1 - Sanjay S/o Devchand Aged About 24 Years R/o Vill. Kurludih, Bhuiyapara, P.S v. 1 - State of Chhattisgarh through P.S. Sanawal, Dist. Balrampur-Ramanujganj
Case Details
1 A ANNAJEE RAO Digitally signed by A ANNAJEE RAO 2025:CGHC:923 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR (Judgment reserved on 02.01.2025) (Judgment delivered on 07.01.2025) CRA No. 96 of 2023 1 - Sanjay S/o Devchand Aged About 24 Years R/o Vill. Kurludih, Bhuiyapara, P.S. ... Appellant Sanawal, Dist. Balrampur-Ramanujganj (C.G.) versus 1 - State of Chhattisgarh through P.S. Sanawal, Dist. Balrampur-Ramanujganj (C.G.) ... Respondent For the appellant : Mr. Jaiprakash Shukla, Advocate For the State : Mr. Tarkeshwar Nande, Panel Lawyer (Hon’ble Shri Justice Sanjay Kumar Jaiswal) C A V Judgment 1. This appeal is directed against the judgment dated 15.11.2022 passed by the learned Additional Sessions Judge, Fast Track Special Court (POCSO Act), Ramanujganj, District Balrampur in Special Sessions Trial (POCSO) Case No. 46 of 2018 (C.G) whereby the learned sessions Judge while acquitting the accused/appellant u/s 506 (ii) IPC found that the charges u/s 363 & 366 IPC are
Facts
proved, however, it converted section 376(2)(J) into section 376(1). The trial Court 2 also held the appellant guilty u/s 4 of the POCSO Act and accordingly, the appellant has been convicted and sentenced as under : U/s 363 IPC U/s 366 IPC U/s 376(1) IPC 1860 U/s 4 of POCSO Act, 2012 : RI for 5 years and fine of Rs.500/-, in default of payment of fine, Additional imprisonment of 1 month : RI for 5 years and fine of Rs.500, in default of payment of fine, additional imprisonment of 1 month : RI for 10 years and fine of Rs.10,000/-, in default of payment of fine, additional imprisonment of 2 months. : As per section 42 of the POCSO Act, where the offence is established under the provision of POCSO or IPC, then the accused shall be liable for punishment which is higher in quantum, accordingly punishment under Section 376(1) has been awarded. 2. The father of the prosecutrix (P.W.2) made written complaint on 24.11.2018 (Ex.P-6) before Sanawal Police Station that his minor daughter after returning from School at evening 05.00 p.m. on 17.11.2018, went to look after the farm and did not return at night. Even after enquiry made regarding her whereabouts, she could not be traced. On 18.11.2018, he informed to Up-Sarpanch of his village and his relatives through Phone. The Up-Sarpanch and brother-in-law (Sala) of the complainant along with other persons went to Bhisur (U.P) in search of the prosecutrix and the prosecutrix was found with the present appellant on motorcycle No. C.G. 16 CF 7288 on 19.11.2018 and was caught hold. The brother-in-law of complainant brought back the prosecutrix at his home and thereafter dropped the prosecutrix at her house on 23.11.2018. The prosecutrix narrated the entire facts to the complainant that the appellant had taken her away to forest on 17.11.2018 and kept her in forest for a whole night where he committed rape and on the next day, he took her away towards U.P., by motorcycle. On the basis of said written complaint, Crime No.76/2018 was lodged by the Sanawal Police Station for the 3 alleged offence u/s 363, 366, 376(2)(j), 506 IPC & Section 4 of POCSO Act. After completion of investigation, the charge sheet was filed for the offence u/ss 363, 366- A, 376(2)(j), 506 IPC & Section 4 of POCSO Act. 3. The accused pleaded innocence and claimed to be tried. The prosecution examined as many as 7 witnesses on its behalf and exhibited 23 documents. In defence, the accused examined two witnesses and exhibited two documents. The learned Additional Sessions Judge after evaluating the evidence convicted the accused u/ss 363, 366, 376(1) of IPC read with Section 4of POCSO Act while acquitting him u/s 506 IPC. 4(i)
Legal Reasoning
43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"," 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in Ravinder Singh Gorkhi Vs. State of U.P. which held as follows:- "The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g., necessity of being represented in a court of law by a guardian or where 10 a suit is filed on the ground that plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 17. In Rishipal Singh Solanki Vs. State of Uttar Pradesh 2022 (8) SCC 602, while considering various decisions, Hon'ble the Supreme Court has observed in para 33 as under: "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. XXX XXX XXX 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub- section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 11 33.7 This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed Serious offences. 33.9. That when the determination of age is on the basis of such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.” (Emphasis supplied) 18. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble the Supreme Court has held in para 14 to 17 as under: "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 or 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 12 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 been fallen back upon a document which it had never relied upon. Further more DW-3 the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in 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)(1) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. 