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Govind Saini vs The State Of Madhya Pradesh Thr. on 14 August, 2019

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HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
*****************
SB:- Hon’ble Shri Justice G. S. Ahluwalia

CRA No. 537/2015

Appellant ——————– Govind Saini

Vs.

Respondent ——————The State of MP

Shri Girraj Soni, Counsel for the appellant.
Shri Aditya Singh, Public Prosecutor for the respondent/ State.

JUDGMENT

(Delivered on 14/08/2019)

Per G. S. Ahluwalia, J:-

This Criminal Appeal under Section 374 of Cr.P.C. has been filed

against the judgment and sentence dated 24/04/2015, passed by Special

Judge Additional Sessions Jude (SC ST, Prevention of Atrocities

Act), Guna in Special Sessions Trial No.43 of 2014, by which the

appellant has been convicted and sentenced as under :

1 Under Sections 363, 7 years RI and fine of Rs.2,000/- in
366 of SectionIPC default, two years RI
2 Under Section 376(2) Section10 years R.I. and fine of Rs.1,000/

(i) and (n) of SectionIPC in default, one year RI
3 Under Section 6 of 10 years R.I. and fine of Rs.1,000/
POCSO Act, 2012 in default, one year RI
4 Under Section 506-B of Three months RI and fine of
SectionIPC Rs.500/- in default, one month RI

All the sentence have been directed to run concurrently.

(2) It appears that the appellant was never granted bail during trial as

well as during appeal and he is in jail.

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(3) According to the prosecution case, on 23/04/2014 at about 08:00

am, a guminsaan report was lodged by Gajananda Bunkar to the effect

that on 22/04/2014 at about 12:00 pm, the prosecutrix and her younger

sister Kamla Bai had gone to market for selling tomatoes from where the

prosecutrix went away without informing anybody. An enquiry was

conducted and the prosecutrix was recovered. The prosecutrix informed

that on 22/04/2014 the appellant allured her of performing marriage and

took her to his house and committed rape on her. Accordingly, FIR in

Crime No. 117/2014 was registered for offence under Sections 363, Section366,

Section376, Section506 of IPC and Section 3(1)(xii) of Scheduled Castes and SectionScheduled

Tribes (Prevention of Atrocities) Act. The copy of the FIR was sent to

JMFC, Raghogarh. During investigation, the school admission register of

the prosecutrix and her caste certificate were seized. Her recovery

pachnama was prepared. She was handed over to the custody of her

father. Spot map was prepared. The mark sheet of the prosecutrix of

education session 2011-12 was seized. The prosecutrix was sent for

medical examination and her MLC report [MLC report is Ex.P12 (by

mistake, it has been marked as Ex.P12, therefore, for the sake of clarity,

the MLC report Ex.P12 would be referred as MLC report Ex.12-A)] was

obtained. The vaginal slides, swabs and clothes of the prosecutrix were

seized vide seizure memo Ex.P13. The appellant was arrested vide arrest

memo Ex.P13 (by mistake, it has been marked as Ex.P13, therefore, for

the sake of clarity, the arrest memo Ex.P13 would be referred as arrest

memo Ex.P13-A). The appellant was sent for medical examination.

Requisition is Ex.P8 and his MLC report is Ex.P8A. The underwear,

slides etc. of the appellant were seized vide seizure memo Ex.P9. The
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seized articles were sent to FSL, Gwalior vide memo Ex.P14 and the FSL

report is Ex.C1. The statements of the witnesses were recorded and after

completing the investigation, the police filed the charge sheet under

Sections 363, Section366, Section376 and Section506 of IPC as well as under Section 3(1)(xii)

of Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities) Act

and under Section 4 of POCSO Act, 2012.

(4) The Trial Court by order dated 12/06/2014 framed the charges

under Section 363, Section366 of IPC and under Section 6 of the POCSO Act,

2012 or in the alternative under Section 376 (2)(i) and (n) of SectionIPC as well

as under Section 506 Part II of IPC. Charges under Sections 3(1)(xii) and

Section3(2)(v) of Scheduled Castes and SectionScheduled Tribes (Prevention of

Atrocities) Act were framed.

