Banaskatha (Gujarat) v. State Of Chhattisgarh Through
Case Details
1 2025:CGHC:14282-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1806 of 2024 Takarvadiya Gigarji Rameshji S/o Rameshji Sardarji Aged About 23 Years R/o Takarvad Taluk Palanpur, Police Station Garh, Distt - Banaskatha (Gujarat) ... Appellant versus State Of Chhattisgarh Through - Police Station Manendragarh, District - Manendragarh Chirmiri Bharatpur, Chhattisgarh. (Cause title taken from Case Information System) ---- Respondent For Appellant : Mr. Hemant Kumar Agrawal, Advocate For Respondent/State : Mr. Hariom Rai, Penal Lawyer Hon'ble Shri Shri R Ramesh Sinha, Chief Justice avindra Kumar Agrawal , Judge Hon'ble Judgement on Board Per Ramesh Sinha, C.J. 25/03/2025 1. The notice issued to the mother of the victim (PW-1), has been served upon her, but no one appears on her behalf to record submission in the case. With the consent of the parties, the matter has been heard finally. 2. Challenge in this appeal is the judgement of conviction and sentence dated 31-08-2024 passed by the learned Additional Sessions Judge, Fast Track Special Court, (Special Judge under the Protection of Children from Sexual Offences Act, 2012) Manendragarh, District VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.04 10:47:40 +0530 2 Koriya, in Special Criminal Case (POCSO) No. 49/2023, whereby the appellant has been convicted and sentenced as below:- Conviction Sentence U/s. 363 of IPC U/s. 366 of IPC No separate sentence has been awarded. R.I. for 03 years with fine of Rs. 200/-, in default of payment of fine, further R.I. for 01 month. Sec. 376(2)(n) of IPC No separate sentence has been awarded. Sec. 6 of POCSO Act R.I. for 20 years with fine of Rs. 1000/-, in default of payment of fine further R.I. for 03 months. All the sentences are directed to be run concurrently 3. Brief facts of the case are that the mother of the victim/PW-1 lodged a missing report on 20.06.2023 that her minor daughter is missing since 20.06.2023 at about 4-5 AM and despite her search, her whereabouts could not be traced out. On the basis of missing person report/exhibit
Facts
P-1, the FIR/exhibit P-2 for the offence under Section 363 of IPC has been registered against unknown person. During the investigation, the victim was recovered on 25.07.2023 from the possession of the appellant at village Takarwada, district Banasbhata, Gujarat and recovery panchnama/exhibit P-7 was prepared in presence of the witnesses. The victim was sent for her medical examination to District Hospital, Manendragarh, where PW-4/Dr. Archana Kumhare medically examined her and gave report/exhibit P-9. While medically examining the victim, the doctor has not noticed any external injuries on her body and opined that she was habitual to sexual intercourse and signs of 3 sexual intercourse found. Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. With respect to age and date of birth of the victim, the police has seized class-7th mark sheet of the victim vide seizure memo/exhibit P-6. The school register from Gurukul Vidya Mandir, Mauharpara has also been seized vide seizure memo/exhibit P-10 and after retaining the attested true copy of the school register/exhibit P- 11C, the original register was returned back to school. The appellant was arrested on 29.07.2023 and he too was sent for his medical examination to Government Hospital, Manendragarh, where PW-11/Dr. Rishabh Dave has medically examined him and gave his report/exhibit P-25. While medically examining the appellant, the doctor has opined that there is nothing that suggests the appellant cannot perform sexual intercourse. Two semen slides from the appellant has also been prepared, sealed and handed over for chemical examination. Spot map/exhibit P-3 was prepared by the police and exhibit P-4 was prepared by the Patwari. The vaginal slides of the victim, her underwear and the semen slide of the appellant and the underwear of the appellant were sent for chemical examination to Regional FSL Ambikapur from where report/exhibit P-24 was received and in one vaginal slide of the victim, sperms were found, however in other article, no semen or sperm were found. Statement of the witnesses under Section 161 of CRPC and statement of the victim under Section 164 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed against the appellant for the offences under Sections 363, 366 and 376(2)(n) of IPC and Section 4 4 of POCSO Act before the learned trial Court. 4. The learned trial court has framed charge under Sections 363, 366 and 376(2)(n) of IPC and Section 6 of POCSO Act. The appellant abjured his guilt and claimed trial. 5. In order to bring home the charge, the prosecution has examined as many as 11 witnesses. The statement under section 313 of CrPC of the appellant was also recorded in which he denied the material appears against him and plead innocence and has submitted that he has been falsely implicated in the offence. 6. After appreciation of the evidence available on record, the learned trial court has convicted the appellant and sentenced him as mentioned in para 01 of this judgement. Hence this appeal. 7.
