YAWAR AHMAD BHAGAT vs UNION TERRITORY THROUGH POLICE STATION YARIPORA (HOME)

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 09.04.2026
Pronounced on:24.04.2026
Uploaded on: 24.04.2026
Whether the operative part
or full judgment is
pronounced: Full
CrlA(S) No.03/2025
YAWAR AHMAD BHAGAT ...APPELLANT(S)
Through:
-
Mr. Zahid Hussain, Advocate, with
M/S: Bhat Shafi, Zahid Afzal and Naveed
Bukhtiyar, Advocates.
Vs.
UT OF J&K THROUGH P/S YARIPORA …RESPONDENT(S)
Through:
-
Mr.
Zahid Qais Noor, GA.
CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1)
The appellant has challenged judgment dated
12.03.2025 passed by learned Additional Sessions Judge
(Fast Track Court), Kulgam (hereinafter referred to as “the
trial court”), whereby he has been convicted for offence
under Section 376 RPC. Challenge has also been thrown to
order dated 14.03.2025, passed by the trial court, whereby
the appellant has been sentenced to undergo imprisonment
for a period of eight years and to pay a fine of Rs.10,000/ for
commission of offence under Section 376 RPC. In default of
payment of fine, the appellant has been directed to undergo
further rigorous imprisonment for a period of six months.
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2) Briefly stated, the prosecution case is that on
07.12.2018, Police Station, Yaripora received a written
report from PW-1 Abdul Aziz Dar, alleging therein that his
daughter, Ms. X, had left home at about 5 p.m. on the
previous day in connection with making purchases from the
market but in the meanwhile she was kidnapped by the
appellant/accused. It was further reported that despite
making strenuous efforts to locate the prosecutrix, her
whereabouts could not be traced.
3)
On the basis of aforesaid report of PW-1, FIR
No.92/2018 for offences under Section 363, 109 RPC came
to be registered at Police Station, Yaripora, and investigation
was set into motion. During the course of investigation, the
police recovered the prosecutrix from custody of the
appellant from a place named Shirpora Dal. The prosecutrix
was subjected to medical checkup and after obtaining the
medical opinion, offence under Section 376 was added. The
statement of the prosecutrix under Section 161 of Cr. P. C
and under Section 164A of Cr. P. C was recorded during the
course of investigation and the statements of other witnesses
acquainted with the facts and circumstances of the case
were also recorded. It was found that co-accused Shabir
Ahmad Bhagat and Ghulam Mohi-ud-din Bhagat had aided
and assisted the appellant in commission of the crime. The
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date of birth certificate of the prosecutrix was obtained from
the school where she had studied and her age was found to
be less than 18 years. It was also found that the prosecutrix
was pregnant carrying a foetus of 36 weeks. After
investigation of the case, offences under Section 363/376
RPC were found established against the appellant and the
challan against him as well as against co-accused was laid
before the trial court.
4) On 23.07.2019, charges for offences under Section
363, 376 RPC were framed against the appellant and his plea
was recorded. The appellant denied the charges and claimed
to be tried. Accordingly, the prosecution was directed to
adduce evidence in support of its case.
5) In order to prove its case, the prosecution examined as
many as 11 out of 12 witnesses cited in the challan. Besides
examining the prosecutrix, the other material witnesses who
were examined by the prosecution included father of the
prosecutrix, PW-1 Abdul Aziz Dar, PW-2 Mohammad Ayoub
Allie, PW-3 Mohammad Yousuf Dar, PW-4 Lali Jan (elder
sister of the prosecutrix), PW-5 Constable Zahoor Ahmad,
PW-6 Constable Irshad Ahmad, PW-7 Muzaffar Ahmad Paul,
Teacher Govt. High School Kujjar, PW-8 Mst. Rani Mehak,
PW-9 Dr. Shabeena Medical Officer, PW-10 Dr. Rafia Medical
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Officer and PW-12 Inspector Ather Samad, the Investigating
Officer.
6) After completion of the prosecution evidence, the
statement of the appellant and co-accused under Section
342 of J&K Cr. P. C were recorded on 03.02.2024. In his
statement the appellant denied having kidnapped the
prosecutrix and he further denied having committed sexual
intercourse with her. He also denied having any knowledge
about the pregnancy of the prosecutrix. He, however,
claimed that father of the prosecutrix got her pregnancy
terminated at Jaipur Rajasthan, regarding which a case has
been registered against the prosecutrix and her father which
is pending before the Magistrate. The appellant did not opt
to lead any evidence in defence. Accordingly, the case was
set down for final hearing.
