J&K High Court Sets Aside Rape Conviction After Finding Prosecution Failed to Prove Prosecutrix Was a Minor

Justice Sanjay Dhar acquitted the appellant after holding that the school leaving certificate had no probative value and the prosecution could not prove the prosecutrix was under 18 at the time of the occurrence.

The High Court of Jammu & Kashmir and Ladakh at Srinagar has set aside the conviction and sentence of Yawar Ahmad Bhagat under Section 376 RPC, holding that the prosecution failed to prove beyond reasonable doubt that the prosecutrix was below 18 years of age at the time of the occurrence. Justice Sanjay Dhar, sitting singly, allowed the criminal appeal on 24 April 2026, directing the appellant's immediate release from custody. The trial court — the Additional Sessions Judge (Fast Track Court), Kulgam — had convicted the appellant on 12 March 2025 and sentenced him to eight years' rigorous imprisonment with a fine of Rs. 10,000. The High Court found that the sole documentary basis for the age finding, a school leaving certificate, lacked any probative value because the source of the date of birth entry in the school register was entirely unknown.

The Case Before the High Court

The prosecution case originated from a written complaint lodged on 7 December 2018 by PW-1 Abdul Aziz Dar at Police Station, Yaripora. He reported that his daughter, the prosecutrix, had left home the previous evening to make purchases from the market and had been kidnapped by the appellant. FIR No. 92/2018 was registered for offences under Sections 363 and 109 RPC.

During investigation, police recovered the prosecutrix from the appellant's custody at a place called Shirpora Dal. A medical examination revealed she was pregnant, carrying a foetus of 36 weeks. Section 376 RPC was added to the case. The date of birth certificate obtained from the school where the prosecutrix had studied showed her date of birth as 14 January 2001, placing her below 18 years at the time of the occurrence. Two co-accused, Shabir Ahmad Bhagat and Ghulam Mohi-ud-din Bhagat, were alleged to have aided the appellant.

Charges under Sections 363 and 376 RPC were framed against the appellant on 23 July 2019. He denied the charges and claimed trial. The prosecution examined 11 witnesses, including the prosecutrix, her father, her elder sister, two constables, a schoolteacher, two medical officers, and the investigating officer. After the prosecution evidence was closed, the appellant's statement under Section 342 of the J&K CrPC was recorded on 3 February 2024. He denied kidnapping the prosecutrix, denied sexual intercourse, and denied knowledge of her pregnancy. He led no defence evidence.

The trial court convicted the appellant under Section 376 RPC but acquitted him under Section 363 RPC, finding that the prosecutrix had accompanied him of her own free will. Both co-accused were acquitted of all charges. The trial court held that because the prosecutrix was below 18 years, her consent was immaterial and the appellant had committed statutory rape.

The Contradictions in the Prosecutrix's Statements

The appellant's counsel argued that the prosecutrix's statement recorded under Section 164A CrPC during investigation directly contradicted her deposition before the trial court on the question of sexual intercourse.

In her Section 164A statement recorded on 2 January 2019, the prosecutrix stated that the appellant did not force himself upon her, that she had called him and threatened to commit suicide if he did not accompany her, and that they travelled together to Jammu where they stayed in a hotel for two days. She stated that during the entire period she remained with the appellant, “he did not commit any rape upon her.”

Before the trial court, however, she deposed that the appellant had developed physical relations with her at Frisal and that she became pregnant as a result. In cross-examination, she admitted that she had gone with the appellant to Jammu out of her own will and that she had developed physical relations with him out of her own free will. She also admitted that she was minor at the time of the occurrence.

Justice Dhar observed that what emerged from the prosecutrix's own statements was that she had accompanied the appellant voluntarily and had developed physical relations with him of her own free will. Her examination-in-chief before the trial court suggested the appellant had taken her away, but her cross-examination clarified that it was she who had compelled him to accompany her by threatening suicide.

The Pivotal Question: Was the Prosecutrix a Minor?

The entire conviction rested on the finding of statutory rape, which in turn depended on whether the prosecutrix was below 18 years of age at the time of the occurrence. Justice Dhar identified this as the determinative issue: if the prosecution established minority, the conviction would stand regardless of consent; if it did not, the established facts of a consensual relationship would mean no offence of rape was made out.

The trial court had relied on the school leaving certificate, Exhibit PW-7, issued by Government High School, Kujjar, Kulgam, dated 8 December 2018, which recorded the prosecutrix's date of birth as 14 January 2001. The certificate was proved by PW-7, Muzaffar Ahmad Paul, a teacher at the school.

