Nafr High Court
Case Details
1 2025:CGHC:15280-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1219 of 2024 Dilawar Ansari S/o Rasid Ansari, Aged About 19 Years R/o Village Khamli, Police Station Aasta, District Jashpur (C.G.) versus ... Appellant State Of Chhattisgarh Through Police Station Narayanpur, District Jashpur (C.G.) (Cause title taken from Case Information System) ... Respondent For Appellant For Respondent/State : : Mr. Arham Siddiqui, Advocate Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Shri R Ramesh Sinha, Chief Justice avindra Kumar Agrawal , Judge Hon'ble Judgment on Board Per Ramesh Sinha, C.J. 01/04/2025 1. This criminal appeal has been preferred by the appellant under section 374 (2) of the Criminal Procedure Code against the impugned judgement dated 19.06.2024 passed by learned Special Judge (POCSO) Kunkuri, District Jashpur, in Special Sessions Trial (POCSO) No. 3/2022, whereby the appellant has been convicted and sentenced in the following manner :- VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.11 11:19:00 +0530 2 Conviction Sentence U/s 363 of I.P.C. U/s 366 of I.P.C. U/s 506 Part-II of IPC R.I. for 5 years with fine of Rs. 1000/-, in default of payment of fine further S.I. for 01 year. R.I. for 5 years with fine of Rs. 1000/-, in default of payment of fine further S.I. for 01 year. R.I. for 1 year with fine of Rs. 500/-, in default of payment of fine further R.I. for 03 months. U/s. 6 of Protection of from Sexual Children Offences Act, 2012 (in short ‘POCSO Act’). R.I. for 20 years with fine of Rs. 1000/-, in default of payment of fine further S.I. for 01 year All the sentences are directed to be run concurrently Since the sentence under section 6 of the POCSO Act has been awarded, no separate sentence under Section 376(3) has been awarded by the learned Trial Court. 2. The case of the prosecution in brief is that on 04.01.2022, the victim/PW-1 lodged a written report (Exhibit P-1) to the police against the appellant with the allegation that on 02.01.2022, at about 1:30 PM, the appellant called her near Ladda chowk. When she went there, he took her by his motorcycle towards village Aasta and kept her in his farmhouse and in the night he committed rape upon her. In the next morning, when she asked him to left her to her house, he threatened her not to disclose the incident to anyone, otherwise, she would be killed. He gave her Rs. 200/- cash and boarded her in Popular Bus to go to Jashpur. She made a telephonic call to her 3 friend and called her to Jashpur Bus Stand, where she sent her brother and then she came to her house at village Neemgaon, where her maternal grandfather and maternal uncle came in her search and then she lodged the report. Based on the written complaint, the
Facts
FIR/exhibit P-2 was registered against the appellant for the offence under Section 363, 366, 376(2)(n), 506 of IPC and Section 6 of POCSO Act. The victim was sent for her medical examination to Community Health Centre, Kunkuri, where she was medical examined by PW-9/Dr. Dipti Khalkho, who gave her report/exhibit P- 24. While medically examining the victim, the doctor has found her hymen was fresh ruptured with redness seen and bleeding present on the lateral vaginal wall, tenderness present at the time of examination, mild swelling present at the hymen and opined that on the basis of above examination, she has undergone the sexual intercourse. Two vaginal slides of smear were prepared, sealed and handed over to Police for its chemical examination. Spot map/exhibit P-4 was prepared by the police and exhibit P-6 was prepared by the Patwari. With respect to the age and date of birth of the victim, the school register has been seized from Govt. Primary School, Basantala vide seizure memo/exhibit P-10 and after retaining the attested true copy of the school register/exhibit P-13C, the original register was returned back to the school. The appellant was arrested on 05.01.2022 and he too was sent for his medical examination to Primary Health Centre, Narayanpur, where PW-6/Dr. Sunil Kumar Lakra has medically examined him and gave his report/exhibit P-17. While medically examining the appellant, the doctor has found him able to perform sexual intercourse. The vaginal slide and underwear 4 of the victim were sent for its chemical examination to Regional FSL Ambikapur from where report /exhibit P-26 was received and semen and sperms were found present on sent articles. Statement of the witnesses under Section 161 of CRPC, statement of the victim under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet has been filed before the learned trial Court for the offence under Sections 363, 366-A, 376(2)(n) and 506 of IPC and Sections 4 & 6 of POCSO Act. The learned Trial Court has framed charges under Sections 363, 366, 376(3), 506 Part-II of I.P.C. and Section 5(l)/6 of POCSO Act. The appellant abjured his guilt and plead innocence and claimed trial. In order to prove the charges against the appellant, the prosecution has examined as many as 09 witnesses. The statement under Section 313 of Cr.P.C of the appellant was also recorded in which he denied the material appearing against him, pleaded innocence and has submitted that he has been falsely implicated in the offence. 03 defence witnesses have been examined by the appellant in his favour. After considering and appreciating the evidence available on record, the learned Trial Court has convicted the appellant and sentenced him as mentioned in para 1 of this judgement. Hence, this appeal.
