:-
(a)(i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school); first attended; and in the
absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;”
Under Rule 12 (3) (b), it is specifically provided that only
in the absence of alternative methods described under
Rules 12 (3) (a) (i) to (iii), the medical opinion can be
sought for. In the light of such a statutory rule prevailing
for ascertainment of the age of a juvenile, in our
considered opinion, the same yardstick can be rightly
followed by the Courts for the purpose of ascertaining the
age of a victim as well.
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13. In the light of our above reasoning, in the case on
hand, there were certificates issued by the school in which
the prosecutrix did her Vth standard and in the school
leaving certificate issued by the said school under Exhibit
54, the date of birth of the prosecutrix has been clearly
noted as 20.05.1990, and this document was also proved
by PW-11. Apart from that the transfer certificate as well
as the admission form maintained by the primary school
Latur, where the prosecutrix had her initial education, also
confirmed the date of birth as 20.5.1990. The reliance
placed upon the said evidence by the Courts below to
arrive at the age of the prosecutrix to hold that the
prosecutrix was below 18 years of age at the time of the
occurrence was perfectly justified and we do not find any
good grounds to interfere with the same.”
9. Per contra, learned Deputy Advocate General
would strongly resist the application. He would submit
that the victim is a child and the record (Exhibit-3) has
been produced by the victim herself. He would contend
that the applicant has not merely kidnapped a child,
but has also impregnated the child, but would fairly
admit the statement of the victim recorded under
Section 164 of Cr.P.C., wherein she has stated that
there was no coercion or inducement practiced upon
her, but he would submit that she, in her evidence
before the Court, has stated that a taxi was hired and
they travelled to Delhi in the taxi, which apparently, is a
public mode of transport.
10. We have adverted to various contentions
canvassed on both the sides and given our anxious
consideration to the same. The fact, as recorded by the
Trial Court, is that a missing complaint came to be
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lodged. That the victim had travelled to Delhi along
with the accused in a taxi and not in a private vehicle.
The fact remains that no material is placed, nor is there
a finding that the victim was threatened to remain in
the vehicle, nor is there any material to show that she
was forced into the vehicle. The fact also remains that
the taxi driver has not been examined as a witness by
the prosecution, which, in our, prima facie, opinion
appears to be a serious lacunae in establishing the
charge under Sections 363 and 366 of IPC.
11. Coming to the issue of age determination, we
find that the Trial Court has not conducted any inquiry
at all and has merely placed reliance on the xerox copy
of the matriculation certificate, which is also not part of
the charge-sheet and has been introduced during the
trial apparently through the victim.
12. The prosecution case being one of sexual
assault of minor, a primary duty was cast upon the
prosecution to demonstrate that the victim was a
minor, which, in our, prima facie opinion, the
prosecution appears to have failed.
13. That apart, the contention that the age
determination in terms of the provision of Section 94 of
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the 2015 Act can only be done by the Board, merits
consideration. The statute having cast a duty on the
statutory authorities, prima facie the Trial Court could
not have given a go bye to the mandate of the law and
proceeded in such a haphazard manner and prima
facie, the same appears to be arbitrary.
14. That apart, the contention that the primary
document required to be placed for determination of
the age, being the date of birth certificate issued by the
school, is also not produced.
15. That apart, the judgment does not disclose that it
was the prosecution version that such a certificate was
unavailable. In the absence of such evidence, the moot
question is whether the Trial Court could have simply
accepted the xerox copy of the matriculation certificate.
It is also not the case of the prosecution that the
original of the matriculation certificate was unavailable.
The approach of the Trial Court in recording that the
original was produced by the victim and the same was
returned to the victim does not inspire confidence in us.
As observed above, it was the primary duty of the
prosecution to establish the fact that the victim was a
minor, in which exercise, the prosecution, prima facie,
appears to have failed. In the absence of such
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conclusive evidence, the submissions canvassed by
learned counsel for the appellant- applicant require to
be appreciated. The assertion that she had represented
herself as major and that she had also repeated and
asserted her age before the Mandir authorities cannot
be brushed aside.
16. In view of the above discussion, we are of the
opinion that the appellant-applicant has made out a
case for grant of bail. The fact that they had travelled
to Delhi and they lived together in Delhi for two months
is not denied.
17. As noted above, it is not the case of the
prosecution that the accused was aware of the age of
the victim and despite his knowledge of the age, he
proceeded to get married and lived as husband and
wife.
18. That apart, the lack of inquiry by the Court to
establish the status of the victim as a minor, in our,
prima facie, opinion may inure to the benefit of the
accused.
19. In that view, the bail application (IA No.02 of
2022) is allowed. The appellant- applicant is directed to
be enlarged on bail subject to him executing a bond for
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a sum of Rs.25,000/- and furnishing one surety of the
like sum to the satisfaction of the jurisdictional
Magistrate. The appellant- applicant shall be forthwith
released from the jail, if not required in any other case.
_______________
G. NARENDAR, C.J.
_____________
ALOK MAHRA, J.
Dt: 05th March, 2025
NISHANT
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