HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 716 / 2016
Raju @ Rajkumar Son of Shri Pramod, by Caste Gaudh, R/o
Luhari, Police Station Kotwali, Dhaulpur. (at Present Confined in
District Jail, Dhaulpur)
—-Appellant
Versus
State of Rajasthan Through P.P.
—-Respondent

__
For Appellant(s) : Mr. Ashish Devessar.

For Respondent(s) : Mr. R.R. Gurjar, PP
__
HON’BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment / Order
REPORTABLE

11/08/2017

1. This appeal has been preferred on behalf of accused-

appellant Raju @ Rajkumar to challenge the judgment dated

27.6.2016 passed by the learned Sessions Judge, Dholpur in

Sessions Case No.181/2013. Learned trial court has convicted the

accused – Rajkumar for the offences punishable under Sections

363, 366A, 376 IPC as also for the offence punishable under

Section 3/4 of Protection of Children from Sexual Offences Act,

2012 (‘POCSO Act’). The accused was sentenced for the aforesaid

offences in the following manner :-

1. Section 363 IPC For Three years rigorous
imprisonment and fine of
Rs.1000/- and in default of
payment of fine further to
undergo one month simple
imprisonment.

2. Section 366A IPC For Five years rigorous
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imprisonment and fine of
Rs.3000/- and in default of
payment of fine further to
undergo three months simple
imprisonment.

3. Section 376 IPC For Seven years rigorous
imprisonment and fine of
Rs.5000/- and in default of
payment of fine further to
undergo six months simple
imprisonment.

4. Section 4 of POCSO Act For Seven years rigorous
imprisonment and fine of
Rs.5000/- and in default of
payment of fine further to
undergo six months simple
imprisonment.

2. Heard learned counsel appearing for the accused-

appellant as also learned Public Prosecutor. Perused the judgment

impugned and material available on record.

3. Briefly stated, the facts of the case are that PW-3

Bhagwan Singh filed a written report Ex.-P/5 on 10.11.2013 at

Mahila Police Station, Dholpur stating therein that on 8.11.2013

his niece, aged about 14 years, went to the field adjoining the

village to attend natural call in the morning. The accused-

Rajkumar, his mother – Sheela, grand-mother and father –

Pramod kidnapped his niece with some malafide intention. On

tracing, sister-in-law of complainant namely Guddi told him that

the girl had gone to attend natural call alongwith mother and

grand-mother of the accused and thereafter did not return.

Dayashankar also stated to have seen the girl (prosecutrix) going

out of the village alongwith Rajkumar, Sheela, Pramod and grand-

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mother of Rajkumar. On making inquiry, Sheela and grand-mother

of Rajkumar admitted that Rajkumar had taken away niece of the

complainant. On the said report, FIR No.275/2013 was lodged for

the offences punishable under Sections 363 and 366A IPC. After

investigation, charge-sheet came to be filed against Raju @

Rajkumar for the offences under Sections 363, 366A and 376 IPC

as also under Section 3/4 of the POCSO Act.

4. During trial, prosecution examined as many as 08

witnesses and produced 14 documents. The accused was

examined under Section 313 Cr.P.C., wherein he denied the

prosecution evidence. No witness was examined in defence by the

accused, but 04 documents were exhibited. After concluding the

trial, learned trial court convicted the accused and sentenced him

in the manner aforesaid.

5. During arguments, learned counsel for the accused-

appellant has stated that learned trial court has wrongly arrived at

the conclusion that the prosecutrix was minor in age at the time of

alleged incident. Though, learned trial court after critically

examining the prosecution evidence, concluded that the

prosecutrix was a consenting party in making sexual relation with

the accused, but has ignored this aspect on the ground that

consent of a minor girl is immaterial. Learned counsel has

vehemently argued that the conclusion drawn by the learned trial

court in regard to the age of the prosecutrix is absolutely

misconceived and in complete ignorance of the relevant evidence.

His argument is that the presumption drawn by the learned trial
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court in view of Section 29 of the POCSO Act is also irrelevant

because the prosecutrix was not of minor age.

6. Learned counsel for the accused-appellant has placed

reliance on the following judgments to support his argument that

the age of the prosecutrix has not been correctly determined by

the learned trial court :-

(I)- Birad Mal Singhvi v. Anand Purohit, reported in AIR

1988 SC 1796.

(II)- Narbada Devi Gupta v. Birendra Kumar Jaiswal and

Anr., reported in AIR 2004 SC 175.

(III)- Ravinder Singh Gorkhi v. State of U.P., reported in

AIR 2006 SC 2157.

(IV)- Alamelu and Anr. v. State, Represented by Inspector

of Police, reported in AIR 2011 SC 715.

(V)- Jeev Rakhan v. State of M.P., reported in 2004

CRI.L.J. 2359.

