Durgesh v. The State Of Madhya Pradesh

Sexual Offences Act (POCSO)/IInd Additional Sessions Judge, District Damoh (M.P.) in S.C. No.22/2022, whereby the appellant has been convicted for offence under Section 366 of Indian Penal Code, 1860 and sentenced to R.I. for 10 years and fine of Rs.3,000/- with default stipulation of additional R.I. for 3 months. The appellant is also convicted under Section 5(L)/6 of the POCSO Act and sentenced to undergo R.I. for 20 year and fine of Rs.3,000/- with default stipulation of additional R.I. for 3 months.

5. Shri Prakhar Naveriya, learned counsel for the appellant submits that the appellant is innocent, it is a matter of consent, there is doubt as to the date of birth of the prosecutrix which is mentioned in 'Dakhil Kharij Register', Ex.P- 14, as 10.08.2005. Incident took place on 10.05.2022. Prosecutrix in her 164 statements admitted that she was having liking for the appellant and had gone with the appellant on her own, but later on under pressure of her parents, she changed her statements.

6. It is further submitted that positivity of DNA report alone is not a sufficient circumstance to hold appellant guilty once it is established that prosecutrix was major at the time of the incident and was consenting party. He, therefore, prays for setting aside the finding of conviction recorded against the appellant.

7. Shri Ved Prakash Tiwari, learned public prosecutor opposes the prayer and supports the impugned judgment.

8. After hearing learned counsel for the parties and going through the record, it is evident that PW-12, Smt. Rupali Khare, Headmaster of the School, has stated that date of birth of the prosecutrix was written, as was

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given by her mother. Thereafter, she has stated in para 6 of her cross- examination that in the 'Dakhil Kharij Register' and the 'Date of Birth Register' it is not mentioned that in which school prosecutrix was studying in Class-II and whether she had produced a transfer certificate from the previous school or not.

9. In para 7, PW-12 has admitted that if name of a student is admitted in the higher class, then it is mandatory to produce transfer certificate from the school from where she studied in the previous class. It is also stated that it is correct to say that on the basis of said transfer certificate name of a student is registered in the school.

10. In para 8 of cross-examination, PW-12 admitted that it is correct to say that if a student is received from another school, then his/her date of birth is recorded on the basis of the transfer certificate. Then, on her own, this witness stated that can be done only when transfer certificate is produced.

11. In para 12 of cross-examination, this witness has stated that Ex.P-15 does not make a mention of the fact that mother of the prosecutrix had produced which of the documents in support of date of birth of the prosecutrix.

12. Thus, PW-12 has admitted that, firstly, prosecutrix had joined her school on transfer, secondly, no transfer certificate was produced in support of such transfer and, thirdly, no documentary evidence was produced in support of the date of birth of the prosecutrix.

13. PW-2 is the mother of the prosecutrix, she has admitted that prosecutrix is the youngest child out of her four children. Incident is of

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10.05.2022.

14. In cross-examination, she has admitted that her eldest child was son, who died, then second and third children are sons and fourth child is the prosecutrix. She admits that she has no knowledge about the date of birth of her eldest son, then on her own, stated that she does not know date of birth of any of a children except the prosecutrix, who was born in the month of Ashad.

15. In para 9 of cross-examination, she admitted that since she was not knowing the date of birth of the prosecutrix, therefore, she had recorded year as 2005. She further admitted that she had not registered birth of the prosecutrix.

16. PW-2, mother of the prosecutrix, has further stated that she has not produced any 'Kotwari' record because it is not looked after by her but by her father-in-law.

1 7 . She further admitted that she had not taken out any record of Anganwadi where the prosecutrix had studied. She had given mark-sheet of KG-1 to the police. But PW-2 has not exhibited the KG-1 mark-sheet and no teacher has been examined to prove this mark-sheet. This witness, PW-2, admitted that Labour Card as well as AADHAR Card of the prosecutrix has been made and, in both these cards, date of birth of the prosecutrix is mentioned as 05.05.2003.

18. In para 23, PW-2 has admitted that on what basis school teacher recorded date of birth of the prosecutrix is not known to her. However, she has admitted that Ex.D-1 is AADHAR Card of the prosecutrix and Ex.D-2 is

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the E-Labour Card of the prosecutrix, which has been prepared on the basis of correct information.

19. When this evidence of PW-2 is examined, in the light of the evidence of the prosecutrix who has admitted that after attaining the adulthood she was working as a labourer and further states in para 21 of her cross-examination that she had carried her AADHAR Card and E-Labour Card along with her and with further admission that she had called the accused during the pendency of the case and had also gone to meet her in the Jail during the trial, is sufficient evidence to two things, namely, affection of the prosecutrix towards the appellant and as per the mother of the prosecutrix, PW-2, and in the light of the evidence of PW-12, prosecutrix was major at the time of the incident.

