Himachal Pradesh High Court
Ranveer Singh vs State Of H.P on 31 December, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
Neutral Citation No. ( 2024:HHC:16944 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 174 of 2019
Reserved on: 09.12.2024
Date of Decision: 31.12.2024
Ranveer Singh …Appellant.
Versus
State of H.P. ...Respondent.
Coram
Hon’ble Mr Justice Vivek Singh Thakur, Judge.
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant : Mr. Manoj Pathak, Advocate.
For the Respondent : Ms. Seema Sharma, Deputy Advocate
General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and
order dated 03.04.2019 vide which the appellant (accused before
learned Trial Court) was convicted of the commission of offences
punishable under Sections 363 and 376 of the Indian Penal Code (in
short, IPC) and Section 6 of Protection of Children from Sexual
Offences Act (in short POCSO Act) and was sentenced as under:
Under Section 363 IPC To suffer rigorous imprisonment for 5
years, pay fine of ₹ 5000/- and in1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:16944 )
default of payment of fine to undergo
further simple imprisonment for six
months.
Under Section 6 POCSO To suffer rigorous imprisonment for 10
years, pay a fine of ₹ 10,000/- and in
default of payment of fine to undergo
further simple imprisonment for one
year.
Both the substantive sentences of imprisonment were ordered to
run concurrently. (Parties shall hereinafter be referred to in the same
manner as they were arrayed before the learned Trial Court for
convenience).
2. Briefly stated, the facts giving rise to the present appeal
are that the victim (the name being withheld to protect her
identity) was born on 15.11.2001. She went to her sister’s house on
16.02.2016 but did not return. Her father searched for her and
found that the accused had kidnapped her with the intent to marry
her. The matter was reported to the police through an application
(Ext.PW3/A). FIR (Ext.PW12/A) was registered in the Police Station.
ASI Mehar Chand (PW12) conducted the investigation. The accused
produced the victim in the Police Station on 20.02.2016. The
victim’s sister identified her. ASI Mehar Chand (PW12) handed over
the custody of the victim to her sister vide memo (Ext.PW4/A). The
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Neutral Citation No. ( 2024:HHC:16944 )
statement of the victim was reduced into writing and video
recorded with the help of LC Prem Lata (PW5). The video recording
was transferred to the CD (Ext.C1). ASI Mehar Chand (PW12) filed
an application (Ext.PW12/B) for the victim’s medical examination.
Dr. Yashoda Anand (PW1) conducted the medical examination of
the victim. She preserved the samples and underwear of the victim.
In her opinion, the possibility of recent sexual intercourse could
not be ruled out. She issued the MLC (Ext.PW1/A) and handed over
the articles preserved by her to LC Prem Lata after sealing them.
ASI Mehar Chand (PW12) arrested the accused. He filed an
application (Ext.PW8/A) for the medical examination of the
accused. Dr Abhilash Seregtta (PW8) conducted the medical
examination of the accused and found that there was nothing to
suggest that the accused was incapable of performing sexual
intercourse. He preserved the samples and obtained the blood of
the accused on an FTA card. He issued the MLC (Ext.PW8/B) and
handed over the samples preserved by him to the police official
accompanying the accused. The accused pointed out the place from
where he had kidnapped the victim. Memo (Ext.PW12/C) and site
plan (Ext.PW12/D) were prepared. The victim led ASI Mehar Chand
(PW12) to the room where she was kept and subjected to sexual
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Neutral Citation No. ( 2024:HHC:16944 )
intercourse by the accused. ASI Mehar Chand (PW12) seized the bed
sheet (Ext.P4) lying on the bed. He put it in a parcel and sealed the
parcel with three impressions of seal ‘M’. He obtained the
specimen seal impression (Ext.PW12/E) on a separate piece of cloth
and seized the parcel vide Memo (Ext.PW4/B). The accused took
the police to the house of his sister and pointed out the room where
he had stayed with the victim. ASI Mehar Chand (PW12) prepared
the memo (Ext.PW12/G) and the site plan (ExtPW12/H). He found
the salwar (Ext.P2) and shirt (Ext.P3) of the victim, which were left
behind by her. These articles were put in a parcel, the parcel was
sealed with seal ‘M’, and seized vide memo (Ext.PW4/C). The seal
was handed over to the victim’s sister after the use. Balwant Singh
(PW6) produced the birth certificate (Ext.PW6/B) and photocopy of
the birth register (Ext.PW6/C), which were seized by the police.
The case property was deposited with HC Kartar Singh (PW9), who
deposited them in Malkhana and made an entry (Ext.PW9/A) in the
Malkhana register. He handed over all the articles except the FTA
card to HHC Puran Chand (PW7) with the direction to carry them to
RFSL Mandi, vide R.C. No. 19 of 2016 (Ext.PW9/B). HHC Puran
Chand deposited all the articles in a safe condition at RFSL Mandi
and handed over the receipt to MHC on his return. The result of
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Neutral Citation No. ( 2024:HHC:16944 )
analysis (Ext. PX) was issued in which it was shown that the blood
was detected on the underwear, vaginal swab, vaginal slide, pubic
hair, shirt and salwar of the victim. Human semen was detected on
the slacks, underwear and genital swab of the accused. The
statements of the remaining witnesses were recorded as per their
version, and after the completion of the investigation, the challan
was prepared and presented before the learned Special Judge.