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 10 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 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 11 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." 12. 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 xxxx 33.3. That when a claim for juvenility is raised, 12 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 33 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 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 13 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 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 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. 14 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the 33 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." 13. 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 33 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" 15 conducted on the orders of the concerned authority, l.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 the description 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 16 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: (1) 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. 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 17 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)(1) 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." 14. The victim/PW-1 has stated in her evidence that her date of birth is 17.12.2007. In cross-examination, she admitted that she is using Instagram and WhatsApp. When the Instagram is being installed in 18 mobile phone, it requires the date of birth for its registration. She admitted that on the basis of her date of birth, which she fed in the Instagram and WhatsApp, she attains the majority. 15. PW-2, the mother of the victim has stated in her evidence that the date of birth of her daughter is 17.12.2007. She too has admitted in her cross-examination that her daughter is running Instagram and WhatsApp. She further admitted that she had not produced the birth certificate of her daughter. She herself had not gone to school for admission of the victim. She is residing separately from her husband since 15 years back and when she was in her matrimonial house, the victim was born at Holy Cross Hospital, Kunkuri. 16. PW-3, the maternal grandfather of the victim, has stated in his evidence that the age of the victim is 14 years. In cross-examination, he stated that the victim was born in his village because her father had left her mother. He admitted that he could not tell the date of birth of the victim. 17. From this evidence, the age of the victim has not been satisfactory proved that she was minor on the date of incident. The PW-4/Head Master of the school has stated that the maternal grandfather and mother of the victim had come to school for her admission. The maternal grandfather of the victim did not tell about her date of birth and her mother/PW-2 had not gone to school for her admission. The basis on which the date of birth of the victim was recorded in the school register, is not produced by the prosecution, therefore, in 19 absence of any cogent evidence, it cannot be said that the prosecution has proved the fact that the victim was minor and less than 18 years of age at the time of incident. 18. So far as the kidnapping/abducting the victim for illicit intercourse and rape is concerned, we again examined the evidence of the witnesses. 19. PW-1/victim has stated in her evidence that on 02.01.2022 she was going to her maternal uncle’s house at village Mayali. At that time, the appellant called her by phone at Ladda chowk. When she went to Ladda chowk, the appellant insisted her to go to visit places by his motorcycle and assured that they will return back very soon. On his request, she had gone with him by his motorcycle and he took her to his house at village Aasta, where he kept her in his farmhouse. In the night, he committed rape upon her 3-4 times and has not provided any meals except the biscuit and water. On the next morning, when she requested him to left her to her house, he got her boarded in the Popular Bus and gave Rs. 200/- cash and threatened her not to disclose the incident to anyone, otherwise she would be killed. He made telephonic call to her friend through the mobile phone of a co- passenger of the bus and asked her to send someone to take her. She came to her friend’s house along with brother of her friend and then she informed her maternal uncle that she is at her friend’s house at village Neemgaon and then they came there and took her to police station, where she lodged the report. In cross-examination, she admitted that she and the appellant were connected since 4-5 20 months back through Instagram. She sent the friend request and the appellant accepted the same. She also sent her photo to the appellant in Instagram and WhatsApp. She denied the suggestion given by the appellant that on the date of incident, she had called the appellant, but he refused. She further admitted that the appellant has taken her to Gullu Fall, from where they had gone to village Ghaghra. She admitted that she had gone to village Neemgaon along with the brother of her friend, where she resided for about 2 days along with her friend. She further admitted that her mother had asked from the appellant about her whereabouts, but the appellant denied that she is not with him. She also admitted that in the night of 2 nd date, the appellant came to her mother’s house. She further admitted that on 3rd January, her maternal grandfather made a telephonic call to the appellant and called both of them and also stated that if they would not come, they will lodge report to the police. She further admitted that on 3rd January, at about 11:30-12:00 PM, the appellant along with his friend had come to the house of her maternal grandfather, from where her maternal grandfather and maternal uncle took them to police station, where they kept for whole of the night and on the next day, they came for her search. When they made telephonic call to her, she disclosed that she is at Dodka Choura, Jashpur and thereafter, all of them had come there. She also admitted that at that time, she along with the brother of her friend, were together and they caught them on the road. They have been beaten by her maternal uncle and the appellant and the brother of her friend were kept in police lockup. She further stated that all the police proceedings were done on the instance of her maternal uncle and since the brother of 21 her friend was a tribal, therefore the case was prepared against the present appellant. She resiled from some part of her 161 and 164 CRPC statements and stated that she has not made such a statement and the statement made by her has not been written in the same. 20. From the evidence of this witness, it appears that she was connected with the appellant since 4-5 months. It is her friend request, which has been accepted by the appellant. On the date of incident, the appellant called her at Ladda Chowk and when she had gone there, both of them had gone to visit places and ultimately she had gone to the house of the appellant at village Aasta, where she stayed for whole of the night and made physical relation with the appellant 3-4 times. In all the way, she has not made any alarm or not made any complaint to anyone that she