Justice Dhar examined PW-7's cross-examination closely. The teacher stated that the prosecutrix had been admitted to the school in the 9th standard, meaning she had studied elsewhere up to the 8th standard. He admitted he did not know on what basis the date of birth had been recorded in the admission register. He confirmed there was no record from the Chowkidar or Municipal Committee regarding the prosecutrix's date of birth available with the school, and that he was not himself posted at the school at the relevant time.

The High Court applied the settled legal position that entries in a scholar's register or school certificate have no probative value as conclusive proof of age. Justice Dhar placed reliance on the Supreme Court's judgment in Birad Mal Singhvi v. Anand Purohit, (1988) Supp. SCC 604, and on the Calcutta High Court's observations in Raju Mitra v. State of West Bengal, 2007 SCC OnLine Cal. 72. The Calcutta High Court had held that a school admission register has evidentiary value but cannot be regarded as conclusive proof of age, and that the court must examine the basis on which the entry was made, including whether birth records from the Registrar of Births and Deaths or hospital records were consulted.

Applying that framework, Justice Dhar held that because the prosecutrix had joined the school only in the 9th standard, the certificate from that school could not speak to the original basis of the date of birth entry. No certificate from the school she had initially attended was produced. No other document on the basis of which the date of birth had been recorded in Exhibit PW-7 was seized during investigation.

Other Witnesses Offered No Reliable Age Evidence

The prosecution had also relied on the statements of the prosecutrix's father, a neighbour, her elder sister, and a medical officer to establish minority.

PW-1 Abdul Aziz Dar, the father, stated in examination-in-chief that the prosecutrix was about 16 years old. In cross-examination, he admitted he did not remember the date of birth of any of his children, including the prosecutrix.

PW-2 Mohammad Ayoub Allie stated the prosecutrix was 16 years old because his own daughter was studying with her and was also 16. He had no knowledge of the prosecutrix's actual date of birth.

PW-4 Lali Jan, the elder sister, stated in examination-in-chief that the prosecutrix was a minor. In cross-examination, she admitted she had no knowledge of the prosecutrix's date of birth and that her only basis for saying she was a minor was that she herself was older.

PW-9 Dr. Shabeena described the prosecutrix's age as 17 years on the basis of a matriculation certificate. She had not conducted any medical tests to ascertain age independently.

Justice Dhar concluded that none of these witnesses had knowledge of the prosecutrix's date of birth or even her year of birth. Their statements were of no assistance. The school certificate could not be relied upon because the basis for the date of birth entry was unknown. Critically, not even the father had stated that it was he who had got the date of birth recorded in the admission register.

Consensual Relationship and the Question of Justice

Having held that the prosecution failed to prove minority beyond reasonable doubt, Justice Dhar turned to the established facts. The prosecutrix had accompanied the appellant of her own free will and had developed physical relations with him of her own free will. The High Court characterised the matter as a love affair between two young persons who had studied in the same school, which culminated in physical relations by mutual consent.

Justice Dhar referred to the Supreme Court's judgment in State of Uttar Pradesh v. Anurudh & Anr., 2026 LiveLaw (SC) 29, where the Court had highlighted the societal problem of POCSO Act provisions operating harshly on consenting adolescent teenagers in consensual relationships. The Supreme Court in that case had also noted the Allahabad High Court's judgment in Satish alias Chand v. State of UP (Crl. Mis. Bail Application No. 18596 of 2024), which set out factors for courts to consider in such cases, including assessing the context and the consensual nature of the relationship, avoiding perversity of justice, and exercising judicial discretion so that the law does not harm the very individuals it is meant to protect.

Justice Dhar held that even proceeding on the assumption — though not proved — that the prosecutrix was below 18 years, convicting and imprisoning the appellant in the facts of this case would be a perversity of justice. The prosecutrix had accompanied the appellant of her own accord out of affection, and the physical relationship was consensual. The conviction was held to be unsustainable in law.

Outcome

Justice Sanjay Dhar allowed CrlA(S) No. 03/2025 on 24 April 2026. The impugned judgment of conviction dated 12 March 2025 and the order of sentence dated 14 March 2025 passed by the Additional Sessions Judge (Fast Track Court), Kulgam, were set aside. The bail bonds and surety bonds of the appellant were discharged. The appellant, who was in custody, was directed to be released forthwith if not required in any other case. The trial court record along with a copy of the judgment was directed to be sent back to the trial court.