2026:HHC:22025

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 681 of 2024

Reserved on: 28.04.2026

Date of Decision: 05.6.2026

Rajender Kumar ...Appellant

Versus

State of H.P. ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

For the Appellant : Mr N.S.Chandel, Senior Advocate,

Advocate with Ms Kanika,

Advocate.

For the Respondent : Mr Lokender Kutlehria, Additional

Advocate General.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

of conviction dated 07.12.2024 and order of sentence dated

13.12.2024, passed by learned Special Judge, Kullu, District Kullu,

H.P., vide which the appellant (accused before learned Trial

Court) was convicted of the commission of offences punishable

under Sections 342 and 354A(i) of the Indian Penal Code (IPC)

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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and Section 9(f) read with Section 10 of the Protection of

Children from Sexual Offences Act (POCSO Act) and was

sentenced as under:-

Under Section 342 of the IPC The accused was sentenced to

undergo simple imprisonment for one

year, pay a fine of ₹1000/-and in

default of payment of the fine, to

further undergo simple

imprisonment for two months.

Under Section 10 of the POCSO

Act

The accused was sentenced to

undergo rigorous imprisonment for

five years, pay a fine of ₹10,000/- and

in default of payment of fine, to

undergo simple imprisonment for one

year.

It was ordered that both the sentences of imprisonment shall run

concurrently.

(Parties shall hereinafter be referred to in the same manner as they

were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present

appeal are that the police presented a challan against the accused

for the commission of offences punishable under Sections 342 &

354A of the IPC and Section 10 of the POCSO Act. It was asserted

that the informant (name withheld to protect her identity) was

studying in class X. The accused was posted as a Security Trainer

in the school. The accused called the informant and her friend on

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08.06.2017. The informant went to the laboratory , and the

accused called her inside the lab. As soon as the informant went

inside the lab, the accused bolted the door. The informant’s

friends remained outside. The informant was going out of the

laboratory, and the accused asked her for ‘Ek-Ek’, and she got

confused. The accused asked the informant to take the articles of

her friends as well. The accused forcibly kissed her. She came out

of the laboratory while crying. The informant disclosed the

incident to her friends. She disclosed the incident on 12.06.2017

to her mother. Her mother filed an application (Ex. P-1/PW-10)

before the principal (PW-9), who submitted the application to

the Sexual Harassment Committee of the school for enquiry. The

committee prepared the report and handed it over to the

principal, who reported the matter to the police. An entry (Ext.P-

1/PW-13) was recorded in the police post, and F.I.R. (Ext.P-1/PW-

16) was registered in Police Station Keylong. ASI Sukh Ram (PW-

16) visited the spot and took the photographs (Ext.P-2/PW-16

and Ext.P-3/PW-16). Inspector Lalit Mahant (PW -17)

investigated the matter. He visited the spot and prepared the site

plan (Ext.P-1/PW-17). He filed an application (Ext.P-2/PW-17)

for the medical examination of the child victim . Dr Dinesh

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referred the victim to the gynaecologist. The victim was

produced before Dr Anu Namgyal (PW-7) for her examination,

but she refused to undergo her examination. She made an

endorsement to this effect on the MLC (Ext.P-1/PW-15).

Inspector Lalit Mahant (PW-17) arrested the accused. He filed an

application (Ext.P-3/PW-17) for conducting the medical

examination of the accused. Dr Dinesh (PW-15) examined the

accused and found that he was capable of performi ng sexual

intercourse. He issued the MLC (Ext.P-2/PW-15). Inspector Lalit

Mahant filed an application (Ext.PW-3/A) for obtaining the date

of birth certificate of the victim from the Panchayat Secretary,

Gram Panchayat Jahlma and obtained the birth certificate

(Ext.PW-3/B). He filed an application (Ext.PW-4/A) for obtaining

a copy of the Attendance Register and obtained the Register

(Ext.PW-4/B). He filed an application for recording the

statement of the victim. The learned Chief Judicial Magistrate,

Manali, District Kullu, H.P., recorded the victim’s statement. The

statements of witnesses were recorded as per their version, and

after the completion of the investigation, the challan was

prepared and presented before the Court.

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3. The learned trial Court found sufficient reasons to

summon the accused. When the accused appeared, he was

charged with the commission of offenc es punishable under

Sections 342 and 354-A of the IPC and Section 10 of the POCSO

Act, to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined 17 witnesses to prove its

case. Shanti Devi (PW-1) is the Chairperson of the Sexual

Harassment Committee. Neel Chand (PW -2) took the complaint

to the Police Post. Som Dei (PW-3) issued the birth certificate of

the victim. Sher Singh (PW-4) issued the extract of the teachers’

attendance register. Student (PW-5) stated that the accused used

to make sexual remarks and touch the female students

inappropriately. Parveen Kumar (PW-6) video-graphed the

proceedings. Dr Anu Namgyal (PW-7) is the Gynaecologist to

whom the victim was referred for medical examination. Suresh

Kumar (PW-8) carried the rukka to the Police Station. Rakesh

Chandel (PW-9) is the principal of the school. The victim’s

mother (PW-10) was told about the incident. The victim (PW-11)

and her friend (PW-12) had gone to the laboratory at the instance

of the accused. Constable Balbir (PW-13) proved the entry in the

daily diary. Vishal Gupta (PW-14) saw the victim crying outside

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the laboratory. Dr Dinesh (PW-15) examined the victim and the

accused. ASI Sukh Ram (PW-16) took the photographs. Inspector

Lalit Mahant (PW-17) investigated the matter.

5. The accused, in his statement recorded under Section

313 of the Code of Criminal Procedure (Cr.P.C), admitted that he

was posted as a Security Trainer in the school, in which the

victim was studying. He admitted that the victim and her friends

were in the security class. He denied the rest of the prosecution's

case. He claimed that a false case was made against him because

he had made complaints against the girls for misbehaving in the

class and had turned them out of the class. He claimed that he

was innocent. He did not produce any evidence in his defence.

6. The learned Trial Court held that the age of the victim

was proved by the birth certificate issued by the Secretary of the

Gram Panchayat. It was also proved that the victim was studying

in the school where the accused was posted as a teacher. The

statement of the victim was satisfactory. Her statement was

corroborated by her previous statements made to the Sexual

Harassment Committee and the learned Chief Judicial

Magistrate. Her statement was also corroborated by the

statements of her friend and her mother. The defence taken by

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the accused that he had made complaints against the students

for misbehaviour and had turned them out of the class was not

probable. Minor contradictions in the statements were not

sufficient to discard the prosecution's case. The prosecution had

succeeded in establishing its case beyond a reasonable doubt.

Hence, he was convicted and sentenced as aforesaid.

7. Being aggrieved by the judgment passed by the

learned Trial Court, the accused has filed the present appeal

asserting that the learned Trial Court failed to properly

appreciate the mat erial on record. There were major

contradictions in the statement of the victim, which made her

testimony doubtful. The victim had not narrated the incident to

Vishal immediately, and this made her testimony suspect. The

victim’s friends had not deposed about the bolting of the door by

the accused. The date of birth of the victim was not proved, and

she was not proved to be a minor. Therefore, it was prayed that

the present appeal be allowed and the judgment passed by the

learned trial Court be set aside.

8. I have heard Mr N.S. Chandel, learned Senior

Advocate, assisted by Ms Kanika, learned counsel for the

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appellant/accused and Mr Lokender Kutlehria, learned

Additional Advocate General, for the respondent/State.

9. Mr N.S. Chandel, learned Senior Advoc ate, for the

appellant/accused, submitted that the learned Trial Court erred

in convicting and sentencing the accused. The prosecution had

failed to prove that the victim was a minor. Her testimony in the

Court contradicted her statement made before the Police, Sexual

Harassment Committee and learned Chief Judicial Magistrate,

which made her an unreliable witness. Other witnesses had only

repeated what was told to them by the victim. There are major

contradictions in the statements of the witnesses, which were

ignored by the learned trial Court. No complaint was made to

Vishal, who had seen the victim immediately after the incident.

Therefore, he prayed that the present appeal be allowed and the

judgment and order passed by the learned Trial Court be set

aside.

10. Mr Lokender Kutlehria, learned Additional Advocate

General for the respondent/State, submitted that the date of

birth certificate issued by the Gram Panchayat carries with it a

presumption of correctness, and the learned Trial Court had

rightly relied upon it. There was no need to produce any

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corroborative evidence to show the age of the victim. The victim

and her friend consistently stated that the accused had molested

the victim. The defence taken by the accused that a false case was

made against him because he used to complain against the girls

was not proved by any evidence on record. Learned Trial Court

had properly appreciated the evidence, and there is no infirmity

in the judgment passed by the learned Trial Court. Hence, he

prayed that the present appeal be dismissed.