7) Vide the impugned judgment dated 12.03.2025, the
learned trial court has convicted the appellant of the charge
for offence under Section 376 RPC but he has been acquitted
of the charge for offence under Section 363 RPC. Two co-
accused, namely, Shabir Ahmad Bhagat and Ghulam Mohi-
ud-din Bhagat have been acquitted of all the charges. The
learned trial court, while passing the impugned judgment,
has held that the prosecutrix had accompanied the appellant
out of her own free will and volition and that she had not
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been enticed or taken away by the appellant and, therefore,
the charge for offence under Section 363 RPC is not proved
against him. The learned trial court has further recorded a
finding that the prosecutrix was less than 18 years of age at
the time of the occurrence, as such, her consent with regard
to commission of sexual intercourse with the appellant is
immaterial and that he is guilty of having committed
statutory rape upon the prosecutrix.
8) The appellant has challenged the impugned judgment
of conviction and the order of sentence on the grounds that
the observations and findings recorded by the learned trial
court are contrary to the evidence led by the prosecution. It
has been contended that there are contradictions in the
statements of the prosecutrix recorded under Section 164A
of Cr.P.C. and her statement recorded before the trial court,
inasmuch as, in her statement recorded under Section 164A
of Cr. P. C, the prosecutrix has denied having been subjected
to sexual intercourse by the appellant but while making her
statement before the Court, she has stated that she was
subjected to sexual intercourse by the appellant. It has been
further contended that there is no cogent and convincing
evidence on record to show that the prosecutrix was below
18 years of age at the time of the alleged occurrence. It has
been contended that the school certificate, on the basis of
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which the learned trial court has recorded a finding that the
prosecutrix was less than 18 years of age, does not have any
probative value. It has been further contended that the
statement of the prosecutrix is not trustworthy and could
not have been relied upon for returning the finding of
conviction against the appellant.
9) I have heard learned counsel for the parties and
perused the grounds of appeal, the impugned judgment and
the trial court record including the evidence led by the
prosecution before the trial court.
10) As already noted, the charge against the appellant is
that he has committed sexual intercourse upon the
prosecutrix at a time when she was minor. The prosecution
goes on to allege that as a result of sexual intercourse
committed by the appellant upon prosecutrix, she became
pregnant and her pregnancy had to be terminated
afterwards.
11) In a case relating to sexual assault, the survivor
happens to be the most material witness. Therefore, it would
be necessary to analyze the statement of the prosecutrix
made by her before the trial court as well as the statement
made by her before the Magistrate under Section 164A of the
Cr. P. C during the course of investigation.
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12) In her statement recorded under Section 164A of the
Cr. P. C on 02.01.2019, the prosecutrix has stated that she
st
is a student of B.Sc. 1 year; that she knows the appellant
for the last three years because he is reading in the same
school; that the appellant did not force himself upon her nor
did he kidnap her; that she wanted to enter into wedlock
th
with him; that on 6 December, she called the appellant on
phone and asked him to accompany her to Jammu but he
refused to do so; that she threatened to commit suicide
because her family members were preventing her from
meeting the appellant; that thereafter the appellant was
compelled to meet her reluctantly at Khudwani; that when
the appellant did not come to meet her at the agreed place,
she called him on phone and threatened that if he would not
come, she would commit suicide and thereafter the appellant
came there and they proceeded to Jammu where they stayed
in a hotel for two days; that they came to known that the
police is harassing the family members and friends of the
th
appellant and they decided to come back; that on 8
December, they came back and because of traffic jam at
Udhampur, they had to spend one night midway; that on
th
10 December in the evening, they reached Frisal and
presented themselves before the police whereafter she was
handed over to her parents; that during the period she
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remained with the appellant, he did not commit any rape
upon her; that the appellant is innocent and even his family
members are innocent and it is she who compelled the
appellant to accompany her to Jammu.
13) In her statement recorded during trial of the case, the
prosecutrix deposed that the occurrence is of the year 2018;
that she was in love with the appellant and at that time she
th
was studying in 12 class; that at the time of the occurrence,
st
she was studying in B.A. 1 year; that she got pregnant as
the appellant had developed physical relations with her at
Frisal; that thereafter the appellant took her away to Jammu
where they stayed at Nagrota for two days; that she was
brought back by the appellant from Jammu and thereafter
she wanted to enter into wedlock with him but her family
members did not agree to the marriage; that her father had
already lodged a report against the appellant and thereafter
the child was born but the appellant refused to accept the
child.
