IN THE HIGH COURT OF MADHYA PRADESH

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BEFORE

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HON'BLE SHRI JUSTICE VIVEK AGARWAL

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&

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HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN

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CRIMINAL APPEAL No. 9382 of 2022

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AYYAZ MOHAMMAD

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Versus

THE STATE OF MADHYA PRADESH

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Appearance:

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Shri Siddharth Datt - Advocate for the appellant.

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Shri Arvind Singh - Government Advocate for the respondent/State.

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Reserved on: 08/01/2026

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Delivered on: 27/01/2026

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JUDGMENT

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Per

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: Justice Ratnesh Chandra Singh Bisen.

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This Criminal Appeal under Section 374(2) of the Cr.P.C., is filed by the

appellant being aggrieved of the judgment dated 06.09.2022 passed by learned

Third Additional Sessions Judge/Special Judge, Protection of Children from

Sexual Offences Act, 2012, Deosar, District Singrauli (M.P.), in Special Case

No.59 of 2020, whereby appellant has been convicted for offences as under:-

Conviction

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Sentence

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Section Act Imprisonment Fine

Imprisonment in

lieu of fine

343 I.P.C. R.I. for 1 yearRs.500/-R.I. for 01 month.

363 I.P.C. R.I. for 05 yearsRs.1,000/-R.I. for 03 months

366 I.P.C. R.I. for 07 yearsRs.1,000/-R.I. for 03 months

368 I.P.C. R.I. for 05 yearsRs.1,000/-R.I. for 03 months

376(2)(n)I.P.C. R.I. for 10 yearsRs.5,000/-

R.I. for

06 months

R.I. for

1 CRA-9382-2022NEUTRAL CITATION NO. 2026:MPHC-JBP:7082

376(3)I.P.C. R.I. for 20 yearsRs.5,000/-

R.I. for

06 months

3(k) read

with 4

POCSO - - -

5(L) read

with 6

POCSO - - -

2. According to the case of the prosecution, on 26.6.2019, a missing report was

lodged by the mother of the prosecutrix to the effect that on 25.6.2019, the

prosecutrix had gone to see a Baraat in the neighbourhood but did not come back.

On being enquired, a friend of the prosecutrix informed that the prosecutrix had

gone towards the river. Thereafter the prosecutrix was searched at various places

but could not be traced. On the basis of aforesaid report, an FIR was lodged

against unknown person vide crime no. 252 of 2019 under section 363 of the

Indian Penal Code at Police Station Jiyawan.

3. During course of investigation on 27.6.2019, the prosecutrix was recovered

from the house of the appellant at village Harra Chandel. On the said date, the

statements of the father of the prosecutrix and friend of the prosecutrix were

recorded. On 28.6.2019, after obtaining the consent of the parents of the

prosecutrix, the prosecutrix was sent for medical examination to District Hospital

Waidhan. On 28.6.2019, the police statement of the prosecutrix was recorded. On

investigation, it was found that the appellant committed sexual intercourse with

the prosecutrix under the false pretext of marriage on the back side of the house of

the prosecutrix and thereafter in the house of the appellant.

4. After due investigation, an offence was registered against the appellant and

his father namely Nazar Mohammad at Police Station Jiyawan under Sections 363,

343, 366-A, 368, 376(C), 109 of the Indian Penal Code and Section 4/6 of the

Protection of Children From Sexual Offences Act and charge-sheet was filed

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before Special judge (POCSO Act, 2012).

5. The Special Judge framed the charges under Sections 363, 366, 343, 368, 376

(3), 376(2)(N) of the IPC and Section 3(A) read with Section 4 & 5 (L) read with

Section 6 of the POCSO Act against the appellant and under Sections 343, 368 of

the IPC and Section 19(1) read with Section 21(1) of the POCSO Act against the

father of the appellant namely Nazar Mohammad.

6. Both the accused persons abjured their guilt and pleaded that they have been

falsely implicated in the case. The accused examined Ramakant Sharma (DW-1),

Head Master of Govt. Middle School, Harra Chandel, District Singrauli as a

defence witness.

7. The trial Court on appraisal of oral and documentary evidence available on

record acquitted accused Nazar Mohammad of the offence under Sections 343,

368 of the IPC and Sections 19(1) read with Section 21(1) of the POCSO Act and

convicted the appellant for the offences as mentioned hereinabove. Hence, this

appeal.

