Nafr High Court
Case Details
1 ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.03.26 10:20:12 +0530 2025:CGHC:14247-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1525 of 2024 Shani Kumar Baiga S/o Ramdas Baiga Aged About 19 Years R/o Village Didvariya, Police Station Pali, District Umariya (M.P.) versus ... Appellant State of Chhattisgarh Through Police Station Janakpur, Erstwhile At Present Distt. Korea Current Distt. M.C.B. (C.G.) ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Hemant Kumar Agrawal, Advocate For Respondent/State : Mr. Shailendra Sharma, 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 25.03.2025 1. Heard Mr. Hemant Kumar Agrawal, learned counsel, appearing on behalf of the appellant as well as Mr. Shailendra Sharma, 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 12.07.2024 passed by the Additional 2 Sessions Judge, First Fast Track Special Court under Protection of Children from Sexual Offences Act, 2012, Manendragarh, Chhattisgarh in Special Criminal Case ‘POCSO’ No.89/2021 whereby the appellant has been convicted for the offence punishable under Section 366 of the Indian Penal Code, 1860 (ror short, “IPC”) and Sections 5(l) and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and sentenced to undergo rigorous imprisonment for 3 years and fine of Rs.100/-, in default of payment of fine, additional rigorous imprisonment for one month and rigorous imprisonment for 20 years and fine of Rs.2,000/-, in default of payment of fine, additional rigorous imprisonment for three months, respectively and it was further directed to run both the sentences 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 15.09.2021, father of the prosecutrix made a complaint to the effect that on 01.09.2021, his daughter/prosecutrrix left for school in the morning and did not return home till evening. She was searched amongst the neighbours and relative, but could not be found anywhere. Her father suspects that some unknown person has kidnapped his minor girl victim and on the basis of the said report, First 3 Information Report (Ex.P/8) was registered at Police Station Janakpur, District Koriya bearing Crime No.0132/2021 and the case was taken into investigation. During investigation, the victim was recovered from the custody of accused Shani from village Didwariya, Police Station Pali, District Umaria, M.P. vide recovery panchanama Ex.P/5 and on questioning, the victim told that the accused took her away by luring her and had made forcible physical relations with her, upon which Sections 366, 376 and 376(2) (g) of the IPC as well as Sections 5 (h) and 6 of the POCSO Act were added. 5. During the investigation proceedings, consent of prosecutrix and her mother was given vide Ex.P/1 to examine the private parts of the victim and spot map was prepared vide Ex.P/2. Report card of Class-V of the prosecutrix was seized vide Ex.P/3 and crime details from has been prepared vide Ex.P/6. Dakhil-kharij register of Primary School Udaki has been seized vide Ex.P/10 and a copy of the Dakhil-kharij register is Ex.P/12C. A certificate was given by the headmaster with regard to date of birth of the victim mentioning her date of birth as 22.04.2004 vide Ex.P/13. The prosecutrix was medically examined by Dr. Marisha Singh (PW-6) who gave its report vide Ex.P/14. Vaginal slide, underwear of the prosecutrix as well as public hair of prosecutrix were seized vide Ex.P/15. Similarly, semen slide, panel slide and underwear of the appellant were seized vide Ex.P/16. Mark-sheet of Class-X of the prosecutrix was seized vide Ex.P/17. Thereafter, appellant has 4 been arrested on 17.09.2021 at about 2.50 PM vide arrest memo Ex.P/23. The seized articles were sent for FSL examination to the Regional Forensic Science Laboratory, Ambikapur, Surguja and FSL report (Ex.P/26) is found to be negative. 6. 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 Special Judge (POCSO) Fast Track Court, Manendragarh, District Koriya (C.G.) for the commission of offence punishable under Sections 363, 366 and 376(2)(n) of the IPC as well as Sections 4 and 6 of the POCSO Act. 7.
Facts
The trial Court has framed charges under Section 366 of the IPC as well as Sections 5(l) and 6 of the POCSO Act. During trial, the prosecution has examined as many as 13 witnesses as PW-1 to PW-13 and exhibited 27 documents Ex. P/1 to Ex.P/27. 8. 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. 9.