7. Per contra, learned Public Prosecutor has submitted

that learned trial court has correctly come to the conclusion that

the prosecutrix was minor in age at the time the alleged incident

took place. He has stated that learned trial court has elaborately

discussed the evidence and mentioned the grounds on which it

has arrived at its conclusion. There is no illegality in the conclusion

drawn by the learned trial court. He has also submitted that in

such situation, consent of the prosecutrix is of no consequence.

Learned trial court has correctly held the accused liable for the

offence under Section 376 IPC as also under Section 3/4 of the
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POCSO Act. In view of the above, he submits that the appeal does

not deserve to be allowed.

8. I have critically examined the judgment impugned in

light of the arguments advanced by the rival sides and also on the

basis of material available on record.

9. Learned trial court has based its conclusion regarding

age of the prosecutrix on the evidence given by the prosecutrix

(PW-1), her mother Guddi (PW-2), father – Bhagwan Singh (PW-

3). PW-1 stated her age to be 14 years, while disclosing her date

of birth as 12.3.1999. The alleged incident took place on

8.11.2013. Learned trial court has thus inferred that the age of

the prosecutrix has been correctly stated by her as 14 years. It

has also been stated by learned trial court that the prosecutrix has

stated this age in police statement Ex.-D/2 as also in the

statement recorded under Section 164 Cr.P.C. Ex.-P/4. It has also

been observed by learned trial court that the defence counsel has

himself put the suggestion to the prosecutrix in her cross-

examination that she had correctly deposed her statement in Ex.-

D/1 and Ex.-P/4. On the basis of this suggestion of the defence

counsel, learned trial court has concluded that the defence is also

agreed to the fact that the age of the prosecutrix was 14 years.

10. I am not convincing with the reasoning given by the

learned trial court in this regard. As per the provisions contained

in Section 162 Cr.P.C. any part of the statement of the prosecution

witness given in the course of investigation, may be used, with the

permission of the court, by the prosecution to contradict such

witnesses in the manner provided by Section 145 of the Indian
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Evidence Act. Section 162 specifically restricts the use of previous

statement of the witness to the extent permissible under proviso

to Section 162. It is important to note that no such permission

was obtained by the prosecution to use the previous statement of

the prosecutrix to contradict her. Further, the defence side has

also not put any suggestion to the prosecutrix PW-1 in respect of

her statements Ex.-D/1 and Ex.-P/4 with regard to disclosure

about her age. The defence side has not drawn attention of the

prosecutrix to the specific part of her statement in which the fact

of her age was stated by her, to contradict her on that aspect as

required in Section 145 of the Indian Evidence Act. In view of this,

the manner in which the learned trial court has drawn its

conclusion on the basis of admission allegedly made by the

prosecutrix in Ex.-D/1 and Ex.-P/4 is not found in consonance with

the provisions of Section 162 Cr.P.C. and Section 145 of the Indian

Evidence Act.

11. On considering the evidence given by mother of the

prosecutrix PW-2 Guddi and her father PW-3 Bhagwan Singh, it is

found that both of them have admitted that their marriage took

place about 25-26 years ago. They have stated that the

prosecutrix was born after 5-6 years of their marriage. In view of

it, age of the prosecutrix comes to be about 20 years. This plea

was also raised by learned counsel for the accused before the

learned trial court. But it was discarded on the premise that PW-2

is an illiterate lady, coming from a rural background. It was also

mentioned that her statement was made purely on estimation, but

in my view, the reason assigned by the learned trial court does
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not appear convincing in view of the fact that both the parents of

prosecutrix have averred the same statement. The statement of

PW-2 cannot be brushed aside on the ground that she is an

illiterate lady. Further, when her statements get corroborated by

her husband, there was no convincing reason for the trial court to

ignore it. It has been held by the Hon’ble Supreme Court in the

judgments relied upon by learned counsel for the appellant as

referred above that parents are the best witnesses to depose

about the age of their daughter. Since the statements of parents,

PW-2 and PW-3, are contrary to the remaining evidence produced

by the prosecution, such evidence cannot be relied and credence

is to be given to the evidence of parents. On this ground, the

prosecutrix cannot be considered to be of minor age at the

relevant point of time.

12. Learned trial court has also based its conclusion on

certificate Ex.-P/10 issued by the Head Master, Government

Secondary School, Luhari (Dholpur). In the aforesaid certificate

date of birth of the prosecutrix has been stated to be 12.3.1999 as

per the school record.