8. Learned counsel for the appellant submits that the trial Court has failed to

appreciate the oral as well as documentary evidence available on record in its

proper perspective and has committed an error in convicting the appellant for the

aforesaid offences. It is contended that there is no cogent or plausible evidence to

establish the complicity of the present appellant in the alleged offence. There is no

evidence on record to indicate that the appellant had committed sexual intercourse

with the prosecutrix. It is further submitted that the prosecutrix was in a

continuous relationship with the present appellant.

9. Per contra, Shri Arvind Singh, learned Public Prosecutor for the respondent–

State, supports the impugned judgment. He submits that after proper analysis of

the oral and documentary evidence produced by the prosecution, the trial Court

3 CRA-9382-2022NEUTRAL CITATION NO. 2026:MPHC-JBP:7082

has rightly convicted the appellant under the aforesaid sections, and no error has

been committed in the findings recorded by the trial Court. He further submits that

the prosecutrix has fully supported the prosecution case in her statement before the

Court, wherein she categorically stated that the appellant committed sexual

intercourse with her forcefully. She further stated that she shouted at the relevant

time, but since a marriage function was going on and loud music/DJ was being

played, her voice could not be heard by anyone. Taking advantage of the said

situation, the accused committed the act. It is also submitted that the prosecutrix

was a minor at the time of commission of the offence. The DNA report is positive,

and therefore, the impugned judgment does not call for any interference. Hence,

the appeal deserves to be dismissed.

10. We have heard learned counsel for the parties and have also perused the

record.

Determination of age

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:-

11. The victim (PW-1), in her testimony, stated that she was 13 years old and

studying in Class VII at Gayatri High School, Odgadi, Bargawan. In paragraph 11

of her statement, she again mentioned her age as 13 years. She stated that she does

not know her date of birth and that her father admitted her to Class I. In paragraph

12, she denied the suggestion that she had studied at Government Primary School,

Harra Chandel, Deosar. She herself stated that her grandmother used to go to the

said school for cooking mid-day meals and that she used to accompany her,

whereupon the school authorities enrolled her name on their own. In paragraph 13,

she stated that she was not aware that her date of birth was recorded as 12.09.2002

in the Government Primary School, Harra Chandel, Deosar. In paragraph 17, she

stated that she studied up to Class V at Navayug Bal Purva Madhyamik

4 CRA-9382-2022NEUTRAL CITATION NO. 2026:MPHC-JBP:7082

Vidyalaya, Deosar.

12. The mother of the victim (PW-2) stated in her testimony that her daughter

was 14 years old and had studied up to Class VI. She further stated that her

husband admitted the victim to Navayug School, Deosar. In paragraph 7 of her

cross-examination, she stated that she does not remember the exact date of birth of

the victim. She further stated that it was her husband who got the victim admitted

to Class I, but she does not remember the year. In paragraph 8, she denied the

suggestion that the victim was admitted to Class I at Government Primary School,

Harra Chandel, where her date of birth (12.09.2002) was recorded on an estimated

basis.

13. The father of the victim (PW-3) stated that the victim was 14 years old and

had studied up to Class V. He stated that he admitted her to Navayug School,

Deosar. In paragraph 5 of his cross-examination, he stated that the victim’s date of

birth is 04.06.2006. In paragraph 7, he admitted that his mother had been working

as a cook at Harra Chandel School for about 15 years and that the victim’s name

was also recorded in the Government Primary School, Harra Chandel, Deosar. He

himself stated that he did not enroll her name there and that the school authorities

did so on their own. In paragraph 9, he stated that no birth certificate was prepared

for the victim. He further stated that the victim studied up to Class V and

thereafter was not admitted to any other school.

14. Jitendra Sharma (PW-7) stated that he has been working as Headmaster of

Navayug Bal Purva Madhyamik Vidyalaya, Deosar, since 2004. He produced the

original scholar register maintained by the school for the period from 01.07.2010

to 10.04.2013, containing entries from registration number 346 to 626. The

relevant entry pertaining to the victim is at registration number 548, wherein it is

recorded that she was admitted to Class I on 03.07.2012 and her date of birth was

5 CRA-9382-2022NEUTRAL CITATION NO. 2026:MPHC-JBP:7082

recorded as 04.07.2006. In his cross-examination, he stated that the victim’s father

was present at the time of admission but did not submit any birth certificate. He

further admitted that the date of birth was recorded on the basis of an estimated

date provided by the victim’s father.

