Nafr High Court
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR Date: 2025.07.02 11:23:31 +0530 2025:CGHC:29256-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1592 of 2019 Judgment Reserved on 24.06.2025 Judgment Delivered on 01.07.2025 1 - Hemu Rajak S/o Mantram Rajak Aged About 20 Years R/o Gram - Salauni, Police Station And District Baloda Bazaar Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh versus ... Appellant 1 - State Of Chhattisgarh Through P.S. Mandir Hasaud, Raipur, District Raipur Chhattisgarh, District : Raipur, Chhattisgarh ... Respondent For Appellant For Respondent/State : : Ms. Naushina Afrin Ali, Advocate along with Mr. Topilal Bareth, Advocate Ms. Nand Kumari Kashyap, P.L. Division Bench Hon'ble Smt. Justice Rajani Dubey, J. & Hon'ble Shri Justice Amitendra Kishore Prasad, J. C A V Judgment Per, Amitendra Kishore Prasad, J. 1. In this appeal filed under Section 374(2) Cr.P.C., the appellant 2 has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 12.09.2019 passed by the 7th Additional Sessions Judge, District Raipur, C.G., in Special Criminal Case No.07/2019, whereby and whereunder the appellant stands convicted for the offence under Sections 363, 366, 376(3), 376(2)(ढ) of Indian Penal Code (in short, ‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and considering the provisions of Section 42 of the POCSO Act, he has been sentenced as under:- Conviction Sentence Under Section 363 of IPC. Under Section 366 of IPC Under Section 376(3) of IPC Under Section 376(2) (ढ) of IPC Rigorous Imprisonment for two years and fine of Rs.500/-, of payment of fine to further undergo additional rigorous imprisonment for 15 days in default Rigorous Imprisonment for three years and fine of Rs.1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for one month Rigorous Imprisonment for twenty years and fine of Rs.50,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months Rigorous Imprisonment for ten years and fine of Rs.5,000/-, in default of payment of fine to further 3 undergo additional rigorous imprisonment three months for (All sentences were directed to run concurrently) 2. Case of the prosecution, in brief, is that on 15.06.2018 at about 3:00 pm, within the ambit of village Salauni, Police Station and
Facts
District Baloda-Bazar, C.G., the present appellant firstly enticed the prosecutrix, below the age of 18 years, abducted her from lawful guardianship of her parents and on the false pretext of marriage, committed aggravated penetrative sexual assault repeatedly with the prosecutrix and thereby committed the aforesaid offences. Further case of the prosecution is that PW-2 father of the prosecutrix lodged a complaint at police station Hasod, Raipur alleging therein that on 15.06.2018 at about 3:00 pm, her daughter/prosecutrix, without informing to anyone, left the house. Thereafter, he made search of the prosecutrix all round as also from his relatives, but could not find her. On the complaint of PW-2 father of the prosecutrix, FIR (Ex.P-5) was registered against the unknown person. During investigation, prosecutrix was recovered vide Ex.P-28 from the possession of the appellant and on being asked, prosecutrix told that appellant allured her on the pretext of marriage and committed aggravated penetrative sexual assault with her. After obtaining consent letter from the prosecutrix vide Ex.P-1, prosecutrix was sent for medical examination which was conducted by Dr. Vijay Laxmi Anant (PW-7) and after 4 conducting examination, she found that there was no sign of injury over the body of the prosecutrix neither internally nor externally and for determining the age, referred the prosecutrix to a radiologist and gave her MLC report vide Ex.P-31. Accused/appellant was arrested vide Ex.P-21 and he was also sent for medical examination where Dr. Toshan Lal Todar (PW-4) examined him and found that he is capable to perform intercourse. During investigation, vide Ex.P-2 undergarment and class 8th mark sheet of prosecutrix were seized. Vide Ex.P-9C & 10C, copy of Dakhil Kharij Register was seized where date of birth of prosecutrix was mentioned as 28.08.2003. Vide Ex.P-15, undergarment of appellant was seized. Vaginal slides of prosecutrix was prepared and seized vide Ex.P-20. Seized articles were sent to FSL for chemical examination and as per FSL report (Ex.P-26), seminal spots and human spermatozoa have been found on the seized articles marked as Articles ‘A, B and C’. 3. Statements of the witnesses were recorded under Section 161 of Cr.P.C. After due investigation, the appellant was charge-sheeted before the jurisdictional criminal Court and the case was committed to the trial Court, in which appellant abjured his guilt and entered into defence by stating that he has not committed the offence. 4. In order to bring home the offence, prosecution has examined as many as 08 witnesses and brought on record 32 documents and 5 Article A-1. However, the appellant in his defence has examined none and not exhibited any document. 5. The trial Court, after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant as mentioned in para-1 of this judgment. 6.