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 determination of age. The juvenility of a person in conflict with law had to be 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, benefit could be given to the child or juvenile by considering the age on 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 Gupla vs. The State of Uttar Pradesh & Others that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 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 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 13 placed in the same category. 17. In Abuzar Hossain @ Gulam Hossain Vs State of West Bengal, this court, through a three-jurige 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 clinching and legally admissible evidence has been brought by the prosecution to prove the fact that the victim was minor on the date of incident, despite that, the trial Court has held her minor in the impugned judgment. Hence, we set aside the findings given by the learned trial Court that on the date of incident the victim was minor.” 19. In the light of the above judicial pronouncements, considering the evidence presented in the instant case, it is noteworthy that the first and foremost person to tell the date of birth of any child can only be his/her parents. Any birth date document is registered on the primary information of these parents. In this case, the father of the prosecutrix (P.W.2) himself has told the date of birth of the prosecutrix as 10.07.2004, which has been affirmed by the prosecutrix (P.W.1) in her court statement. The Dakhil Kharij register of the prosecutrix’s primary school, Mustapara, Kurludih, which is a government school, has been exhibited as Ex.P- 11(C), which was certified by the Assistant Teacher Bandhu Ram (P.W.5). He has also stated that the said entry is in his own handwriting. Thus, when he has clarified in cross examination that he made the said entry of the prosecutrix’s date of birth on the basis of information of parents of prosecutrix, then it becomes clear that the said information had been given by the parents of the prosecutrix. Although he has accepted that at the time of admission of the prosecutrix, no other birth certificate or declaration was produced by her family members, but it is clear that the date of birth of the prosecutrix was entered by Assistant Teacher Bandhuram (P.W.5) on the information of the parents of the prosecutrix inasmuch as the parents are the main source regarding the date of birth of any child. 20. The father of prosecutrix himself (P.W.2) has stated in his Court statement that the date of birth of the prosecutrix is 10.07.2004 which further stood firm not only by the Court statement of the prosecutrix but also by the primary school’s 14 Dakhil Kharij Register Ex.P-11/C and such evidence of father (P.W.2) has not been challenged in the cross-examination regarding the said date of birth or his memory so as to disbelieve his statement. In such a situation, this Court finds that there is no reason to disbelieve the date of birth stated by the father (P.W.2) which is recorded in the primary school’s Dakhil Kharij register and the date of birth of the prosecutrix was 10.07.2004. 21. The incident is of 17.11.2018. Thus, the age of prosecutrix on the date of incident appears to be about 14 years 4 months 07 days, which is much less than 18 years. In this situation, if despite medical advice, X-Ray or Ossification Test has not been done to further verify the age of the prosecutrix, then it cannot be considered fatal to the prosecution case because the father of prosecutrix (P.W.2) has been consistent and stood firm in his statement regarding date of birth. 22. In such a situation, this Court finds that the prosecution has been successful in proving that prosecutrix was a minor girl below 18 years of age at the time of incident. Under the circumstances, her consent for the crime of kidnapping or rape has no significance. Therefore, the arguments advanced by appellant’s side in the appeal is also not found acceptable. 23. After minute analysis of the evidence on record, this Court finds that the arguments raised in the appeal are not worth acceptable. The judgment passed by the trial Court in the case is based on the evidence adduced, which needs no interference. Therefore, the appellant does not get any benefit from the case laws
Arguments
