1 - Krishna Kumar Kosle @ Billu S/o Ramu Kosle, Aged About 24 Years v. 1 - State Of Chhattisgarh Through Station House Officer, Police Station Kharora, District Raipur
Case Details
1 2025:CGHC:1692-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1024 of 2024 1 - Krishna Kumar Kosle @ Billu S/o Ramu Kosle, Aged About 24 Years R/o Village Bhejridih, Thana Kharora, District Raipur Chhattisgarh. ... appellant versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Kharora, District Raipur Chhattisgarh. ... Respondent(s) For appellant For Respondent : : Ms. Anjali Pradhan, Advocate Mr. Shailendra Shrama, P.L. Division Bench: Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Ravindra Kumar Agrawal, Judge Order On Board Per Ravindra Kumar Agrawal, Judge 10.01.2025. 1. Though, the matter has been listed for consideration on IA No. 2 of 2024 for urgent hearing of the matter, with the consent of the parties, the matter has been heard finally. 2. The present criminal appeal has been filed under Section 374 (2) of Cr.P.C. against the impugned judgment of conviction and sentence 2
Facts
dated 09/05/2024 passed by learned Additional Sessions Judge/ first (FTSC), POCSO, Raipur (C.G.) in Special Criminal (POCSO) Case No. 157/2022 whereby the appellant has been convicted for the offence as under:- S. No. 1. 2. 3 4. Conviction Sentence U/s 363 of IPC U/s 366 of IPC R.I. for 7 years and fine of Rs. 500/- in default of payment of fine 2 month additional R.I. R.I. for 7 years and fine of Rs. 500/- in default of payment of fine 2 month additional R.I. U/s 376 (3) of IPC and Section 4(2) of POCSO Act. R.I. for 20 years and fine of Rs. 2000/- in default of payment of fine 6 month additional R.I. U/s 5(l)/6 of POCSO Act. R.I. for 20 years and fine of Rs. 2000/- in default of payment of fine 6 months additional R.I. all the sentences shall run concurrently. 3. Brief facts of the case are that on 06/07/2022, the father of the victim (PW/3) has lodged a missing report (Ex-P/5) that his minor daughter is missing from the intervening night of 05/07/2022 and 06/07/2022. Her whereabouts could not be traced out despite her search in the nearby places and her relatives’ house. The offence under Section 363 of IPC has been registered by the Police and started investigation. During the investigation, the victim recovered on 07/07/2022 from the possession of the appellant and recovery Panchanama (Ex-P/1) was prepared in presence of the witnesses. The victim was being sent for her medical examination to community health centre Kharora, Dist- Raipur where Dr. Urja Garg (PW/4) has medically examined her and gave her medical report (Ex-P/10A). During her medical examination, the doctor has noticed erythema present on under surface of labia minora, her 3 hymen was ruptured and opined that signs of recent intercourse present. Two slides of her vaginal swab were prepared, sealed and handed over to the Police for FSL examination. The victim was also referred for X-ray examination for her age determination. The Police has seized the school register from government primary school, Bhejaridih, Dist- Raipur, vide seizure memo (Ex-P/6) and after retaining the attested true copy of the school register (Ex-P/7c), the original register (Ex-P/7) was returned back to the school. The progress report card of Class-5 of the victim has also been seized vide seizure memo (Ex-P/7). Spot map (Ex-P/6) was prepared by the Police and P/9 was prepared by the Patwari. The appellant was arrested on 11/07/2022 and he too was sent for medical examination to Community Health Centre, Kharora where (PW-5) Dr. Ravi Kumar Khunte has examined him and gave his report (Ex-12). After his examination, the appellant was found to be capable to perform sexual intercourse. A motor cycle has been seized from the appellant vide seizure memo (Ex-P/18). The slides of the vaginal swab of the victim, her underwear and semen slide and underwear of the appellant were sent for chemical examination to FSL, Raipur, from where Report (Ex-P/26) was received and according to the FSL report, the semen slide of the victim as well as the appellant were found to be stained with semen and sperm however, in their undergarments no semen and sperms were found. The statement under Section 161 of the prosecution witness have been recorded and Statement under Section 164 of the victim has also been recorded and after completion of the investigation, charge-sheet was filed against the appellant for the offences under 4 Section 363, 376 (2)(j), 376 (2)(n) and 506 of IPC and Section 6 of POCSO Act. 4. The learned trial Court has framed charge against the appellant for the offence under Section, 363, 366, 376 (2)(n) and 376 (3) of the IPC and Section 4(2) and Section 5(l)/6 of POCSO Act have been framed. The appellant denied the charge and claimed trial. 5. In order to prove the charge, the prosecution has examined as many as 06 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he is innocent. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in Para-1 of this judgment. Hence this appeal.