15. Ramakant Sharma (DW-1) stated that he has been working as Headmaster of

Government Primary School, Harra Chandel, Deosar, since 03.08.2019.

According to the scholar register maintained from the year 2007 to 2011, the

victim’s name is recorded at registration number 1340 as having been admitted to

Class I. In the said entry, her date of birth is mentioned as 12.09.2002 and the date

of admission as 07.07.2008. In his cross-examination, he stated that he was not

posted at the school on 07.07.2008 and therefore could not say who made the

entry. He further stated that there were no signatures of the Headmaster or any

authorized person against the entry. In Exhibit D-1, the victim’s name at

registration number 1340 appears to have been struck out and rewritten without

any initials. He stated that he could not confirm who made these corrections or on

what basis the date of birth was recorded. He further stated that the register was

neither certified by any senior officer nor sealed with any name or designation,

and the page numbering was also incomplete. The scholar register was not

authenticated by any competent authority.

16. Thus, upon considering the entire testimony of this defence witness, it is

evident that the scholar register produced by him is itself doubtful. It is not clear

as to who made the relevant entries. Therefore, the date of birth of the victim

recorded in Exhibit D-1 as 12.09.2002 cannot be accepted. Even otherwise, the

incident occurred on 25.06.2019, and even if the said date of birth is accepted, the

victim would still have been below 17 years of age on the date of the incident. On

the other hand, the oral and documentary evidence produced by the prosecution

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appears to be reliable. The testimonies of the victim, her parents, and Jitendra

Sharma (PW-7), Headmaster of Navayug Bal Purva Madhyamik Vidyalaya,

Deosar, are consistent with each other. From the testimony of Jitendra Sharma

(PW-7), it is clear that the victim’s date of birth was recorded on the basis of

information supplied by her father.

17. The Hon’ble Supreme Court in Jarnail Singh vs. State of Haryana (2013) 7

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SCC 263

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has propounded the following principles in paragraphs 23 and 24, which

reads 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 of a child who is a victim of

crime. For, in our view, there is hardly any difference

insofar as the issue of minority is concerned, between a child

in conflict with law, and a child who is a victim of crime.

Therefore, in our considered opinion, it would be just and

appropriate to apply Rule 12 of the 2007 Rules, to determine

the age of the prosecutrix VW, PW 6. The manner of

determining age conclusively has been expressed in sub-rule

(3) of Rule 12 extracted above. Under the aforesaid

provision, the age of a child is ascertained by adopting the

first available basis out of a number of options postulated in

Rule 12(3). If, in the scheme of options under Rule 12(3), an

option is expressed in a preceding clause, it has overriding

effect over an option expressed in a subsequent clause. The

highest rated option available would conclusively determine

the age of a minor. In the scheme of Rule 12(3),

matriculation (or equivalent) certificate of the child

concerned is the highest rated option. In case, the said

certificate is available, no other evidence can be relied upon.

Only in the absence of the said certificate, Rule 12(3)

envisages consideration of the date of birth entered in the

school first attended by the child. In case such an entry of

date of birth is available, the date of birth depicted therein is

liable to be treated as final and conclusive, and no other

material is to be relied upon. Only in the absence of such

entry, Rule 12(3) postulates reliance on a birth certificate

issued by a corporation or a municipal authority or a

panchayat. Yet again, if such a certificate is available, then

no other material whatsoever is to be taken into

consideration for determining the age of the child concerned,

as the said certificate would conclusively determine the age

7 CRA-9382-2022NEUTRAL CITATION NO. 2026:MPHC-JBP:7082

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, 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 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 consensual sex with him, the same would have been

clearly inconsequential, as she was a minor."