3. The learned Special Judge charged the accused with the
commission of offences punishable under Sections 363 and 376 of
IPC and Section 6 of the POCSO Act, to which he pleaded not guilty
and claimed to be tried.
4. The prosecution examined 12 witnesses to prove its
case. Dr. Yashoda Anand (PW1) conducted the medical examination
of the victim. Victim (PW2) narrated the incident. (PW3) is the
father of the victim who had reported the matter to the police.
(PW4) is the sister of the victim who witnessed various recoveries.
LC Prem Lata (PW5) recorded the statement of the victim and
accompanied her to the hospital for her medical examination.
Balwant Singh (PW6) produced the birth certificate of the victim.
HHC Puran Chand (PW7) accompanied the accused for his medical
examination and brought the sample; he also carried the case
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Neutral Citation No. ( 2024:HHC:16944 )
property to RFSL, Mandi. Dr. Abhilash Seregtta (PW8) conducted
the medical examination of the accused. HC Kartar Singh (PW9)
was working as MHC, with whom the case property was deposited.
Pradeep Kumar (PW10) transferred the video recording to the CD.
HC Vikram Singh (PW11) is the witness to the recovery. ASI Mehar
Chand (PW12) conducted the investigation.
5. The accused, in his statement recorded under Section
313 of Cr.P.C., denied the prosecution case in its entirety. He
claimed that he was innocent and falsely implicated.
6. The learned Trial Court held that the victim was proved
to be a minor on the date of the incident. She admitted that her
parents used to harass her, and she went to the house of the
accused herself, but that is not material. The victim was a minor
and incapable of giving consent. She was removed from the
custody of her parents without their consent. Hence, the offences
punishable under Sections 363 and 376 of IPC and Section 6 of the
POCSO Act were established against the accused. Consequently, the
accused was convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by
the learned Trial Court, the accused has filed the present appeal
asserting that the learned Trial Court erred in convicting and
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Neutral Citation No. ( 2024:HHC:16944 )
sentencing the accused. The judgment is based on the conjecture
and surmises. The prosecution evidence was partisan and
conflicting. The learned Trial Court brushed aside material
contradictions and improvements in the testimonies of the
prosecution witnesses. The prosecution miserably failed to prove
that the victim was less than 18 years of age on 20.02.2016.
Therefore, it was prayed that the present appeal be allowed and the
judgment and order passed by the learned Trial Court be set aside.
8. We have heard Mr. Manoj Pathak, learned counsel for
the appellant/accused, and Ms. Seema Sharma, learned Deputy
Advocate General for the respondent/State.
9. Mr. Manoj Pathak, learned counsel for the
petitioner/accused, submitted that the learned Trial Court erred in
convicting and sentencing the accused. The prosecution has not
succeeded in establishing the victim’s age. The victim’s father
stated that the age gap between his son and the victim was 10
years. The age of the son was 12 years. Therefore, the victim was
proved to be 22 years of age. The victim was studying at the school,
and the birth certificate from the school was not obtained. There is
a reasonable doubt regarding the victim’s age, and the prosecution
had failed to prove that the victim was a minor on the date of the
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Neutral Citation No. ( 2024:HHC:16944 )
incident. The learned Trial Court erred in holding that the victim
was a minor; hence, he prayed that the present appeal be allowed
and the judgment and order passed by the learned Trial Court be
set aside.
10. Ms. Seema Sharma, learned Deputy Advocate General
for the respondent/State, supported the judgment and order
passed by the learned Trial Court. She submitted that the age of the
victim was duly proved by her birth certificate, and her father
categorically stated that he had got the victim’s date of birth
entered in the birth register, which shows the authenticity of the
entry made in the birth register. Learned Trial Court had rightly
held that the victim was a minor; hence, she prayed that the
present appeal be dismissed.
11. We have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
12. The victim (PW2) stated that she knew the accused. The
accused took her to his house on the 20 th of 2016 when she had
gone to the house of Leela Devi. The accused promised to marry
her. He kept her in his house for two days. He took her to his
sister’s house on the third day. The accused forcibly maintained
bodily relations with her during the aforesaid period. Thereafter,
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Neutral Citation No. ( 2024:HHC:16944 )
both of them went to the Police Station, Nirmand, because her
parents had reported the matter to the police. She stated in her
cross-examination that the accused had taken her to the Police
Station. Her parents used to harass her, and on that account, she
had gone to the house of the accused. She had taken a meal in the
house and gone out to attend the call of nature. She had told the
parents and son of the accused that the accused had forcibly
subjected her to sexual intercourse. She had gone on a bus to
Jhakri. She used to talk to the accused before the incident. Her five
sisters were older than her, but she was not aware of the date of
their birth or their age. Her brother was the youngest and was born
in the year 2003. He was twelve years younger than her. She denied
that she was aged more than 18 years in the year 2016.