(5) The appellant adjured his guilt and pleaded not guilty.

(6) The prosecution, in order to prove its case, examined Smt. Muni

Devi (PW1), Shailendra Sahu (PW2), Prosecutrix (PW3), Kamla (PW4),

Gajananda (PW5), Kusum Bai (PW6), Dr. RB Singh Dhakad (PW7),

Shankar Lal (PW8), Durga Prasad Jatav (PW9), Abdul Rahoof Khan

(PW10), Dr. Sadhna Verma (PW11) and Mubarak Ali (PW12). The

appellant did not examine any witness in his defence.

(7) The Trial Court by the impugned judgment and sentence acquitted

the appellant for offence under Sections 3(1)(xii) and Section3(2)(v) of

Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities) Act

and convicted the appellant for offence under Sections 363, Section366, Section376(2)

(i) and (n), 506-B of SectionIPC as well as under Section 6 of POCSO Act, 2012

and sentenced him accordingly.

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(8) Challenging the judgment and sentence passed by the Court below,

it is submitted by Counsel for the appellant that in fact, the prosecutrix

was major and she was a consenting party and the trial Court has

committed an illegality by relying upon the school admission register

because the prosecution has failed to prove the basis for recording of date

of birth of the prosecutrix in the school admission register. It is further

submitted that the appellant is in jail from the date of his arrest i.e.

17/05/2014 and he has already undergone the actual jail sentence of more

than five years and, therefore, the sentence already undergone by the

appellant is sufficient to meet the ends of justice.

(9) Per contra, it is submitted by the counsel for the State that the

prosecutrix was minor and her date of birth is 01/08/1998, whereas the

incident took place on 22/04/2014. Thus, the prosecutrix was aged about

15 years and 8 months on the date of incident. Thus, she was below 18

years. Whether the prosecutrix was a consenting party or not, is

immaterial because she was minor.

(10) Heard the learned Counsel for the parties.

(11) It appears that the appellant had claimed himself to be a juvenile

and by order dated 11/06/2014, he was declared to be above 18 years. It

appears that the said order was challenged by the appellant filing a

criminal revision before this Court which was registered as Criminal

Revision No.501/2014 and the matter was remanded back to hold an

enquiry and thereafter, to adjudicate that whether the appellant is a

juvenile or not ? Accordingly, an enquiry was conducted and by order

dated 24/11/2014, it was held that the appellant was more than 18 years
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on the date of incident.

(12) Before considering the fact that whether the prosecutrix was a

consenting party or not, this Court is of the considered opinion that it

would be appropriate to adjudicate the age of the prosecutrix.

(13) Smt. Muni Devi (PW1) has stated that she is working as in-charge

Head Master in Government Girls’ Primary School, Raghogarh. She had

brought the school admission register. On 17/10/2006, the prosecutrix

was admitted in Class-I and her name is at Serial No.1135. The

prosecutrix was given admission by this witness and school register is in

the handwriting of this witness. As per the school register, the date of

birth of the prosecutrix is 1/8/1998. She had given the transfer certificate

of the prosecutrix on 15/06/2012 after completing 5 th Class Examination.

The school admission register is Ex.P1 and its photo copy is Ex.P1C and

the transfer certificate bears the signatures of this witness. In cross-

examination, this witness has admitted that they keep the record in the

school and they also mention the basis on which the date of birth is

recorded. She could not disclose that on what basis the date of birth of

the prosecutrix was recorded. She further stated that she had given the

admission to the prosecutrix and signatures of the parents were not

obtained in the school admission register but they were obtained on the

admission form. This witness further denied that she had written the date

of birth out of imagination.

(14) Shailendra Sahu (PW2) has proved the caste certificate of the

prosecutrix.