11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully

12. 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

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conclusively has been expressed in sub-rule (3) of Rule 12

extracted above. Under the aforesaid provision, the age of

a child is ascertained by adopting the first available basis

out of a number of options postulated in Rule 12(3). If, in

the scheme of options under Rule 12(3), an option is expressed

in a preceding clause, it has an overriding effect over an

option expressed in a subsequent clause. The highest-rated

option available would conclusively determine the age of a

minor. In the scheme of Rule 12(3), the matriculation (or

equivalent) certificate of the child concerned is the highest-

rated option. In case the said certificate is available, no other

evidence can be relied upon. Only in the absence of the said

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

certificate issued by a corporation, a municipal authority, or a

panchayat. Yet again, if such a certificate is available, then no

other material whatsoever is to be taken into consideration

for determining the age of the child concerned, as the said

certificate would conclusively determine the age of the child.

It is only in the absence of any of the aforesaid that Rule 12(3)

postulates the determination of the age of the child concerned

on the basis of medical opinion.

24. Following the scheme of Rule 12 of the 2007 Rules, it is

apparent that the age of the prosecutrix VW, PW 6, could not

be determined on the basis of the matriculation (or

equivalent) certificate as she had herself deposed that she

had studied up to Class 3 only, and thereafter, had left her

school and had started to do household work. The

prosecution, in the facts and circumstances of this case, had

endeavoured to establish the age of the prosecutrix VW, PW 6,

on the next available basis in the sequence of options

expressed in Rule 12(3) of the 2007 Rules. The prosecution

produced Satpal (PW 4) to prove the age of the prosecutrix,

VW, PW 6. Satpal (PW 4) was the Head Master of Government

High School, Jathlana, where the prosecutrix VW, PW 6, had

studied up to Class 3. Satpal (PW 4) had proved the certificate

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Ext. PG, as having been made on the basis of the school

records, indicates 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)

13. A similar view was taken in State of U.P. v. Anurudh,

2026 SCC OnLine SC 40, wherein it was observed:

“14.6. Having discussed this, the two separate fields that

these two legislations govern, we now turn back to the

question of age determination. If the POCSO Act is

examined, it can be found that the Act does not prescribe a

manner for the determination of the age of the victim. As

we have already noticed, it is an established position in

law that the procedure under Section 94 of the JJ Act is to

be applied.[See: Section 34 of the Act] When the question of

determination of age of a child in conflict with the law

emerges for the first time before a Court, the concerned

legislation provides the procedure as housed in its Section

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9 of the Act lays down the procedure to be followed when a

person is brought before a Magistrate who is not

empowered under the Act, and there arises a claim or

reasonable doubt that such person is a child. In such cases,

the Magistrate must conduct an inquiry to determine the

person's age in accordance with Section 94 of the Act,

which prescribes the method for age determination. If,

upon inquiry, the Magistrate finds that the person was a

child at the time of commission of the offence, the case

must be immediately forwarded to the JJB having

jurisdiction, which will thereafter deal with the matter as

per the provisions of the JJ Act. Conversely, if the person is

found not to be a child, the Magistrate proceeds with the

case as per the regular criminal procedure. The object of

Section 9 is to ensure that no juvenile offender is tried as

an adult merely due to an initial misclassification and to

safeguard the rehabilitative and welfare-oriented spirit of

the juvenile justice system by ensuring that every child in

conflict with law is tried by the appropriate forum, i.e., the

JJB”

14. It was held in Sanjeev Kumar Gupta versus State of

U.P.& Ors (2019) 12 SCC 370 that a matriculation certificate, and a

date of Birth certificate from the school first attended, if

available, and in their absence, the birth certificate given by the

Corporation Municipal Authority or Panchayat would be

considered. These are in hierarchical order. Thus, where a

matriculation certificate or the birth certificate from the school is

available, the birth certificate given by the Corporation cannot be

relied upon. It was observed:

“Clause (i) of Section 94(2) places the date of birth

certificate from the school and the matriculation or

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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.

15. It was held in Vinod Katara versus State of U.P., 2022

SCC OnLine SC 1204 that clause (a) of Rule 12(3) of 2007 Rules

contains a hierarchical order. It was observed:

48. Clause (a) of Rule 12(3) of the 2007 Rules contains a

hierarchical ordering, evident from the use of the

language “in the absence whereof”. This indicates that

where a matriculation or equivalent certificate is available,

the documents adverted to in (ii) and (iii) cannot be relied

upon. The matriculation certificate, in other words, is

given precedence. It is in the absence of a matriculation

certificate that the date of birth certificate of the school

first attended can be relied upon. It is in the absence of

both the matriculation and the birth certificates of the

first school attended that a birth certificate issued by the

corporation, municipal authority or panchayat could be

obtained.

49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC

751, this Court, while examining the scope of Rule 12 of the

2007 Rules, had reiterated that medical opinion from the

Medical Board should be sought only when the

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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, and also the

school leaving certificate for determining the age of the

appellant.

16. A similar view was taken in P. Yuvaprakash v. State,

2023 SCC OnLine SC 846, wherein it was observed:

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

question shall be determined by the Special Court after

satisfying itself about the age of such person, and it shall

record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed

to be invalid merely by any subsequent proof that the age

of a person as determined by it under sub-section (2)

was not the correct age of that person.”

12. In view of Section 34(1) of the POCSO Act, Section 94 of

the JJ Act 2015 becomes relevant and applicable. That

provision is extracted below:

“94. Presumption and determination of age. - (1) Where

it is obvious to the Committee or the Board, based on the

appearance of the person brought before it under any of

the provisions of this Act (other than for the purpose of

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giving evidence), that the said person is a child, the

Committee or the Board shall record such observation

stating the age of the child as nearly as may be and

proceed with the inquiry under section 14 or section 36,

as the case may be, without waiting for further

confirmation of the age.

(2) In case the Committee or the Board has reasonable

grounds for doubt regarding whether the person brought

before it is a child or not, the Committee or the Board, as

the case may be, shall undertake the process of age

determination by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or

the matriculation or equivalent certificate from the

concerned examination Board, if available; and in

the absence thereof;

(ii) the birth certificate given by a corporation, a

municipal authority, or a panchayat;

(iii) and only in the absence of (i) and (ii) above,

age shall be determined by an ossification test or

any other latest medical age determination test

conducted on the orders of the Committee or the

Board:

Provided 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 the 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 that the Juvenile Justice Act

requires consideration are that the concerned court has to

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determine the age by considering the following

documents:

“(i) the date of birth certificate from the school, or the

matriculation or equivalent certificate from the

concerned examination Board, if available; and in the

absence thereof;

(ii) the birth certificate given by a corporation, a

municipal authority, or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age

shall be determined by an ossification test or any other

latest medical age determination test conducted on the

orders of the Committee or the Board”.

14. Section 94(2)(iii) of the JJ Act clearly indicates that the

date of birth certificate from the school or matriculation or

equivalent certificate by the concerned examination board

has to be firstly preferred in the absence of which the birth

certificate issued by the Corporation or Municipal

Authority or Panchayat and it is only thereafter in the

absence of these such documents the age is to be

determined through “an ossification test” or “any other

latest medical age determination test” conducted on the

orders of the concerned authority, i.e. Committee or Board

or Court. In the present case, concededly, only a transfer

certificate and not the date of birth certificate,

matriculation or equivalent certificate was considered. Ex.

C1, i.e., the school transfer certificate, showed the date of

birth of the victim as 11.07.1997. Significantly, the transfer

certificate was produced not by the prosecution but instead

by the court-summoned witness, i.e., CW-1. The burden is

always upon the prosecution to establish what it alleges;

therefore, the prosecution could not have 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

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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 pari materia)

with Section 94 of the JJ Act and held as follows:

“20. Rule 12 of the JJ Rules, 2007, deals with the

procedure to be followed in the determination of age.

The juvenility of a person in conflict with the law had to

be decided prima facie on the basis of physical

appearance or documents, if available. But an inquiry

into the determination of age by the Court or the JJ Board

was by seeking evidence by obtaining: (i) the

matriculation or equivalent certificates, if available and

in the absence whereof; (ii) the date of birth certificate

from the school (other than a play school) first attended;

and in the absence whereof; (iii) the birth certificate

given by a corporation or a municipal authority or a

panchayat. Only in the absence of either (i), (ii) and (iii)

above, the medical opinion could be sought from a duly

constituted Medical Board to declare the age of the

juvenile or child. It was also provided that while

determination was being made, the benefit could be

given to the child or juvenile by considering the age on

the lower side within the margin of one year.”

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

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provided. Section 94(2)(a)(i) indicates a significant

change over the provisions which were contained in Rule

12(3)(a) of the Rules of 2007 made under the Act of

2000. Under Rule 12(3)(a)(i), the matriculation or

equivalent certificate was given precedence, and it was

only in the event of the certificate not being available

that the date of birth certificate from the school first

attended could be obtained. In Section 94(2)(i), both the

date of birth certificate from the school, as well as the

matriculation or equivalent certificate, are placed in the

same category.

17. In Abuzar Hossain @ Gulam Hossain v. State of West

Bengal (2012) 9 SCR 224, this court, through a three-judge

bench, held that the burden of proving that someone is a

juvenile (or below the prescribed age) is upon the person

claiming it. Further, in that decision, the court indicated

the hierarchy of documents that would be accepted in order

of preference.

17. A similar view was taken in Rajni v. State of U.P., 2025

SCC OnLine SC 1183, wherein it was observed: -

21. Let us first deal with the issue of juvenility. The

question for consideration is whether the learned

Additional District and Sessions Judge and the High Court

were justified in holding respondent No. 2 to be a juvenile

and whether any interference is called for in such a

decision?