Legal Reasoning
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 victim 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. The Supreme Court in the matter of Jarnail Singh (Supra) has held that :- 13 “24. We have given our thoughtful consideration to the above noted submission, advanced at the hands of the learned counsel for the appellant. We, however, find no merit therein. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from her father’s residence on 25.3.1993, and after her father Jagdish Chandra- PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accused-appellant Jarnail Singh. Thereafter, the prosecutrix VW - PW6 was subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on 29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her independent testimony, affirmed that she had been subjected to sexual intercourse, inasmuch as her hymen was found ruptured. Even though the visual examination of the prosecutrix VW – PW6, during the course of her medico-legal examination did not reveal the presence of semen or blood, yet the report of the forensic science laboratory (Exhibit PL) and of the Serologist (Exhibit PL/1) clearly establish the presence of semen on her salwar, underwear and pubic hair. The serologist’s report also disclose, medium and small blood stains on her 14 “salwar”. In her own deposition, she had mentioned that, when she was raped by the accused-appellant Jarnail Singh and his accomplices, bleeding had taken place and she had felt pain, and her clothes were stained with blood. Her deposition stands scientifically substantiated by Exhibits PL and PL/1. The suggestion put to the prosecutrix VW – PW6 at the behest of the accused-appellant Jarnail Singh, during the course of her cross- examination, that she had accompanied the accused-appellant Jarnail Singh, of her own free will and had had sexual intercourse with him consensually, leaves no room for any doubt, that she was in his company, and that, he had had sexual intercourse with her. The assertion that the prosecutrix VW – PW6 had accompanied the accused-appellant Jarnail Singh, and had had sexual intercourse with him consensually is completely ruled out, because as per the substantiated prosecution version, the prosecutrix VW - PW6 was not taken away by the accused-appellant Jarnail Singh alone, but also, by his three accomplices. All the four of them had similarly violated her person. Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, 15 she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accused-appellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW - PW6. The prosecutrix VW – PW6, was not subjected to cross-examination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any. Therefore, we find no merit at all, in the submission advanced by the learned counsel. In the above view of the matter, we are satisfied that there was substantial material corroborating the statement of the prosecutrix VW - PW6, for an unequivocal determination of the guilt of the accused- appellant Jarnail Singh.” 14. Also, the Supreme Court in the matter of Rishipal Singh Solanki (Supra) has held that:- “46. But in the instant case, admittedly, there is no other document indicating the date of birth of the second respondent contrary to what has been 16 indicated in the matriculation certificate. Thus, such a discrepancy in the date of birth does not arise herein. No contra evidence to the documents produced by the second respondent have been produced by the appellant herein. In the circumstances, we are not inclined to differ from the order of the High court which sustained the judgment of the District & Sessions Court as well as of the JJ Board in this case. 47. Section 94 of the JJ Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the Committee. But in case the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Committee or the JJ Board is a juvenile has to be drawn by the said authorities. The said presumption has to be drawn on observation of the child. However, the said presumption may not be drawn when the Committee or the Board has reasonable grounds for doubt regarding the person brought before it is a child or not. In such a case, it can undertake the process of age determination by the evidence which can be in the form of: (i) Date of birth certificate from the school or the matriculation certificate from the concerned board, if available or in the absence thereof; (ii) The birth certificate given by a corporation or by a municipal authority or a panchayat and in the absence of the above; 17 (iii) Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.” 