(15) Prosecutrix (PW3) has stated that the incident took place on 22 nd
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day. It was about 02:00 in the after noon. She was accompanied by her

younger sister Kamla. She went to take polythene. The appellant met

with her near a mosque and gave chironji prasad. Then, on the pretext of

marriage, he took her to his house and committed rape on her twice. The

appellant kept her with him for two days and thereafter, somebody

informed the police on telephone. When the appellant came to know that

her parents have got the information, then the mother of the appellant

allowed her to board a tempo. Thereafter, the prosecutrix came back and

informed the incident to her parents. When a question was put to this

witness as to what is the meaning of ”Burakam”, then this witness kept

quite and again reiterated that ”Burakam” was done. It is further

submitted that when she had objected to ”Burakam”, then the appellant

had extended a threat. The prosecutrix went to the police station along

with her parents. Some written work was done by the police. Her

recovery memo Ex.P3 was prepared. She further stated that she must be

aged about 14 years. She was got medically examined and spot map

Ex.P4 was prepared. In cross-examination, she has stated that at about

1:30 in the afternoon, she left the house for selling the tomatoes. Her

mother was also accompanying her and after leaving her in the market,

her mother went back after half an hour. She further stated that the

appellant met with her at the place where she had gone to purchase the

polythene. However, she denied that she had given polythene to her

sister. The prosecutrix was cross-examined in detail in order to show that

she was a consenting party. On the question of age, she admitted that her

father had got her horoscope prepared which was kept in the house.

However, she expressed that she does not know whether such horoscope
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was given to the police personel or not. She further denied that no threat

was extended by the appellant. She further denied that her age is not 14

or 16 years age. She further denied that she is aged about 19-20 years.

(16) Kamla (PW4) is the younger sister of the prosecutrix. She has

stated that on 22nd, she had gone along the prosecutrix for selling

tomatoes. The prosecutrix left her on the pretext that she is going to

purchase the polythene and thereafter, did not return back. The

prosecutrix came back after two days. The prosecutrix informed her

parents. This witness was told by the prosecutrix that the appellant had

taken her to his house and committed rape on her twice. This witness was

also cross-examined in detail.

(17) Gajananda (PW5), is the father of the prosecutrix, who has stated

that the prosecutrix is aged about 14 years. Since the prosecutrix did not

return back, therefore, guminsaan report Ex.P5 was lodged. This witness

had tried to search the prosecutrix at several places, however, she came

back after two days. The prosecutrix informed that when she went to

market for purchasing polythene, the appellant on the pretext of marriage

took her to his house and committed rape on her and a threat was also

extended. Accordingly, he took the prosecutrix to the police station where

recovery memo Ex.P3 was prepared. The prosecutrix was sent for

medical examination. The prosecutrix was handed over to the custody of

this witness vide custody memo Ex.P6 and the mark sheet of Class-5 th of

the prosecutrix is Ex.P8. In cross-examination, this witness could not

disclose that on what date he got married. However, he has stated that at

the time of marriage he was still studying. It is further stated that his

father had already expired and he was residing with his mother. His
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marriage was performed in Guna Sameelan. After two years of his

marriage, his eldest daughter Krishna Bai was born and two years from

thereafter, his son Tarachand was born and two years from thereafter, the

prosecutrix was born. All children were born in the house. He further

stated that his daughter and wife had gone to market for selling the

vegetables and after leaving his daughters in the market, his wife had

come back because he was not well. After the prosecutrix came back, he

immediately came to the police station. The guminsaan report was not

lodged on the same day because they were searching for the prosecutrix

and accordingly, the FIR was lodged on the next day.

(18) Kusum Bai (PW6) is the mother of the prosecutrix. She has also

stated that on 22nd, she had gone to market along with the prosecutrix and

another daughter Kamla for selling tomatoes. After leaving the daughters

at Sitlamata Temple, she came back. After four-five hours when she went

to Sitlamata Temple, then the prosecutrix was not there. On enquiry, her

younger daughter Kamla informed that the prosecutrix had gone for

purchasing the polythene. The prosecutrix was searched but she was not

found and accordingly, the report was lodged. The prosecutrix was aged

15 years. After two days, the prosecutrix came back and informed that

on the pretext of marriage, the appellant had taken her and had

committed ”Galatkam”. Thereafter, the prosecutrix was taken to the

police station where recovery memo Ex.P3 was prepared. The

prosecutrix was sent for her medical examination. She was handed over

to the custody of her parents vide custody memo Ex.P6. The spot map

Ex.P4 was prepared by the police. The caste certificate was seized vide

seizure memo Ex.P7. In cross-examination, this witness could not
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explain that in which year and on what date, the prosecutrix was born.