22. Section 68 of the Juvenile Justice (Care and Protection

of Children) Act, 2000, empowered the state government

to make rules by notification in the official gazette to carry

out the purposes of the Juvenile Justice (Care and

Protection of Children) Act, 2000 (‘the JJ Act, 2000’). As

per the proviso to sub-section (1) of Section 68, the

central government was also empowere d to frame model

rules which would apply to the states also till such time

rules were made in that behalf by the concerned state

government; and while making any such rules so far as

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practicable to conform to the model rules framed by the

central government.

23. With a view to provide for better implementation and

administration of the provisions of the JJ Act, 2000 in its

true spirit and substance, the central government in

exercise of the powers conferred by the proviso to sub-

section (1) of Section 68 of the JJ Act, 2000 made the

Juvenile Justice (Care and Protection of Children) Rules,

2007 (briefly, ‘the JJ Rules, 2007’) laying down the

fundamental principles to be applied in the administration

of juvenile justice. Rule 12 dealt with the procedure to be

followed in the determination of age. As per sub-rule (1),

in every case concerning a child or juvenile in conflict with

law, the court or JJB or the child welfare committee was

required to determine the age of such juvenile or child or a

juvenile in conflict with law within a period of 30 days

from the date of making of the application for that

purpose. As per sub-rule (2), the court or the JJB or the

child welfare committee was required to decide the

juvenility or otherwise of the juvenile or the child or the

juvenile in conflict with law prima facie on the basis of

physical appearance or documents if available and send

him to the observation home or to jail, as the case may be.

23.1. Sub-rule (3) of Rule 12 is relevant. Therefore, the

same is extracted hereunder:

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

conflict with the 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 thereof;

(ii) the date of birth certificate from the school

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

the absence thereof;

(iii) the birth certificate given by a corporation or

a municipal authority, or a panchayat;

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(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 an 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 the lower side within the margin of

one year.

and, while passing orders in such case shall, after

taking into consideration such evidence as may be

available, or the medical opinion, as the case may

be, record a finding in respect of his age and

either of the evidence specified in any of the

clauses (a)(i), (ii), (iii) or in the absence whereof,

clause (b) shall be the conclusive proof of the age

as regards such child or the juvenile in conflict

with law.

23.2. Thus, sub-rule (3) of Rule 12 provided that the age

determination enquiry should be conducted firstly on the

basis of matriculation or equivalent certificate. If such a

certificate was not available, then the date of birth

certificate from the school first attended (other than a

play school). In the absence of such a certificate, the birth

certificate given by a corporation, a municipal authority or

a panchayat should be the basis. Clause (b) of sub-rule (3)

made it clear that only in the absence of such certificates

as enumerated above, medical opinion would be sought

from a duly constituted medical board, which would

declare the age of a juvenile or a child. In case an exact

assessment of age could not be done, the court or JJB or

the child welfare committee, for the reasons to be

recorded, if considered necessary, had the discretion to

give benefit to the child or the juvenile by considering

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

year. While passing orders in such a case, evidence as may

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be available or the medical opinion as provided should be

taken into consideration before recording a finding in

respect of age.

24. To consolidate and amend the law relating to children

alleged and found to be in conflict with law and children in

need of care and protection by catering to their basic needs

through proper care etc. by adopting a child friendly

approach in the adjudication and disposal of matters in

the best interest of children and for their rehabilitation

etc., the Juvenile Justice (Care and Protection of Children)

Act, 2015 (already referred to as the JJ Act, 2015) came to

be enacted. Section 111 is the repeal and savings clause. As

per sub-section (1), the JJ Act, 2000, was repealed.

25. Section 94 deals with the presumption and

determination of age. Section 94 reads thus:

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 from the

concerned examination Board, if available; and in

the absence thereof;

(ii) the birth certificate given by a corporation or a

municipal authority, or a panchayat;

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(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.

(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.

25.1. Thus, the process of age determination is provided in

sub-section (2) of Section 94, which is identical to the

procedure prescribed under sub-rule (3) of Rule 12 of the JJ

Rules, 2007. Sub-section (2) of Section 94 says that to

undertake the process of age determination, the child

welfare committee or the JJB shall seek evidence in the

following manner:

(i) the date of birth certificate from the school or the

matriculation or equivalent certificate from the

concerned Board, if available;

(ii) in the absence thereof, the birth certificate given

by a corporation, a municipal authority or a

panchayat;

(iii) in the absence of (i) and (ii), the age shall be

determined by an ossification test or by any other

latest medical age determination test conducted on

the orders of the child welfare committee or the JJB.

26. Having noticed the relevant legal framework, let us

examine as to how the case of respondent No. 2 vis-à-vis

juvenility was dealt with by the JJB and thereafter by the

learned Additional District and Sessions Judge. As already

noted above, JJB had held respondent No. 2 to be not a

juvenile, which decision was reversed by the learned

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Additional District and Sessions Judge and affirmed by the

High Court.

27. At this stage, we need to mention that the date of the

incident is 17.02.2021. On behalf of respondent No. 2, a

certificate from the DPS Higher Secondary School, Parvesh

Vihar, Meerut, was filed. The date of admission was

mentioned as 04.04.2016. The date of birth of respondent

No. 2 was mentioned as 08.09.2003. Respondent No. 2 had

passed the high school examination in the year 2018 from

the said DPS Higher Secondary School, Parvesh Vihar,

Meerut. Thereafter, he studied at CRK Inter College,

Meerut. Therefore, on the date of the incident, respondent

No. 2 was below 18 years of age. In the register of DPS

Higher Secondary School and the marksheet of the high

school examination, the date of birth of respondent No. 2

was mentioned as 08.09.2003. JJB, in an earlier proceeding

relating to respondent No. 2, i.e. Miscellaneous Case No.

9/2000 in respect of Crime Case No. 11/2000 under Section

307 IPC, Police Station Medical College, Meerut, had

accepted the date of birth of respondent No. 2 as

08.09.2003. It is seen that in the present proceeding, JJB

examined the mother of respondent No. 2, who had

applied to declare her son, respondent No. 2, as a juvenile.

JJB observed that she did not remember in which school

respondent No. 2 had studied from Class 1 to Class 7 before

taking admission in DPS Higher Secondary School in Class

8. In her statement, Principal of DPS Higher Secondary

School, Smt. Manju Mala Sharma stated that she had been

working in the same school since the year 1996 and

asserted that respondent No. 2 had obtained his education

from her school from Class 4 to High School, but the

original records of Class 4 to Class 8 were not available as

those were destroyed due to fire.

27.1. JJB also rejected the birth certificate of Meerut

Municipal Corporation, which showed the date of birth of

respondent No. 2 as 08.09.2003 on the ground that it was

issued on 08.06.2020.

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27.2. As regards the earlier decision of JJB, it was observed

that the present informant was not a party therein.

Therefore, she had no opportunity to tender evidence or to

rebut the claim of juvenility of respondent No. 2. Thus, the

previous decision of JJB was not applicable.

27.3. It was in that context that JJB passed an order for

medical examination of respondent No. 2. In compliance

with such an order, the Medical Board submitted a report

on 27.07.2021 assessing the age of respondent No. 2 as

about 21 years.

27.4. JJB accepted the medical report dated 27.07.2021,

wherein the age of respondent No. 2 was assessed as about

21 years. On that basis, respondent No. 2 was found to be

more than 18 years of age on the date of the incident.

Thus, respondent No. 2 was held to be an adult as on

17.02.2021, i.e. the date of the incident.

28. Admittedly, the line of reasoning adopted by the JJB is

totally fallacious. When the concerned birth certificate

from the school was available as well as the birth

certificate issued by the Meerut Municipal Corporation, JJB

could not have opted for ossification test. The statute is

very clear that only in the absence of the certificates under

clause (i) and clause (ii) of subsection (2) of Section 94 can

the JJB order for an ossification test or any other medical

test to determine the age of the juvenile. The certificate of

the Meerut Municipal Corporation was issued on

08.06.2020, before the date of the incident. In any event, it

was not open to the JJB to go behind the available school

certificate or the birth certificate of the Corporation and

record evidence to examine the correctness or otherwise

of such certificate. This is not the mandate of Section

94(2) of the JJ Act, 2015. Therefore, the learned Additional

District and Sessions Judge was justified in reversing such

a decision of the JJB. Learned Additional District and

Sessions Judge gave preference to the date of birth of

respondent No. 2 mentioned in the high school certificate,

wherein his date of birth was mentioned as 08.09.2003.

Thus, respondent No. 2 was 17 years, 3 months, 10 days on

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2026:HHC:22025

the date of the incident. Accordingly, he was declared a

juvenile delinquent.