18. Similarly, in State of Madhya Pradesh vs. Anoop Singh (2015) 7 SCC 773

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,

the Hon’ble Supreme Court, in paragraphs 13 to 16, laid down guiding principles,

8 CRA-9382-2022NEUTRAL CITATION NO. 2026:MPHC-JBP:7082

which are as follows:

"13. In the present case, the central question is whether the prosecutrix

was below 16 years of age at the time of the incident? The prosecution

in support of their case adduced two certificates, which were the birth

certificate and the Middle School Certificate. The date of birth of the

prosecutrix has been shown as 29-8-1987 in the birth certificate (Ext. P-

5), while the date of birth is shown as 27-8-1987 in the Middle School

Examination Certificate. There is a difference of just two days in the

dates mentioned in the abovementioned exhibits. The trial court has

rightly observed that the birth certificate, Ext. P-5 clearly shows that the

registration regarding the birth was made on 30-10-1987 and keeping in

view the fact that registration was made within 2 months of the birth, it

could not be guessed that the prosecutrix was shown as underaged in

view of the possibility of the incident in question. We are of the view

that the discrepancy of two days in the two documents adduced by the

prosecution is immaterial and the High Court was wrong in presuming

that the documents could not be relied upon in determining the age of

the prosecutrix.

14. This Court in Mahadeo v. State of Maharashtra [(2013) 14 SCC

637 : (2014) 4 SCC (Cri) 306] has held that Rule 12(3) of the Juvenile

Justice (Care and Protection of Children) Rules, 2007, is applicable in

determining the age of the victim of rape. Rule 12(3) reads as under:

“12. (3) In every case concerning a child or juvenile in

conflict with law, the age determination inquiry shall be

conducted by the court or the Board or, as the case may be,

the Committee by seeking evidence by obtaining—

(a)(i) the matriculation or equivalent certificates,

if available; and in the absence whereof;

(ii) the date of birth certificate from the school

(other than a play school) first attended; and in

the absence whereof;

(iii) the birth certificate given by a corporation or

a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or

(iii) of clause (a) above, the medical opinion will

be sought from a duly constituted Medical Board,

which will declare the age of the juvenile or child.

In case exact assessment of the age cannot be

done, the Court or the Board or, as the case may

be, the Committee, for the reasons to be recorded

by them, may, if considered necessary, give

benefit to the child or juvenile by considering

his/her age on lower side within the margin of one

year.

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and, while passing orders in such case shall, after taking into

consideration such evidence as may be available, or the medical

opinion, as the case may be, record a finding in respect of his age and

either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or

in the absence whereof, clause (b) shall be the conclusive proof of the

age as regards such child or the juvenile in conflict with law.”

15. This Court further held in para 12 of Mahadeo [(2013) 14 SCC 637

: (2014) 4 SCC (Cri) 306] , as under : (SCC p. 641)

“12. … 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 the 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.”

(emphasis supplied)

This Court therefore relied on the certificates issued by the

school in determining the age of the prosecutrix. In para 13,

this Court observed : (Mahadeo case [(2013) 14 SCC 637 :

(2014) 4 SCC (Cri) 306] , SCC p. 641)

“13. In 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 school under Ext. 54, the date of

birth of the prosecutrix has been clearly noted as

20-5-1990, and this document was also proved by

PW 11. Apart from that the transfer certificate as

well as the admission form maintained by the

Primary School, Latur, where the prosecutrix had

her initial education, also confirmed the date of

birth as 20-5-1990. The reliance placed upon the

said evidence by the courts below to arrive at the

age of the prosecutrix to hold that the prosecutrix

was below 18 years of age at the time of the

occurrence was perfectly justified and we do not

find any grounds to interfere with the same.”

16. In the present case, we have before us two documents which

support the case of the prosecutrix that she was below 16 years of age at

10 CRA-9382-2022NEUTRAL CITATION NO. 2026:MPHC-JBP:7082

the time the incident took place. These documents can be used for

ascertaining the age of the prosecutrix as per Rule 12(3)(b). The

difference of two days in the dates, in our considered view, is

immaterial and just on this minor discrepancy, the evidence in the form

of Exts. P-5 and P-6 cannot be discarded. Therefore, the trial court was

correct in relying on the documents."