12. The cross-examination of the victim shows that she
had voluntarily gone to the house of the accused because she was
harassed by her parents. She remained in the house of the accused
with his family members and voluntarily accompanied him to his
sister’s house. It is not shown that she had ever made any
complaint regarding her kidnapping to any person or made any
attempt to escape. The victim’s conduct belies her version that she
was forcibly taken by the accused.
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Neutral Citation No. ( 2024:HHC:16944 )
13. The learned Trial Court held that the victim was a minor
on the date of the incident, and her consent was immaterial.
Learned Trial Court relied upon the certificate issued by Balwant
Singh (PW6) to arrive at such a conclusion.
14. It was submitted that the birth register is maintained by
a public official in the discharge of his official duty under Section
17 of the Registration of Births and Deaths Act, 1969 and is per se
admissible under Section 35 of the Indian Evidence Act
(corresponding to Section 29 of Bharatiya Sakshya Adhiniyam).
There is a presumption of correctness of the official acts under
Section 114 of illustration (e) of the Indian Evidence Act
(corresponding to Section 119 of Bharatiya Sakshya Adhiniyam),
the birth certificate is used to enter the age of the child while
admitting him to the school and is the primary evidence of the date
of birth of the child. The Courts have consistently held that the
entries made in the birth certificate are per se admissible, and the
learned Trial Court had rightly relied upon the victim’s birth
certificate. Reliance was placed upon the judgments of the Hon’ble
Supreme Court in Alamelu v. State, (2011) 2 SCC 385 : (2011) 1 SCC
(Cri) 688, State of Chhattisgarh v. Lekhram, (2006) 5 SCC 736, and
Murugan v. State of T.N., (2011) 6 SCC 111 in support of this
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Neutral Citation No. ( 2024:HHC:16944 )
submission. It is not permissible for this Court to accept this
submission because the matter is concluded by the binding
precedent of the Hon’ble Supreme Court. It was laid down by the
Hon’ble Supreme Court in Jarnail Singh versus State of Haryana
(2013) 7 SCC 263 that the provisions of the Juvenile Justice Act (JJ
Act) should be followed to determine the age of the victim under
the POCSO Act. It was observed:
“23. Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with the law, we are
of the view that the aforesaid statutory provision should be
the basis for determining the age, even of a child who is a
victim of crime. For, in our view, there is hardly any
difference insofar as the issue of the minority is concerned
between a child in conflict with law and a child who is a
victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the 2007
Rules to determine the age of the prosecutrix VW, PW 6. The
manner of determining age conclusively has been expressed
in sub-rule (3) of Rule 12 extracted above. Under the
aforesaid provision, the age of a child is ascertained by
adopting the first available basis out of a number of options
postulated in Rule 12(3). If, in the scheme of options under Rule
12(3), an option is expressed in a preceding clause, it has an
overriding effect over an option expressed in a subsequent
clause. The highest-rated option available would conclusively
determine the age of a minor. In the scheme of Rule 12(3), the
matriculation (or equivalent) certificate of the child concerned is
the highest-rated option. In case the said certificate is available,
no other evidence can be relied upon. Only in the absence of the
said certificate, Rule 12(3) envisages consideration of the date of
birth entered in the school first attended by the child. In case
such an entry of date of birth is available, the date of birth
depicted therein is liable to be treated as final and conclusive,
and no other material is to be relied upon. Only in the absence of
12
Neutral Citation No. ( 2024:HHC:16944 )such entry, Rule 12(3) postulates reliance on a birth certificate
issued by a corporation, a municipal authority, or a panchayat.
Yet again, if such a certificate is available, then no other
material whatsoever is to be taken into consideration for
determining the age of the child concerned, as the said
certificate would conclusively determine the age of the child. It is
only in the absence of any of the aforesaid that Rule 12(3)
postulates the determination of the age of the child concerned
on the basis of medical opinion.
24. Following the scheme of Rule 12 of the 2007 Rules, it is
apparent that the age of the prosecutrix VW, PW 6, could not be
determined on the basis of the matriculation (or equivalent)
certificate as she had herself deposed, that she had studied up to
Class 3 only, and thereafter, had left her school and had started
to do household work. The prosecution, in the facts and
circumstances of this case, had endeavoured to establish the age
of the prosecutrix VW, PW 6, on the next available basis in the
sequence of options expressed in Rule 12(3) of the 2007 Rules.
The prosecution produced Satpal (PW 4) to prove the age of the
prosecutrix VW, PW 6. Satpal (PW 4) was the Head Master of
Government High School, Jathlana, where the prosecutrix VW,
PW 6, had studied up to Class 3. Satpal (PW 4) had proved the
certificate Ext. PG, as having been made on the basis of the
school records indicating that the prosecutrix VW, PW 6 was
born on 15-5-1977. In the scheme contemplated under Rule
12(3) of the 2007 Rules, it is not permissible to determine age in
any other manner, and certainly not on the basis of an option
mentioned in a subsequent clause. We are, therefore, of the view
that the High Court was fully justified in relying on the aforesaid
basis for establishing the age of the prosecutrix VW, PW 6. It
would also be relevant to mention that under the scheme of Rule
12 of the 2007 Rules, it would have been improper for the High
Court to rely on any other material, including the ossification
test, for determining the age of the prosecutrix VW, PW 6. The
deposition of Satpal, PW 4, has not been contested. Therefore,
the date of birth of the prosecutrix VW, PW 6 (indicated in Ext.