18. In the present case, the prosecution has relied upon

the school leaving certificate (Ext.PW-9/E) produced by Rakesh

Chandel (PW-9) and birth certificate (Ext.PW-3/B) issued by

Som Dei (PW-3), Panchyat Secretary. The prosecution also relied

upon the copy of the adm ission and withdrawal register, in

which the victim’s date of birth has been recorded. It was laid

down by the Hon’ble Supreme Court in P. Yuvaprakash (supra),

that a transfer certificate and an extract of register are not what

Section 94(2)(i) of the Juvenile Justice Act (J.J Act) mandates. It

was observed at page 692: -

“21. Reverting to the facts of this case, the headmaster of

M's school, CW 1, was summoned by the court and

produced a Transfer Certificate (Ext. C-1). This witness

produced a Transfer Certificate Register containing M's

name. He deposed that she had studied in the school for

one year, i.e. 2009-2010 and that the date of birth was

based on the basis of the record sheet given by the school

where she studied in the 7th standard. DW 2 TMT

Poongothoi, Headmaster of Chinnasoalipalayam

Panchayat School, answered the summons served by the

court and deposed that ‘M’ had joined her school with

effect from 3-4-2002 and that her date of birth was

recorded as 11-7-1997. She admitted that though the date

of birth was based on the birth certificate, it would

normally be recorded on the basis of the horoscope. She

conceded to no knowledge about the basis on which the

document pertaining to the date of birth was recorded. It

26

2026:HHC:22025

is stated earlier on the same issue, i.e. the date of birth,

Thiru Prakasam, DW 3 , stated that the birth register

pertaining to the year 1997 was not available in the record

room of his office.

22. It is clear from the above narrative that none of the

documents produced during the trial answered the

description of “the date of birth certificate from the school”

or “the matriculation or equivalent certificate” from the

examination board concerned , or a certificate by a

corporation, municipal authority or a Panchayat. In these

circumstances, it was incumbent for the prosecution to

prove through acceptable medical tests/examination that

the victim's age was below 18 years as per Section

94(2)(iii) of the JJ Act. PW 9, Dr Thenmozhi, Chief Civil

Doctor and Radiologist at the General Hospital at Vellore,

produced the x-ray reports and deposed that in terms of

the examination of ‘M’, a certificate was issued stating

“that the age of the said girl would be more than 18 years and

less than 20 years”. In the cross-examination, she

admitted that M's age could be taken as 19 years. However,

the High Court rejected this evidence, saying that “when

the precise date of birth is available from outside the school

records, the approximate age estimated by the medical expert

cannot be the determining factor”. This finding is, in this

Court's considered view, incorrect and erroneous.

23. As held earlier, the documents produced, i.e. a transfer

certificate and extracts of the admission register, are not

what Section 94(2)(i) mandates; nor are they in accord

with Section 94(2)(ii) because DW 1 clearly deposed that

there were no records relating to the birth of the victim,

‘M’. In these circumstances, the only piece of evidence,

accorded with Section 94 of the JJ Act, was the medical

ossification test, based on several x-rays of the victim, and

on the basis of which PW 9 made her statement. She

explained the details regarding examination of the

victim's bones, stage of their development and opined that

she was between 18 and 20 years; in cross-examination,

she said that the age might be 19 years. Given all these

circumstances, this Court is of the opinion that the result

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of the ossification or bone test was the most authentic

evidence, corroborated by the examining doctor, PW 9.”

19. Therefore, no reliance can be placed upon the school

leaving certificate or the extract of the admission and withdrawal

register to determine the date of birth of the victim.

20. Learned Trial Court relied upon the date of birth

certificate issued by the Secretary, Gram Panchayat, which is

impermissible when the School Certificate was available. The

learned Trial Court failed to notice the hierarchical order of the

certificates contained in Section 94 of the J.J. Act. Hence, the

conclusion drawn by the learned Trial Court that the victim was

proved to be a minor cannot be sustained.

21. Victim (PW-11) stated that the security class had four

students, including her. She was told on 8.06.2017 that the

accused was calling her to take some articles for practical from

the laboratory. She and her friend visited the security lab. Her

friend came and asked her to play Kho-Kho. She placed the items

on the bench and went with her friend to play Kho -Kho. The

accused asked her about the key to the security lab, and she

replied that the keys were on the bench. The accused asked her to

take the practical items. She and her friends visited the

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laboratory. She went inside the room , and her friends were

outside the room. The accused closed the door and asked her for

Ek-EK. She did not understand and sat down in the room. The

accused asked her to take the practical item of her friend and

handed over the articles to her. He caught her by the arm and

kissed her. She returned while weeping. Her friends asked her

about the reason for her weeping, and she disclosed the incident

to them. Vishal sir asked her why she was weeping, but she did

not tell him anything because of fear and shame. She narrated

the incident to her mother, who made a complaint to the

Principal. She was taken to the hospital for her medical examina,

but she declined to undergo the examination.

22. Her statement was duly corroborated by her friend

(PW-12), who stated that the victim told her on 08.06.2017 that

the accused had asked them to visit the laboratory to take the

practical items. She, the victim and another friend went to the

laboratory. The victim went inside, and she and her friend

remained outside. The victim returned after some time, and she

was weeping. She said that the accused had closed the door and

kissed her. All of them started weeping. Vishal enquired about the

reason for weeping, but they did not disclose anything to him.

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The English teacher enquired on 13

th

June, and she narrated the

incident to her.

23. It was submitted that there are various contradictions

in the statements of these witnesses. The victim has deposed

about going to the laboratory first and thereafter being asked

about playing Kho-Kho, which fact has not been deposed by her

friend. This submission overlooks the fact that the victim had

nowhere stated that PW-12 was also with her when she was

called to play Kho-Kho. Therefore, the omission to state this fact

by Pw 12 does not mean that no such incident had taken place.

Further, it is trite to say that the absence of evidence is not

evidence of absence, and the victim’s testimony cannot be

discarded because her friend has not said anything about playing

Kho-Kho.

24. The statements of the victim recorded by the Sexual

Harassment Committee (Ext.PW -9/B), the learned Magistrate

(Ext.P-2/PW-11) and the complaint (Ext.P-1/PW-11) were read to

the Court to highlight the omissions/improvements . It was

submitted that these omissions/improvements will make the

victim’s version doubtful. This submission will not help the

accused. The victim’s attention was not drawn towards the

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previous statements, and no chance of explanation was provided

to her. It was laid down by the Hon’ble Supreme Court in Binay

Kumar Singh Versus State of Bihar, 1997 (1) SCC 283, that if a

witness is to be contradicted with his previous statement, his

attention must be drawn towards it. It was observed: -

“11. The credit of a witness can be impeached by proof of

any statement which is inconsistent with any part of his

evidence in Court. This principle is delineated in S. 155 (3)

of the Evidence Act, and it must be borne in mind when

reading S. 145, which consists of two limbs. It is provided

in the first limb of S.145 that a witness may be cross-

examined as to the previous statement made by him

without such writing being shown to him but the second

limb provides that "if it is intended to contradict him by

the writing his attention must before the writing can be

provided, be called to those parts of it which are to be used

for the purpose of contradicting him." There is thus a

distinction between the two vivid limbs, though subtle it

may be. The first limb does not envisage impeaching the

credit of a witness, but it merely enables the opposite

party to cross-examine the witness with reference to the

previous statements made by him. He may at that stage

succeed in eliciting materials to his benefit through such

cross-examination, even without resorting to the

procedure laid down in the second limb. But if the witness

disowns having made any statement which is inconsistent

with his present stand, his testimony in Court on that

score would not be vitiated until the cross -examiner

proceeds to comply with the procedure prescribed in the

second limb of S. 145.

12. In Bhagwan Singh's case (AIR 1952 SC 214), Vivian Bose,

J., pointed out in paragraph 25 that during the cross-

examination of the witnesses concerned, the formalities

prescribed by S. 145 are complied with. The cross -

examination, in that case, indicated that every

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circumstance intended to be used as a contradiction was

put to him point by point and passage by passage. Learned

Judges were called upon to deal with an argument that

witnesses' attention should have been specifically drawn

to that passage in addition thereto. Their Lordships were,

however, satisfied in that case that the procedure adopted

was in substantial compliance with S. 145, and hence held

that all that is required is that the witness must be treated

fairly and must be afforded a reasonable opportunity of

explaining the contradictions after his attention has been

drawn to them in a fair and reasonable manner. On the

facts of that case, there is no dispute with the proposition

laid therein.

13. So long as the attention of PW 32 (Sukhdev Bhagat) was

not drawn to the statement attributed to him as recorded

by DW-10 (Nawal Kishore Prasad), we are not persuaded

to reject the evidence of PW-32 that he gave Ex. 14

statement at the venue of occurrence and that he had not

given any other statement earlier thereto.”

25. A similar view was taken in Alauddin v. State of Assam,

2024 SCC OnLine SC 760, wherein it was observed:

“7. When the two statements cannot stand together, they

become contradictory statements. When a witness makes

a statement in his evidence before the Court which is

inconsistent with what he has stated in his statement

recorded by the Police, there is a contradiction. When a

prosecution witness whose statement under Section 161(1)

or Section 164 of CrPC has been recorded states factual

aspects before the Court which he has not stated in his

prior statement recorded under Section 161(1) or Section

164 of CrPC, it is said that there is an omission. There will

be an omission if the witness has omitted to state a fact in

his statement recorded by the Police, which he states

before the Court in his evidence. The explanation to

Section 162CrPC indicates that an omission may amount

to a contradiction when it is significant and relevant.