15. Further, the Hon’ble Supreme Court in the matter of P. Yuvaprakash (Supra) has held that:- “14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex. C1, i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since 18 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.,3 this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: “20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be followed in determination of age. The juvenility of a person in conflict with law had to be decided prima facie on the basis of physical appearance, or documents, if available. But an inquiry into the determination of age by the Court or the JJ Board was by seeking evidence by obtaining: (i) the matriculation or equivalent certificates, if available and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Only in the absence of either (i), (ii) and (iii) above, the medical opinion could be sought from a duly constituted Medical Board to declare the age of the juvenile or child. 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.” 19 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 & Ors4 that: “Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2)(a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a)(i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate from the 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 v State of West Bengal5, 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.” 20 16. Thus, having regard to the facts of the present case and after considering the evidence produced by the prosecution, we find that the prosecution has failed to bring on record any clinching, cogent, and reliable evidence to prove that the prosecutrix was a minor, i.e., below 18 years of age, on the date of the incident. Accordingly, we set aside the findings of the trial court to the effect that the prosecutrix/victim was a minor and below the age of 18 years on the date of the incident. 17. Now, the next question would be, whether the appellant is the author of the crime in question or not? 18. PW-1, the victim, stated that on the date of the incident, i.e., 16.06.2018, the appellant came to her house and told her to go with him. Thereafter, the appellant took her to his sister’s house. She further stated that from there, the appellant took her to Pune, where he used to work as a labourer. In Pune, she stayed with the appellant for five months, during which period the appellant established physical relations with her on multiple occasions. She also stated that to celebrate the Diwali festival, she, along with the appellant, came to Baloda-Bazar from Pune, where the police and her parents recovered her. This witness was subjected to cross- examination, during which she admitted that the appellant took her to Pune by train, on which other passengers were also present. However, she did not inform anyone that she was being taken forcibly by the accused. She also admitted that from Baloda-Bazar to Bhatapra, they traveled by bus, and at that time too, she did not 21 inform the bus conductor, any other person, or the police that she was being taken forcibly by the accused. Additionally, she admitted that while living with the appellant in Pune, there were other people residing nearby, yet she did not inform anyone about the incident. She stayed with the appellant for about five months. 19. Close scrutiny of the evidence of the prosecutrix (PW-1) makes it evident that she was a consenting party who stayed with the appellant of her own free will, without offering any resistance during the entire period of her stay. Furthermore, she did not lodge any complaint with any of the nearby persons while staying or traveling with the appellant. The evidence indicates that she was not abducted by the appellant; rather, she accompanied him voluntarily and with consent. Moreover, Dr. Vijay Laxmi Anant (PW-7), who medically examined the prosecutrix, found no internal or external injuries on her person. It is a well-settled legal principle that in cases of sexual assault, a conviction can be sustained solely on the testimony of the victim if such testimony inspires confidence. However, in the present case, the statement of the prosecutrix does not inspire such confidence, as her conduct clearly demonstrates that she stayed and traveled with the appellant of her own free will, and was never coerced or forced to do so. 20. Thus, considering the entire evidence available on record, as well as the conduct and behavior of the victim/prosecutrix, it appears that she was a consenting party. Since we have already held that 22 the prosecutrix was not below 18 years of age, her consent was given voluntarily. Therefore, in that view of the matter, we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt, and the learned trial court was not justified in convicting and sentencing the appellant for the aforesaid offences. Accordingly, the appellant is entitled to be acquitted of the charges on the basis of benefit of doubt.
