Nafr High Court
Case Details
ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.02.19 10:20:38 +0530 1 2025:CGHC:8276-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 595 of 2021 Suraj Khandekar S/o Manoj Khandekar Aged About 22 Years R/o Sakin Village Kona, Thana - Jarhagaon, District Mungeli Chhattisgarh. versus ... Appellant State of Chhattisgarh Through Police Station Suhela, District Balodabazar Bhatapara Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Appellant : Ms. Anuja Sharma, Advocate For Respondent/State : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shr i Ravindra Kumar Agrawal , Judge Judgment on Board Per . Ramesh Sinha, Chief Justice 18.02.2025 1. Heard Ms. Anuja Sharma, learned counsel, appearing on behalf of the appellant as well as Mr. Nitansh Jaiswal, learned Panel lawyer appearing on behalf of the State/respondent. 2. This appeal is directed against the judgment of conviction and order of sentence dated 25.02.2021 passed by the Special Judge 2 under Protection of Children from Sexual Offences Act, 2012, Bhatapara, District Balodabazar-Bhatapara, Chhattisgarh in Special Criminal Case No.20/2019 whereby the appellant has been convicted and sentenced as under: Conviction Sentence Under Section 363 of the Indian Penal Code, 1860 Rigorous imprisonment for 3 years and fine of Rs.500/-, in default of payment rigorous additional of imprisonment for 3 months. fine, Under Section 366 of the Indian Penal Code, 1860 Rigorous imprisonment for 5 years and fine of Rs.500/-, in default of payment of rigorous additional imprisonment for 3 months. fine, Under Section 376(3) of the Indian Penal Code, 1860 Rigorous imprisonment for 20 years and fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 6 months. All the sentences were directed to run concurrently. 3. Learned State counsel submits that notice issued to the father of the prosecutrix/victim (PW-3) has been served, but none has appeared on behalf of the prosecutrix/victim to contest the present appeal. 4. Brief facts of the case are that, on 18.03.2019, father of the prosecutrix (PW-3) made a complaint before the Police Station Suhela alleging therein that on 18.03.2019, at about 9.00 AM, her daughter aged about 13 years, resident of village Pendri went to school, but did not return till evening. Thereafter, they made a search, but could not find her. Based upon the said information, a 3 missing report has been lodged at Police Station Suhela bearing Crime No.14/2019 vide Rojnamcha Sanha Ex.P/26, based upon
Facts
which, the Police of Police Station Suhela registered the First Information Report bearing Crime No.86/2019 for the offence punishable under Section 363 of the Indian Penal Code, 1860 (for short, “IPC”) vide Ex.P/8. Thereafter, wheels of investigation was started running and crime details form has been prepared vide Ex.P/27. On 20.06.2019, prosecutrix was recovered from the possession of the appellant and recovery panchnama has been prepared vide Ex.P/3. Subsequently, nazri naksha has been prepared vide Ex.P/4. After giving consent of the prosecutrix vide Ex.P/5, the prosecutrix was subjected to medical examination, which was conducted by Dr. Pooja Gaikwad (PW-6). General examination report of the prosecutrix is Ex.P/15 and medical examination report of the prosecutrix is Ex.P/16. Underwear of the prosecutrix was seized vide Ex.P/4 and underwear of the accused was seized vide Ex.P/12. One mobile phone of the accused was seized vide Ex.P/13. Two vaginal swab slides and underwear of the prosecutrix was seized vide Ex.P/18. Medical examination of the appellant was conducted by Dr. Parasnath Patel (PW-15), who gave its report vide Ex.P/24. A Dakhil-kharij of Government Primary School, Pendri was seized vide Ex.P/20 and mark-sheet of class V of the prosecutrix was seized vide Ex.P/22. A copy of Dakhil-kharij register is Article A1C. The appellant was arrested on 4 21.06.2019 at about 01.05 PM vide arrest memo vide Ex.P/28. The seized articles were not sent for forensic examination for the reasons best known the prosecution. 5. Statements under Section 161 of the Cr.P.C. of the witnesses were recorded by the police and the statement of the prosecutrix under Section 164 of the of the Cr.P.C. was also recorded. After completing the entire investigation, charge-sheet was filed before the Additional Sessions Judge (POCSO) Bhatapara, District Balodabazar-Bhatapara (C.G.) for the commission of offence punishable under Sections 363, 366(a), 376 of the IPC as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”). 6. The trial Court has framed charges under Sections 363, 366 & 376(3) of the IPC as well as Section 6 of the POCSO Act. During trial, the prosecution has examined as many as 19 witnesses and exhibited 39 documents Exs. P/1 to P/39. 7. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the second paragraph of this judgment. Hence this appeal. 8.