Legal Reasoning
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 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 9 Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate can not be relied upon to definitely fix the age of the girl. 48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in 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 10 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 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." 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 xxxx 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3) 11 (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 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. 12 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 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." 14. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme 13 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" 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 14 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: (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 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 15 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." 15. In the present case, the said school register/exhibit P-11C is the school register of class 7th and there is no school register of the initial schooling of the victim has been produced, even the basis on which the entries have been made in the school register is not produced by the prosecution. The entries made in class 7th mark sheet is also on the basis of the said school register. 16. PW-2, the victim has stated in her evidence that her date of birth is 26.04.2006, though she denied in her cross-examination that he is disclosing her date of birth on assumption, but considering that in her school register, her date of birth is recorded is 20.04.2006, whereas she stated that her date of birth is 26.04.2006. PW-1, mother of the victim has not stated her date of birth and only stated that at the time 16 of incident, she was minor. In cross-examination, she stated that the victim is her 3rd number daughter. There is age gap of 1½ - 2 years of her four children. Since 27-28 years back she has got married and her eldest son is aged about 27 years, who born after two years of her marriage. Except the said evidence of her age, no other evidence has been produced by the prosecution to prove that the victim was minor. From the evidence led by the prosecution, it is not proved unerringly that the victim was minor on the date of incident. The date of birth is vary from the statement of the victim as well as school register of class 7th. The evidence produced by the prosecution is not sufficient to hold the victim was minor and less than 18 years of age on the date of incident, yet the learned trial Court has held her minor. 17. So far as the offence of kidnapping and rape is concerned, we again examined the evidence of the prosecution witnesses. The victim/PW-2 has stated in her evidence that she introduced with the appellant through Instagram and they started chatting with each other and developed a friendship, which culminated into their intimacy and both of them fell in love with each other. The appellant asked her to come Gujarat and she had gone there. She along with the appellant resided together for about a month at Takarwada, Gujarat. The appellant performed marriage with her in a temple and they were residing together as husband and wife and made consensual physical relation with him. The police has recovered them from Gujarat. In cross- examination, she admitted that she on her own will had gone to Gujarat. In the fact that the victim is not found to be minor, she was in 17 love affair with the appellant and she on her own will had gone to Gujarat and after performing marriage with the appellant in the temple, resided with him as husband and wife and made consensual physical relation, no offence of kidnapping or rape is made out against the appellant. 18. In the case of S. Varadarajan Vs. State of Madras, AIR 1965 SC 942, the Hon’ble Supreme Court has held 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 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 18 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". 19. 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. 20. 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. 21. PW-1 is the mother of the victim has stated in her evidence that she did not know the appellant and saw him first time at police station. When her daughter was missing, she lodged the missing report to the police and the police has recovered her from Gujarat. Her daughter has informed him that she was introduced with the appellant through Instagram and on his call, she had gone to Anuppur, from where Jabalpur and ultimately to Ahmadabad. She was residing with the 19 appellant as husband and wife and engaged in making physical relation. In cross-examination, she admitted that during their conversation, she was in love affair with the appellant. 22. PW-4/Dr. Archana Kumhare, who medically examined the victim has not found any external injury on her body and found to be habitual sexual intercourse. Although, the sperms were found on the vaginal slide of the victim, but in the facts of the present case, admittedly she was residing with the appellant, and engaged in making consensual physical relation, presence of sperms in her vaginal slide is not required to be given any significance. 23. 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 any reasonable doubt, which the prosecution has failed to do in the instant case. 24. 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 20 the prosecution has failed to prove that the victim was less than 18 years of age at the time of the incident. Further, she was a consenting party with the appellant in making physical relations with him. Therefore, in the above facts and circumstances of the case, the offences under sections 363, 366, 376(2)(n) of I.P.C. and section 6 of POCSO Act are not made out against the appellant.
Arguments
Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the offence. No offence is made out against the appellant as alleged. The prosecution has failed to prove their case beyond reasonable doubt. There is no cogent and legally admissible evidence available on the record to show that the victim was minor and less than 18 years of age on the date of incident. The prosecution has filed the school register of class 7th, whereas there is no school register of her initial schooling and the basis on which the date of birth has been recorded in initial schooling has also not been produced. The school register has not been proved by examining its author and therefore, the date of birth recorded in the school register is also not admissible to be the correct date of birth of 5 the victim. No other documents like the Kotwari register, birth certificate or the ossification test report has been filed by the prosecution to determine her age, and therefore the finding recorded by the trial court that on the date of incident the victim was minor is erroneous. The basis on which her date of birth is recorded in the school admission and discharge register has not been proved by the prosecution. He would further argue that the victim was having the love affair with the appellant and consenting party and has not raised any alarm while going with the appellant or stayed with him for a considerable period. While travelling with him upto Gujarat, she has not raised any alarm and has not made any complaint to anyone. She has not protested at the time of alleged offence of making forceful sexual intercourse. No injuries have been found on the body of the victim. He would further argue that even if any act of sexual relation was being made by the appellant with the victim, the same was consensual, which does not come under the definition of rape. Hence, the alleged offences of I.P.C. and POCSO Act are not made out against the appellant, and he is entitled for acquittal. 8. 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-11C, which contains the date of birth of the victim as 20.04.2006. The class 7th mark sheet of the victim supports the entries of the school register. The victim was minor on the date of 6 incident and her consent is immaterial. The evidence of the victim need not be required for any corroboration and on the sole testimony of the victim, the conviction can be made. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The minor victim was kidnapped/abducted by the appellant and kept away from her lawful guardianship. Therefore, the impugned judgement of conviction and sentence needs no interference. 9. We have heard the learned counsel for the parties and perused the record carefully. 10. With regard to the age of the victim, the prosecution has mainly relied upon the school admission and discharge register of the victim, Ex. P- 11C, which is seized by the police from the school and sought to be proved by PW-5, who is the Head Master of Gurukul Vidya Mandir, Manendragarh, and also the class 7th mark sheet of victim. The P.W. 5, the Head Master have stated in his deposition that presently, he is posted as Head Master in the school, the police has seized the school register with respect to the date of birth of the victim vide seizure memo/exhibit P-10 and after retaining the attested true copy of the school register, the original register was returned back, which he brought today with him, and as per the school register, the date of birth of the victim is recorded as 20.04.2006. In cross examination, he admitted that at the time of admission of the victim, her father has not produced her birth certificate. 11. The admissibility and evidentiary value of the school register has been 7 considered by the Hon’ble Supreme Court, in the matter of Alamelu and Another Vs. State, represented by Inspector of Police, 2011(2) SCC 385, which is in respect of admissibility of school records of a person, 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. 12. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu (Supra), the 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 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, 8 who made the entry or who gave the date of birth is examined. 42. Considering the manner in which the facts
Decision
25. For the foregoing reasons, the appeal is allowed. The judgement of conviction and order of sentence dated 31.08.2024 is set aside. The appellant stands acquitted from all the charges. The appellant is reported to be in jail since 29.07.2023. He be released forthwith if not required in any other case. 26. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to forthwith furnish a personal bond of some 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. 27. 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