Legal Reasoning
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:- 7 "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." 43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, 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 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 8 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 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 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." recorded, 13. 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: 33.2.2. 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. XXXX XXXX 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 sought 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 9 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 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. 33.7 This Court has observed that a hypertechnical 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 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 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." 10 14. 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 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 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 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. 11 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 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 indicated the hierarchy of documents that would be accepted in order of preference." 15.Reverting to the facts of the present case, except school register and progress report card of class 5, no other documentary evidence like Kotwari register, birth certificate or even ossification test report have been produced by the prosecution to prove the age of the victim. 16.PW/1, the victim has stated in her evidence that her date of birth is 27/11/2006 and at the time of incident, she was 15 years of age. In cross-examination, she admitted that her birth certificate has not got prepared even her birth was not registered with the Kotwari Panji or 12 statical department. She has also admitted that she could not know as to on what basis, her parents were recorded her date of birth in the school record. Although, she denied the suggestion that at the time of incident, she was more than 18 years of age but from her evidence it is not unerringly come on record that her exact date of birth is 27/11/2006 in view of para 13 and 14 of her cross-examination. 17.PW/3, the father of the victim has stated in his evidence that the victim is his 6th daughter. He could not know her date of birth but at the time of incident she was about the 15 years of age. In cross-examination, he admitted that he did not know her date of birth. He also did not know as to when he has got married and after how many years their children have been born. He also did not know as to whether he has got admitted her in the school or not. He also did not remember as to whether he has taken any document with respect to her date of birth to the school or not. From the aforesaid evidence, it is quite vivid that the prosecution could not produce any cogent and clinching evidence with respect to the age or date of birth of the victim that she was minor on the date of incident. The victim herself did not know the basis on which the date of birth is recorded. Her father did not know her date of birth and the school register has not been proved in accordance with law and therefore, in absence of any sufficient material produced by the prosecution it cannot be hold that the victim was minor on the date of incident. 18.Next question for consideration would be whether the victim was kidnapped and subjected to rape by the appellant or not. 19.(PW/1) the victim has stated in her evidence that on 04/07/2022 at about 1 am in the night, the appellant made a telephonic call to her and 13 took her to the house of his elder mother at Village- Nawagaon by his motor cycle. He made physical relation with her twice in his elder mother’s house. He kept her there for about a day and then her parents came there and took her back. In cross-examination, she admitted that the appellant belongs to the same caste and community as she is belonging. She also admitted that she was regularly in conversation with the appellant since last week. Although, she denied the suggestion given by defence that her parents were come into knowledge about their affair and therefore, the dispute arose between them but voluntarily stated that later on they came to know about their relation. She further stated in her evidence that at the time when the appellant was taking her by his motor cycle, she neither shouted nor tried to ask for help from anyone. She further admitted that on the date of incident, she came out from her house by jumping across her boundary wall on her own will. 20.PW/3, the father of the victim, has stated in his evidence that when his daughter had gone to answering the call of nature, appellant gagged her mouth and took her with him and his daughter has disclosed him that on the way the appellant made physical relation with her. His daughter has informed him about her whereabouts from the house of the relative of the appellant and then they informed the same to the Police. In cross-examination, he stated that he has not made any statement before the Police that his daughter was being taken to Village- Bohari and he disclosed in his Police Statement that his daughter had gone to answer the call of nature and if it is not there in his 161 CrPC Statement, he did not tell the reason. From the evidence of these two witnesses, it is apparent that on the date of incident, the 14 victim came out from her house after jumping the boundary wall which is admitted by the victim herself. From the date of incident, the appellant made a telephonic call to the victim and then the victim came out from her house. She jumped the boundary wall and had gone with the appellant by his motor-cycle. Up to the house of his elder mother, she has not raised any alarm and not asked for help from any of the person. It is also not possible for anyone to drive the motor cycle by one hand and gagged the mouth of the pillion rider by one hand up to a considerable distance and in that period the pillion rider cannot able to save herself or to raise any alarm. Had she been protested or raised alarm the persons of the vicinity or anyone on the way to his elder mother’s house would definitely heard the noise and would definitely helped her or she would have got unbalanced the motor cycle driven by the appellant or jumped from the motor cycle, if she actually been kidnapped by the appellant. But it is not the position here and she had gone with the appellant to his elder mother’s house. Even in his elder mother’s house