PG as 15-7-1977) assumes finality. Accordingly, it is clear that
the prosecutrix VW, PW 6, was less than 15 years old on the date
of occurrence, i.e. on 25-3-1993. In the said view of the matter,
there is no room for any doubt that the prosecutrix VW, PW 6,
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Neutral Citation No. ( 2024:HHC:16944 )was a minor on the date of occurrence. Accordingly, we hereby
endorse the conclusions recorded by the High Court that even if
the prosecutrix VW, PW 6, had accompanied the appellant-
accused Jarnail Singh of her own free will and had had
consensual sex with him, the same would have been clearly
inconsequential, as she was a minor.” (Emphasis supplied)
15. Thus, the provisions of Rule 12 have to be applied to
determine the age of the victim.
16. It was held in Sanjeev Kumar Gupta versus State of U.P.&
Ors (2019) 12 SCC 370 that Rule 12 (3)(a) provides that a
matriculation certificate, if available, in its absence date of Birth
certificate from the school first attended and in their absence the
birth certificate given by the Corporation Municipal Authority or
Panchayat would be considered. These are in hierarchal order.
Thus, where a matriculation certificate is available, the birth
certificate from the school and the birth certificate given by the
Corporation cannot be relied upon. It was observed:
“12. Clause (a) of Rule 12(3) provides that for the purpose of
seeking evidence in the enquiry, the following documents
would have to be obtained:
(i) matriculation or equivalent certificate if available;
(ii) in the absence of (i) the date of birth certificate
from the school first attended; and
(iii) in the absence of (i) and (ii) the birth certificate
given by a corporation, municipal authority or
panchayat.
Clause (a) of Rule 12(3) contains a hierarchical ordering,
evident from the use of the language “in the absence
14
Neutral Citation No. ( 2024:HHC:16944 )
whereof”. This indicates that where a matriculation or
equivalent certificate is available, the documents adverted to
in (ii) and (iii) cannot be relied upon. The matriculation
certificate, in other words, is given precedence. It is in the
absence of a matriculation certificate that the date of birth
certificate of the school first attended can be relied upon. It
is in the absence of both the matriculation and the birth
certificates of the first school attended that a birth
certificate issued by the corporation, municipal authority or
panchayat could be obtained. This facet of Rule 12(3) was
noticed in the two-judge Bench decision of this Court
in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of
M.P., (2012) 9 SCC 750: (2013) 1 SCC (Cri) 594].
13. K.S.P. Radhakrishnan, J. while holding that the
procedures laid down in CrPC cannot be imported while
making an enquiry in regard to a claim of juvenility under
the 2007 Rules observed: (Ashwani Kumar Saxena
case [Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC
750 : (2013) 1 SCC (Cri) 594], SCC pp. 763-64, para 32)
“32. “Age determination inquiry”, contemplated
under Section 7-A of the Act, read with Rule 12 of the
2007 Rules, enables the court to seek evidence, and in
that process, the court can obtain the matriculation or
equivalent certificates, if available. Only in the absence
of any matriculation or equivalent certificates the
court needs to obtain the date of birth certificate from
the school first attended other than a play school. Only
in the absence of matriculation or equivalent
certificate or the date of birth certificate from the
school first attended the court need to obtain the birth
certificate given by a corporation or a municipal
authority or a panchayat (not an affidavit but
certificates or documents). The question of obtaining a
medical opinion from a duly constituted Medical
Board arises only if the abovementioned documents
are unavailable. In case an exact assessment of the age
cannot be done, then the court, for reasons to be
recorded, may, if considered necessary, give the
benefit to the child or juvenile by considering his or
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Neutral Citation No. ( 2024:HHC:16944 )
her age on the lower side within the margin of one
year.”
The Court took notice of the fact that there could be
situations in which the date of birth recorded in the
matriculation certificate, or for that matter in the other
certificates referred to in Rule 12(3)(a), may not be correct.
The Court held that where it was only when those
documents are found to be fabricated or manipulated, could
the date of birth as reflected be discarded. The Court held :
(Ashwani Kumar Saxena case [Ashwani Kumar Saxena v. State
of M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594], SCC p. 764,
para 34)
“34. … There may be situations where the entry made
in the matriculation or equivalent certificates, date of
birth certificate from the school first attended and
even the birth certificate given by a corporation or a
municipal authority or a panchayat may not be
correct. But the court, Juvenile Justice Board or a
committee functioning under the JJ Act is not expected
to conduct such a roving enquiry and to go behind
those certificates to examine the correctness of those
documents kept during the normal course of business.
Only in cases where those documents or certificates
are found to be fabricated or manipulated, the court,
the Juvenile Justice Board or the committee need to go
for medical report for age determination.”
In the view of the Court, it was only if the above conditions
were fulfilled that a medical report could be called.