14) In her cross-examination, the prosecutrix admitted
that she had, during the course of investigation, deposed
before the Magistrate that she had compelled the appellant
to take her to Jammu by threatening to commit suicide. She
admitted that she went with the appellant to Jammu out of
her own will. She also admitted that she had developed
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physical relations with the appellant out of her own free will;
that at the time when she terminated the pregnancy, the
appellant was in custody; that a case is registered against
her in connection with termination of pregnancy in which
her father has also been impleaded as an accused; that she
was minor at the time of the occurrence.
15) What comes to the fore from the statement of the
prosecutrix is that she had accompanied the appellant to
Jammu out of her own free will and volition and that she had
developed physical relations with him out of her free will.
Though in her examination-in-chief recorded during trial of
the case, she had stated that the appellant made her to flee
with him, yet in her cross-examination she has clarified that
it was she who compelled the appellant to accompany her to
Jammu as she had threatened to commit suicide in case he
did not accompany her. She has categorically stated that she
developed physical relations with the appellant out of her
own free will.
16) The answer to the question as to whether the learned
trial court is right in concluding that the appellant has
committed statutory rape upon the prosecutrix, depends
upon determination of the fact relating to her age. If it is
found from the evidence on record that the prosecutrix was
less than 18 years of age at the time of the occurrence, then,
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of course, no interference can be made with the impugned
judgment of conviction recorded against the appellant
because it has been sufficiently established from the
statement of the prosecutrix that she had physical relations
with the appellant with her free consent. However, if, from
the evidence on record, it is not established that the
prosecutrix was less than 18 years of age at the relevant
time, then in the face of statement of the prosecutrix that
she had gone with the appellant out of her own will and that
she had developed physical relations with him out of her own
free will and volition, it cannot be a case of rape.
17) The learned trial court, while recording the judgment of
conviction, has properly rightly crystalized the issues for
determination. One of these issues is with regard to age of
the prosecutrix. While deciding Point No.1, which relates to
age of the prosecutrix, the learned trial court has placed
reliance upon school leaving certificate of the prosecutrix,
according to which her date of birth was 14.01.2001. The
trial court has relied upon the statement of PW-7, Muzaffar
Ahmad Paul, who has proved the school leaving certificate,
EXTPW-7 by producing the relevant record. The learned trial
court has also relied upon the statements of PWs 1, 2, 4 and
9 in addition to the school record and held that the
prosecution was minor on the date of the occurrence.
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18) If we have a look at the date of birth certificate dated
08.12.2018 issued by the Government High School, Kujjar
Kulgam, EXTPW-7, the date of birth of the prosecutrix has
been mentioned as 14.01.2001. The said certificate has been
proved by PW-7, Muzaffar Ahmad Paul (Teacher), who, on
the basis of the record produced by him before the trial
court, stated that the date of birth of the prosecutrix
reflected in EXTPW-7 corresponds to the entry in the record.
19) The question that arises for determination is whether
on the basis of the entry in the school record about date of
birth of a person, it can be stated that age of such person is
established beyond any reasonable doubt. Legal position in
this regard is well settled. The entries regarding date of birth
contained in the scholar’s register and secondary school
examination certificates have no probative value. Such
entries may be admissible in evidence but the same cannot
be taken as conclusive proof with regard to the age of a
person. Reliance in this regard may be placed upon the
judgment of the Supreme Court in the case of Birad Mal
Singhvi v. Anand Purohit, (1988) Supp. SCC 604 .
20) Calcutta High Court has, in the case of Raju Mitra v.
State of West Bengal, 2007 SCC OnLine Cal. 72, while
dealing with a case where the Court was seized of a matter
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relating to the plea of juvenility of an accused, made the
following observations relating to the manner in which the
date of birth recorded in the school admission register has
to be established:
“…..Besides that, if there is a school certificate
showing age of the accused, a reasonable
person of the said school should be examined
before the Court to show what was the age that
was recorded in the School Admission
Register and what type of information was
made before the school when the said
accused as student was admitted into the
school and what was the age that was
recorded in the School Admission Register.