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. 11 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 can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the 12 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." 21. 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 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 13 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 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 14 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 15 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." 22. 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 16 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 17 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. 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 18 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." 23. Reverting to the facts of the present case. The mother of the prosecutrix (PW-1), prosecutrix herself (PW-2) and father of the prosecutrix (PW-3) have not stated anything with regard to date of 19 birth of the prosecutrix as well as Shankar Singh (PW-4) Incharge headmaster of Primary School Udaki has though has admitted that in the Dakhil-kharij Register (Ex.P/12C), date of birth of the prosecutrix has been mentioned as 22.04.2004, but in cross- examination, he has stated that he did not know that on what basis the date of birth of prosecutrix has been mentioned in the documents. 24. 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 i.e. mother of the prosecutrix (PW-1), prosecutrix herself (PW-2), father of the prosecutrix (PW-3) and Shankar Singh (PW-4) as also Dakhil-kharij Register (Ex.P/12C) are not sufficient to hold that the prosecutrix was minor on the date of incident 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 (Ex.P/12C) 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 20 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. 25. The next question for consideration would be whether the appellant has committed rape upon her or not ? 26. 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 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 21 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, 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". 27. The mother of the prosecutrix had stated in her evidence that prior to 4-5 months, the victim had gone to school and did not return home. We searched for her in the neighbourhood and among relatives but could not find her, thereafter, we reported the matter to Jhagrakhand police station. The next day after reporting the 22 police brought the victim and the accused. The police brought the victim from the house of the accused, but on returning, the victim did not tell me anything. At this stage, she has declared hostile. 28. The prosecutrix herself (PW-2) has deposed in her statement that she got acquainted with the accused through Facebook and the accused had called her to Shahdol on the pretext of marriage and then, she had gone to Shahdol by bus where the accused met her and took her to his house. Sheused to live with the accused in his house where he had made physical relations with her once or twice. 29. Father of the prosecutrix (PW-3) has supported the evidence of the prosecutrix and stated in his evidence that prior to 8-9 months, the victim went to school and did not return home from school. We searched for her in the vicinity, but could not find her and informed the police station. 30. Dr. Marisha Singh (PW-6) has deposed in her statement that the prosecutrix was brought before her and on examining the prosecutrix, she found following symptoms and injuries :- “1. Internal examination- Pubic hair and breasts were fully developed, labia majora and minora were normal, hymen was ruptured, date of last menstruation was 24.08.2021, number of teeth was 28. 2. BP pulse was normal, no external injuries were found. 23 3. Test start time was 12:30 P.M. and end time was 01:00 P.M. 4. The hymen was torn, there were no signs of immediate sexual intercourse with the victim. Sexual intercourse may have taken place with the victim. 5. There was no genital vote. 6. There were no internal injuries. 7. HIV, VDRL, NTHCV, HBsAg tests were advised. UPT was negative. Mental status of the victim was normal. 8. Two vaginal slides were prepared, sealed and handed over to the concerned constable for chemical examination. 9. The pubic hair was collected and sealed in a white paper and handed over to the concerned constable for chemical examination. 10. Brown coloured underwear which was marked with blue ink and sealed and handed over to the concerned constable for chemical examination.” 31. Further, seized articles were sent for its chemical examination to FSL and the FSL report (Ex.P/26) is found to be negative as no semen stains have been found on the seized articles. 32. 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 the appellant has committed rape upon her, rather it reflects from the evidence that the prosecutrix herself had made physical 24 relations with the appellant and she has not made any complaint to anyone and has not raised any alarm. 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. 33. 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. 34. 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. 35.
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 is the consenting party, therefore, the conviction of the appellant is not sustainable and the appellant should be acquitted of the charges framed against him. 10. 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. 11. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 12. 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 ? 13. 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 (Ex.P/12C), statements of mother of the prosecutrix (PW-1), prosecutrix herself (PW-2), father of the prosecutrix (PW-3) and Shankar Singh (PW-4) 6 Incharge-headmaster of the Primary School, Udaki. According to the Dakhil-kharij Register (Ex.P/12C), the date of birth of the prosecutrix is 22.04.2004. 14. The mother of the prosecutrix (PW-1) has not deposed anything in her examination-in-chief about the date of birth of her daughter, but in cross-examination, she has admitted that almost 20 years before, she was married and she has denied that the victim was born one year after the marriage. She admitted that when the victim was admitted to school, her age was 6½ years and she denied the fact that victim's birth certificate has not been made and the birth certificate was not given to the police. She admitted that the victim has not crossed the age of 18 years. 15. prosecutrix herself (PW-1) has not deposed anything in her examination-in-chief about her date of birth, but she has denied the suggestion of the defence in cross-examination examination that when she had gone to Shahdol, her age was 18 years. 16. Likewise, father of the prosecutrix (PW-3) has deposed in his evidence that on the date of incident, the age of the prosecutrix/victim must have been 16-17 years. 17. Shankar Singh (PW-4), Incharge headmaster of Primary School, Udaki, has deposed that as per Serial No.705 of the Dakhil-kharij Register, the date of birth of the prosecutrix is 22.04.2004 and date of admission is 16.06.2009 in Ist standard. In cross- 7 examination, she has deposed that the he did not know on what basis the date of birth has been mentioned in the documents. 18. After considering the entire facts and circumstances of the case and evidence available on record, it emerges that the prosecution 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 Shankar Singh (PW-4), Incharge headmaster of Primary School, Udaki are contradictory to each other and does not inspire confidence upon this Court to hold that the date of birth of the prosecutrix is 22.04.2004. 19. 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 8 thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 20. 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 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 9 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 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 10 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:-
Decision
In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 12.07.2024 is set aside. 25 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. 36. 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. 37. 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