14. The decision in Ashwani Kumar Saxena [Ashwani Kumar
Saxena v. State of M.P., (2012) 9 SCC 750: (2013) 1 SCC (Cri)
594] was rendered on 13-9-2012. Soon thereafter, a three-
judge Bench of this Court considered the provisions of
Section 7-A and Rule 12 in Abuzar Hossain [Abuzar
Hossain v. State of W.B., (2012) 10 SCC 489: (2013) 1 SCC (Cri)
83]. R.M. Lodha, J. (as the learned Chief Justice then was),
speaking for himself and Anil R. Dave, J. observed: (Abuzar
Hossain case [Abuzar Hossain v. State of W.B., (2012) 10 SCC
489: (2013) 1 SCC (Cri) 83], SCC pp. 509-10, para 39)
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Neutral Citation No. ( 2024:HHC:16944 )
“39.3. As to what materials would prima facie satisfy
the court and/or are sufficient for discharging the
initial burden cannot be catalogued, nor can it be laid
down as to what weight should be given to a specific
piece of evidence which may be sufficient to raise
presumption of juvenility but the documents referred
to in Rules 12(3)(a)(i) to (iii) shall definitely be
sufficient for prima facie satisfaction of the court
about the age of the delinquent necessitating further
enquiry under Rule 12. The statement recorded under
Section 313 of the Code is too tentative and may not by
itself be sufficient ordinarily to justify or reject the
claim of juvenility. The credibility and/or acceptability
of the documents, like the school-leaving certificate
or the voters’ list, etc., obtained after conviction would
depend on the facts and circumstances of each case,
and no hard-and-fast rule can be prescribed that they
must be prima facie accepted or rejected. In Akbar
Sheikh [Akbar Sheikh v. State of W.B., (2009) 7 SCC 415 :
(2009) 3 SCC (Cri) 431] and Pawan [Pawan v. State of
Uttaranchal, (2009) 15 SCC 259 : (2010) 2 SCC (Cri) 522]
these documents were not found prima facie credible
while in Jitendra Singh [Jitendra Singh v. State of U.P.,
(2010) 13 SCC 523 : (2011) 1 SCC (Cri) 857] the
documents viz. school-leaving certificate, mark sheet
and the medical report were treated sufficient for
directing an inquiry and verification of the appellant’s
age. If such documents prima facie inspire confidence
of the court, the court may act upon such documents
for the purposes of Section 7-A and order an enquiry
for determination of the age of the delinquent.”
15. The above decision in Abuzar Hossain [Abuzar
Hossain v. State of W.B., (2012) 10 SCC 489 : (2013) 1 SCC (Cri)
83] was rendered on 10-10-2012. Though the earlier decision
in Ashwani Kumar Saxena [Ashwani Kumar Saxena v. State of
M.P., (2012) 9 SCC 750 : (2013) 1 SCC (Cri) 594] was not cited
before the Court, it appears from the above extract that the
three-Judge Bench observed that the credibility and
acceptability of the documents, including the school leaving
certificate, would depend on the facts and circumstances of
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Neutral Citation No. ( 2024:HHC:16944 )
each case, and no hard-and-fast rule as such could be laid
down. Concurring with the judgment of R.M. Lodha, J., T.S.
Thakur, J. (as the learned Chief Justice then was) observed
that directing an inquiry is not the same thing as declaring
the accused to be a juvenile. In the former, the court simply
records a prima facie conclusion, while in the latter, a
declaration is made on the basis of evidence. Hence, the
approach at the stage of directing the inquiry has to be more
liberal (Abuzar Hossain case [Abuzar Hossain v. State of W.B.,
(2012) 10 SCC 489: (2013) 1 SCC (Cri) 83], SCC pp. 513-14, para
48)
“48. If one were to adopt a wooden approach, one
could say nothing short of a certificate, whether from
the school or a municipal authority, which would
satisfy the court’s conscience before directing an
enquiry. But, then directing an enquiry is not the same
thing as declaring the accused to be a juvenile. The
standard of proof required is different for both. In the
former, the court simply records a prima facie
conclusion. In the latter, the court makes a declaration
on evidence that it scrutinises and accepts only if it is
worthy of such acceptance. The approach at the stage
of directing the enquiry has of necessity to be more
liberal, lest there is an avoidable miscarriage of
justice. Suffice it to say that while affidavits may not
be generally accepted as a good enough basis for
directing an enquiry, that they are not so accepted is
not a rule of law but a rule of prudence. The Court
would, therefore, in each case weigh the relevant
factors, insist upon filing better affidavits if the need
so arises, and even direct any additional information
considered relevant, including the information
regarding the age of the parents, the age of siblings
and the like, to be furnished before it decides on a
case-to-case basis whether or not an enquiry under
Section 7-A ought to be conducted. It will eventually
depend on how the court evaluates such material for a
prima facie conclusion that the court may or may not
direct an enquiry.”
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Neutral Citation No. ( 2024:HHC:16944 )
16. Both these judgments have since been considered by a
two-judge Bench of this Court in Parag Bhati [Parag
Bhati v. State of U.P., (2016) 12 SCC 744 : (2017) 3 SCC (Cri)
819], where it was observed : (SCC p. 758, para 36)
“36. It is a settled position of law that if the
matriculation or equivalent certificates are available
and there is no other material to prove the correctness
of the date of birth, the date of birth mentioned in the
matriculation certificate has to be treated as
conclusive proof of the date of birth of the accused.
