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Lokesh vs State Of Haryana on 27 August, 2019

CRA-D-250-DB-2014 1

IN THE HIGH COURT OF PUNJAB HARYANA AT
CHANDIGARH

1. CRA-D-250-DB-2014

Lokesh

… Appellant

Versus

State of Haryana

… Respondent

2. CRA-D-390-DB-2014

Deepak

… Appellant

Versus

State of Haryana

… Respondent

Reserved on : 16.08.2019
Date of decision : 27.08.2019

CORAM: HON’BLE MR. JUSTICE RAJIV SHARMA
HON’BLE MR.JUSTICE HARINDER SINGH SIDHU

Present: Mr.Yashpal Thakur, Advocate
for the appellants.

Mr.Vivek Saini, DAG, Haryana.

RAJIV SHARMA, J.

Since common questions of law and facts are involved in the

aforesaid appeals, therefore, these are taken up together and disposed of by

a common judgment.

2. These appeals are instituted against the judgment and order

dated 14.01.2014 and 16.01.2014 rendered by the Additional Sessions

Judge, Faridabad, in Sessions Case RBT no.185 of 2013 whereby the

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appellants were charged with and tried for offences under Sections 376-D,

323, 342 and 506 of the Indian Penal Code (in short ‘IPC’) and under

Section 4 of Protection of Children from Sexual Offences (POCSO) Act,

2012. They were convicted thereunder and sentenced as under:-

Name of Offence Period of Fine Period of
Convict under sentence (RI) Imposed sentence in
Section (Rs.) default of
payment of
fine (SI)
Deepak 376-D IPC Twenty years 1,00,000/- One year
323 IPC Six months 1,000/- 7 days
342 IPC Six months 1,000/- 7 days
506 IPC One year 2,000/- 15 days
Lokesh 376-D IPC Twenty years 1,00,000/- One year
323 IPC Six months 1,000/- 7 days
342 IPC Six months 1,000/- 7 days
506 IPC One year 2,000/- 15 days

The punishment was not awarded under Section 4 of POCSO Act, 2012 as

punishment awarded under Section 376-D IPC is greater in degree to

Section 4 of POCSO Act.

3. The case of the prosecution in a nutshell is that on 17.06.2013

SI Mahender Kumar along with HC Pawan Kumar was present at Pyali

Chowk for patrolling and crime detection duty. He received an intimation

from B.K. Hospital, Faridabad, that one girl (name withheld) was admitted

in the hospital in an injured condition. They reached B.K. Hospital.

Complainant Raj Kumar (PW-12) got recorded his statement Ex.PM to the

effect that he was resident of House no.323, Nangla Enclave, Part I, near

Bhadana Chowk, NIT Faridabad. He had seven daughters and two sons. His

daughter (prosecutrix) was number four in the siblings. She was student of

7th standard. On 16.06.2013 his whole family was sleeping on the roof of

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the house. At about 10.00 P.M., his elder daughter Manisha asked the

prosecutrix to put the bench inside which was lying in the street. The

prosecutrix went down. When the prosecutrix did not come back for a long

time on the roof, they went down to find her. They searched for her. When

he was passing by his neighbourhood to search his daughter, he heard the

sound of thud of falling of some heavy object from inside. He looked

through the hole of the wall. He found his daughter lying with her face

down on the floor near the folding bed. Her hands, feet and mouth were tied

with a chunni. He with the help of nephew Harinder and neighbour Babu

Lal broke door. They untied the hands, feet and mouth of his daughter. She

narrated the incident and the manner in which Deepak son of Suraj Pal and

Lokesh son of Sukh Ram caught hold of her forcibly when she had gone

down to put the bench inside. Before she could raise an alarm, they gagged

her and dragged her into a room of the house of Deepak. They put her on the

bed with her mouth, hands and feet tied. Deepak and Lokesh raped her

against her wishes forcibly, turn by turn many times on the same night.

They also administered beating to her. FIR Ex.PD was registered. The

prosecutrix was got medico legally examined. Site plan was prepared.

Statement of the prosecutrix under Section 164 Cr.P.C. was also recorded.

Investigation was completed. Challan was put up after completing all the

codal formalities.