Her elder daughter is Krishna Bai, however, she could not disclose the

date of birth of her elder daughter. She has stated that she had gone to

school for getting the prosecutrix admitted. As the horoscope of the

prosecutrix was not prepared, therefore, the prosecutrix was admitted in

the school at the age of 6 years. After completing her studies in Primary

School, she was admitted in different schools. She admitted that the date

of birth of the prosecutrix was disclosed by imagination and she had

merely disclosed the age of the prosecutrix.

(19) Dr.RB Singh Dhakad (PW7) had medically examined the appellant

and he was found competent. His semen slides were prepared and

underwear was sealed. MLC report is Ex.P8A. In cross-examination, he

stated that if any person commits rape with a minor girl, then there is a

possibility of sustaining the injury in the penis.

(20) Shankar Lal (PW8) had seized the slides as well as clothes of the

appellant vide seizure memo Ex.P9.

(21) Durga Prasad Jatav (PW9) had enquired the guminsaan report. On

24/04/2014, the prosecutrix was brought by her parents and accordingly,

the recovery memo Ex.P3 was prepared. The statements of the witnesses

were recorded and on 24/04/2014 itself FIR in Crime No.117/2014 for

offence under Sections 363, Section366, Section376, Section506 of IPC and under Section 3(1)

(xii) of Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities)

Act was registered which is Ex.P10. A counter-copy of the FIR was sent

to the Court of JMFC, Raghogarh and the acknowledgment receipt is

Ex.P11. The prosecutrix was sent for medical examination to Raghogarh
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Hospital by requisition Ex12. The consent of the prosecutrix and her

parents was obtained and after medical examination, she was handed

over to her parents vide custody memo Ex.P6 and thereafter, the diary

was forwarded to police station AJK, Guna. In cross-examination, this

witness has stated that the horoscope of the prosecutrix was not given by

her parents.

(22) Abdul Rafooq Khan (PW10) is the scribe of guminsaan report

Ex.P5. On 24/04/2014, this witness had seized three sealed packets and

one specimen of seal brought by Head Constable Dashrath from the

Hospital Raghogarh vide seizure memo Ex.P13.

(23) Dr.Sadhna Verma (PW11) had medically examined the prosecutrix.

She had stated that the prosecutrix was unmarried and no external injury

was found on her body. Her hymen was torn and two fingers were easily

admitting. The vaginal slides of pubic hairs, vaginal swab and vaginal

smear in sealed cover were prepared and handed over to Head Constable.

Since the prosecutrix was wearing clean clothes, therefore, they were not

seized. No definite opinion could be given about the sexual intercourse

and for determination of her age, she advised for X-ray. The MLC report

is Ex.P12-A. In cross-examination, she admitted that the age in MLC

report was written as per the information given by the prosecutrix.

However, she admitted that specific opinion about the age of the

prosecutrix can be given only after X-ray was done. However, she

expressed her ignorance as to whether the X-ray of the prosecutrix was

done or not. She further admitted that it is possible that the prosecutrix

was habitual to intercourse.

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(24) Mubarak Ali (PW12) is the Investigating Officer who had stated

that the spot map Ex.P4 was prepared. The statements of the witnesses

were recorded. The date of birth certificate was obtained on 04/05/2014

from Govt. Girls’ Primary School, Raghogarh. On 07/05/2014 , the father

of the prosecutrix had given the photo copy of the caste certificate which

was seized vide seizure memo Ex.7. On 12/05/2014, the statement of the

prosecutrix under Section 164 of CrPC was got recorded. On 17/05/2014,

the appellant was arrested vide arrest memo Ex.P13-A and on the same

day, requisition Ex.P8-A was sent for his medical examination. A draft

for sending sealed articles to FSL is Ex.P14. In cross-examination, this

witness has admitted that he had not interrogated any person residing in

the locality.

(25) For proving the age of the prosecutrix, the prosecution has relied

upon the school admission register Ex.P1 as well as her mark sheet of

Class 5th Ex.P8. In both these documents, the date of birth of the

prosecutrix has been mentioned as 1/8/1998. Although there appears

some overwriting in the date of birth mentioned in the mark sheet Ex.P8,

but there is no overwriting in the school admission register Ex.P1.