Thus, every omission is not a contradiction. It becomes a

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contradiction provided it satisfies the test laid down in the

explanation under Section 162. Therefore, when an

omission becomes a contradiction, the procedure provided

in the proviso to sub-Section (1) of Section 162 must be

followed for contradicting witnesses in the cross -

examination.

8. As stated in the proviso to sub-Section (1) of section

162, the witness has to be contradicted in the manner

provided under Section 145 of the Evidence Act. Section

145 reads thus:

“145. Cross-examination as to previous statements

in writing.—A witness may be cross-examined as to

previous statements made by him in writing or

reduced into writing, and relevant to matters in

question, without such writing being shown to him,

or being proved; but, if it is intended to contradict

him by the writing, his attention must, before the

writing can be proved, be called to those parts of it

which are to be used for the purpose of contradicting

him.”

The Section operates in two parts. The first part provides

that a witness can be cross-examined as to his previous

statements made in writing without such writing being

shown to him. Thus, for example, a witness can be cross-

examined by asking whether his prior statement exists.

The second part is regarding contradicting a witness.

While confronting the witness with his prior statement to

prove contradictions, the witness must be shown his prior

statement. If there is a contradiction between the

statement made by the witness before the Court and what

is recorded in the statement recorded by the police, the

witness's attention must be drawn to specific parts of his

prior statement, which are to be used to contradict him.

Section 145 provides that the relevant part can be put to

the witness without the writing being proved. However,

the previous statement used to contradict witnesses must

be proved subsequently. Only if the contradictory part of

his previous statement is proved can the contradictions be

said to be proved. The usual practice is to mark the portion

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or part shown to the witness of his prior statement

produced on record. Marking is done differently in

different States. In some States, practice is to mark the

beginning of the portion shown to the witness with an

alphabet and the end by marking with the same alphabet.

While recording the cross-examination, the Trial Court

must record that a particular portion marked, for example,

as AA was shown to the witness. Which part of the prior

statement is shown to the witness for contradicting him

has to be recorded in the cross-examination. If the witness

admits to having made such a prior statement, that

portion can be treated as proved. If the witness does not

admit the portion of his prior statement with which he is

confronted, it can be proved through the Investigating

Officer by asking whether the witness made a statement

that was shown to the witness. Therefore, if the witness is

intended to be confronted with his prior statement

reduced into writing, that particular part of the statement,

even before it is proved, must be specifically shown to the

witness. After that, the part of the prior statement used to

contradict the witness has to be proved. As indicated

earlier, it can be treated as proved if the witness admits to

having made such a statement, or it can be proved in the

cross-examination of the concerned police officer. The

object of this requirement in Section 145 of the Evidence

Act, in confronting the witness by showing him the

relevant part of his prior statement, is to give the witness

a chance to explain the contradiction. Therefore, this is a

rule of fairness.

9. If a former statement of the witness is inconsistent with

any part of his evidence given before the Court, it can be

used to impeach the credit of the witness in accordance

with clause (3) of Section 155 of the Evidence Act, which

reads thus:

“155. Impeaching the credibility of the witness. —

The credit of a witness may be impeached in the

following ways by the adverse party, or, with the

consent of the Court, by the party who calls him—

(1) ….……………………………………

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(2) ………………………………………

(3) by proof of former statements

inconsistent with any part of his evidence

which is liable to be contradicted.”

It must be noted here that every contradiction or omission

is not a ground to discredit the witness or to disbelieve

his/her testimony. A minor or trivial omission or

contradiction brought to the record is not sufficient to

disbelieve the witness's version. Only when there is a

material contradiction or omission can the Court

disbelieve the witness's version either fully or partially.

What is a material contradiction or omission, depending

upon the facts of each case? Whether an omission is a

contradiction also depends on the facts of each case.

10. We are tempted to quote what is held in a landmark

decision of this Court in the case of Tahsildar Singh v. State

of U.P., 1959 Supp (2) SCR 875. Paragraph 13 of the said

decision reads thus:

“13. The learned counsel's first argument is based

upon the words “in the manner provided by

Section145of the Indian Evidence Act, 1872” found in

Section 162 of the Code of Criminal Procedure. Section

145 of the Evidence Act, it is said, empowers the

accused to put all relevant questions to a witness

before his attention is called to those parts of the

writing with a view to contradicting him. In support of

this contention, reliance is placed upon the judgment

of this Court in Shyam Singh v. State of Punjab [(1952) 1

SCC 514:1952 SCR 812]. Bose, J. describes the procedure

to be followed to contradict a witness under Section

145 of the Evidence Act, thus at p. 819:

Resort to Section 145 would only be necessary

if the witness denies that he made the former

statement. In that event, it would be necessary

to prove that he did, and if the former statement

was reduced to writing, then Section 145

requires that his attention must be drawn to

these parts, which are to be used for

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contradiction. But that position does not arise

when the witness admits the former

statement. In such a case, all that is necessary

is to look to the former statement of which no

further proof is necessary because of the

admission that it was made.”

It is unnecessary to refer to other cases wherein a

similar procedure is suggested for putting questions

under Section 145 of the Indian Evidence Act, for the

said decision of this Court, and similar decisions were

not considered the procedure in a case where the

statement in writing was intended to be used for

contradiction under Section 162 of the Code of

Criminal Procedure. Section 145 of the Evidence Act is in

two parts: the first part enables the accused to cross-

examine a witness as to aprevious statement made by

him in writing or reduced to writing without such writing

being shown to him; the second part deals with a

situation where the cross-examination assumes the

shape of contradiction: in other words, both parts deal

with cross-examination; the first part with cross-

examination other than by way of contradiction, and the

second with cross-examination by way of contradiction

only. The procedure prescribed is that, if it is intended to

contradict a witness by the writing, his attention must,

before the writing can be proved, be called to those parts

of it which are to be used for the purpose of contradicting

him. The proviso to Section 162 of the Code of Criminal

Procedure only enables the accused to make use of such a

statement to contradict a witness in the manner provided

by Section 145 of the Evidence Act. It would be doing

violence to the language of the proviso if the said

statement were allowed to be used for the purpose of

cross-examining a witness within the meaning of the

first part of Section 145 of the Evidence Act. Nor are we

impressed by the argument that it would not be possible

to invoke the second part of Section 145 of the Evidence

Act without putting relevant questions under the first part

thereof. The difficulty is more imaginary than real. The

second part of Section 145 of the Evidence Act clearly

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indicates the simple procedure to be followed. To

illustrate: A says in the witness box that B stabbed C;

before the police, he had stated that D stabbed C. His

attention can be drawn to that part of the statement

made before the police, which contradicts his statement

in the witness box. If he admits his previous statement, no

further proof is necessary; if he does not admit it, the

practice generally followed is to admit it, subject to proof

by the police officer. On the other hand, the procedure

suggested by the learned counsel may be illustrated

thus: If the witness is asked, “Did you say before the

police officer that you saw a gas light?” and he

answers, “Yes”, then the statement which does not

contain such recital is put to him as a contradiction.

This procedure involves two fallacies: one is that it

enables the accused to elicit by a process of cross-

examination what the witness stated before the police

officer. If a police officer did not make a record of a

witness's statement, his entire statement could not be

used for any purpose, whereas if a police officer

recorded a few sentences, by this process of cross-

examination, the witness's oral statement could be

brought on record. This procedure, therefore,

contravenes the express provision of Section 162 of

the Code. The second fallacy is that by the illustration

given by the learned counsel for the appellants, there

is no self-contradiction of the primary statement

made in the witness box, for the witness has not yet

made on the stand any assertion at all which can serve

as the basis. The contradiction, under the section,

should be between what a witness asserted in the

witness box and what he stated before the police

officer, and not between what he said he had stated

before the police officer and what he actually said

before him. In such a case, the question could not be

put at all: only questions to contradict can be put, and

the question here posed does not contradict; it leads

to an answer which is contradicted by t he police

statement. This argument of the learned counsel

based upon Section 145 of the Evidence Act is,

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therefore, not of any relevance in considering the

express provisions of Section 162 of the Code of

Criminal Procedure.” (emphasis added)

This decision is a locus classicus, which will continue to

guide our Trial Courts. In the facts of the case, the learned

Trial Judge has not marked those parts of the witnesses'

prior statements based on which they were sought to be

contradicted in the cross-examination.”

26. It was held in Anees v. State (NCT of Delhi), 2024 SCC

OnLine SC 757 that the Courts cannot suo motu take cognisance of

the contradiction and the same has to be brought on record as per

the law. It was observed:

“64. The court cannot suo motu make use of statements to

the police that have not been proved and ask questions

with reference to them which are inconsistent with the

testimony of the witness in the court. The words ‘if duly

proved’ are used in Section 162Cr. P.C. clearly shows that

the record of the statement of witnesses cannot be

admitted in evidence straightaway, nor can it be looked

into, but they must be duly proved for contradiction by

eliciting admission from the witness during cross -

examination and also during the cross-examination of the

Investigating Officer. The statement before the

Investigating Officer can be used for contradiction, but

only after strict compliance with Section 145 of the

Evidence Act, that is, by drawing attention to the parts

intended for contradiction.