4. The prosecution examined a number of witnesses. Statements

of accused were recorded under Section 313 Cr.P.C. They denied the case of

prosecution. Accused had also examined three witnesses in support of their

case. The appellants were convicted and sentenced, as noticed hereinabove.

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5. Learned counsel appearing on behalf of the appellants has

vehemently argued that the prosecution has failed to prove the case against

the appellants.

6. Learned counsel appearing on behalf of the State has supported

the prosecution case.

7. We have heard learned counsel for the parties and have gone

through the judgment and record very carefully.

8. PW-5 Dr.Saroj Lochab examined the prosecutrix. She led her

evidence by filing affidavit Ex.PW5/A. She had proved copy of MLR

Ex.PF. According to the contents of affidavit Ex.PW5/A, there was no mark

of external injury. Secondary sexual character were well developed. L/E

labia: majora, minora were well developed. Hymen was torn with irregular

healed margins. The prosecutrix was referred to Radiology and Dental

department for age verification. According to Ex.PF, the possibility of

sexual intercourse could not be ruled out.

9. PW-6 Dr.Amardeep Singh had medico legally examined

Lokesh. In his cross-examination, he deposed that accused Deepak was

examined on 18.06.2013 at about 8.03 P.M.

10. PW-1 Rishi Kumar deposed that as per record, name of the

prosecutrix was mentioned at serial no.754 dated 02.04.2012. Her date of

birth was 06.03.1999. She had taken admission in their school in 6th class.

Photostat copy of admission and withdrawal register was Ex.PA. He had

also brought admission form of the prosecutrix. He had seen the certificate

issued by Mrs. Meera Sharma, Headmistress, vide Ex.PC. In his cross-

examination, he admitted that there was overwriting at serial no.754 by

mistake.

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11. PW-2 Harinder deposed that on 16.06.2013 at 10.45 P.M. he

had received a telephonic call from his uncle Raj Kumar that the prosecutrix

had gone missing. He asked him to come. He along with Raj Kumar and

other family members searched for the prosecutrix. Next day, they had also

searched for her but failed. On 17.06.2013 at about 5.00/6.00 P.M. when

they were passing through the house of Deepak, they heard the noise of

falling of some heavy object. When they saw from the hole of wall, they

found the prosecutrix lying on the floor and her hands, legs and mouth were

tied with chunni. They entered in the house of Deepak after breaking its

lock. They had taken out the prosecutrix. The prosecutrix deposed the

manner in which Deepak and Lokesh kidnapped and dragged her inside the

house of Deepak. Both of them committed rape with her without her

consent. In his cross-examination, he admitted that they had not gone to the

police station on that night. He did not go to his house on 17.06.2013 till

evening.

12. PW-8 Sarwan Kumar had prepared site plan Ex.PK on

18.06.2013.

13. The prosecutrix appeared as PW-9. According to her, on

16.06.2013 at about 10.00 P.M., her sister Manisha asked her to go down

stairs and put the bench inside the house. She went down stairs. When she

was placing bench inside her house, accused Deepak and Lokesh came from

the back side and gagged her mouth. They dragged her to the room of

Deepak. They tied her hands and mouth with the dupatta which she was

wearing. When she tried to get herself freed, they gave her severe beatings.

Both of them committed rape with her. They threatened to kill her and her

father. Accused gave kick and fist blows on her breast. She became

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unconscious. On 17.06.2013 in the evening, her father, her cousin and

friends of her father got her freed from the room. After committing rape

with her, the accused ran away from the spot. They locked the door from

outside. They tied her with the dupatta. She was taken to the hospital.

Police recorded her statement Ex.PJ. Her statement under Section 164

Cr.P.C. was got recorded before the Illaqa Magistrate vide Ex.PL. In her

cross-examination, she deposed that her date of birth was 06.03.1999.

Accused Deepak used to reside adjacent to their house in the house of Raju.

Deepak was tenant in the house of Raju. He used to ply tempo. Raju along

with his wife and two children was living in his house. On the day of

occurrence, nobody was available in the house from the family of Deepak

and Raju. Deepak’s wife Shanti came to their house to invite on the birthday

function of her daughter Lovely. She did not attend the function. Her two

younger sisters attended the function. There was house of Akhilesh in front

of the house of Raju. She admitted that her mother filed a complaint against

Shankar for teasing her.

14. PW-11 SI Mohinder Kumar was the investigating officer. He

moved application Ex.PN to seek the opinion of doctor whether the patient

was fit to make statement. He recorded the statement of the prosecutrix

under Section 161 Cr.P.C. He got the prosecutrix medically examined. He

also got prepared site plan Ex.PO. Accused were arrested on 18.06.2013.

Accused Deepak made disclosure statement Ex.PQ. Accused Lokesh made

disclosure statement Ex.PR. Accused were also medico legally examined.

The school certificate of the prosecutrix was obtained, i.e. Ex.PC. In his

cross-examination, he deposed that he did not know why the blood sample

of the accused was taken. There was no DNA report on the file. The chunni

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was not sent for FSL examination.

15. PW-12 Raj Kumar was the father of the prosecutrix. He

testified that on 16.06.2013 at about 10.00 P.M. he along with his family

was sleeping on the roof of his house. His daughter Manisha asked the

prosecutrix that bench was lying in the street. She asked the prosecutrix to

put the bench inside the room. The prosecutrix went down but did not come

back. He searched her. He made telephonic call to his nephew Harinder

Kumar and his neighbour Babu Lal Verma. He informed them about

missing of the prosecutrix. They searched for her. They came back at about

2.30 A.M. In the morning, they also made inquiry from neighbour. When he

was passing through the house of Deepak in the street, he heard the noise of

falling of some article. He peeped through hole in wall in the house of

Deepak. He saw his daughter lying facing ground. Her hands, legs and

mouth were tied with chunni. The prosecutrix told them the manner in

which accused had raper her. Police had come and recorded his statement

Ex.PM. In his cross-examination, he deposed that it was 5.00/6.00 P.M.

when he saw the prosecutrix in the house of Deepak. He and Harinder had

broken the lock of the house of Raju. Raju was present at that time. The

prosecutrix was shifted to BKH, Faridabad. The prosecutrix was discharged

from the hospital on 19.06.2013. He denied the suggestion that one day

prior to the occurrence, function was organized in the house of Deepak and

a quarrel took place between him and Deepak.

16. PW-15 HC Pawan Kumar deposed that from the place of

occurrence, two bed sheets and one chuuni were taken into possession.

Accused were arrested. They were interrogated. They made disclosure

statements Ex.PQ and Ex.PR respectively. Accused were also medico

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legally examined.

17. DW-1 Mukesh Kumar had led his evidence by filing affidavit

Ex.DW1/A. According to the contents of the affidavit, Birbal father of the

deponent expired on 15.06.2013. His brother-in-law Deepak came to the

house of deponent on 15.06.2013 and stayed there upto 18.06.2013.

18. DW-2 Shanti had also led her evidence by filing affidavit

Ex.DW2/A. According to the contents of her affidavit, her father died on

15.06.2013. Deepak and daughter namely Lovely visited to their native

village Nangla Gathauli, Post Jatipura, District Mathura, U.P.

19. DW-3 Shankuntla deposed that on 16.06.2013 she was at her

house. Her family members were at home. Her son Lokesh was working as

AC helper. Her son came from duty at about 05.30 P.M. Police came at

11.30 P.M. and arrested her son.

20. According to FSL report Ex.PX, human semen was detected on

exhibit-3 (underwear), exhibit-4 (underwear) and exhibit-7a (bedsheet).

However, semen could not be detected on rest of the exhibits.

21. The case of the prosecution precisely is that the prosecutrix had

gone down to put the bench inside the house. She was gagged and dragged

by the accused. She was taken to the house of Deepak which he had taken

on rent from Raju. The family members went in search of her. However,

when PW-12 Raj Kumar was searching for her, he heard the sound of thud.

The sound came from the house of Deepak. He peeped through the hole in

wall in the house of Deepak. He saw the prosecutrix inside the room.

22. The statement of the prosecutrix was also recorded under

Section 164 Cr.P.C. Ex.PL. According to her statement recorded before the

Magistrate, on 16.06.2013 she had gone down to bring the bench at about

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10.30 P.M. When she was lifting the bench, accused came from behind.

They gagged her mouth. They took her to their room. She was given

beatings by them. They threatened her. Lokesh went outside the room.

Deepak misbehaved with her. Deepak tied her hands, feet and mouth. He hit

her head against the wall. She became unconscious. They locked the room

from outside and went away. On the next day, she was traced. Police broke

the door and took her out. When she appeared as PW-9, she deposed the

manner in which she was forcibly dragged to the room rented by Deeepak

and she was raped.

23. There is variance in the statement Ex.PL of the prosecutrix

recorded under Section 164 Cr.P.C. and her statement recorded while

appearing as PW-9. In her statement recorded under Section 164 Cr.P.C.,

she has not attributed any role to Lokesh except that he along with Deepak

had given beating to her. According to statement under Section 164 Cr.P.C.,

Lokesh had gone outside the room and Deepak had misbehaved with her.

She further deposed that police broke the door. The prosecutrix in her

statement had deposed that her father had traced her and broke the door to

free her. The prosecutrix in her statement while appearing as PW-9 had

deposed that there was function in the house of Deepak. Her family

members were called. Her few family members had attended the function.

However, PW-12 Raj Kumar had denied the function organized in the house

of Deepak. According to the prosecutrix, Raj Kumar landlord of Deepak

was not present. However, it has come in the statement of PW-12 Raj

Kumar that when the door was opened, Raj Kumar was present on the spot.

24. The prosecution has placed on record two site plans Ex.PK and

Ex.PO where the incident had taken place. According to PW-2 Harinder,

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when they were passing through the house of Deepak, they heard the noise

of falling some heavy object on 17.06.2013 at about 5.00/6.00 P.M. They

saw from the holes of wall. The same version was of PW-12 Raj Kumar,

father of the prosecutrix. However, in the site plans, no hole was shown

from which PW-2 Harinder and PW-12 Raj Kumar had seen the prosecutrix

in the room.

25. The case of the prosecution throughout is that the prosecutrix’s

hands, feet and mouth were tied. She was found in the same condition when

the door was opened. In these conditions, she could not move. Thus, the

theory of prosecution that PW-2 Harinder and PW-12 Raj Kumar had heard

the noise of thud, cannot be believed.

26. The statement made by the prosecutrix under Section 164

Cr.P.C. was voluntary as per questions put to her by the JMIC, Faridabad,

on 20.06.2013. She was not under any pressure also. She went to the Court

along with parents, brother and police. In her cross-examination, the

prosecutrix deposed that on the evening she raised an alarm to save herself.

She could not tell the exact time. Her father, brother and friend of father

came there to save her. She could not tell whether any person from

neighbourhood came on the spot or not. This is also contrary to the

statement of PW-2 Harinder and PW-12 Raj Kumar. According to them,

they heard the noise and peeped through holes inside the room. However,

the prosecutrix in her cross-examination deposed that she raised an alarm

which attracted the family members to save her. In her statement recorded

under Section 164 Cr.P.C. she had not averred single word being raped by

the accused.

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27. The Division Bench of the Allahabad High Court in State of

U.P. vs. Raees Ahmad, 2011(7) RCR (Criminal) 2303 has discarded the

statement made by the prosecutrix while appearing as witness made

contrary to her statement recorded under Section 164 Cr.P.C. The Division

Bench held as under:-

“As per the statement of the victim recorded during trial,
the accused came to her at about 3:00 – 4:00 A.M. and
took her out of the house after threatening her with a
country made pistol and also committed rape with her.
She was taken from village Rasoola Talib Hussain to
village Richhaula and from village Ricchaula to
Bakainia. Later she was again brought back to village
Richhaula. When both of them were going from village
Ricchaula to some other place, they were apprehended
by the police. In cross-examination, the victim admitted
that in her statement recorded under section 164 Cr.P.C.
she stated that she had enticed Raees Ahmad and had
gone with him out of her own sweet will and nothing was
done with her against her wishes and that she wanted to
marry Raees, but she gave an explanation that the
statement under section 164 Cr.P.C. was given by her
out of fear of the accused. This explanation can hardly
be accepted. The statement under section 164 Cr.P.C.
was recorded in Court of the Magistrate and at that time
the accused was in custody and was in jail. She could
have freely stated the facts. It can hardly be believed that
she gave her statement under section 164 Cr.P.C. under
any pressure or undue influence. She was given in the
supurdgi of her parents and after a long span of time
when the victim was examined in Court, she changed her
version and alleged that she was kidnapped and raped
by the respondent.”