Legal Reasoning
"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 12 be appropriate to notice the observations made by this Court in the case of Ravinder Singh Gorkhi Vs. State of U.P.4 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 a suit is filed on the ground that the 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 (2006) 5 SCC 584 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 13 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." 20. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others, 2022 (8) SCC 602, while considering various judgments, the Hon'ble 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. 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 14 recording a finding stating the age of the person as nearly as may be. XXXX XXXX XXXX 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 sought 15 before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to 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 scrutinized 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. 33.7 This Court has observed that a hypertechnical approach should not be 16 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 evidence 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 17 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." 21. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble 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 18 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 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. Furthermore, 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 thedescription of any class of documents 19 mentioned in Section 94(2)(i) 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 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 20 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, 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 Gupta vs. The State of Uttar Pradesh & Ors 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 21 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 fromthe 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 Vs. State of West Bengal, 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 22 indicated the hierarchy of documents that would be accepted in order of preference." 22. Reverting to the facts of the present case. The mother of the prosecutrix (PW-1) has stated in her deposition that she could not remember the date of birth of her daughter and her husband has recorded the date of birth of the prosecutrix on assumption basis. The prosecutrix herself (PW-2) has stated in her evidence that she could not remember her date of birth. Likewise, her father (PW-3) has deposed that the he could remember the exact date of birth of the prosecutrix. Nileshwar Prasad Verma (PW-9) Assistant Teacher of Government Primary School, Pendri though has admitted that in the Dakhil-kharij Register (Article A1C), date of birth of the prosecutrix has been mentioned as 10.12.2005, but in cross-examination, he has stated that he did not made entry of date of birth of prosecutrix in Dakhil-kharij register. 23. Except for these evidences, no other evidence like Kotwari register or birth certificate have been produced by the prosecution to determine her age that on the date of incident, she was minor or less than 18 years of age. The oral evidence of the witnesses mother of the prosecutrix (PW-1), prosecutrix herself (PW-2), father of the prosecutrix (PW-3) and Nileshwar Prasad Verma (PW-9) Assistant Teacher of Government Primary School, Pendri as also Dakhil-kharij Register (Article A1C) are not sufficient to hold that the prosecutrix was minor on the date of incident 23 because of the reason that no documents has been shown to ascertain the fact that on what basis the date of birth of the prosecutrix was recorded. The entry with regard to age of the prosecutrix has been mentioned in the Dakhil-kharij Register (Article A1C) is not sufficient to hold actual date of birth of the prosecutrix. There is every possibility that the date of birth of the prosecutrix is recorded on assumption otherwise, the prosecution must have produced the relevant record on the basis of which her date of birth recorded in the said register. The evidence produced by the prosecution with respect to the age of the prosecutrix are not of that sterling quality which is sufficient to determine the age of the prosecutrix. Therefore, there is lack of clinching and cogent evidence to hold her minor on the date of incident, yet the learned trial Court held her minor. 24. The next question for consideration would be whether the appellant has committed rape upon her or not ? 25. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon'ble Supreme Court has considered the taking and allowing a minor to accompany a person and has held in Para 9 and Para 10 of its judgment that:- “9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though 24 we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In 25 our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". 26. PW-2, prosecutrix has deposed in her statement that she knew the appellant. She further deposed that appellant has called her upon mobile phone and after that, she met with the accused. She deposed that she made a call through which she had a conversation with the accused and from that day onwards, the accused started talking to her on the mobile. During the conversation, accused told her on phone that he loves her and wants to marry her. On 04.03.2019 (day of Mahashivratri), the 26 accused Suraj came to meet her at the Shiv temple in Suhela, there also the accused had wanted to marry her after eloping with her. She told the accused that she belonged to another caste and her family will not agree for their marriage, then the accused said that he will die. She further deposed that on 18.03.2019 the accused called her again and stated that he will elope with her and coming to Suhela and if she do not come, he will die, as such, due to fear, she went to Suhela to meet with the accused. The accused was found near Hanuman temple in Suhela, from where, he took her to his house in Kona village near Jarha via Bhatapara- Mungeli. The accused took her to his house and developed physical relations with her on the pretext of marriage. She further admitted that appellant and prosecutrix were married in front of villagers of Kona. After the marriage, the accused had been continuously having physical relations with her. 27. Likewise, mother of the prosecutrix (PW-1) and father of the prosecutrix (PW-3) have supported the evidence of the prosecutrix that appellant had eloped their daughter and on the pretext of marriage, committed repeated sexual intercourse with her. 28. Dr. Pooja Gaikwad (PW-6) has deposed in her statement that the prosecutrix was brought before her for medical examination on 21.06.2019. On examining the prosecutrix, she found following symptoms and injuries :- 27 “Identification mark:- The victim had a tattoo mark on her left hand. Menstruation status:- The victim had reported that her last menstruation was on 16.06.2019. External Examination:- The victim was of normal height and was fully conscious. There were no signs of injury on his external organs. Her secondary sexual characteristics were fully developed. Internal examination:- There was no mark of any injury in the private part of the victim. Her hymen was torn. She conducted the pregnancy test of the victim, which was negative. Opinion:- She cannot say with certainty whether there was immediate forcible sexual intercourse with the victim or not.” 29. Further, seized articles were not sent for its chemical examination to FSL for the reasons best known to the prosecution. 