65. Section 145 of the Evidence Act reads as follows:

“145. Cross-examination as to previous statements in

writing.— A witness may be cross-examined as to

previous statements made by him in writing or reduced

into writing, and relevant to matters in question,

without such writing being shown to him, or being

proved; but, if it is intended to contradict him by the

writing, his attention must, before the writing can be

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proved, be called to those parts of it which are to be used

for the purpose of contradicting him.”

66. Under Section 145 of the Evidence Act, when it is intended

to contradict the witness by his previous statement reduced

into writing, the attention of such witness must be called to

those parts of it which are to be used for the purpose of

contradicting him, before the writing can be used. While

recording the deposition of a witness, it becomes the duty of

the trial court to ensure that the part of the police statement

with which it is intended to contradict the witness is brought

to the notice of the witness in his cross-examination. The

attention of the witness is drawn to that part, and this must be

reflected in his cross-examination by reproducing it. If the

witness admits the part intended to contradict him, it stands

proved, and there is no need for further proof of contradiction,

and it will be read while appreciating the evidence. If he

denies having made that part of the statement, his attention

must be drawn to that statement, and it must be mentioned in

the deposition. By this process, the contradiction is merely

brought on record, but it is yet to be proved. Thereafter, when

the Investigating Officer is examined in the court, his attention

should be drawn to the passage marked for contradiction; it

will then be proved in the deposition of the Investigating

Officer, who, again, by referring to the police statement, will

depose about the witness having made that statement. The

process again involves referring to the police statement and

culling out the part with which the maker of the statement

was intended to be contradicted. If the witness was not

confronted with that part of the statement with which the

defence wanted to contradict him, then the court cannot suo

motu make use of statements to police not proved in

compliance with Section 145 of the Evidence Act, that is, by

drawing attention to the parts intended for contradiction.”

[See: V.K. Mishra v. State of Uttarakhand: (2015) 9 SCC 588]

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27. Therefore, it is impermissible to take the previous

statements as substantive pieces of evidence and compare them

to find out the contradictions/omissions in them.

28. Vishal Gupta (PW-14) stated that he found the victim

weeping with her friends. He enquired as to why the victim was

weeping. The other girls disclosed that she was sick. He sent all

of them to the ground. It was submitted that the statement of

this witness falsifies the prosecution's case. He had seen the

victim immediately after the incident. The victim had not

disclosed the incident to him, which makes her version doubtful

that she was sexually harassed by the accused. This submission

cannot be accepted. The victim explained that she could not

narrate the incident to Vishal because of fear and shame. This is a

plausible explanation. The victim was shocked and was crying. It

would have been difficult for her to narrate what had happened

to her to a male teacher, who was in a position of authority over

her. Such a reaction is normal. Further, the victim had not said

anything about her illness and only her friends had told that the

victim was ill. Therefore, the victim’s version cannot be

discarded because her friend had told Vishal that she was ill.

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29. Vishal Gupta (PW-14) stated in his cross-examination

that the victim was behaving normally between 08.06.2017 and

16.06.2017. It was submitted that the victim’s normal behaviour

makes her version of outraging her modesty doubtful . This

submission cannot be accepted. Every person reacts to everyone

differently, and it is difficult to expect a set behaviour from a

witness. It was laid down by the Hon’ble Supreme Court in

Motiram Padu Joshi v. State of Maharashtra, (2018) 9 SCC 429:

(2018) 3 SCC (Cri) 738: 2018 SCC OnLine SC 676 that the Court

cannot discard the testimony of a witness because he failed to act

in a particular manner. It was observed:

“15. Evidence of PWs 3 and 4 is assailed on the ground that

PWs 3 and 4 have not gone to the rescue of the deceased,

and it is quite unbelievable that, on seeing the accused

who were armed with weapons, both of them went inside

the house. It is further submitted that the trial court

rightly held that their evidence is not trustworthy, and the

High Court was not right in intervening in such a finding

and basing the conviction on the evidence of PWs 3 and 4.

In their evidence, PWs 3 and 4 have stated that on seeing a

number of accused armed with deadly weapons, they got

frightened and went inside the house, stood near the

window and saw the occurrence. Their evidence cannot be

doubted on the grounds that they did not intervene in the

attack nor make attempts to save the deceased. On witnessing

a crime, each person reacts in his own way, and their evidence

cannot be doubted on the grounds that the witness has not

acted in a particular manner. The evidence of PWs 3 and 4

cannot be doubted merely because they have not acted in a

particular manner.

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16. We may usefully refer to Rana Partap v. State of Haryana

[Rana Partap v. State of Haryana, (1983) 3 SCC 327: 1983 SCC

(Cri) 601] as under: (SCC p. 330, para 6)

“6. Yet another reason given by the learned Sessions

Judge to doubt the presence of the witnesses was that

their conduct in not going to the rescue of the deceased

when he was in the clutches of the assailants was

unnatural. We must say that the comment is most

unreal. Every person who witnesses a murder reacts in

his own way. Some are stunned, become speechless and

stand rooted to the spot. Some become hysterical and

start wailing. Some start shouting for help. Others run

away to keep themselves as far removed from the spot

as possible. Yet others rush to the rescue of the victim,

even going to the extent of counter -attacking the

assailants. Everyone reacts in his own special way.

There is no set rule of natural reaction. To discard the

evidence of a witness on the ground that he did not

react in any particular manner is to appreciate evidence

in a wholly unrealistic and unimaginative way.”

30. Therefore, the testimony of the victim cannot be

rejected because she did not appear to be distressed.

31. It was submitted that the victim had refused to

undergo her medical examination , and this falsifies the

prosecution's case. This submission cannot be accepted. As per

the victim, the accused had caught her and kissed her. He had not

caused any injury. It is difficult to see that a Kiss would have

produced an injury capable of being observed by the Medical

Officer. Therefore, the examination of the victim was not

42

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material in the present case, and no adverse inference can be

drawn against the prosecution.

32. Rakesh Chandel (PW-9) stated that the security lab is

situated on the fourth storey of the building, and there is a

plywood partition in the Security Lab. There is a tourism

laboratory on the other side of the plywood. The first entry is

common, and thereafter, both laboratories have separate entries.

It was submitted that the testimony of this witness shows that

there was only a plywood partition between the two labs, and any

person on the other side of the plywood could have heard what

was transpiring in the Security lab. This submission will not help

the accused. The victim had specifically stated in her cross-

examination that when she went to collect the items from the

Security Lab, the tourism teacher was not present. This

statement shows that the tourism teacher was not present, and

the submission that he would have heard what was transpiring in

the Security lab cannot be accepted. The victim also denied in her

cross-examination that Rajinder was working on the computer

with Rajesh. A denied suggestion does not amount to any proof,

and the accused cannot derive any advantage from the denied

suggestion.

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33. It was submitted that the victim’s friends had not

raised any noise when the accused had bolted the door, which

falsifies her version that the accused had bolted the door. This

submission will not help the accused. Site plan (Ext.P-1/PW-17)

shows that the Security lab is located at a distance from the hall,

where the girls were present. As per the statement of the

principal, a person has to go from the common entrance to the

Security lab. Therefore, the person standing outside the common

entrance would not have come to know about bolting the door,

and in such a situation, the prosecution's case cannot be doubted

because the victim’s friends had not raised any hue and cry.

34. It was suggested to the victim and her friend that

they had conspired together to lodge a false complaint against

the accused because he had made a complaint against the victim

to the principal. Both of them denied this suggestion. No

question was asked from the principal about any complaint

having been made by the accused against the victim. Therefore,

the defence taken by the accused was not established, and the

learned Trial Court was justified in rejecting this defence.

35. The prosecution also examined a student (PW -5),

who made a general statement that the accused used to touch the

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students inappropriately. This evidence is inadmissible in view of

Section 14 of the Indian Evidence Act as evidence of a similar

nature as mentioned in illustrations of (n), (o) and (p) of the Act.

In Emperor v. Panchu Das and Goberdhone Singh, 1920 SCC OnLine

Cal 24: (1919-20) 24 CWN 501: AIR 1920 Cal 500: 1920 Cri LJ 849,

the prosecution adduced evidence to show that the accused had

robbed the women on earlier occasions. This evidence was held

to be inadmissible. It was observed at page 517:

“It is plain that this section [14 of the Indian Evidence Act]

is of no assistance. The existence of a state of mind such as

intention, knowledge, good faith, negligence, rashness,

ill-will or goodwill towards a person or the existence of a

state of body or bodily feeling, was not and could not be in

issue in the circumstances of the case. The defence was a

complete denial, and no question of the character

contemplated by sec. 14 did or could possibly arise. The

first explanation to the section creates a further difficulty,

because the relevant fact proved to show the existence of a

relevant state of mind must show that the state of mind

exists, not generally, but in reference to the particular

matter in question. The evidence introduced was plainly

not of this description. The illustrations (i), (j), (o), and (p)

clearly show that the evidence could not be admitted.