19. The main argument advanced by counsel for the appellant is that Dr. Aakriti

Jaiswal had examined the victim medically and had advised for conducting X-rays

of the right wrist, right elbow, right knee, and pelvic bone for determination of

age. In such circumstances, as per the principle propounded by the Hon’ble

Supreme Court in case of Sunil vs. State of Haryana (2010) 1 SCC 742

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, not

conducting the ossification test would be a serious error. Paragraph 24 of the

said judgment is significant, which reads as follows:-

"24. Dr. Verma, PW 1, who had clinically examined the prosecutrix,

found that her secondary sex characters were well developed. The short

question in the facts and circumstances of this case that remains to be

determined is whether the prosecutrix was a minor? Dr. Sadhna Verma,

PW 1 who examined the prosecutrix referred her for verification to the

dental surgeon and the radiologist. The failure of getting the prosecutrix

examined from the dental surgeon or the radiologist despite the fact that

she was referred to them by Dr. Sadhna Verma, PW 1 is a serious flaw

in the prosecution version. We are not laying down as a rule that all

these tests must be performed in all cases, but in the instant case, in the

absence of primary evidence, reports of the dental surgeon and the

radiologist would have helped us in arriving at the conclusion regarding

the age of the prosecutrix."

20. On the basis of the principle propounded by the Hon’ble Supreme Court, the

appellant cannot derive any benefit, since the same paragraph itself clarifies —

“We are not laying down as a rule that all these tests must be conducted in all

cases.” Hence, it is clear that while a medical expert recommends an ossification

test in cases, it is not mandatory.

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21. Thus, from the above it is clear that if the doctor conducting the medical

examination of the victim advises for an ossification test to determine her age, but

the ossification test is not conducted, it will not affect the prosecution’s case —

provided that other documents such as the date of birth certificate issued by the

school, or the matriculation or equivalent certificate from the concerned

examination board, if available, are produced. In the absence of these, a birth

certificate issued by the municipal or local body or panchayat authority may be

relied upon. Only in the absence of all the aforesaid documents can the age be

determined on the basis of an ossification test or any other latest medical

examination.

22. Apart from this, the case of Sunil vs State of Haryana (supra

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) has been

considered by the Hon'ble Supreme Court in the case of Jarnail Singh (supra

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), the

above point has been discussed in detail in paragraphs 21 and 25 as follows.

"21. In order to support his contention, that the prosecutrix was not a

minor at the time of occurrence, the learned counsel for the appellant

placed reliance on the judgment rendered in Sunil v. State of Haryana

[(2010) 1 SCC 742 : (2010) 1 SCC (Cri) 910 : AIR 2010 SC 392] .

Ordinarily, we would have extracted the observations on which reliance

was placed, but for reasons that would emerge from our conclusion, we

consider it inappropriate to do so.

25. Since the judgment relied upon by the learned counsel for the

appellant is distinguishable on facts. And since the judgment relied

upon had not made any reference to the 2007 Rules, we are of the view

that the same would not be relevant for the purposes of determining the

age of the prosecutrix VW, PW 6, specially in the background of the

evidence led by the prosecution through Satpal (PW 4) to establish.

In light of the principles laid down by the Hon’ble Supreme Court, it is

clear that in the case of Sunil vs. State of Haryana (supra

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), Section 12

of the Juvenile Justice (Care and Protection of Children) Rules, 2007

12 CRA-9382-2022NEUTRAL CITATION NO. 2026:MPHC-JBP:7082

was not taken into consideration; therefore, that judgment is irrelevant

in the present context.

23. In addition, the observations made by the Hon’ble Supreme Court in State of

M.P. vs. Anoop Singh (supra

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) particularly in paragraphs 16, 17 and 18 are

noteworthy which reads as under:-

"16. In the present case, we have before us two documents which

support the case of the prosecutrix that she was below 16 years of age at

the time the incident took place. These documents can be used for

ascertaining the age of the prosecutrix as per Rule 12(3)(b). The

difference of two days in the dates, in our considered view, is

immaterial and just on this minor discrepancy, the evidence in the form

of Exts. P-5 and P-6 cannot be discarded. Therefore, the trial court was

correct in relying on the documents.

17. The High Court also relied on the statement of PW 11 Dr A.K.

Saraf who took the x-ray of the prosecutrix and on the basis of the

ossification test, came to the conclusion that the age of the prosecutrix

was more than 15 years but less than 18 years. Considering this the

High Court presumed that the girl was more than 18 years of age at the

time of the incident. With respect to this finding of the High Court, we

are of the opinion that the High Court should have relied firstly on the

documents as stipulated under Rule 12(3)(b) and only in the absence,

the medical opinion should have been sought. We find that the trial

court has also dealt with this aspect of the ossification test. The trial

court noted that the respondent had cited Lakhanlal v. State of M.P.