(26) The Supreme Court in the case of Jarnail Singh Vs State of

Haryana reported in (2013) 7 SCC 263 has held as under :-

”22. On the issue of determination of age of a
minor, one only needs to make a reference to Rule 12
of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred to as “the
2007 Rules”). The aforestated 2007 Rules have been
framed under Section 68(1) of the Juvenile Justice
(Care and SectionProtection of Children) Act, 2000. Rule 12
referred to hereinabove reads as under:

“12. Procedure to be followed in
determination of age.–(1) In every case
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concerning a child or a juvenile in conflict with
law, the court or the Board or as the case may
be, the Committee referred to in Rule 19 of
these Rules shall determine the age of such
juvenile or child or a juvenile in conflict with
law within a period of thirty days from the date
of making of the application for that purpose.

(2) The court or the Board or as the case may
be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the
case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance
or documents, if available, and send him to the
observation home or in jail.

(3) In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted by the
court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining–

(a)(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;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical
opinion will be sought from a duly
constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot be
done, the court or the Board or, as the case
may be, the Committee, for the reasons to
be recorded by them, may, if considered
necessary, give benefit to the child or
juvenile by considering his/her age on
lower side within the margin of one year,
and, while passing orders in such case shall,
after taking into consideration such evidence as
may be available, or the medical opinion, as the
case may be, record a finding in respect of his
age and either of the evidence specified in any
of the clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive proof
of the age as regards such child or the juvenile
in conflict with law.

(4) If the age of a juvenile or child or the
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juvenile in conflict with law is found to be
below 18 years on the date of offence, on the
basis of any of the conclusive proof specified in
sub-rule (3), the court or the Board or as the
case may be the Committee shall in writing
pass an order stating the age and declaring the
status of juvenility or otherwise, for the purpose
of the Act and these Rules and a copy of the
order shall be given to such juvenile or the
person concerned.

(5) Save and except where, further inquiry
or otherwise is required, inter alia, in terms of
Section 7-A, Section 64 of the Act and these
Rules, no further inquiry shall be conducted by
the court or the Board after examining and
obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of
this Rule.

(6) The provisions contained in this Rule
shall also apply to those disposed of cases,
where the status of juvenility has not been
determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring
dispensation of the sentence under the Act for
passing appropriate order in the interest of the
juvenile in conflict with law.”

23. Even though Rule 12 is strictly applicable
only to determine the age of a child in conflict with
law, we are of the view that the aforesaid statutory
provision should be the basis for determining
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 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 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),
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
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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
such entry, Rule 12(3) postulates reliance on a birth
certificate issued by a corporation or 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 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.

The Supreme Court in the case of State of Chhattisgarh Vs.

Lekhram reported in (2006) 5 SCC 736 has held as under :
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12. A register maintained in a school is admissible
in evidence to prove date of birth of the person
concerned in terms of Section 35 of the Evidence
Act. Such dates of births are recorded in the school
register by the authorities in discharge of their public
duty. PW 5, who was an Assistant Teacher in the said
school in the year 1977, categorically stated that the
mother of the prosecutrix disclosed her date of birth.
The father of the prosecutrix also deposed to the said
effect.

13. The prosecutrix took admission in the year
1977. She was, therefore, about 6-7 years old at that
time. She was admitted in Class I. Even by the
village standard, she took admission in the school a
bit late. She was married in the year 1985 when she
was evidently a minor. She stayed in her in-laws’
place for some time and after the “gauna” ceremony,
she came back. The materials on record as regards
the age of the prosecutrix were, therefore, required to
be considered in the aforementioned backdrop. It
may be true that an entry in the school register is not
conclusive but it has evidentiary value. Such
evidentiary value of a school register is corroborated
by oral evidence as the same was recorded on the
basis of the statement of the mother of the
prosecutrix.