Reference may particularly be made to the last two

illustrations. A is tried for the murder of B by intentionally

shooting him dead. The fact that A, on other occasions,

shot at B is relevant, as showing his intention to shoot B;

but the fact that A was in the habit of shooting at people

with the intent to murder them is irrelevant. A is tried for a

crime; the fact that he said something indicating an

intention to commit that particular crime is relevant, but

the fact that he said something indicating a general

disposition to commit crimes of that class is irrelevant.

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These illustrate the elementary principle that evidence of

general deposition, habit and tendencies is not relevant.

From the statement of the case by Mr Justice Chaudhuri, it

appears that secs. 14 and 15 were the only sections which

had been referred to, and I have consequently considered,

up till now, the question of their true construction. Upon a

plain reading of these sections, I feel no doubt that they do

not make the evidence admissible. This conclusion is

supported by the decisions in Empress v. Moodeliar [I.L.R. 6

Cal. 655 (1881)], Baharuddin Mandal v. Emperor [18 C.L.J.

578 (1913)] and Emperor v. Abdul Wahid Khan [I.L.R. 34 All.

93 (1911). In the first of these cases, Sir Richard Garth, C.J.,

pointed out that sec. 141 applies to that class of cases

where a particular act is more or less criminal or culpable

according to the state of mind or feeling of the person who

does it, and added that the Court must be very careful not

to extend the operation of the section to other cases where

the question of guilt or innocence depends upon actual

facts and not upon the state of a man's mind or feeling. Mr

Justice Mitter, if I have read his judgment correctly, did

not really dissent from this view. The same line of

reasoning was adopted in the second I case, where it was

ruled that proof cannot I be offered of an independent

offence to show I that by reason of such independent

offence, I the accused is more likely to have committed the

one for which he is on trial; in other words, evidence of

such collateral offence cannot be received as substantive

evidence of the offence on trial, though under sec. 14

evidence may be given of intention and like matters where

the factum of such intention or like matters is relevant.

The distinction between cases where intention is , and

cases where intention is not relevant, is illustrated by the

decisions in Emperor v. Debendra, Prosad [I.L.R. 36 Cal. 573:

s.c. 13 C.W.N. 973 (1909)] and Emperor v. Abdul Wahid [I.L.R.

34 All. 93 (1911).] which lie on opposite sides of the dividing

line. Reference may also be made to the decision of West,

J., in R. v. Parbhudas [11 Bom. H.C.R. 90 (1874).] where he

emphasised the inadmissibility of evidence of one crime

(not reduced to legal certainty by a conviction) to prove

the existence of another unconnected, even though

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cognate crime. On behalf of the Crown, reliance was,

however, placed upon the decisions in Mahin v. Attorney-

General [[1894] A.C. 57], and R. v. Ball [[1911] A.C. 47 (52)].

reversing R. v. Ball [5 Cr. App. Rep. 238 (1910). R.v.Smith

[[1911] Cr. App. Rep. 229.], R. v. Bond [[1906] 2 K.B. 389.] and

R. v. Thompson [[1917] 2 K.B. 630: affirmed on H.L. [1918]

A.C. 221.] which has been affirmed by the House of Lords in

Thompson v. The King [[1917] 2 K.B. 630: affirmed on H.L.

[1918] A.C. 221.]. No useful purpose would be served by a

detailed analysis of these decisions; most of them, along

with other cases, were reviewed by this Court in Amritalal

Hazra v. Emperor [I.L.R. 42 Cal. 957: s.c. 19 C.W.N. 676

(1915).] where the principles deducible therefrom as to the

law administered in England were formulated in the

following terms:—

“Facts similar to but not part of the same

transaction as the main fact are not, in general,

admissible to prove either the occurrence of the

main fact or the identity of its author. But evidence

of similar facts, although in general inadmissible to

prove the main facts or the connection of the parties

therewith, is receivable, after evidence aliunde on

these points has been given, to show the state of

mind of the parties with regard to such fact; in other

words, evidence of similar facts may be received to

prove a party's knowledge of the nature of the main

fact or transaction, or his intent with respect

thereto. In general, whenever it is necessary to

rebut, even by anticipation, the defence of accident,

mistake, or other innocent condition of mind,

evidence that the Defendant has been concerned in a

systematic course of conduct of the same specific

kind as that in question may be given. To admit

evidence under this head, however, the other acts

tendered must be of the same specific kind as that in

question and not of a different character, and the

acts tendered must also have been proximate in

point of time to that in question.”

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I have re-examined these cases, and I see no reason to

doubt the accuracy of the above statement, which fully

accords with the decisions of the Court of Criminal Appeal

in the cases of R. v. Rodley [[1913] 3 K.B. 468; 9 Cr. App. Rep.

69; 23 Cox. 574 (1913).] and R. v. Ellis [[1910] 2 K.B. 746; 5 Cr.

App. Rep. 41.] as also other recent cases, such as Thompson

v. The King [[1917] 2 K.B. 630: affirmed on H.L. [1918] A.C.

221.], R. v. Fisher [[1910] 2. K.R. 149.], R. v. Mason [111 L.T.

336.], R. v. Baird [84 L.J.K.B. 1785 (1915).] and Perkins v.

Jeffery [[1915] 2 K.B. 702.]. It is plain that the principles so

enunciated are of no assistance to the prosecution. On the

other hand, there is an important passage in the judgment

of Kennedy, J., in the case of R. v. Bond [[1906] 2 K.B. 389

(405).] to which the attention of the Standing Counsel was

drawn by the learned Chief Justice in the course of the

argument, as destructive of his contention:—

“The admissibility, not merely the weight, of the

evidence depends upon the evidence of such conduct

as would authorise a reasonable infer ence of a

systematic pursuit of the same criminal object.”

36. Similarly, it was held in Emperor vs. Gangaram Hari

Pandit (05.07.1920 - BOMHC): MANU/MH/0102/1920 that the

evidence of previous murders committed by the accused was

inadmissible. It was observed:

“3. In the present case, there is no question as to whether

the death of Dadu was accidental or intentional. It is the

case on both sides that Dadu was murdered, and whoever

assaulted Dadu intended to murder him. Whether the six

persons mentioned by Gangaram actually committed the

murder or whether some of the present accused

committed it is the real question. But it cannot be said that

there is any point as to the death of Dadu being accidental.

It may be a part of the prosecution case that, in attacking

the party, assuming for the sake of argument that the

enemies of the present accused were the assailants, the

object was to go at Gangaram and not at Dadu. The fact

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remains that those who went to Dadu did murder him, i. e.,

they intended to do what th eir act would show they

intended to do. Whether those persons were actuated by a

desire to go to Gaugaram more than at Dadu or whether

they went to Dadu by mistaking him for Gangaram, they

undoubtedly murdered him, and there can be no doubt

that they intended to do so. There is no question of the

death being accidental. I may refer to the observations in

Rex v. Boyte [1914] 3 K.B. 339, which suggest the test to be

adopted in determining whether evidence of similar acts is

admissible under Section 15 or not in a particular case.

Though there may be cases in which it may not be easy to

determine whether the evidence is admissible under

Section 15 or not, 1 do not think that in the present case

there is any difficulty whatever. Though Section 9 of the

Indian Evidence Act has not been relied upon on behalf of

the Crown, I have considered it with reference to the

question as to whether this evidence can be let in to

explain the conduct of the persons who are said to have

been falsely charged. I have already referred to this

consideration so far as it can be said to fall within the

scope of Section 8; and I am satisfied that to explain the

conduct of those six persons in absconding when they

received the news that their names were given as the

assailants of Dadu, the belief on the part of some of them

that on previous occasions false charges of that character

had succeeded or had been brought would be relevant.

There is evidence in this case to show that there was a

belief in the village that the accused in Gangu's case were

wrongly convicted, and that may be relevant to explain the

conduct of the six persons in this case, but that belief

might exist whether the accused in that case were rightly

convicted or not. In my opinion, that would not entitle the

prosecution in this case relating to the murder of Dadu to

prove that on two previous occasions some of the accused

were concerned in similar murders and in charging others

falsely. Taking a broad and general view of this type of

evidence, I feel that, in effect, it amounts to evidence of

habit for committing a murder under circumstances as are

now alleged to exist. That kind of evidence is not relevant.

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It seems to me that the second part of the illustration (o)

to Section 14 clearly indicates that unless the evidence was

particularly directed to show that on a previous occasion

any one of the present accused made an attempt to murder

any one of the six persons now said to have been falsely

implicated, it would not be relevant. It is quite clear that

the persons concerned in those two cases, the accused

persons, were different. I also feel that there is some force

in the argument urged on behalf of the defence as to such

evidence being in substance evidence of bad character. Its

net result is to create the impression on the mind of the

Court that these persons are men of bad character and are

in the habit of committing murders, and that, therefore,

they must have committed murder on this occasion. That

is a line of proof which, in my opinion, is excluded by the

Indian Evidence Act and should not be allowed. We have,

therefore, excluded from consideration only that evidence

which has been adduced by the prosecution to show

specifically that the charges in both those earlier murder

cases were positively false and that the persons convicted

in Gangu's case were innocent.”