was being kidnapped or abducted by the appellant forcefully, or even there is no complaint to anyone at the time of making physical relation by the appellant with her. Even on the next day, when she was boarded in the Bus and made a telephonic call to her friend by the mobile phone of co-passenger, she has not made any complaint to anyone that she was being kidnapped and subjected to rape by the appellant. She stayed in her friend’s house for about 2 days and there also, she has not made any complaint to anyone or disclose the incident. It is only when she was going with the brother of her friend, she was being detained by the police persons and her maternal uncle on the way and they were taken to the police station. The conduct of the victim itself shows that she was having an affair with the appellant and eloped with him on 22 her own will and engaged in making consensual physical relation with him. 21. PW-2, the mother of the victim has stated in her evidence that on 02.01.2022, when her daughter was not returned back to the house till evening and her whereabouts could not be traced out despite her search, she lodged a missing report to the police. On 04.01.2022, her daughter was being taken back by her brother and police persons and after police proceeding, she was sent to her house. On being inquired, she disclosed about the incident. In her cross-examination, she denied the suggestion given by the defence and submitted that she came to know about the incident by the information given by the victim. 22. PW-3, is the maternal grandfather of the victim has stated in his evidence that on 02.01.2022 at about 1:30 PM, the victim left her house and has not returned back till the evening and then on 03.01.2022 they lodged a missing report to the police. On 04.01.2022, the victim informed him that she is at Jashpur in her friend’s house, thereafter, they had gone to Jashpur to bring her back. On the way near Banki River, the victim was found along with the brother of her friend. Thereafter, they had taken them to police station, where the victim disclosed the entire incident of kidnapping and rape. He admitted in his cross-examination that on 02.01.2022, the appellant came to his house in the night by Scorpio vehicle and later on, he stated that on 03.01.2022, the appellant came to his house and asked him to go to search of the victim and then he and 23 his son had gone in search of the victim along with the police persons. He further admitted that, when they have lodged a missing report to the police, the appellant came to his house and they took him to the police station, but the police have not interrogated him. He further admitted that when the victim had gone with the appellant, she has not informed to them, even she has not informed that she is going to her friend’s house at village Neemgaon. She further has not informed them that she is coming along with the brother of her friend. When the victim was recovered along with the brother of her friend, all of them have taken her to police station including the appellant. Brother of her friend was detained in the police station for whole of the night and on the next day, he was released. He further stated that the appellant has called his granddaughter through the mobile phone of her friend. He admitted that from Ladda chowk to Chatakpur and Basantala, there was a dense vicinity and it was a very busy place. He admitted that the victim has not informed him about any incident. 23. PW-7, is a friend of the victim. She stated in her evidence that on the 2nd day of new year of 2022, the victim came to her village Neemgaon by Bus. She stayed with her for 2 days, but she has not disclosed about any incident. On 4th date, she boarded her in Bus from where she returned back to her house. Since she has not supported the prosecution’s case, she was being cross-examined by the prosecution, but has not supported the prosecution. 24. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon’ble Supreme Court has held that:- 24 "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 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 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, 25 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". 25. From the conduct of the victim and in view of the aforesaid judgment of S. Vardarajan (supra), it cannot be said that the appellant has kidnapped the victim and procured the minor girl, as the victim is not found to be minor and no offence of either kidnapping or procuring a minor girl is made out against the appellant. 26. Recently in the matter of Tilaku alias Tilak Singh Vs. the State of Uttrakhand, the judgment passed in the matter of S. Varadarajan (supra) has been relied upon by the Hon’ble Supreme Court in CRA No. 183 of 2014 decided on 06.02.2025. 27. In the present case, the prosecution could not establish that the victim was minor and less than 18 years of age. She herself had gone with the appellant and stayed in his house. She made physical relations 3-4 times in the night without raising any protest. While going with the appellant, she has not raised any alarm and has not tried to save herself, but they visited various places and had gone to the house of the appellant, where she made physical relations with the appellant in the night. On the next day, she had gone to her 26 friend’s house at village Neemgaon, where also she has not disclosed about the incident to anyone. She stayed there for about 2 days. The conduct of the victim clearly demonstrates that she was the consenting party in eloping with the appellant and making physical relations with him. Though, Dr. Dipti Khalkho/PW-9, who medically examined the victim, has found injuries on the private part of the victim and opined that the victim undergone the sexual intercourse, but in the facts and circumstances of the case, that the victim had engaged in making consensual physical relations with the appellant, the injuries found on her private part, would not have much significance in consensual physical relations. Likewise, the presence of semen and sperms on her vaginal slides is also does not have much significance in the fact that she was the consenting party in sexual relations with the appellant. 28. The version of the victim 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 victim's evidence, then it will not be safe to rely on the said version of the victim. There is contradiction and omissions in the statement of the victim 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 victim. However, there is an important caveat which is that the testimony of the victim must inspire confidence. Even though the testimony of the victim 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 27 any reasonable doubt, which the prosecution has failed to do in the instant case. 29. Considering the entire evidence available on record, the evidence with regard to the age and conduct of the victim, we are of the opinion that the prosecution has failed to prove that the victim was less than 18 years of age at the time of incident. Further, she was a consenting party with the appellant in making physical relation with him. Therefore, in the above facts and circumstances of the case, the offences under Sections 363, 366, 376(3), 506 Part-II of I.P.C. and section 5(l)/6 of POCSO Act are not made out against the appellant.