14. Only because PW 3 the father of the
prosecutrix could not state about the date of birth of
his other children, the same, by itself, would not
mean that he had been deposing falsely. We have
noticed hereinbefore, that he, in answer to the queries
made by the counsel for the parties, categorically
stated about the year in which his other children were
born. His statement in this behalf appears to be
consistent and if the said statements were
corroborative of the entries made in the register in the
school, there was no reason as to why the High Court
should have disbelieved the same. We, therefore, are
of the opinion that the High Court committed a
serious error in passing the impugned judgment. It
cannot, therefore, be sustained. It is set aside
accordingly.

The Supreme Court in the case of Murugan VS. State of T.N.

reported in (2011) 6 SCC 111 has held as under :

24. The documents made ante litem motam can be
relied upon safely, when such documents are
admissible under Section 35 of the Evidence Act,
1872. (Vide Umesh Chandra v. State of Rajasthan
and SectionState of Bihar v. Radha Krishna Singh.)
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25. This Court in SectionMadan Mohan Singh v. Rajni
Kant considered a large number of judgments
including SectionBrij Mohan Singh v. Priya Brat Narain
Sinha, SectionBirad Mal Singhvi v. Anand Purohit, SectionUpdesh
Kumar v. Prithvi Singh, SectionState of Punjab v. Mohinder
Singh, SectionVishnu v. State of Maharashtra and SectionSatpal
Singh v. State of Haryana and came to the
conclusion that while considering such an issue and
documents admissible under Section 35 of the
Evidence Act, the court has a right to examine the
probative value of the contents of the document. The
authenticity of entries may also depend on whose
information such entry stood recorded and what was
his source of information, meaning thereby, that such
document may also require corroboration in some
cases.

26. In the instant case, in the birth certificate
issued by the Municipality, the birth was shown to be
as on 30-3-1984; registration was made on 5-4-1984;
registration number has also been shown; and names
of the parents and their address have correctly been
mentioned. Thus, there is no reason to doubt the
veracity of the said certificate. More so, the school
certificate has been issued by the Headmaster on the
basis of the entry made in the school register which
corroborates the contents of the certificate of birth
issued by the Municipality. Both these entries in the
school register as well as in the Municipality came
much before the criminal prosecution started and
those entries stand fully supported and corroborated
by the evidence of Parimala (PW 15), the mother of
the prosecutrix. She had been cross-examined at
length but nothing could be elicited to doubt her
testimony. The defence put a suggestion to her that
she was talking about the age of her younger
daughter and not of Shankari (PW 4), which she
flatly denied. Her deposition remained unshaken and
is fully reliable.

The Supreme Court in the case of Mukarrab v. State of U.P.

reported in (2017) 2 SCC 210 has held as under :

26. Having regard to the circumstances of this
case, a blind and mechanical view regarding the age
of a person cannot be adopted solely on the basis of
the medical opinion by the radiological examination.
At p. 31 of Modi’s Textbook of Medical
Jurisprudence and Toxicology, 20th Edn., it has been
stated as follows:

“In ascertaining the age of young persons
radiograms of any of the main joints of the
17

upper or the lower extremity of both sides of
the body should be taken, an opinion should be
given according to the following Table, but it
must be remembered that too much reliance
should not be placed on this Table as it merely
indicates an average and is likely to vary in
individual cases even of the same province
owing to the eccentricities of development.”

Courts have taken judicial notice of this fact and
have always held that the evidence afforded by
radiological examination is no doubt a useful
guiding factor for determining the age of a person
but the evidence is not of a conclusive and
incontrovertible nature and it is subject to a margin
of error. Medical evidence as to the age of a person
though a very useful guiding factor is not conclusive
and has to be considered along with other
circumstances.

27. In a recent judgment, SectionState of M.P. v. Anoop
Singh, it was held that the ossification test is not the
sole criteria for age determination. Following Babloo
Pasi and Anoop Singh cases, we hold that
ossification test cannot be regarded as conclusive
when it comes to ascertaining the age of a person.
More so, the appellants herein have certainly crossed
the age of thirty years which is an important factor to
be taken into account as age cannot be determined
with precision. In fact in the medical report of the
appellants, it is stated that there was no indication for
dental x-rays since both the accused were beyond 25
years of age.