However, if there is any doubt or a contradictory stand
being taken by the accused which raises doubt on the
correctness of the date of birth then as laid down by
this Court in Abuzar Hossain [Abuzar Hossain v. State of
W.B., (2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83], an
enquiry for determination of the age of the accused is
permissible which has been done in the present case.”
17. The 2015 Act came into force on 15-1-2016. Section 111
repeals the earlier 2000 Act but stipulates that despite the
repeal, anything done or any action taken under the said
Acts shall be deemed to have been done or taken under the
corresponding provisions of the new legislation. Section 94
contains provisions in regard to the determination of age, is
in the following terms:
“94. Presumption and determination of age.–(1) Where
it is obvious to the Committee or the Board, based on
the appearance of the person brought before it under
any of the provisions of this Act (other than for the
purpose of giving evidence), that the said person is a
child, the Committee or the Board shall record such
observation stating the age of the child as nearly as
may be and proceed with the inquiry under Section 14
or Section 36, as the case may be, without waiting for
further confirmation of the age.
(2) In case the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as the
case may be, shall undertake the process of age
determination by seeking evidence by obtaining–
19
Neutral Citation No. ( 2024:HHC:16944 )
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the
Examination Board concerned, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation, a
municipal authority, or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any
other latest medical age determination test conducted
on the orders of the Committee or the Board:
Provided such age determination test conducted on the
order of the Committee or the Board shall be completed
within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the
age of person so brought before it shall, for the purpose of
this Act, be deemed to be the true age of that person.”
Clause (i) of Section 94(2) places the date of birth
certificate from the school and the matriculation or
equivalent certificate from the Examination Board
concerned 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)(i)
indicates a significant change over the provisions
which were contained in Rule 12(3)(a) of the 2007
Rules made under the 2000 Act. 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.
20
Neutral Citation No. ( 2024:HHC:16944 )
17. It was held in Rishipal Singh Solanki v. State of U.P.,
(2022) 8 SCC 602 that Section 94 of the Juvenile Justice Act, 2015,
incorporated the provision of Rule 12 of Juvenile Justice Rules,
2007. The documents mentioned in Rule 12, (3)(a) i, ii, iii, of
Juvenile Justice Rules, 2007 or Section 94(2) of Juvenile Justice Act
will be prima facie sufficient to prove the age. It was held in Vinod
Katara versus State of U.P., 2022 SCC OnLine SC 1204 that clause (a)
of Rule 12(3) of 2007 Rules contains a hierarchal order. It was
observed:
48. Clause (a) of Rule 12(3) of the 2007 Rules contains a
hierarchical ordering, evident from the use of the language
“in the absence whereof”. This indicates that where a
matriculation or equivalent certificate is available, the
documents adverted to in (ii) and (iii) cannot be relied upon.
The matriculation certificate, in other words, is given
precedence. It is in the absence of a matriculation certificate
that the date of birth certificate of the school first attended
can be relied upon. It is in the absence of both the
matriculation and the birth certificates of the first school
attended that a birth certificate issued by the corporation,
municipal authority or panchayat could be obtained.
49. In Shah Nawaz v. State of Uttar Pradesh (2011) 13 SCC 751,
this Court, while examining the scope of Rule 12 of the 2007
Rules, had reiterated that medical opinion from the Medical
Board should be sought only when the matriculation
certificate or equivalent certificate or the date of birth
certificate from the school first attended, or any birth
certificate issued by a corporation or a municipal authority
or a panchayat or municipality is not available. This Court
had held that the entry related to the date of birth entered in
the mark sheet is valid evidence for determining the age of
21
Neutral Citation No. ( 2024:HHC:16944 )
the accused person so also the school leaving certificate for
determining the age of the appellant.
18. A similar view was taken in P. Yuvaprakash v. State, 2023
SCC OnLine SC 846, wherein it was observed that:
11. Before discussing the merits of the contentions and
evidence in this case, it is necessary to extract Section 34 of
the POCSO Act, which reads as follows:
“34. Procedure in case of commission of offence by child
and determination of age by Special Court. – (1) Where
any offence under this Act is committed by a child, such
child shall be dealt with under the provisions of
the Juvenile Justice (Care and Protection of Children) Act,
2015 (2 of 2016).
(2) If any question arises in any proceeding before the
Special Court whether a person is a child or not, such
question shall be determined by the Special Court after
satisfying itself about the age of such person, and it shall
record in writing its reasons for such determination.
(3) No order made by the Special Court shall be deemed to
be invalid merely by any subsequent proof that the age of
a person as determined by it under sub-section (2) was
not the correct age of that person.”
12. In view of Section 34(1) of the POCSO Act, Section 94 of
the JJ Act 2015 becomes relevant and applicable. That
provision is extracted below:
“94. Presumption and determination of age. – (1) Where
it is obvious to the Committee or the Board, based on the
appearance of the person brought before it under any of
the provisions of this Act (other than for the purpose of
giving evidence), that the said person is a child, the
Committee or the Board shall record such observation
stating the age of the child as nearly as may be and
proceed with the inquiry under section 14 or section 36, as
the case may be, without waiting for further confirmation
of the age.