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In the present case, the prosecutrix has made major

improvements with her statement made under Section 164 Cr.P.C. when she

appeared as PW-9.

28. We have also gone through the record Ex.PA. Two lines

mentioning serial no.754 and 755 were left blank. Thereafter, serial no.754

dated 02.04.2012 was written and there is overwriting at serial no.754.

There is also over writing on the name of prosecutrix. The admission was

closed as per signatures of the Headmistress against the entry of name of

one Sangita on 01.05.2011. Nine candidates have been admitted in Sessions

2012-2013 but at page 81 of the paper book, it is mentioned that admission

was closed at serial no.753 on 24.04.2011. The Nav Bharat High School is a

private school. Thus, presumption under Section 35 of the Evidence Act is

not attracted in this case. According to Ex.PC, the date of birth of the

prosecutrix was 06.03.1999. It is clear from Ex.PB that the prosecutrix has

sought admission in 6th standard in Nav Bharat High School. In the

application, the name of the school from which she sought her transfer is

not mentioned. The reasons for leaving earlier school has not been

mentioned and column no.11 has been left blank. The certificate has been

issued by Mrs. Meera Sharma, Headmistress, Nav Bharat High School,

dated 17.06.2013, but she has not been examined.

In the instant case, in the certificate the name of original school

from which the prosecutrix was transferred is not mentioned.

29. Their Lordships of the Hon’ble Supreme Court in Jagtar Singh

vs. State of Punjab, AIR 1993 Supreme Court 2448 have held that when in

the certificate name of original school from which student was transferred,

was not mentioned, such certificate could not be relied upon for proving age

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of the accused. Their Lordships have held as under:-

“1. Originally, there were four accused charged for
the murder of the victim Kulwant Singh. The present
appellant was one of the four accused. He was charged
for the offence under Section 302, Indian Penal
Code (the ‘IPC’) as well as under Section 307 read
with Section 34, IPC. The rest three accused were
charged for the offence under Section 302 read
with Section 34 as well as under Section 307 read with
Section 34, IPC. Since the victim was only Kulwant
Singh for whose death the accused were charged
under Section 302, IPC we have not understood the
charge framed by the learned Sessions Judge
under Section 307, IPC also in connection with the
same murder. Nor have we followed the conviction of the
present appellant under Section 307 read with Section
34 in addition to his conviction under Section 302 of
IPC. It further appears that the High Court has not
noticed this anomaly in the convictions and sentences
both under Section 302 and Section 307 read
with Section 34, of the present appellant.

The facts are in a narrow compass and the finding
recorded by both the courts below can hardly be
challenged, namely, that it was the appellant who had
inflicted the three fatal injuries on the chest of the
victim, as a result of which the victim met with his death.
We are, therefore, not inclined to interfere with the said
finding of fact and the conviction of the appellant
under Section 302, IPC.

Mr Sushil Kumar, learned counsel appearing as
amicus curiae for the appellant, however, contended that
on the date of the incident, i.e. August 31, 1976, the
appellant was below 16 years, his date of birth being
May 4, 1961, as per the school leaving certificate. This

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certificate was produced in this Court at the time of
seeking special leave and the enlargement of the accused
on bail. There is no dispute that this certificate states
that the appellant- Jagtar Singh was admitted into the
school in question on September 26, 1975 and he left the
school while he was reading in the 8th standard.
However, mysteriously, the certificate does not mention
the name of the school from which the transfer
certificate was obtained and on the basis of which
certificate the appellant was admitted to the school. It is
not disputed that the date of birth which is given in the
certificate produced in this Court is based on the date
mentioned in the transfer certificate. Since the name of
the school from which the transfer certificate is obtained
itself is absent from this certificate, no reliance can be
placed on the said certificate. This is apart from the fact
that there are certain further facts which have come on
the record in this connection.”

30. Their Lordships of the Hon’ble Supreme Court in Madan

Mohan Singh and others vs. Rajni Kant and another, (2010) 9 Supreme

Court Cases 209 have held that best evidence qua age is of parents. Their

Lordships further held that the entries in school register/school leaving

certificate are required to be proved in accordance with law and the standard

of proof required in such cases remained the same as in any other civil or

criminal cases. If a person wants to rely on a particular date of birth and

wants to press a document in service, he has to prove its authenticity in

terms of Section 32(5) or Sections 50, 51, 59, 60 and 61 etc. of the Evidence

Act by examining the person having special means of knowledge,

authenticity of date time, etc. mentioned therein. Their Lordships have held

as under:-

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“17. In State of Bihar Vs. Radha Krishna Singh, AIR
(1983) 3 SCC 118, this Court dealt with a similar
contention and held as under:-

“40…..Admissibility of a document is one thing
and its probative value quite another – these two
aspects cannot be combined. A document may be
admissible and yet may not carry any conviction
and weight of its probative value may be nil.

* * *

53…….where a report is given by a responsible
officer, which is based on evidence of witnesses
and documents and has a statutory flavour in that
it is given not merely by an administrative officer
but under the authority of a Statute, its probative
value would indeed be very high so as to be
entitled to great weight.

* * *

145.(4) The probative value of documents which,
however ancient they may be, do not disclose
sources of their information or have not achieved
sufficient notoriety is precious little.”

18. Therefore, a document may be admissible, but as
to whether the entry contained therein has any probative
value 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

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Raj Vs. Bodh Raj AIR 2008 SC 632; and Ram Suresh
Singh Vs. Prabhat Singh (2009) 6 SCC 681. In these
cases, it has been held that even if the entry was made in
an official record by the official concerned 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.

xxx xxx xxx

20. So far as the entries made in the official record by
an official or person authorised in performance of
official duties are concerned, they may be admissible
under Section 35 of the Evidence Act but the court has a
right to examine their probative value. The authenticity
of the entries would depend on whose information such
entries stood recorded and what was his source of
information. The entry in School Register/School
Leaving Certificate require to be proved in accordance
with law and the standard of proof required in such
cases remained the same as in any other civil or criminal
cases.

xxx xxx xxx

22. If a person wants to rely on a particular date of
birth and wants to press a document in service, he has to
prove its authenticity in terms of Section 32
(5) or Sections 50, 51, 59, 60 61 etc.of the Evidence
Act by examining the person having special means of
knowledge, authenticity of date, time etc. mentioned
therein. (Vide: Updesh Kumar Vs. Prithvi Singh, (2001)
2 SCC 524; and State of Punjab Vs. Mohinder Singh,
AIR 2005 SC 1868).”

31. Their Lordships of the Hon’ble Supreme Court in Jabar Singh

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vs. Dinesh and another, (2010)3 Supreme Court Cases 757 have held that

since the entry was not in any public or official register and was not made

either by a public servant in the discharge of his official duty or by any

person in performance of a duty specially enjoined by the law of the

country, the entry was not relevant under Section 35 of the Evidence Act for

the purpose of determination of age. Their Lordships of the Hon’ble

Supreme Court have held as under:-

“27. We are of the considered opinion that the High
Court was not at all right in reversing the findings of the
trial court in exercise of its revisional jurisdiction. The
entry of date of birth of Respondent 1 in the admission
form, the school records and transfer certificates did not
satisfy the conditions laid down in Section 35 of the
Evidence Act inasmuch as the entry was not in any
public or official register and was not made either by a
public servant in the discharge of his official duty or by
any person in performance of a duty specially enjoined
by the law of the country and, therefore, the entry was
not relevant under Section 35 of the Evidence Act for
the purpose of determining the age of Respondent 1 at
the time of commission of the alleged offence.”

32. Their Lordships of the Hon’ble Supreme Court in Satpal Singh

vs. State of Haryana (2010) 8 Supreme Court Cases 714 have held that the

entry made in the official record by an official or person authorised in

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. It is not possible to ascertain as to who was the person who

had given her date of birth as 13.02.1975 at the time of initial admission in

the primary school. More so, the entry in respect of the date of birth of the

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prosecutrix in the primary school register has not been produced and proved

before the trial Court. Their Lordships of the Hon’ble Supreme Court have

held as under:-

“28. Thus, the law on the issue can be summarised that
the entry made in the official record by an official or
person authorised in 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 as to on whose instruction/information such
entry stood recorded and what was his source of
information. Thus, entry in school register/certificate
requires to be proved in accordance with law. 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 as to who was the person who had given her
date of birth as 13.02.1975 at the time of initial
admission in the primary school. More so, it cannot be
ascertained as 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
majority becomes irrelevant if the prosecution
successfully establishes that it was not a consent case.”

In the instant case, the primary school certificate has not been

produced. Only certificate issued by the Headmistress of the private school

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has been produced.

33. Their Lordships of the Hon’ble Supreme Court in Alamelu and

another vs. State represented by Inspector of Police, (2011) 2 Supreme

Court Cases 385 have held that the date of birth mentioned in the transfer

certificate would have no evidentiary value unless the person, who made the

entry or who gave the date of birth is examined. The Headmaster has not

been examined at all. Their Lordships of the Hon’ble Supreme Court have

held as under:-

“40. Undoubtedly, the transfer certificate, Ext.P-16
indicates that the girl’s date of birth was 15th June,
1977. Therefore, even according to the aforesaid
certificate, she would be above 16 years of age (16 years
1 month and 16 days) on the date of the alleged incident,
i.e., 31st July, 1993. The transfer certificate has been
issued by a government school and has been duly signed
by the Headmaster. Therefore, it would be admissible in
evidence under Section 35 of the Indian Evidence Act,
1872. However, the admissibility of such a document
would be of not much evidentiary value to prove the age
of the girl in the absence of the material on the basis of
which the age was recorded. The date of birth mentioned
in the transfer certificate would have no evidentiary
value unless the person, who made the entry or who
gave the date of birth is examined.

xxx xxx xxx

44. In our opinion, the aforesaid burden of proof has
not been discharged by the prosecution. The father says
nothing about the transfer certificate in his evidence.
The Headmaster has not been examined at all.
Therefore, the entry in the transfer certificate can not be
relied upon to definitely fix the age of the girl.

xxx xxx xxx

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47. We are of the opinion, in the facts of this case, the
age of the girl could not have been fixed on the basis of
the transfer certificate. There was no reliable evidence
to vouchsafe the correctness of the date of birth as
recorded in the transfer certificate. The expert evidence
does not rule out the possibility of the girl being a
major. In our opinion, the prosecution has failed to
prove that the girl was a minor, at the relevant date.”

34. According to FSL report, as noticed hereinabove, human semen

was detected on exhibit-3 (underwear), exhibit-4 (underwear) and exhibit-7a

(bedsheet). No semen was detected on exhibit-1 (pyjami of prosecutrix). No

semen was found on exhibit-2 (vaginal swabs). According to the

prosecutrix, she was beaten severely by the accused. However, as per

medical record, no mark of external injury was found on her body though

according to doctor’s opinion, the possibility of sexual intercourse could not

be ruled out.

35. The prosecution has also not explained manipulation in the

admission register of the prosecutrix. PW-5 Dr.Saroj Lochab had referred

the prosecutrix to Radiology and Dental department for age verification but

the same was not undertaken. The blood sample of accused was taken but

no DNA report was obtained. The radiology and dental examination of the

prosecutrix was important. There was overwriting in the admission register

at serial no.754 as well as on her name.

36. The prosecution has failed to prove the charges against the

appellants beyond reasonable doubt. Accordingly, the appeals are allowed

and the judgment and order dated 14.01.2014 and 16.01.2014 are set aside.

The appellants are acquitted of the charges framed against them by giving

them benefit of doubt. The appellants are in custody. They are ordered to be

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released forthwith if not wanted in any other case. Release warrants be

prepared.

(RAJIV SHARMA)
JUDGE

(HARINDER SINGH SIDHU)
JUDGE
August 27, 2019.

Davinder Kumar

Whether speaking / reasoned Yes/No
Whether reportable Yes/No

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