28. At this juncture, we may usefully refer to an
article “A study of wrist ossification for age
estimation in paediatric group in Central Rajasthan”,
which reads as under:

“There are various criteria for age
determination of an individual, of which
eruption of teeth and ossification activities of
bones are important. Nevertheless age can
usually be assessed more accurately in younger
age group by dentition and ossification along
with epiphyseal fusion.

[Ref.: Gray H. Gray’s Anatomy, 37th Edn.,
Churchill Livingstone Edinburgh London
Melbourne and New York: 1996; 341-342];
A careful examination of teeth and
ossification at wrist joint provide valuable data
for age estimation in children.

[Ref.: Parikh C.K. Parikh’s Textbook of
Medical Jurisprudence and Toxicology, 5th
Edn., Mumbai Medico-Legal Centre Colaba:

18

1990; 44-45];

* * *
Variations in the appearance of centre of
ossification at wrist joint shows influence of
race, climate, diet and regional factors.
Ossification centres for the distal ends of radius
and ulna consistent with present study vide
article “A study of wrist ossification for age
estimation in paediatric group in Central
Rajasthan” by Dr Ashutosh Srivastav, Senior
Demonstrator and a team of other doctors,
Journal of Indian Academy of Forensic
Medicine (JIAFM), 2004; 26(4). ISSN 0971-
0973].”

(27) When the prosecutrix was being admitted in Class-I in the Primary

School, nobody had imagined that the said incident may take place.

Therefore, there was no reason to disclose an incorrect date of birth to

falsely implicate the appellant. Smt. Munni Devi (PW1) has specifically

stated that the school admission register is Ex.P1C is in her handwriting.

Therefore, this Court is of the considered opinion that there is no reason

to disbelieve the date of birth of the prosecutrix mentioned in the school

admission register and accordingly, it is held that the date of birth of the

prosecutrix is 1/8/1998. Since the incident took place on 22/04/2014,

therefore, it is clear that the prosecutrix was aged about 15 years and 8

months on the date of incident, i.e. she was below 18 years of age.

(28) So far as the submission made by the counsel for the appellant that

since the prosecutrix was a consenting party, therefore, no offence is

made out is concerned, it is suffice to say that when the prosecutrix is

minor below 18 years of age, then her consent becomes immaterial,

therefore, it is not necessary to burden this judgment by finding out

whether the prosecutrix was a consenting party or not. It is sufficient to

hold that since the prosecutrix was below 18 years on the date of
19

incident, therefore, her consent is immaterial and the prosecution has

established beyond reasonable doubt that the appellant has committed an

offence under Sections, 363,366, 376(2)(i) and (n), 506 Part II of SectionIPC and

under Section 6 of POCSO Act, 2012. Although the Trial Court has

awarded separate sentence of rigorous imprisonment of ten years for

offence under Section 376(2)(i) and (n) of SectionIPC as well as for offence

under Section 6 of POCSO Act, 2012, but in the light of Section 71 of

IPC, it is held that no separate sentence is required to be awarded for

offence under Section 376(2)(i) and (n) of SectionIPC.

(29) So far as the question of sentence is concerned, it is submitted by

the counsel for the appellant that as the appellant is in jail from the date

of his arrest i.e. 17/05/2014 and has already undergone more than five

years of actual detention, therefore, the jail sentence undergone by the

appellant is sufficient to meet the ends of justice is concerned, it is

suffice to mention that the minimum sentence for offence under Section 6

of POCSO Act, 2012 as well as for offence under Section 376(2)(i) and

(n) of SectionIPC is rigorous imprisonment of ten years. In absence of any

discretion, the sentence lesser than the minimum sentence cannot be

awarded. Accordingly, the sentence awarded by the Trial Court is hereby

maintained.

(30) Accordingly, the judgment and sentence dated dated 24/04/2015

passed by Special Judge Additional Sessions Jude (SC ST,

Prevention of Atrocities Act), Guna in Special Sessions Trial No. 43 of

2014, is hereby affirmed.

(31) The appellant is in jail. He shall undergo the remaining jail
20

sentence.

(32) The appeal fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

MKB

Digitally signed by
MAHENDRA KUMAR BARIK
Date: 2019.08.14 17:59:50
+05’30’

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