Arguments
Learned counsel for the appellant submits that the prosecution has utterly failed to prove the case against the appellant beyond reasonable doubt. He further submits that there is no cogent and clinching evidence on record which would show that at the time of incident, prosecutrix was below the age of 18 years. It is also argued that the prosecutrix was having love affair with the appellant and that she was a consenting party as she has not made any complaint to any of her family members. She stayed with the appellant for five months. It is also contended that as per the medical evidence, there was no sign of injury over the person of the prosecutrix neither externally nor internally. It is stated that no ossification test was conducted to determine her age, as advised by the Doctor. It is submitted that the time of eruption of the third molar tooth or wisdom teeth is more uncertain and it may also be impacted. After the eruption of the second molar tooth, the body of the jaw grows behind and the ramus is elongated to make room for the appearance of the third molar tooth. Hence, during the examination of a minor for determining his age, a note should always be made as to whether there was a space in the jaw 6 behind the second molar teeth, if the third molars were absent. These teeth are usually cut between 17 and 26 years of age. It is further stated that according to Doctor, she was having 30 teeth, which according to various Medical guidelines, can only errupt after majority. She seems to be a consenting party. The prosecutrix was also not found to be minor, therefore, the impugned judgment of conviction and order of sentence deserves to be set aside and the appellant be acquitted of the aforesaid charges. She has relied upon the judgments passed by the Hon’ble Supreme Court in the matter of A lamelu and Another Vs. State, represented by Inspector of Police, (2011) 2 SCC 385 , Jarnail Singh vs. State of Haryana (2013) 7 SCC 263, Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors 2022 (8) SCC 602, P. Yuvaprakash vs. State represented by Inspector of Police 2023 (SCC OnLine) SC 846 and submits that the appeal may be allowed in terms of the aforesaid judgments. 7. On the other hand, supporting the impugned judgment, learned counsel for the State submits that the prosecution has been able to prove that the prosecutrix was minor and below 18 years of age at the time of incident and from the evidence brought on record by the prosecution, it is established that the prosecution has proved its case beyond reasonable doubt. Therefore, the judgment of conviction and order of sentence of the accused/appellant passed by the trial Court, are in accordance with law and there is no illegality or infirmity in the same warranting interference by this 7 Court. 8. The first question which arises for consideration by this Court is whether the finding recorded by the trial Court holding the prosecutrix to be below 18 years on the date of incident is correct or not. 9. In order to ascertain the age of the prosecutrix, PW-1, the prosecutrix herself, stated in her deposition that her age is 15/16 years and her date of birth is 28.08.2003. Additionally, PW-2, the father of the prosecutrix, stated that his daughter was born in the year 2003. However, in his cross-examination, he admitted that he does not know the exact date of birth of the prosecutrix. Furthermore, PW-3 Bhikhamlal Mali, Headmaster of Government Primary School Changorabhata, relying on Serial No. 2735 written in the original Dakhil Kharij Register (Admission Register), stated that the date of birth of the prosecutrix is 28.08.2003 and that her date of admission to class 2nd was 22.06.2011. However, in his cross-examination, he admitted that he did not personally write the date of birth of the prosecutrix in the Dakhil Kharij Register (Ex.P- 9C & Ex.P-10C) and could not explain, on what basis her date of birth was recorded in the said register. He further admitted that no birth certificate of the prosecutrix is attached to the documents (Ex.P-9C and Ex.P-10C). 10. From the perusal of the above statements, it is clear that although 8 the age of the prosecutrix was shown as 28.08.2003 in the Dakhil Kharij Register (Exs. P-9C & 10C), the basis on which the date of birth entry was made in the said register is not mentioned. Moreover, no documentary evidence has been produced by the prosecution to prove the date of birth. Additionally, PW-3 Bhikhamlal Mali, Headmaster of the school, admitted that he did not write the date of birth of the prosecutrix in the Dakhil Kharij Register and has no knowledge of the basis on which her date of birth was recorded in that document. Further, neither ossification test was conducted nor any other document was filed to show the exact date of the victim. If the statements of these witnesses, coupled with the available documents on record, are taken into consideration, it is evident that the prosecution has failed to prove the exact age and date of birth of the prosecutrix. Therefore, in the absence of any reliable or primary documentary evidence regarding the exact date of birth of the prosecutrix, it is difficult to hold that, at the time of the incident, the prosecutrix was a minor. 11. In case of 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 9 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 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 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. 10 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 for the truth of the facts in issue. No evidence of any such kind 11 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:- "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 12
Decision
21. For the foregoing reasons, the appeal is allowed. The judgment of conviction and the order of sentence dated 12.09.2019 are hereby set aside. The appellant is acquitted of all the charges framed against him by extending the benefit of doubt. It is reported that the appellant has been in custody since 26.11.2018. He shall be released forthwith, unless he is required in connection with any other case. 22. Keeping in view the provisions of Section 437-A of CrPC, the appellant – Hemu Rajak 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 reliable surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 23 23. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. 24. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and concerned Jail Superintendent for necessary information and action. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Vishakha