20. The Apex Court in Paragraph Nos.14 & 15 of Birad Mal Singhvi versus Anand Purohit AIR 1988 SC 1796 has held as under:-

14.We would now consider the evidence

produced by the respondent on the question of age of Hukmi Chand and Suraj Prakash Joshi. The respondent examined Anantram Sharma PW.3 and Kailash Chandra Taparia PW.5. Anantram Sharma PW.3 has been the Principal of New Government Higher Secondary

School, Jodhpur since 1984. On the basis of the scholar's register he stated before the High Court that Hukmi Chand joined school on 24.6.1972 in 9th class and his date of birth as mentioned in scholar's register

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was 13.6.1956. He made this statement on the basis of the entries contained in the scholar's register Ex.8. He admitted that entries in the scholar's register are made on the basis of the entries contained in the admission form. He could not produce the admission form in original or its copy. He stated that Hukmi Chand was admitted in 9th class on the basis of transfer certificate issued by the Government Middle School, Palasni from where he had passed 8th standard. He proved the signature of Satya Narain Mathur the then Principal who had issued the copy of the scholar's register Ex.8. Satya Narain Mathur was admittedly alive but he was not examined to show as to on what basis he had mentioned the date of birth of Hukmi Chand in Ex.8. The evidence of Anantram Sharma merely proved that Ex.8 was a copy of entries in scholar's register. His testimony does not show as to on what basis the entry relating to date of birth of Hukmi Chand was made in the scholar's register. Kailash Chandra Taparia PW.5 was Deputy Director (Examination) Board of Secondary Education, Rajasthan, he produced the counter foil of Secondary Education Certificate of Hukmi Chand Bhandari, a copy of which has been filed as Ex.9. He also proved the tabulation record of the

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Secondary School Examination 1974, a copy of which has been filed as Ex.10. In both these documents Hukmi Chand's date of birth was recorded as 13.6.1956. Kailash Chandra Taparia further proved Ex.11 which is the copy of the tabulation record of Secondary School Examination of 1977 relating to SuraJ Prakash Joshi. In that document the date of birth of Suraj Prakash Joshi was recorded 11.3.1959. Kailash Chandra Taparia stated that date of birth as mentioned in the counter foil of the certificates and in the tabulation form Ex.12 was recorded on the basis of the date of birth mentioned by the candidate in the examination form. But the examination form or its copy was not produced before Court. In substance the statement of the aforesaid two witnesses merely prove that in the scholar's register as well as in the Secondary School examination records the date of birth of a certain Hukmi Chand was mentioned as 13.6.1956 and in the tabulation record of Secondary School Examination a certain Suraj Prakash Joshi's date of birth was mentioned as 11.3.1959. No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination papers. Neither the admission form nor the examination form

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on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs.8,9,10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the Court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were

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not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. 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

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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 vouch safe 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 have no probative value and the dates of birth as mentioned therein could not be accepted. 15.The High Court held that in view of the entries contained in the Ex.8,9,10,11 and 12 proved by Anantram Sharma PW.3 and Kailash Chandra Taparia PW.5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on the assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by

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the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury, AIR 1941 Cal 41, a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Moti Ram AIR 1951 Punjab 377, Sakhi Ram v. Presiding Officer, Labour

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Court, North Bihar, Muzzafarpur & Ors AIR 1966 Patna 459, Ghanchi Vora Samsuddin Isabhai v. State Of Gujarat . AIR 1970 Guj 178 and Radha Kishan Tickoo

v. Bhushan Lal Tickoo AIR 1971 J&K 62. In addition to these decisions, the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Sri Jagannath Prasad (1969) 42 ELR 465 (All), K. Paramalali v. L.M. Alangaram (1967) 31 ELR 401 (Mad) and Krishna Rao Maharu Patil v. Onkar Narayan Wagh (1958) 14 ELR 386 (Bom).

21. Thus, in the light of the aforesaid judgment, when the evidence of mother of the prosecutrix, who had given the date of birth of the prosecutrix to PW-12, School Teacher, admits that she was not knowing the date of birth of the prosecutrix and the date of birth which is recorded in her AADHAR Card and E-Labour Card are correct, is considered then, the prosecution has

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(VIVEK AGARWAL)

JUDGE

(DEVNARAYAN MISHRA)

JUDGE

admittedly failed to prove the aspect of minority of the prosecutrix.

22. Thus, on failure of the prosecution to prove that prosecutrix was minor at the time of the incident, it will become a case of consent, and therefore, in the light of the judgment of the Division Bench of Gujarat High Court in Premjibhai Bachubhai Khasiya versus State of Gujarat & Another 2009 CRI.L.J 2888, in absence of proving that there was lack of valid consent, conviction cannot be maintained, accordingly, impugned judgment of conviction dated 9.03.2024 passed by the learned Special Judge POCSO/IInd Additional Sessions Judge, District Damoh (M.P.) in Sessions case No.22/2022 is set aside.

23. Accordingly, this appeal is allowed and disposed of.

24. The appellant Durgesh be released forthwith, if not required in any other case.

25. The case property be disposed of in terms of the order of the Trial Court.

26. Record of the Trial Court be sent back.

MTK

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