22
Neutral Citation No. ( 2024:HHC:16944 )
(2) In case the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age
determination by seeking evidence by obtaining –
(i) the date of birth certificate from the school, or
the matriculation or equivalent certificate from the
concerned examination Board, if available; and in
the absence thereof;
(ii) the birth certificate given by a corporation, a
municipal authority, or a panchayat;
(iii) and only in the absence of (i) and (ii) above,
age shall be determined by an ossification test or
any other latest medical age determination test
conducted on the orders of the Committee or the
Board:
Provided such age determination test conducted on the
order of the Committee or the Board shall be completed
within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be
the age of person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of that
person.”
13. It is evident from conjoint reading of the above
provisions that wherever the dispute with respect to the age
of a person arises in the context of her or him being a victim
under the POCSO Act, the courts have to take recourse to the
steps indicated in Section 94 of the JJ Act. The three
documents in order of which the Juvenile Justice Act requires
consideration is that the concerned court has to determine
the age by considering the following documents:
“(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence
thereof;
(ii) the birth certificate given by a corporation, a
municipal authority, or a panchayat;
23
Neutral Citation No. ( 2024:HHC:16944 )
(iii) and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest
medical age determination test conducted on the orders
of the Committee or the Board”.
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, 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 with 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 the commission of
the offence.
15. In a recent decision, in Rishipal Singh Solanki v. State of
Uttar Pradesh (2021) 12 SCR 502, 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:
24
Neutral Citation No. ( 2024:HHC:16944 )
“20. Rule 12 of the JJ Rules, 2007 deals with the procedure
to be followed in the determination of age. The juvenility
of a person in conflict with the 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,
the benefit could be given to the child or juvenile by
considering the age on the 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 v. The State of Uttar
Pradesh (2019) 9 SCR 735 that:
“Clause (i) of Section 94(2) places the date of birth
certificate from the school and the matriculation or
equivalent certificate from the 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
25
Neutral Citation No. ( 2024:HHC:16944 )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 Bengal
(2012) 9 SCR 224, 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.
19. Therefore, as per Rule 12(3)(a)(ii) of Juvenile Justice,
Rule 2007 and Section 94 of the Juvenile Justice Act, 2015, the
certificate from the school which was first attended by the victim
has to be preferred to the birth certificate which falls within Rule 12
(iii)(a) of the Juvenile Justice Rule, 2007.
20. In the present case, the victim stated in her voir dire that
she had studied up to the 9th class. She had initially studied in
Government Primary School and thereafter in Government High
School. This shows that the birth certificate from the school
attended by the victim is available in the present case; hence, the
birth certificate from the school is to be preferred to the birth
certificate issued from the Panchayat as per the judgments of the
Hon’ble Supreme Court. Learned Trial Court failed to notice this
aspect and erred in holding that the victim was a minor based on
the certificate of the date of birth.
26
Neutral Citation No. ( 2024:HHC:16944 )
21. Even otherwise, the oral evidence to show the date of
birth of the victim does not corroborate the entries made in the
certificates (Ext.PW6/B and Ext.PW6/C). The victim’s father (PW3)
stated that the age gap between his son and the victim was 10
years. The age of the son was 12 years, which shows that the age of
the victim, as per him, would be about 22 years. The victim stated
that five sisters were older than her. The entry in the birth register
(Ext.PW6/C) shows that the victim was a seventh child. The
victim’s sister said that the victim was about 15-18 years younger
than her, and her brother was 20-21 years younger than her, who
was born in the year 2006. Thus, as per the victim’s sister, the gap
between the victim and her brother is about 3-5 years. The victim
stated that her brother was born somewhere in the year 2003 and
was probably 12 years younger than her. All these statements make
it difficult to place a reliance on the birth certificate.
22. It was laid down by the Hon’ble Supreme Court in Satpal
Singh vs State of Haryana (2010), 8 SCC 2014, that the document may
be admissible in evidence. However, its probative value has to be
examined in the facts and circumstances of the case. It was
observed:
“22. Therefore, a document may be admissible, but as to
whether the entry contained therein has any probative value
27
Neutral Citation No. ( 2024:HHC:16944 )may still be required to be examined in the facts and
circumstances of a particular case. The aforesaid legal
proposition stands fortified by the judgments of this Court
in Ram Prasad Sharma vs State of Bihar AIR 1970 SC 326; Ram
Murti vs State of Haryana AIR 1970 SC 1029; Dayaram & Ors. Vs.
Dawalatshah & Anr. AIR 1971 SC 681; Harpal Singh & Anr. Vs.
State of Himachal Pradesh AIR 1981 SC 361; Ravinder Singh
Gorkhi Vs. State of U.P. (2006) 5 SCC 584; Babloo Pasi Vs. State
of Jharkhand & Anr. (2008) 13 SCC 133; Desh Raj Vs. Bodh Raj
AIR 2008 SC 632; and Ram Suresh Singh Vs. Prabhat Singh
@Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has
been held that even if the entry was made in an official
record by the concerned official in the discharge of his
official duty, it may have weight but still may require
corroboration by the person on whose information the entry
has been made and as to whether the entry so made has been
exhibited and proved. The standard of proof required herein
is the same as in other civil and criminal cases. Such entries
may be in any public document, i.e. school register, voter
list, or family register prepared under the Rules and
Regulations, etc., in force, and maybe admissible under
Section 35 of the Evidence Act as held in Mohd. Ikram
Hussain Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and
Santanu Mitra Vs. State of West Bengal AIR 1999 SC 1587.
…………………….
26. In Vishnu Vs. State of Maharashtra (2006) 1 SCC 283, while
dealing with a similar issue, this Court observed that very
often, parents furnish the incorrect date of birth to the
school authorities to make up the age in order to secure ad-
mission for their children. For determining the age of the
child, the best evidence is of his/her parents if it is supported
by unimpeachable documents. In case the date of birth de-
picted in the school register/certificate stands belied by the
unimpeachable evidence of reliable persons and contempo-
raneous documents like the date of the birth register of the
Municipal Corporation, Government Hospital/Nursing
Home, etc., the entry in the school register is to be discarded.
27. Thus, the entry in respect of the age of the child seeking
admission, made in the school register by a semi-literate
28
Neutral Citation No. ( 2024:HHC:16944 )chowkidar at the instance of a person who came along with
the child having no personal knowledge of the correct date
of birth, cannot be relied upon.
28. Thus, the law on the issue can be summarised that the
entry made in the official record by an official or person au-
thorised in the performance of an official duty is admissible
under Section 35 of the Evidence Act, but the party may still
ask the Court/Authority to examine its probative value. The
authenticity of the entry would depend on whose instruc-
tion/information such entry stood recorded and what was
his source of information. Thus, an entry in the school reg-
ister/certificate requires to be proved in accordance with the
law. The standard of proof for the same remains as in any
other civil and criminal case.
29. In case the issue is examined in the light of the aforesaid
settled legal proposition, there is nothing on record to
corroborate the date of birth of the prosecutrix recorded in
the School Register. It is not possible to ascertain who was
the person who had given her date of birth as 13.02.1975 at
the time of initial admission to the primary school. More so,
it cannot be ascertained as to who was the person who had
recorded her date of birth in the Primary School Register.
More so, the entry in respect of the date of birth of the
prosecutrix in the Primary School Register has not been
produced and proved before the Trial Court. Thus, in view of
the above, it cannot be held with certainty that the
prosecutrix was a major. Be that as it may, the issue of the
majority becomes irrelevant if the prosecution successfully
establishes that it was not a consent case.”
23. In the present case, the other evidence regarding the
age of the victim does not establish the probative value of the entry
in the birth register, and the learned Trial Court erred in holding
that the birth register was sufficient to prove the date of birth of
the victim.
29
Neutral Citation No. ( 2024:HHC:16944 )
24. Once it is held that the victim was not proved to be
minor, the victim’s consent assumes significance. Her conduct
falsifies her statement that she was forcibly taken out of the house
of Leela Devi and was raped by the accused. She had not made any
complaint to any person. She had not protested when she was
being taken in a Bus to the house of the sister of the accused. All
these circumstances will make it difficult to place reliance on her
testimony that she was forcibly taken away and raped by the
accused.
25. The Medical Officer stated that the victim had
undergone repeated sexual intercourse. The injury to the hymen
suffered by her was not less than one week old and maybe months
old. She examined the victim on 21.02.2016, five days after she was
found missing from the house of Leela Devi. According to the
Medical Officer, the injury was more than one week old, which
shows that the injury was caused much before 15.02.2016. This
falsifies her statement that the accused had raped her after
16.02.2016.
26. All these circumstances create a reasonable doubt
regarding the prosecution case, and the accused is entitled to the
benefit of the same.
30
Neutral Citation No. ( 2024:HHC:16944 )
27. In view of the above, the present appeal is allowed, and
judgment and order dated 03.04.2019 passed by the learned Trial
Court are ordered to be set aside. The accused is ordered to be
acquitted of the charged offences after giving him the benefit of
the doubt. He be released forthwith, if not required in any other
case.
28. The fine amount, if deposited, be refunded after the
expiry of the period of limitation for filing the appeal in case no
appeal is preferred, and in case of appeal, the same be dealt with as
per the orders of the Hon’ble Supreme Court.
29. In view of the provisions of Section 437-A of the Code
of Criminal Procedure [Section 481 of Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS)], the appellant/accused is directed to furnish
his personal bond in the sum of ₹25,000/- with one surety in the
like amount to the satisfaction of the learned Registrar (Judicial) of
this Court/learned Trial Court, within four weeks, which shall be
effective for six months with stipulation that in the event of Special
Leave Petition being filed against this judgment, or on grant of the
leave, the appellant/accused, on receipt of notice(s) thereof, shall
appear before the Hon’ble Supreme Court.
31
Neutral Citation No. ( 2024:HHC:16944 )
30. A copy of this judgment, along with the records of the
learned Trial Court, be sent back forthwith. Pending miscellaneous
application(s), if any, also stand(s) disposed of.
(Vivek Singh Thakur)
Judge
(Rakesh Kainthla)
Judge
31st December, 2024
(Nikita)
Digitally signed by KARAN SINGH
GULERIA
Date: 2025.01.01 18:11:25 IST
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