The Court may also call for records from the
concerned office of the Registrar of Births and
Deaths for ascertaining whether any
information relating to the birth of the said
person was registered and what were the date,
month and year of such birth and who was the
person who gave such information for
registration of birth and how competent the
said man was to register the Information and if
required the Court may examine any persons
of such office. If the accused was born either
in any Matrisadan Hospital or Nursing Home,
any responsible person of such Institution may
be called for by the Court for examination
along with relevant papers for verification
relating to the date, month, year as well as the
sex of the child who was born in such
Institution. After such enquiry on the basis of
such oral and documentary evidence, the
Court would arrive at a decision as to the age
of the accused petitioner on the date of the
incident. The leaned Court would also take
into consideration the age reflected in the
ossification test and after consideration of all
such papers the Court would arrive at a
decision relating to the age of the accused
petitioner on the date of incident. The School
Admission Register has evidentiary value but
cannot be regarded as a conclusive proof to
establish the age of the accused petitioner.”
(emphasis supplied)
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21) From the foregoing analysis of the legal position, it is
clear that on the basis of mere entry regarding date of birth
in the school Admission Register or the certificate issued by
the school on the basis of such Register, it cannot be
conclusively established that the particulars regarding date
of birth of such person are correct. The correctness or
otherwise of the particulars recorded in the school Register
would all depend upon as to on what basis such entry has
been made.
22)
Turning to the facts of the present case. If we have a
look at the statement of PW-7, Muzaffar Ahmad Paul,
particularly his cross-examination, he has stated that the
th
prosecutrix had got admitted to the said school in 9
standard. He has further clarified that he does not know as
to on what basis date of birth of the prosecutrix has been
recorded in the admission register. He further went on to
state that there is no record of the Chowkidar or Municipal
Committee with regard to date of birth of the prosecutrix
available with the school and that he was not himself posted
in the school at the relevant time, as such, he cannot state
anything about it.
23) Aforesaid statement of PW-7 makes it clear that the
prosecutrix was not studying in the concerned school from
the very beginning but she has taken admission in the said
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th
school after attending some other school upto 8 standard.
The date of birth certificate issued by the school where the
prosecutrix had initially studied is not forthcoming nor any
other document on the basis of which the date of birth of the
prosecutrix has been recorded in the document EXTPW-7
has been seized by the Investigating Agency during the
course of investigation. In these circumstances, the
particulars of date of birth recorded in EXTPW-7 may be
admissible in evidence but they have no probative value in
the absence of evidence relating to the basis on which such
particulars have been recorded.
24) That takes us to the statement of father of the
prosecutrix as regards her age. PW-1 Abdul Aziz Dar, during
his examination-in-chief has stated that the prosecutrix was
aged about 16 years but in his cross-examination, he has
stated that he does not remember when his marriage had
taken place. He has further stated that he does not
remember the date of birth of his eldest child nor does he
remember the date of birth of his second child and he also
does not remember the date of birth of his third child. He
has further stated that the prosecutrix was born after the
birth of his daughter PW Lali Jan and that he does not even
remember the date of birth of the prosecutrix.
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25) Another witness, PW-2 Mohammad Ayoub Allie has
stated that the prosecutrix is 16 years of age and he is
stating so because his daughter was studying with the
prosecutrix and she was also 16 years of age at the relevant
time. He, however, does not have knowledge about the date
of birth of the prosecutrix.
26) PW-4 Lali Jan, the elder sister of the prosecutrix, in her
examination-in-chief has stated that the prosecutrix is
minor. In her cross-examination she has stated that her own
date of birth is 01.01.1999 but she has no knowledge about
the date of birth of the prosecutrix. She has admitted that
for ascertaining whether prosecutrix is minor, it is necessary
to know her date of birth but because she is younger to her,
therefore, she is minor.
27) PW-9 Dr. Shabeena has described age of the
prosecutrix as 17 years on the basis of matriculation
certificate. She has not conducted any medical tests upon
the prosecutrix for ascertaining her age.
28) From the aforesaid evidence on record, it is clear that
age of the prosecutrix has not been proved conclusively.
None of the aforenoted witnesses has any knowledge about
either exact date of birth of the prosecutrix or even about her
year of birth. Therefore, the statements of these witnesses as
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regards the age of the prosecutrix are not of any help. The
date of birth certificate, EXTPW-7 cannot be relied upon
because the basis of recording particulars in the said
certificate is not known. It is not a case where father of the
prosecutrix has made a statement that it is he who has got
the date of birth of the prosecutrix recorded in her admission
Register but it is a case where even the father does not
remember the date of birth of the prosecutrix. The sister of
the prosecutrix is also unaware about her date of birth. It
can, thus, safely be stated that the prosecution has failed to
establish that the prosecutrix was minor as on the date of
the occurrence.