Arguments
Learned counsel for the appellant would submit that the appellant is innocent and has falsely been implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has 3. 4. 5. 6. 5 failed to prove its case beyond reasonable doubt. There is no legally admissible evidence with regard to the age of the victim that on the date of incident she was minor and less than 18 years of age. In absence of examination of the author of the school admission and discharge register, the same cannot be taken into consideration for determination of the age of the victim. No any Kotwari register or ossification report are produced by the prosecution to determine the actual age of the victim that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the victim and the appellant were having love affair and she herself accompanied with the appellant. She has not raised any alarm or not made any complaint, while going with the appellant by his motorcycle. The victim was fully grown up girl and was a consenting party. No complaint has been made by her to anyone regarding forceful sexual intercourse, or any false promise of marriage. Hence, the offence of IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal. 7. On the other hand, the learned counsel for the state opposes the arguments advanced by the learned counsel for the appellant and submitted that the victim was minor and below 18 years of age at the time of incident, which is proved by the school admission and discharge register/exhibit P-13C, which contains the date of birth of the victim as 17.12.2007. The school register is the admissible evidence to determine the age of the victim, which has been proved by the Head Master of the school (PW-4). In MLC report of the victim, the doctor has noticed injuries on her private part and opined that 8. 9. 6 sexual intercourse have taken place. In the FSL report the semen and sperm were found on the vaginal slide of the victim. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The minor victim was abducted by the appellant and kept away from the lawful guardianship. Therefore, the impugned judgement of conviction and sentence needs no interference. We have heard the learned counsel for the parties and perused the record carefully. With regard to the age of the victim, the prosecution has mainly relied upon the school admission and discharge register/exhibit P-13C and the statement of PW-4, who is the Head Master of the school. The PW-4 has stated in his evidence that the police has seized the school register with respect to the age and date of birth of the victim vide seizure memo/exhibit P-10. After retaining its attested true copy, the original register was returned back, which he brought today with him. The said school register is Exhibit P-13 and its attested true copy is Exhibit P-13C. In the school register, the name of the victim is recorded at Serial No. 1275. From perusal of the school register/exhibit P-13C the date of birth of the victim is recorded as 17.12.2007. In cross-examination, he admitted that he has never met with the parents of the victim. He admitted that the entries with respect to the date of birth of the victim in the school register has been made by him, but her father was not come and her maternal grandfather and mother had come. He further admitted that at the time of her admission, they had not taken her birth certificate, but 7 taken the Jachcha Bachcha Card. From the evidence of this witness, it appears that he is the author of the school register, but there is no evidence on the basis of which the relevant entries have been made in the school register. There is no other evidence, like Kotwari Register, Birth Certificate or Ossification Test Report of the victim. 10. The relevancy of school admission and discharge register came for hearing before Hon’ble Supreme Court in Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, the Hon'ble Supreme Court has held that the transfer certificate which is issued by government school and is duly signed by the Headmaster would be admissible in evidence under Section 35 of the Evidence Act 1872. However, 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 Hon'ble Supreme 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. 11. In Para 40, 42, 43, 44 and 48 of its judgment, the Hon’ble Supreme Court 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 8 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 Purohit, 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 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 9 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 Jaiswal, where this Court observed as follows:-
Decision
30. For the foregoing reasons, the appeal is allowed. The judgement of conviction and order of sentence dated 19.06.2024 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 05.01.2022. He be released forthwith if not required in any other case. 31. Keeping in view the provisions of section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant is directed to forthwith 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 judgement or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 28 32. The trial court records along with a copy of this judgement be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved