Nafr High Court
Case Details
1 2025:CGHC:4657-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 24 of 2023 Bhanu Banjare S/o Shatruhan Banjare Aged About 21 Years R/o Village Kapasiyakala, Police Station- Takhatpur, District : Bilaspur, Chhattisgarh versus ... Appellant State Of Chhattisgarh Through Station House Officer, Police Station- Takhatpur, District- Bilaspur, Chhattisgarh (Cause title taken from Case Information System) ---- Respondent For Appellant : Mr. Rishi Rahul Soni, 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. 27/01/2025 1. This appeal arise out of judgment of conviction and sentence dated 10.11.2022, passed by learned Additional Sessions Judge, Second Fast Track Special Court, Bilaspur, in Special Criminal Case (POCSO Act) No. 43/2020, whereby the appellant has been convicted and sentenced as under: Digitally signed by VEDPRAKASH DEWANGAN 2 Conviction Sentence U/s. 363 of IPC U/s. 366 of IPC U/s. 5(l)/6 of POCSO Act R.I. for 7 years and fine of Rs. 1000/-, in default of payment of fine further R.I. for 4 months. R.I. for 10 years and fine of Rs. 1000/-, in default of payment of fine further R.I. for 6 months. R.I. for 20 years and fine of Rs. 2000/-, in default of payment of fine further R.I. for 1 year. All sentences are directed to be run concurrently. 2. The brief facts of the case are that on 28.04.2020, a missing report (exhibit P-10) was lodged by the father of the victim (PW-4) stating therein that his minor daughter is missing since 22.04.2020 and her whereabouts could not be traced out despite her search in her relative's house and nearby places. The police has registered the offence under Section 363 of IPC against unknown person and started investigation. *******During the investigation, the victim recovered on 29.04.2020 from the house of the appellant and recovery panchanama/exhibit P-4 was prepared in presence of the witnesses. The victim was sent for her medical examination to Community Health Centre, Takhatpur, where PW-10/Dr. Sheela Saha has medically examined her and gave report/exhibit P-9. While medically examining the victim, the doctor could not notice any external injuries on her body and opined that she is habitual for intercourse and no definite opinion can be given about rape. Two slides of her vaginal swab were prepared, sealed and handed over to police for its chemical examination. 3 *******With respect to the age and date of birth of the victim, the police has seized school register from Govt. Primary School, Sonbandha, vide seizure memo/exhibit P-2. After retaining the attested true copy of the school register, the original school register was returned back to the school. Spot map/exhibit P-11 was prepared by police and exhibit P-20 was prepared by Patwari. The appellant was arrested on 29.04.2020 and he too was sent for his medical examination to Community Health Centre, Takhatpur, where PW-9/Dr. Vikas Gupta has medically examined him and gave report/exhibit P-8, whereby the appellant was found to be capable to perform sexual intercourse. *******One motorcycle has been seized from the appellant vide seizure memo/exhibit P-14. The underwear of the victim, her vaginal slides and the underwear of the appellant and his pubic hair were sent for chemical examination to Regional FSL Bilaspur, from where report/exhibit P-19 was received. According to the FSL report, semen and sperm were found on the vaginal slide of the victim as well as underwear of the appellant. However, semen and sperm were absent on the underwear of the victim as well as pubic hair of the appellant. *******The statement under Section 161 CRPC of the witnesses, statement under Section 164 CRPC of the victim have been recorded and after completion of usual investigation, charge sheet was filed
Facts
before the learned Judicial Magistrate First Class, Bilaspur for the offence under Sections 363, 366A, 376 of IPC and Sections 4 and 6 of POCSO Act. The case was committed to the Court of learned Sessions Judge, from where it has been transferred to the learned trial 4 Court for its trial. 3. The learned trial Court has framed charge against the appellant for the offence under Sections 363, 366A, 376(2)(n) and 376(3) of IPC and Section 5(l)/6 of POCSO Act The appellant denied the charge and claimed trial. 4. In order to prove the charge against the appellant, the prosecution has examined as many as 14 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 5. After considering the evidence available on record, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 6.
Legal Reasoning
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 9 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 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 10 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." 11. 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)(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 11 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. 12 technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, Inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 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 13 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." 12. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held in para 14 to 17 as under: "14, Section 94 (2)(iii) of the 33 Act clearly Indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through "an ossification test" or "any other latest medical age determination test" 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 14 the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2) (i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence. 15. In a recent decision, in Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors. this court outlined the procedure to be followed in cases where age determination is required. The court was dealing with Rule 12 of the erstwhile Juvenile Justice Rules (which is in pari materia) with Section 94 of the JJ Act, and held as follows: "20. Rule 12 of the JJ Rules, 2007 deals with 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 15 could be given to the child or juvenile by considering the age on lower side within the margin of one year." 16. Speaking about provisions of the Juvenile Justice Act, especially the various options in Section 94 (2) of the JJ Act, this court held in Sanjeev Kumar Gupta vs. The State of Uttar Pradesh & Ors that: "Clause (i) of Section 94 (2) places the date of birth certificate from the school and the matriculation or equivalent certificate from the 2021 (12) SCR 502 [2019] 9 SCR 735 concerned examination board in the same category (namely (i) above). In the absence thereof category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. It is only in the absence of (i) and (ii) that age determination by means of medical analysis is provided. Section 94(2) (a)(i) indicates a significant change over the provisions which were contained in Rule 12(3)(a) of the Rules of 2007 made under the Act of 2000. Under Rule 12(3)(a) (i) the matriculation or equivalent certificate was given precedence and it was only in the event of the certificate not being available that the date of birth certificate 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 16 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." 13. Reverting to the facts of the present case, it is quite vivid that the PW-1 is not the author of the school register and the basis on which the entries have been made in the said register has not been proved by the prosecution. Under the facts and circumstances of the case as well as in view of the aforesaid judgments passed by the Hon’ble Supreme Court, determination of the age of the victim on the basis of said school register/Article-A would not be proper, as it has not been proved in accordance with law. 14. PW-3, the victim has disclosed in her evidence that she was aged about 13 years at the time of incident, but he could not disclosed her date of birth. Though she denied the suggestion that she was 9-10 years of age at the time when she admitted in class-1 in the school, but there is no supporting document with respect to her age or date of birth. She even could not disclosed her date of birth. 15. PW-2, who is the grandmother of the victim has stated in her evidence that at the time of incident, the victim was aged about 13 years and 8 months. She too has not disclosed her date of birth. In cross- examination, she stated that she disclosed the age of the victim on assumption. The birth certificate of the victim is available in the school record. The evidence of this witness is also not sufficient to determine the age of the victim that she was minor, as she herself has stated that 17 she disclosed the age of the victim on assumption. 16. PW-4, who is the grandfather of the victim has also stated that at the time of incident, the victim was aged about 12 years and 8 months and presently she is about 13 years and 8 months (on the date of recording her evidence i.e. on 07.01.2021). In cross-examination, he stated that he has got the date of birth of the victim in writing, which is in his house. The birth of the victim has also been informed to the Kotwar. 17. From all these evidence, it has not been established that the victim was minor on the date of incident, as none of the witnesses have disclosed her date of birth. There are variations in the age shown by the witnesses that too they have disclosed on assumptions. In absence of any cogent and clinching evidence with respect to the age or date of birth of the victim, she cannot be held to be minor on the date of incident, yet, the learned trial Court has held her minor. 18. So far as the offence of kidnapping and rape is concerned, we again examine the evidence of victim/PW-3. She stated in her evidence that the sister of the appellant is the resident of village Sonbandha and she tried to give the mobile number of the appellant to her, but she refused. She insisted to accept the appellant's mobile number and ultimately she accepted her request. When she shown her disinterest on him, he proposed her that he is loving her and thereafter she started conversation with him. On the date of incident, he made a telephonic call to her on her mobile phone and called her behind the house. When she came out from her house, the appellant took her 18 with him and they had gone to village Kapasiyakala. At village Kapasiyakala, his parents have forcefully got married the appellant with her and thereafter the appellant committed forceful sexual intercourse with her. At the time of marriage, the rituals have also been performed. After about a week, the police persons came to village Kapasiyakala and took her from the house of the appellant. During her stay in the house of the appellant, he made physical relation with her four times. *******In cross-examination, she denied the love affair with the appellant and also denied the love letter written by her, which is marked as Article D-1, D-2, D-3 and D-4. She further stated in her cross-examination that due to pressure of the appellant, she took three sari and blouse, three petticoats, four salwar suits. She further denied that she disclosed before the police that she attends her age of majority and on her own will has performed marriage with the appellant. Making a mobile call by the appellant pressurized her to go with him, they had gone to Kapasiyakala, his parents have got her marriage forcefully, have disclosed by her in her police statement and if it is not there, she could not tell the reason. She has further stated that the appellant has made forceful physical relation with her against her will, has not been disclosed to the police, but if it is there in her police statement/exhibit D-1, she could not tell the reason. *******From the evidence of the victim, it appears that when she was being allegedly taken by the appellant from her house to his house, she has not made any objection and has not raised any alarm. Even 19 while residing with the appellant's house at Kapasiyakala for about seven days, she had not made any complaint to anyone either to the family member of the appellant or to the persons of the vicinity where they were residing. Even while making physical relation by the appellant with her, she had not tried to save herself and has not tried to give nail scratch mark or teeth bite on the body of the appellant. There is no sign of any struggle found on her body when she was medically examined by the doctor. The conduct of the victim itself shows that she herself went along with the appellant and engaged in making consensual physical relation with him. Further, the love letters/exhibit D-1, D-2, D-3 and D-4, though the victim denied that she has written the said letter, but in view of the defence taken by the appellant and producing the love letter allegedly written by the victim, make his defence probable that the victim was in love affair with him and she herself eloped with him without making any objection. She being the major girl having love affair with the appellant, eloped with him and engaged in making consensual physical relation, which obviously does not comes under the definition of either kidnapping or rape. 19. PW-2, the grandmother and PW-4, grandfather of the victim have stated in their evidence that on the date of incident when the victim could not found in the house, they started searching and when she could not be found, missing report has been lodged. After about a week, the victim was recovered from the house of the appellant and thereafter she disclosed the incident to them. However, from the evidence of the victim, it has not been established that she was 20 kidnapped, rather it is found that she herself eloped with the appellant and engaged in making consensual physical relation with the appellant. 20. PW-10, Dr. Sheela Saha who medically examined the victim has not found any external injuries on her body and found the victim was habitual to sexual intercourse. When the victim was found to be engaged in making consensual physical relation with the appellant, even if the semen and sperm were found on her vaginal slides, that itself would not make any significance in view of the facts and circumstances of the case, as the victim and the appellant were found to be engaged in making consensual physical relation. 21. 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 21 case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, 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". 22. 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. 23. The version of the prosecutrix commands great respect and 22 acceptability, but if there are some circumstances which cast some doubt in the mind of the court on the veracity of the prosecutrix's evidence, then it will not be safe to rely on the said version of the prosecutrix. There is contradiction and omissions in the statement of the prosecutrix and her parents. The law is well settled that in case of rape, conviction can be maintained even on the basis of sole testimony of the prosecutrix. However, there is an important caveat which is that the testimony 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 levelled against the appellant beyond any reasonable doubt, which the prosecution has failed to do in the instant case. 24. Considering the aforesaid facts and circumstances of the case as well as the law laid down by the Hon’ble Supreme Court, we are of the opinion that the prosecution has failed to prove the alleged offence against the appellant beyond reasonable doubt and the appellant is entitled for benefit of doubt. 25. In the result, the appeal filed by the appellant is allowed, the impugned judgment of conviction and sentence is hereby set aside, the appellant is acquitted from all the offences. The appellant is reported to be in jail since 29.04.2020. He be released forthwith if not required in any other case. 26. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Bhanu Banjare is directed to 23 furnish a personal bond for a 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. 27. Registry is directed to transmit the trial Court record along with a copy of this order to the Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice ved
Arguments
Learned counsel for the appellant has argued that the prosecution has failed to prove the case against the appellant beyond reasonable doubts. There is no legally admissible evidence with regard to the age of the prosecutrix that on the date of incident she was minor and less than 18 years of age. In absence of examination of the author of the school admission and discharge register, the same can not be taken into consideration for determination of the age of the prosecutrix. No any Kotwari register or ossification report was produced by the prosecution to determine the actual age of the prosecutrix that on the date of incident she was below 18 years of age. It is further argued by the learned counsel for the appellant that the prosecutrix and the appellant were having love affair and she herself accompanied with 5 the appellant and both of them were resided together for about four days in the house of the appellant. Thus, the prosecutrix was a consenting party and no complaint has been made by her to any one regarding forceful sexual intercourse or any false promise of marriage. Hence, the offence under IPC and POCSO Act are not made out against the appellant and he is entitled for acquittal. He further argued that at present the appellant and the prosecutrix have got married and the prosecutrix is residing in the house of the appellant. 7. On the other hand, the learned counsel for the State opposes and contended that the prosecutrix was minor and below 18 years of age at the time of incident which is proved by the school admission and discharge register/Article-A, which contains the date of birth of the prosecutrix to be 12.08.2007 school admission and discharge register is an admissible piece of evidence to determine the age of the prosecutrix. Therefore, there is no illegality or infirmity in the findings of the learned trial court. The prosecutrix was abducted and kept away from the lawful guardianship by the appellant and he has committed sexual intercourse with her and therefore, the impugned judgment of conviction and sentence needs no interference. 8. We have heard the learned counsel for the parties and perused the records and evidence adduced. 9. In order to consider the age of the victim, we have examined the evidence available on record produced by the prosecution. The prosecution relied upon the school admission and discharge register/Article-A, which is sought to be proved by PW-1, who is the 6 headmaster of the school. He stated in his evidence that he was posted as headmaster of the school and has brought the original school register with respect to the date of birth of the victim. The said school register was seized vide seizure memo/exhibit P-2 and after retaining the attested true copy of the school register, the original register was returned back to the school. According to the school register, the date of birth of the victim is recorded as 12.08.2007 which is Article-A. In cross-examination, he admitted that in the school register/Article-A, the relevant entries with respect to the date of birth of the victim has not been made by him. He did not know as to whether before taking admission in the school, she had taken admission in any other school or not. The relevant entries with respect to the victim in the school register have not been made by him. He also did not know as to on whose instruction the entries have been made in the school register. He voluntarily stated that the entries have been made on the instruction of grandfather of the victim. He further admitted that on what basis the grandfather of the victim has got recorded her date of birth in the school register, he did not know. He further voluntarily stated that on the oral information given by the grandfather of the victim, her date of birth was endorsed in the school register. 10. The admissibility and evidentiary value of the school register has been 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. In Para 40, 42, 43, 44 and 48 of its judgment, the Hon’ble Supreme Court has observed as under: 7 "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. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, observed as follows:- "The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined....Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, 8 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