30. Therefore, in the facts and circumstances of the case, as also the evidence on record, it would not be safe for this Court to hold that 28 the appellant has committed rape upon her, rather it reflects from the evidence that the prosecutrix herself went along with the appellant because while she has not made any complaint to anyone and has not raised any alarm while she was in the house for about 4 months. Had she been forcefully raped against her will or consent, she would definitely raise alarm or to make complaint to anyone. Since, it is held that the prosecutrix is not below the 18 years of age, she is capable to give her consent and therefore, it cannot be said that the appellant procured a minor girl with the intention to illicit intercourse or committed rape upon her. 31. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony of the prosecutrix must inspire confidence. Even though the testimony of the prosecutrix is not required to be corroborated, if her statement is not believable, then the accused cannot be convicted. The prosecution has to bring home the charges leveled against the appellant beyond reasonable doubt, which the prosecution has failed to do so in the instant case. 32. For the foregoing discussions, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against the appellant for committing the aforesaid crime and as such, the appellant is entitled for acquittal by giving him benefit of doubt. 29 33.
Arguments
Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the present case. The prosecution has completely failed to prove the guilt of the appellant. She further submits that there are so many contradiction and omission 5 in the statement of the prosecution witnesses. The prosecution has completely failed to prove the age of the prosecutrix that on the date of the incident, the prosecutrix was minor. In fact, the prosecutrix herself has accompanied the appellant, therefore, the conviction of the appellant is not sustainable and the appellant should be acquitted of the charges framed against him. 9. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the statement of the prosecutrix and other witnesses are fully reliable. There are sufficient evidence available on record to hold the appellant guilty for the alleged offence and the learned trial Court has absolutely justified in passing the judgment of conviction and sentence against the appellant which does not require for any interference. 10. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 11. The first and foremost question arose for the consideration would be whether the prosecutrix was minor and less than 18 years of age on the date of incident or not ? 12. In order to consider the age of the prosecutrix, we have examined the evidence available on record. The prosecution has mainly relied upon Dakhil-kharij Register (Article A1C), statements of mother of the prosecutrix (PW-1), prosecutrix herself (PW-2), father of the prosecutrix (PW-3) and Nileshwar Prasad Verma 6 (PW-9) Assistant Teacher of Government Primary School, Pendri, District Balodabazar. According to the Dakhil-kharij Register (Article A1C), the date of birth of the prosecutrix is 10.12.2005. 13. The mother of the prosecutrix (PW-1) has not deposed in her examination-in-chief about date of birth of her daughter i.e., the prosecutrix. In cross-examination, she admitted that her husband recorded the date of birth of prosecutrix in the school on assumption basis. 14. Prosecutrix herself (PW-2) has deposed in her evidence that she is aged about 13 years, but she could not remember her date of birth. 15. Likewise, father of the prosecutrix (PW-3) has deposed in his evidence that he could not remember the date of birth of her daughter. In cross-examination, he admitted that he recorded the date of birth of prosecutrix in the school on assumption basis. 16. Nileshwar Prasad Verma (PW-9) Assistant Teacher of Government Primary School, Pendri, District Balodabazar has deposed that as per Serial No.1263 of the Dakhil-kharij Register, the date of birth of the prosecutrix is 10.12.2005. In cross- examination, he has deposed that he did not made such entry in the Dakhil-kharij register. 17. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution 7 could not produce the clinching and legally admissible evidence with respect to the date of birth or age of the prosecutrix so as to hold that on the date of incident she was minor and below 18 years of age. Only on the basis of school Dakhil-kharij register, it would not be safe to hold that the prosecutrix was minor on the date of incident. The statements of mother of prosecutrix (PW-1), prosecutrix herself (PW-2), father of the prosecutrix (PW-3), as also the statement of Nileshwar Prasad Verma (PW-9) Assistant Teacher of Government Primary School, Pendri are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 10.12.2005. 18. In the matter of 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, the Hon’ble 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 8 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." 19. The Hon’ble Supreme Court in paragraphs 40,42,43,44 and 48 of its judgment in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, has observed as under: "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 9 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:- "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 10 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." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi 11 Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-
Decision
In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 25.02.2021 is set aside. The appellant is acquitted from all the charges leveled against him. The appellant is in jail. He be released forthwith, if not required in any other case. 34. Keeping in view the provisions of Section 437-A Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 35. The trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- d/- (Ramesh Sinha) Chief Justice Anu