13. Learned counsel for the accused-appellant has

strenuously argued that this certificate Ex.-P/10 cannot relied in

view of the provisions contained in Sections 35, 61 62 of the

Indian Evidence Act (‘the Act’). His submission is that as per

Section 61 of the Act, the contents of the documents may be

proved either by primary or by secondary evidence. He submits

that Ex.-P/10 cannot be considered as primary evidence in view of

the fact mentioned therein that the date of birth is stated to be
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12.3.1999 on the basis of school record. No such school record

has been produced in prosecution evidence, which in fact, was

primary evidence. His next limb of argument is that the secondary

evidence can be produced only in the situation provided under

Section 65 of the Act, but no such case was established by the

prosecution for using the secondary evidence as a proof of date of

birth of the prosecutrix. Section 64 of the Act makes it imperative

that the documents must be proved by primary evidence except in

the cases provided in Section 65. On perusal of the material

available on record, I feel no hesitation in agreeing with the

arguments advanced by the learned counsel that Ex.-/10 cannot

be relied on in regard to age of prosecutrix. The admission form of

the prosecutrix which is usually filled by the parents or guardian of

the student has not been produced in the prosecution evidence.

That document could have been treated as primary evidence. No

question has been put to the mother and father of the prosecutrix

PW-2 and PW-3 respectively, with regard to the admission of the

prosecutrix in the said school and about disclosing her date of

birth in the school record. Even the Head Master of the school,

who has issued certificate Ex.-P/10 has not been examined. Only

PW-8 Prabhu Dayal, who had been investigating officer of the case

has tendered the certificate Ex.-P/10 into evidence. He has also

admitted in the cross-examination that the admission form and

the Scholar register of the school were not obtained by him during

investigation. He has also admitted that the statement of the

person issuing Ex.-P/10 was not recorded. In view of the above,
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no reliance can be placed on Ex.-P/10 in respect of the date of

birth of the prosecutrix.

14. In this regard, it will be appropriate to look into the

judgments relied upon by learned counsel for the accused-

appellant, which clearly fortify my view. In Birad Mal Singhvi v.

Anand Purohit (supra), the Hon’ble Supreme Court held as

under :-

“14. ……………………………………………………………………………………
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 in 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. ……………………………………………………………………………………

15. …………………………………………………………………………………
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 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.

……………………………………………………………………………………………… ”

15. In Ravinder Singh Gerkhi v. State of U.P. (supra),

the Hon’ble Supreme Court observed as under :-

“17. The school leaving certificate was said to have been
issued in the year 1998. A bare perusal of the said certificate
would show that the appellant was said to have been
admitted on 1.8.1967 and his name was struck off from the
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roll of the institution on 6.5.1972. The said school leaving
certificate was not issued in ordinary course of business of
the school There is nothing on record to show that the said
date of birth was recorded in a register maintained by the
school in terms of the requirements of law as contained in
Section 35 of the Indian Evidence Act. No statement has
further been made by the said Head Master that either of the
parents of the appellant who accompanied him to the school
at the time of his admission therein made any statement or
submitted any proof in regard thereto. The entries made in
the school leaving certificate, evidently had been prepared
for the purpose of the case. All the necessary columns were
filled up including the character of the appellant. It was not
the case of the said Head Master that before he had made
entries in the register, age was verified. If any register in
regular course of business was maintained in the school;
there was no reason as to why the same had not been
produced.”

16. In Narbada Devi Gupta v. Birendra Kumar

Jaiswal and Anr. (supra), the Hon’ble Supreme Court has

observed as follows :-

“16. ……………………………………………………………………………………
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’. ………………………………………………………………………………………”

17. Relying upon Birad Mal Singhvi v. Anand Purohit

(supra), the Hon’ble Supreme Court has held in Babloo Pasi v.

State of Jharkhand and Anr., reported in (2008) 13 SCC

133 at para 28 as follows :-

“28. It is trite that to render a document admissible
under Section 35, three conditions have to be satisfied,
namely: (i) entry that is relied on must be one in a public or
other official book, register or record; (ii) it must be an entry
stating a fact in issue or a relevant fact, and (iii) it must be
made by a public servant in discharge of his official duties,
or in performance of his duty especially 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 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.”

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18. In Jeev Rakhan v. State of M.P. (supra),the Hon’ble

Supreme Court observed as follows :-

“12. Dalbir Prasad (PW-5) who is the Head Master of the
school and who had issued certificate Ex.P/3, has
categorically stated that on the basis of the school record, he
has given the certificate. Thus, one can safely say that Ex.
P/3 is not a primary evidence because, it has been prepared
on the basis of some other document. It has been admitted
by this witness that admission form of the prosecutrix was
submitted in the school which bears the date of birth of the
prosecutrix. According to me the admission form on the
basis of which certificate Ex. P/3 is prepared is primary
evidence which has not been produced in the Court. As the
primary evidence has not been produced in the Court, Ex.
P/3 which is a certificate and is prepared on the basis of
some other document, has no evidentiary value in the eyes
of law and thus, the prosecution can not take any advantage
of this document which according to me is inadmissible in
evidence. There is nothing on record so as to indicate that
the primary evidence was lost and if that be the position,
secondary evidence is not permissible.”