[2004 SCC OnLine MP 16 : 2004 Cri LJ 3962] , wherein the High

Court of Madhya Pradesh said that where the doctor having examined

the prosecutrix and found her to be below 18½ years, then keeping in

mind the variation of two years, the accused should be given the benefit

of doubt. Thereafter, the trial court rightly held that in the present case

the ossification test is not the sole criterion for determination of the date

of birth of the prosecutrix as her certificate of birth and also the

certificate of her medical examination had been enclosed.

18. Thus, keeping in view the medical examination reports, the

statements of the prosecution witnesses which inspire confidence and

the certificates proving the age of the prosecutrix to be below 16 years

of age on the date of the incident, we set aside the impugned judgment

[Anoop Singh v. State of M.P., Criminal Appeal No. 924 of 2006,

order dated 10-7-2008 (MP)] passed by the High Court and uphold the

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judgment and order dated 24-4-2006 passed by the Third Additional

Sessions Judge, Satna in Special Case No. 123 of 2003."

24. Accordingly, considering the above principles, it is concluded that merely

because the doctor conducting the medical examination advised ossification

testing to determine the victim’s age and such a test was not conducted, the

prosecution’s case is not affected on that ground. The ossification test becomes

necessary only in cases where documents mentioned under sub-section (2) of

Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 are

not available. Therefore, the argument advanced on behalf of the appellant carries

no weight. Hence, the trial court’s conclusion that on the date of the incident, i.e.,

25.06.2019, the victim’s age was below 18 years, which is specifically 12 years,

11 months, and 21 days is found to be free from any error.

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On Merit

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25. The victim (PW-1) has stated that she had gone to her grandmother's house in

Village Harra Chandel to attend her aunt's wedding ceremony. On 25.07.2019 at

about 10:00 p.m., she went for nature's call with her friend Reena Yadav. At that

time, two persons arrived, picked her up, and took her to the house of the accused,

Ayyaz Mohammad. She screamed, but no one heard her due to the loud DJ music.

The two persons locked her inside the house of accused Ayyaz Mohammad, who

forcibly committed sexual intercourse with her against her will. On the third day of

the incident, the police arrived, recovered the victim from the house of accused

Ayyaz Mohammad, and took her to the District Hospital, Baidhan for medical

examination. Her statement was recorded before the Magistrate (Ex. P/1). Nothing

emerged in her cross-examination to discredit her testimony.

26. The mother of the victim (PW-2) testified that on the date of the incident, the

victim was missing from the house. The family searched nearby but could not find

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her. The victim's friend Reena later informed her that two men, with their faces

covered by cloth, had taken the victim away. In the morning, she lodged a report at

Jiawan Police Station (Ex. P/2). On 27.06.2019, when the victim met her, she

narrated that the accused persons had forcibly confined her in their house and that

accused Ayyaz Mohammad had sexual intercourse with her against her will. The

witness further stated that when the victim was rescued, her clothes were soaked in

blood, and she was extremely distraught. The police recovered the victim from the

accused's house and handed her over to the witness.

27. The father of the victim (PW-3) corroborated that when he met his daughter,

she told him that the accused persons had forcibly confined her in their house and

that accused Ayyaz Mohammad had committed sexual intercourse with her two or

three times. The police took the victim to the hospital for medical examination, for

which he gave consent. He also confirmed that the police prepared a scene map

(Ex. P/3) in his presence.

28. Reena Yadav (PW-4), the victim's friend, stated that on the date of the

incident, she and the victim had gone to Krishna Yadav's house to see the marriage

procession. Around 10:00 p.m., they went to the Kothari Nala ground for nature's

call when accused Nazar Mohammad and Ayyaz Mohammad arrived and grabbed

the victim. She shouted, but her voice was drowned out by the DJ music. She then

ran to Krishna Yadav's house and informed the victim's mother that accused Nazar

Mohammad and Ayyaz Mohammad had taken the victim. The next day, the police

inquired about the incident, and she accompanied them to describe the scene.

Nothing in her cross-examination warrants discrediting her testimony.