Learned counsel for the appellant submits that the appellant has been falsely implicated in this case due to enmity. He next contends that report is delayed by 7 days as the the report was filed on 24.11.2018 after recovery of prosecutrix by her family members whereas the incident is said to have taken place much before on 17.11.2018. He submits that no plausible explanation has been given by the prosecution for such delay, therefore, the prosecution case is doubtful. He further submits that the minority of prosecutrix has not conclusively been proved in this case and she was a consenting party to the sexual act performed with the appellant. He further submits that the prosecutrix did not raise any alarm while she was travelling all along with the appellant and she herself voluntarily accompanied the accused and participated in performance of sexual act. 5(ii) So far as the age is concerned, learned counsel for the appellant refers to the statement of School Head Master (P.W.5) and submits that as per the entry made in Admissions & Discharge (Dakhil-Kharij) Register Ex.P-11(C) issued by the Primary School, he has mentioned the Date of Birth of prosecutrix to be 10.07.2004 and this witness is not the author of the document. He further submits that despite medical advice, no ossification test was conducted to conclusively prove the age of prosecutrix. Therefore, the prosecution has not been able to prove the minority of prosecutrix and the impugned judgment and conviction needs interference by this 4 Court. 6(i) Per contra, learned State Counsel submits that the appellant took away the minor girl from the lawful custody of parents and committed forcible sexual intercourse with the girl, therefore, the offence is made out. He submits that the impugned judgment is well merited which needs no interference. 6(ii) So far as the age of girl is concerned, he refers to the copy of entries made in Admissin & Discharge (Dakhil-Kharij) Register produced as Ex.P-11(C ) and submits that the DoB of prosecutrix was recorded as 10.07.2004 which was proved by P.W.5 Bandhu Ram, the School Head Master. Therefore, on the date of incident, the victim was much below 18 years of age. Hence, the judgment of conviction and sentence passed by the trial Court is well merited which does not call for any interference. 7. I have heard learned counsel for the parties and have also perused the records. 8. The prosecutrix (PW-1) in her court statement confirming the prosecution case against the appellant has stated that when she had gone to see the crop of Kurthi on 17.11.2018, the appellant caught her hand and dragged her to the forest and committed forcible sexual intercourse after keeping her there for one night and kept her there till the next day and then he forcibly took away her to his house. He further took her to village Bhisur, Uttar Pradesh on a motorcycle where Sadhu Charan, Deputy Sarpanch of village Kurludih, Ramvichar and Sukhdevi Guruji of village Talkeshwarpur came to pick up her. Then her maternal uncle, a resident of village Bhisur took her to his house. The appellant ran away leaving the motorcycle which was brought to the police post Amwar. Then her maternal uncle brought her to her house on 23.11.2018. The next day on 24.11.2018, she went with her father (P.W.2) to the Police Station Sanawal and reported the matter. Her statement stood firm by the statements of her father (P.W.2), Sadhu Charan Yadav (P.W.3) and the Investigating Officer of the case, Inspector John Pradeep Lakra (P.W.7). 5 9. Dr. Kamini Rai (P.W.6) has stated that she conducted the medical examination of the prosecutrix (P.W.1) on 24.11.2018 and submitted a report (Ex.P- 13) according to which the prosecutrix herself had stated that the last sexual intercourse with her was on 17.11.2018. Although there was no injury on her private parts and no definite opinion has been given in this regard that there are signs of immediate sexual intercourse, but it is noteworthy that the incident of rape with the prosecutrix has been stated to have taken place on the night of 17.11.2018. Whereas the police report and medical examination took place about a week later on 24.11.2018. Since the prosecutrix was menstruating at that time, the slide of her vaginal discharge has also not been prepared. According to the FSL report (Ex.P- 23), semen stains or human sperms were not found in the undergarments of the prosecutrix and the appellant. Since all these tests were conducted after the report and that report was done about a week later. In such a situation, even if the prosecution did not get support from it, the statement of the prosecutrix cannot be disbelieved because the prosecutrix (P.W.1) has remained firm in her statement that the appellant took her away along with him and raped her and it has also been found from the statement of the remaining witnesses that the prosecutrix was found with the appellant on the second or third day. 10. The first contention of the appellant side is that he has been falsely implicated due to enmity. In this regard, the appellant has stated in the statement u/s 313 of CrPC that the appellant had a transaction of money with the brother of the prosecutrix. The brother of the prosecutrix was not refunding money hence he has been falsely implicated due to the dispute. In this regard, Ashok Kumar (D.W.1), resident of village Konga and Jogendra Yadav (DW-2) resident of village Kurludih have been examined who stated that the brother of the prosecutrix and the appellant had gone together to Kerala State to work as labourers, where the wages of both of them were deposited in the bank account of the father of the prosecutrix. On returning from Kerala State, when the appellant demanded his 6 share of the deposited amount, the father of the prosecutrix (P.W.2) did not give the money and beat him up and got a false report written against him. The said defence of the appellant has not been believed by the trial Court. It is noteworthy that in this regard, no such questions have been put to the prosecutrix or her father in cross examination which would show that there was any dispute between them regarding the transaction of money. If there was truth in this defence, then the prosecutrix’s father (P.W.2) would have definitely been questioned in cross examination on this subject, which was not done. In such situation, the said defence is not found to be credible and is not acceptable. 