19. On carefully going through the principles laid down by

the Hon’ble Supreme Court in the above stated judgments, it

clearly comes out that the evidence produced by the prosecution

in regard to age of the prosecutrix is neither legally admissible nor

reliable. School Certificate Ex.-P/10 cannot be considered a

primary evidence in the absence of the admission form and

scholar register of the school. Not examining the Head Master,

who has issued Ex.-P/10 is also serious lacuna. Thus, the reliance

which has been placed by the learned trial court on Ex.-P/10 is not

convincing and cannot be sustained.

20. It is also important to note that the investigating officer

has admitted that no other inquiry was made by him regarding

age of the prosecutrix except the school certificate. Learned

counsel for the appellant has drawn attention of the Court to

Section 27 of the POCSO Act. The relevant part of this Section is

reproduced below :-

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“27. Medical examination of a child.- (1) The medical
examination of a child in respect of whom any offence has
been committed under this Act, shall, notwithstanding that
a First Information Report or complaint has not been
registered for the offences under this Act, be conducted in
accordance with section 164A of the Code of Criminal
Procedure, 1973.

(2)- In case the victim is a girl child, the medical
examination shall be conducted by a woman doctor.
(3)- …………………………………………………………………………………
(4)- ………………………………………………………………………………”

21. Section 164A of Cr.P.C. also mandates the medical

examination of the victim of rape. But it is shocking to note that

despite these mandatory provisions, medical examination of the

prosecutrix with regard to her age was not conducted. Thus, the

prosecution has committed a serious lapse in not obtaining the

evidence in respect of age of the prosecutrix as required under

Section 27 of the POCSO Act.

22. Learned trial court has given credence to the certificate

Ex.-P/10 on the basis of Rule 12(3) of the Juvenile Justice (Care

and Protection of Children) Rules, 2007 (‘the Rules of 2007’).

Learned counsel for the accused has argued that the provisions

contained in these Rules are not relevant for determination of age

of victim of rape. On bare perusal of sub-rule (3) of Rule 12 of the

Rules of 2007, it is found that it is applicable in respect of a child

or juvenile in conflict with law and not to the victim of any offence.

Thus, I find my self in agreement with the arguments advanced by

learned counsel for the accused. So on this count also, the

conclusion drawn by learned trial court on the basis of Rule 12(3)

of the Rules of 2007 does not appear to be in compliance of the

relevant laws.

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23. Learned trial court has not considered the judgment

referred by learned counsel for the accused Sunil v. State of

Haryana, reported in 2010 Cr.L.R. (SC) 68 on the ground that

the prosecutrix studied only for 100 days in the school, so the

school certificate was not relied upon in the facts and

circumstances of that case. But the reason assigned by learned

trial court appears to be ill-founded. Likewise, judgment referred

by the defence side Pradeep Kumar v. State of Rajasthan,

reported in 2007(3) RCC 953 (Raj.) was also not considered by

the learned trial court on the ground that the incident took place

prior to coming into force the Rules of 2007. This reason is also

not found convincing as the Rules of 2007 are not at all applicable

in determining the age of the victim of rape.

24. In view of the above discussion, the prosecutrix is not

found proved to be a child as defined in Section 2(d) of the POCSO

Act. Thus, the presumption drawn by the learned trial court as per

Section 29 of the POCSO Act is not legally sustainable as it applies

only when the offence is committed against a child.

25. Learned trial court has itself observed that looking to

the statements of the prosecutrix, there is no hesitation to state

that the prosecutrix was a consenting party in respect of the

sexual intercourse. But on the ground that consent of a minor girl

is of no consequence, the Court has convicted the accused for the

offences under Section 376 IPC and Section 3/4 of the POCSO Act.

But after having concluded that the prosecution has failed to prove

that the prosecutrix was minor in age, basis of convicting the

accused persons for the aforesaid offences is clearly washed away.

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Further, the learned trial court has convicted the accused for the

offences under Sections 363 and 366A of IPC. Basic ingredients of

these offences are also the minority of the victim. So no ground

remains to uphold the conviction for these offences also, as the

prosecutrix is found to be of major age.

26. In light of the above, the conviction recorded by the

learned trial court against the accused-appellant for the offences

under Sections 363, 366A and 376 IPC and under Section 3/4 of

the POCSO Act cannot be sustained as the prosecutrix is not found

proved to be minor in age. Further, she had been a consenting

party in the sexual intercourse with the accused.

27. In the result, the appeal preferred by the accused-

appellant is allowed and the judgment dated 27.6.2016 passed by

the learned trial court is quashed and set-aside.

(DEEPAK MAHESHWARI)J.

Rm/-