29) It is a settled law that burden is upon the prosecution
to prove that the prosecutrix was minor at the time of the
occurrence. Like any other ingredient of the offence for which
an accused is charged, the ingredient with regard to age of
the prosecutrix has also to be established by the prosecution
beyond reasonable doubt. In the present case, the
prosecution has not been able to prove beyond reasonable
doubt that the prosecutrix was less than 18 years of age at
the time of alleged occurrence.
30) The learned trial court has grossly erred in relying upon
the certificate, EXPW-7, without realizing that there is no
basis for recording of particulars in the said certificate and
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even the father and elder sister of the prosecutrix have been
unable to make any cogent and convincing statement with
regard to age of the prosecutrix. The finding of the learned
trial court that the prosecutrix was minor at the relevant
time is, therefore, not sustainable in law.
31) Once it is held that the prosecution has failed to prove
that the prosecutrix was minor at the time of the occurrence,
the established fact that she had accompanied the appellant
out of her own will and that she had developed physical
relations with him out of her free will and volition, goes on
to show that it was a case of love affair between the two
young persons which culminated in physical relations
between the parties out of their own will and volition. Thus,
it cannot be termed as a case of statutory rape.
32) It seems that because of adamant attitude of the family
of the prosecutrix, the love affair between the two young
persons culminated in a criminal prosecution against the
appellant. The Supreme Court in the case of State of Uttar
Pradesh vs. Anurudh & anr. 2026 LiveLaw (SC) 29, has, in
the context of misuse of POCSO Act, highlighted the grim
societal chasm. In this context the Court took note of the
several instances of application of POCSO Act, working
harshly on consenting adolescence teenagers when it comes
to consensual relationship between teenagers. The Supreme
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Court has noted that Allahabad High Court has in the case
of Satish alias Chand vs. State of UP (Crl. Mis. Bail
Application No.18596 of 2024) highlighted the factors
required to be considered by the Courts while dealing with
cases relating to relationship between teenagers. The same
are reproduced as under:
A. Assess the Context: Each case should be
evaluated on its individual facts and circumstances.
The nature of the relationship and the intentions of
both parties should be carefully examined.
B. Consider Victim's Statement: The statement
of the alleged victim should be given due
consideration. If the relationship is consensual and
based on mutual affection, this should be factored
into decisions regarding bail and prosecution.
C. Avoid Perversity of Justice: Ignoring the
consensual nature of a relationship can lead to
unjust outcomes, such as wrongful imprisonment.
The judicial system should aim to balance the
protection of minors with the recognition of their
autonomy in certain contexts. Here the age comes
out to be an important factor.
D. Judicial Discretion: Courts should use their
discretion wisely, ensuring that the application of
POCSO does not inadvertently harm the very
individuals it is meant to protect.
33) When we test the established facts of the instant case
on the touchstone of afore-quoted factors, it becomes clear
that the victim has admitted having entered into physical
relationship with the appellant with her free consent. It is
also clear that there was a love affair between the two and
they were studying in the same school. Thus, even if it is
assumed, though not proved, that the victim was less than
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eighteen years of age, still then in the facts and
circumstances of the case the appellant cannot be convicted
of offence of rape and imprison him as the same would be
unjust. Considering the closeness of age of the victim and
the appellant and the fact that she had accompanied him
out of her own accord because of her affection for him,
putting the appellant behind the bars would be perversity of
justice. The conviction recorded by the learned trial court,
in the aforesaid circumstances, is not sustainable in law.
The same, therefore, deserves to be set aside.
34) Accordingly, the appeal is allowed and the impugned
judgment of conviction and the order of sentence are set
aside. The bail bonds and surety bonds of the appellant are
discharged. The appellant, who is in custody, is directed to
be released from custody forthwith, if not involved in any
other case.
35)
The trial court record along a copy of this judgment
be sent back to the learned trial court for information.
(Sanjay Dhar)
Judge

SRINAGAR
24.04.2026
“Bhat Altaf-Secy”


Whether the Judgement is speaking: YES
Whether the Judgement is reportable: YES
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