while making physcial relation with the appellant, she has not raised any alarm and has not tried to save herself by giving nail stretchmark or teethbite on the body of the appellant. Even there is no sign of any protest were found, although, the doctor has suggested the sign was intercourse were present but itself does not sufficient to hold that she was not consented in making physical relation with the appellant. Since, the prosecution has failed to prove that the victim was minor on the date of incident, therefore, it can safely be hold that she was able to give her consent in making physical relation with the appellant and she herself had gone with him and engage in making consensual physical relation which definitely does not come under the 15 offence of rape. The conduct of the victim itself shows that she was the consenting party which reflects from her evidence and the manner in which she came out from her house. It was the night time and if she had raised any shout, the neighbour would have definitely heard their noise and would have saved her. Therefore, in the facts and circumstances of the case and the evidence available on record, it is very difficult for this Court to hold that the victim was subjected to rape by the appellant rather she was the consenting party in making physical relation with him. The medical report though suggested the fact that the victim was subjected to recent sexual intercourse but in the fact that she engage in making consensual physical relation no adverse inference can be drawn against the appellant that he committed forceful sexual intercourse with her. 21.The Hon'ble Supreme Court in the case of Santosh Prasad alias Santosh Kumar v. State of Bihar reported in 2020 (3) SCC 443 has held in para 5.4.2. that who can be a sterling witness which is as under: 5.4.2. In Rai Sandeep", this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under (SCC p. 29) "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever 16 strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged" 22.The version of the prosecutrix commands great respect and acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the prosecutrix's evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of the prosecutrix and her parents. 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 the prosecutrix must inspire confidence. Even though the testimony of 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 charges levelled against the appellant beyond any reasonable doubt, which prosecution has failed to do in the instant case. 17 23.From the aforesaid discussion, we are of the view that no offence against the appellant under the IPC or the POCSO has been made out and he is entitled for benefit of doubt.
Arguments
7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecutions’ witnesses which cannot be made basis for the conviction of the appellant. The prosecution has failed to prove the age of the victim that on the date of incident she was minor and less than 18 years of age. The school register produced by the prosecution has not been proved in accordance with law. The basis on which the entries have been made in the school register has not been proved. There is no Kotwari register or birth certificate or ossification test report to determine the actual age of the victim on the date of incident. The victim is a major 5 girl having love affair with the appellant and she herself had gone to the house of the appellant on her own will without raising any objection or raising any alarm. She being a consenting party in making physical relation with the appellant, no offence of rape is made out against him and therefore, the appellant is entitled for acquittal. 8. On the other hand, learned State counsel opposes the argument advanced by the learned counsel for the appellant and has submitted that the prosecution has proved its case beyond reasonable doubt. But for some minor omission and contradictions, the evidence of the prosecution witnesses are fully reliable and the conviction of the appellant can be based on it. From the school register as well as from the evidence of PW/2 who is the Head Master of the school, it has been proved that the victim was minor on the date of incident and she was subjected to sexual intercourse by the appellant which does comes under the offence of rape. Even if, no injuries have been found on the body of the victim that itself is not sufficient to dilute the offence of rape because in every case it is not necessary that the victim must have receive injuries and it depends the facts of each case. The minor victim was found in the house of the appellant and therefore, the offence of kidnapping and rape has been proved by the evidence produced by the prosecution and his conviction and sentence is absolutely justified which is not required to be interfered with. 9. We have heard learned counsel for the parties and perused the record. 10. The first and foremost question arose for consideration in the case would be the age of of the victim that on the date of incident she was minor or not. 11. The prosecution has mainly relied upon the School register (Ex-P/7c) to 6 prove the age of the victim which is sought to be proved by PW/2 Head Master of the School. He stated in his evidence that he is posted as Head Master of the School since 2005 and he brought the original register with him in which the date of birth of the victim is recorded as 27/11/2006. The original register is Ex-P/7 and its attested true copy is (Ex-P/7c). In cross examination he admitted that the entries made in the school register is not in his hand writing. He also admitted that he did not know as to on what basis the date of birth of the victim is recorded in the school register. Although, the progress report card of Class 5 of the victim has also been seized by the Police which is Article-A but in absence of any basis on which the entries have been made in it, it cannot be taken into consideration for determination of the age of the victim. 12.The relevancy and admissibility of the school record is considered by 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, in which it has been observed that: "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.
Decision
24.Consequently, the appeal is Allowed. The impugned judgment of conviction and sentences passed against the appellant is set aside. The appellant is acquitted from all the alleged offences. 25.Keeping in view the provisions of Section 481 of B.N.S.S. 2023, the appellant is directed to furnish a personal bond of sum of Rs.25,000/- with one reliable 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. 26.The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Sd/- (Ramesh Sinha) Chief Justice sagrika