29. The grandfather of the victim (PW-5) corroborated the statements of the

victim's mother and father. He stated that when the victim met him, she narrated

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that while going for nature's call, accused Nazar Mohammad and Ayyaz

Mohammad grabbed her, took her to their house, and accused Ayyaz Mohammad

forcibly raped her against her will.

30. Sarnam Singh Baghel (PW-9), the Investigating Officer, testified that during

the investigation, he visited the place of incident, inspected it, and prepared the

spot map (Ex. P/3) at the instance of the victim's mother. On 27.06.2019, he

recorded the statements of the victim's father and witness Reena Yadav. On

05.07.2019, he recorded the statements of the victim's mother, grandfather, and

witness Jitendra Tiwari. On 27.09.2019, he searched the house of accused Nazar

Mohammad in the presence of witnesses Anil Kumar Dwivedi and Ashish

Dwivedi. During the search, the victim was found inside the house. He prepared a

search panchnama (Ex. P/9) and a seizure panchnama (Ex. P/10). Thereafter, the

victim was brought to the police station, her parents were called, and in the

presence of witnesses Smt. Rama Yadav and Shrinath Yadav, she was handed over

to her mother. A delivery panchnama (Ex. P/5) was prepared. A medical

examination form (Ex. P/11) was prepared, and the victim was sent with a lady

constable to the District Hospital, Baidhan for medical examination. On

28.06.2019, he arrested accused Mohammad Ayyaz (arrest memo Ex. P/12) and

accused Nazar Mohammad (arrest memo Ex. P/13).

31. Roopa Agnihotri (PW-10) recorded the victim's statement on 28.06.2019.

32. Dr. U.K. Singh (PW-11) examined accused Ayyaz Mohammad and opined

that he was capable of sexual intercourse. He sealed two semen slides and the

accused's underwear, handing them over to the concerned constable for chemical

testing. The medical examination report is Ex. P/18. He further stated that Dr.

Akriti Jaiswal medically examined the victim on 28.06.2019. She prepared two

slides of the victim's vaginal discharge, her green panty, and pubic hair, which

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were handed over to the concerned female constable for chemical examination. In

cross-examination, suggestions put to him on behalf of the accused were denied,

and no material emerged to benefit the accused.

33. From the evidence of PW-9, it appears that for DNA examination, an EDTA

vial containing the victim's blood sample, vaginal slide, pubic hair, and

underwear, along with an EDTA vial containing the accused's blood sample,

semen slide, and underwear, were sent to FSL, Sagar (letter Ex. P/20). The DNA

report (Ex. P/22) confirms a positive DNA match with respect to accused Ayyaz

Mohammad.

34. Upon analyzing the prosecution evidence, it is evident that the victim (PW-

1) clearly stated that accused Ayyaz Mohammad forcibly committed sexual

intercourse with her against her will. She was recovered from his house on the

third day of the incident, as documented by the Investigating Officer through the

search memo (Ex. P/9) and seizure panchnama (Ex. P/10). This fact is

corroborated by the victim's mother (PW-2) and father (PW-3). The fact that

accused Ayyaz Mohammad took the victim to his house while she was going for

nature's call with her friend Reena Yadav (PW-4) stands proved. The scientific

evidence, particularly the positive DNA report, further implicates accused Ayyaz

Mohammad. In the cross-examination of the victim, her mother, and father, the

defence suggested that accused Ayyaz Khan had supplied 100-200 truckloads of

soil to his field without payment, leading to this false case when he demanded his

money. This defence is untenable against the overwhelming prosecution evidence,

including the victim's recovery from the accused's house on the third day. The

accused's alternative plea that the victim was in love with him and went to his

house willingly also fails, as the victim was a minor at the time of the incident.

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(VIVEK AGARWAL)

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JUDGE

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(RATNESH CHANDRA SINGH BISEN)

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JUDGE

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35. In view of the aforesaid analysis, the evidence adduced by the prosecution is

found to be credible. This Court is of the considered view that prosecution has

proved its case beyond reasonable doubt that the appellant is guilty of the offences

charged. We find no infirmity or illegality in the impugned judgment, warranting

interference by this Court. The appeal fails and is hereby dismissed

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.

36. Record of the trial Court be sent back immediately.

Rao

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