11. The second argument of the appellant side is that the report was written with a delay of about one week. In this regard, if we look at the entire prosecution evidence, it is clear that the incident took place on 17.11.2018. The appellant kept the prosecutrix with him at night. On the second day, i.e., 18.11.2018, when the appellant was taking the prosecutrix to another village on a motorcycle, he was caught and his motorcycle was deposited in the Police Station, which evidence cannot be rebutted and the prosecutrix was handed over to her maternal uncle who is a resident of village Bhisur and then after two-three days, the maternal uncle took the prosecutrix to his home and thereafter to her parents house. After that, on second day i.e., 24.11.2018 the father of prosecutrix (P.W.2) gave a written report of Ex.P-6 to the police station on which the crime was registered. The case is related to the honour and identity of a minor daughter as at the time when the prosecutrix was found with the appellant, the nearest relative of the prosecutrix was her maternal uncle. In such a situation, handing over the prosecutrix to her maternal uncle was completely appropriate and proper and after two-three days when the maternal uncle took the prosecutrix and left her at her home, the father (P.W.2) has made a written report. This entire such events appears to be completely bonafide in which there is no reflection of any deliberate delay anywhere. In such a situation, if the report has been made a week after the disappearance of the prosecutrix, then 7 it is not fatal for the prosecution case. Hence the second contention of the appellant is also rejected. 12. The third argument of the appellant is that the prosecutrix is a consenting party and hence offence does not arise. If we consider this matter, then it is clear from the statement of the prosecutrix that she had no objection in living with the appellant. The prosecutrix herself has admitted in paragraph 16 of the cross examination that she was in love with the appellant. She has also admitted in para 17 that the photographs in Ex.D-1 are her photographs with the appellant. Although she has denied that the letter in Ex.D-2 is in her handwriting but the way she has got the photograph in Ex. D-1 taken with the appellant and has said that she loved the appellant and has also accepted the suggestion that the appellant belonged to another caste and hence her family did not want her to marry the appellant, from which, it is found that the prosecutrix was a consenting party. 13. Now the question arises whether the offence is not made out due to the prosecutrix (P.W.1) being a consenting party. In this regard, it is noteworthy that the prosecutrix is said to be about 14 years of age and the consent of a victim who was much below 18 years of age has no significance for the crime of forcible sexual intercourse or kidnapping. Therefore, the important question that now arises is whether the prosecutrix was a minor below 18 years of age at the time of the incident ? 14. Learned counsel for the appellant argued that the prosecution has failed to substantively prove that the prosecutrix was below 18 years of age at the time of incident and despite medical advice, no ossification test was conducted. He has relied on the following decisions in support of its contention. - (1) Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584; (2) Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604; (3) Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2)SCC-385, (4) Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602; (5) P. Yuvaprakash Vs. State represented by 8 Inspector of Police, 2023 (SCC Online) SC 846. 15. In Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC 584, relying upon its earlier judgment in case of Birad Mal Singhvi Vs. Anand Purohit, 1988 supp. SCC 604, Hon'ble the Supreme Court has held as under: "26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 16. In Alamelu a Vs. State, represented by Inspector of Police, (2011) 2 SCC 385, Hon'ble the Supreme Court held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was recorded. The Court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. In paragraphs 40,42,43,44 & 48, the Supreme Court observed thus : "40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31st July, 1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:- 9 "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. ………………. Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 have no probative value and the dates of birth as mentioned therein could not be accepted."
Decision
relied on by him. In the result, appeal is dismissed. Sd/- (Sanjay Kumar Jaiswal) Judge Rao