37. The judicial committee of the Privy Council also held

in Noor Mohamed v. King, 1948 SCC OnLine PC 76: (1949) 62 LW

530: AIR 1949 PC 161 that the evidence of similar crimes is

inadmissible in evidence. It was observed at page 532:

“The first comment to be made on the evidence under

review is that it plainly tended to show that the appellant

had been guilty of a criminal act which was not the act

with which he was charged. In Makin v. Attorney-General

for New South Wales [(1894) A.C. 57 at p. 65.] Lord

Herschell, then Lord Chancellor, delivering the judgment

of the Board, laid down two principles which must be

observed in a case of this character. Of these, the first was

that:

“It is undoubtedly not compete nt for the

prosecution to adduce evidence tending to show that

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the accused has been guilty of criminal acts other

than those covered by the indictment, for the

purpose of leading to the conclusion that the

accused is a person likely from his criminal conduct

or character to have committed the offence for

which he is being tried.”

In 1934, this principle was said by Lord Sankey, then Lord

Chancellor, with the concurrence of all the noble and

learned Lords who sat with him, to be “one of the most

deeply rooted and jealously guarded principles of our

criminal law” and to be “fundamental in the law of

evidence as conceived in this country.” [Maxwell v. The

Director of Public Prosecutions [(1935) A.C. 309 at pages 317,

320.].

The second principle stated in Makin's case [(1894) A.C. 57 at p.

65]:

“The mere fact that the evidence adduced tends to show

the commission of other crimes does not reader it

inadmissible if it be relevant to an issue before the jury,

and it may be so relevant if it bears upon the question

whether the acts alleged to constitute the crime charged in

the indictment were designed or accidental, or to rebut a

defence which would otherwise be open to the accused.”

The statement of this latter principle has given rise to

some discussion. A plea of not guilty puts everything in

issue which is a necessary ingredient of the offence

charged, and if the Crown were permitted, ostensibly in

order to strengthen the evidence of a fact which was not

denied and perhaps could not be the subject of rational

dispute, to adduce evidence of a previous crime, it is

manifest that the protection afforded by the “jealously

guarded” principle first enunciated would be gravely

impaired.

This aspect of the matter was considered by the House of

Lords in Thompson v. The King [(1918) A.C. 221]. Their

Lordships need not allude to the facts of that case. It is

enough to say that the evidence there admitted was held to

be relevant as one of the indicia by which the accused

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man's identity with the person who had committed the

crime could be established. (See per Lord Parker of

Waddington, at p. 231). In the words of Lord Atkinson, it

rebutted the defence of an alibi which otherwise would

have been open (pp. 230-1). Nothing of the kind can be

suggested in the present case. The value of the case for the

present purpose is that Lord Sumner dealt particularly

with the difficulty to which their Lordships have referred,

and stated his conclusion as follows:

“Before an issue can be said to be raised, which would

permit the introduction of such evidence so obviously

prejudicial to the accused, it must have been raised in

substance if not in so many words, and the issue so raised

must be one to which the prejudicial evidence is relevant.

The mere theory that a plea of not guilty puts everything

material in issue is not enough for this purpose. The

prosecution cannot credit the accused with fancy defences

in order to rebut them at the outset with some damning

piece of prejudice”

There can be little doubt that the manner of Ayesha's

death, even without the evidence as to the death of

Gooriah, would arouse suspicion against the appellant in

the mind of a reasonable man. The facts proved as to the

death of Gooriah would certainly tend to deepen that

suspicion, and might well tilt the balance against the

accused in the estimation of a jury. It by no means follows

that this evidence ought to be admitted. If an examination

of it shows that it is impressive just because it appears to

demonstrate, in the words of Lord Herschell in Makin's

case [(1894) A.C. 57.] “that the accused is a person likely

from his criminal conduct or character to have committed

the offence for which he is being tried”, and if it is

otherwise of no real substance, then it was certainly

wrongly admitted. After fully considering all the facts

which, if accepted, it revealed, their Lordships are not

satisfied that its admission can be justified on any of the

grounds which have been suggested or on any other

ground. Assuming that it is consistent with the evidence

relating to the death of Ayesha that she took her own life,

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or that she took poison accidentally (one of which

assumptions must be made for the purposes of the

Crown's argument at the trial), there is nothing in the

circumstances of Gooriah's death to negate these possible

views. Even if the appellant deliberately caused Gooriah to

take poison (an assumption not lightly to be made, since

he was never charged with having murdered her), it does

not follow that Ayesha may not have committed suicide.

As to the argument from similarity of circumstances, it

seems on analysis to amount to no more than this, that if

the appellant murdered one woman because he was

jealous of her, it is probable that he murdered another for

the same reason. If the appellant were proved to have

administered poison to Ayesha in circumstances

consistent with an accident, then proof that he had

previously administered poison to Gooriah in similar

circumstances might well have been admissible. There

was, however, no direct evidence in either case that the

appellant had administered the poison. It is true that in

the case of Gooriah, there was evidence from which it

might be inferred that he persuaded her to take the poison

by a trick, but this evidence cannot properly be used to

found an inference that a similar trick was used to deceive

Ayesha, and so to fill a gap in the available evidence. The

evidence which was properly adduced as to Ayesha shows

her to have been acquainted, as were, it may be supposed,

most of the inhabitants of the village in which the

appellant lived, with the fact that suspicion rested on him

in respect of Gooriah's death, and the theory that Ayesha

was deceived into taking poison by a similar ruse to that

which is supposed to have succeeded with Gooriah seems

to their Lordships to rest on an improbable surmise. The

effect of the admission of the impugned evidence may well

have been that the jury came to the conclusion that the

appellant was guilty of the murder of Gooriah, with which

he had never been charged, and having thus adjudged him

a murderer, were satisfied with something short of

conclusive proof that he had murdered Ayesha. In these

circumstances, the verdict cannot stand, notwithstanding

the care with which the learned Judge summed up the

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case, and the fairness with which the trial was conducted

in all other respects.

With all due deference to the Court of Criminal Appeal,

their Lordships feel bound to say that they are not

convinced that the method of approach which it thus

approved has any advantage over that which it rejects as

incorrect. The expression “logically probative” may be

understood to include much evidence which English law

deems to be irrelevant. Logicians are not bound by the

rules of evidence which guide English Courts, and theories

of probability sometimes cause a clash of philosophic

opinion. It would no doubt be wrong to interpret the

observations of the Court of Criminal Appeal as meaning

that evidence can sometimes be admitted merely for the

reason that it shows a propensity in the accused to commit

crimes of the nature of that with which he is charged. It

cannot be supposed that the Court intended to lay down a

proposition which would conflict with principles which

have been laid down, or approved, by the House of Lords.

It may be assumed that it is still true to say, as Lord

Sumner said thirty years ago:

“No one doubts that it does not tend to prove a man guilty

of a particular crime to show that he is the kind of man

who would commit a crime, or that he is generally

disposed to crime and even to a particular c rime:”

Thompson v. The King [(1918) A.C. 221 at p. 232.] .”

If all that the Court meant to say was that evidence of the

kind specified in the first of the principles stated in

Makin's case [(1894) A.C. 57.] may be admitted if it is

relevant for other reasons, then the dictum has no novelty.

It does seem, however, that the passage quoted was

intended at least to bear the meaning that evidence ought

to be admitted which is in any way relevant to a matter

which can be said to be in issue, however technically,

between the Crown and the accused, because a little later

in the judgment the following passage occurs:

“It is of the utmost importance for a fair trial that the

evidence should be prima facie limited to matters relating

to the transaction which forms the subject of the

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indictment and that any departure from these matters

should be strictly confined.”

38. Therefore, no advantage can be derived from the

statement of this witness.

39. Therefore, the learned Trial Court had rightly

accepted the statement of the victim to hold that the accused had

bolted the door, caught her and forcibly kissed her. These acts

constitute the offences punishable under Sections 342 and 354 of

the IPC. Since the victim has not been proved to be a minor, the

offence punishable under Section 10 of the POCSO Act is not made

out.

40. The learned Trial Court held that since the accused

had been convicted under section 354-A (i) of the IPC and the act

of the accused also constituted an offence punishable under

Section 10 of the POCSO Act, therefore, he had to be sentenced to

a graver punishment, which was provided under Section 10 of the

POCSO Act; therefore, the learned Trial Court sentenced the

accused under Section 10 of the POCSO Act. Since the conviction

under Section 10 of the POCSO Act is not sustainable, the accused

is to be punished for the commission of an offence punishable

under Section 354-A(i) of the IPC

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2026:HHC:22025

41. In view the above, the present appeal is partly allowed

and the judgment and order of sentence pronounced by learned

Trial Court against the accused of convicting him of the

commission of an offence punishable under Section 10 of POCSO

Act and sentencing him to undergo rigorous imprisonment for

five years, pay a fine of ₹10,000/- and in default of payment of

fine to further undergo simple imprisonment for one year are

ordered to be set aside. The conviction of the accused under

Section 354-A(i) IPC shall stand.

42. Appellant be produced before this Court for hearing

him on the quantum of sentence. The production warrant be

issued to the Jail Superintendent, Model Central Jail, Nahan

District Sirmour, H.P., returnable for________.

(Rakesh Kainthla)

Judge

05

th

June, 2026

(ravinder)