,Under Section 363 I.P.C.,"years R.I. and fine of Rs. 100 in
default 1 month R.I.
,Under Section 366 I.P.C.,"years R.I. and fine of Rs. 200 in
default 2 months R.I.
,Under Section 376(h)(m) I.P.C.,"years R.I. and fine of Rs. 400 in
default 4 months R.I.
date of birth is mentioned in the admission register. He specifically denied that some other date of birth is mentioned in the admission register. This,,
witness further stated that he has seen the register prior to coming to the Court. He further admitted that the date of birth as disclosed by the parents,,
was mentioned in the school record.,,
15. Jalma (P.W. 4) has stated that the police had recovered the appellant and the prosecutrix from Nandana Square. Nabal Singh and Dabbu were,,
also present at the time of recovery. The recovery memo is Ex. P.3 and she was handed over to the custody of Shantibai by custody memo Ex. P.4.,,
In cross examination, this witness has denied that the prosecutrix used to go for doing labour work and specifically stated that she used to stay in the",,
house.,,
16. Dabbu (P.W. 5) has also stated that the prosecutrix and the appellant were caught by the police at Nandana Square.,,
17. Prosecutrix (P.W. 13) has stated that her father has expired about 5 years back and her mother has left them voluntarily and she is residing with,,
her grandmother. The appellant came to her in the night and persuaded her that he would marry her and thereafter went to Sunaj by walking and from,,
their they went to Ashoknagar by bus. From bus they went to Guna and from Guna they went to Jaipur by train. They took a house on rent and stayed,,
there. The appellant had committed rape on her. They stayed in Jaipur for a period of about one month and then went to Bareilly where they stayed,,
for a day. Thereafter, the brother of the appellant, instructed the appellant on mobile to bring back the prosecutrix. The police got the information",,
regarding their return and accordingly, they were apprehended at Nadia naya kheda. She was got medically examined, and her petticoat was seized.",,
In cross examination, she admitted that the appellant had paid Rs. 15,000/- for purchasing the diesel pump and had taken her grandmother to Shivpuri",,
for treatment of fracture. She also admitted that the medical expenses were paid by the appellant. She further admitted that when She started,,
cultivating her fields, then the appellant demanded his money back. She further admitted that her financial condition was poor and had no money to",,
pay. However, She denied that false case has been registered so that they may not be required to return the money. She further stated that the",,
appellant had persuaded her of getting married.,,
18. Dr. Anjana Jain (P.W. 8) had medically examined the prosecutrix, and no external injury was found. Hymen was torn old. Her private part was",,
admitting two fingers easily. She was habitual to sexual intercourse. Her petticoat was sealed and was handed over. For asserting her age, she had",,
referred to radiology department. In cross examination, this witness has specifically stated that the age of the prosecutrix was in between 15-16 years.",,
The M.L.C. Report is Ex. P.7.,,
19. Thus, before considering the question that whether the prosecutrix was a consenting party or not, it would be necessary to find out that whether",,
the prosecutrix was major or minor.,,
20. The date of birth mentioned in the Progress Report of Class V of the prosecutrix is 4-4-2001. The ossification test of the prosecutrix was got done,,
and her age was found to be above 12 and below 14 years. However, the ossification test report was not proved by the prosecution therefore, it",,
cannot be read against the appellant. Dr. Anjana Jain (P.W. 8) had assessed the age of the prosecutrix in between 15-16 years. Shantibai (P.W. 1),,
has stated the prosecutrix was 13 years of age, and her statement regarding age, remained unchallenged in the cross examination. Vijayrampal (P.W.",,
3) has proved her Progress Report and he has specifically stated that the date of birth recorded in the School admission register is also 4-4-2001.,,
21. The Supreme Court in the case of Jarnail Singh Vs State of Haryana reported in MANU/SC/0626/2013 : (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 Protection 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 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 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 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 MANU/SC/8089/2006 : (2006) 5 SCC 736 has held as under:,,
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 MANU/SC/0566/2011 : (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 State of Bihar v. Radha Krishna Singh.),,
25. This Court in Madan Mohan Singh v. Rajni Kant considered a large number of judgments including Brij Mohan Singh v. Priya Brat Narain Sinha,",,
Birad Mal Singhvi v. Anand Purohit, Updesh Kumar v. Prithvi Singh, State of Punjab v. Mohinder Singh, Vishnu v. State of Maharashtra and Satpal",,
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.,,
22. The School register is admissible in evidence in terms of Section 35 of Evidence Act. At the time of recording of date of birth, no one had",,
anticipated that such an incident would happen. Thus, this Court is of the considered opinion, that the date of birth recorded in the School record is 4-4-",,
2001 whereas the incident took place in the intervening night of 8th and 9-6-2014, thus, it is held that the prosecutrix was aged about 13 years and six",,
months on the date of incident, and thus she was minor.",,
23. When the prosecutrix has been held to be minor on the date of incident, then the question that whether she was a consenting party or not becomes",,
immaterial.,,
24. So far as the question of false implication of the appellant is concerned, according to the prosecution case, the prosecutrix was recovered from his",,
possession. They went to Jaipur via Ashoknagar, Guna and from Jaipur, they went to Bareilly from where they came back. Even the appellant was",,
missing from his house immediately after the incident. Further, no one would put her chastity at stake for trivial issues.",,
25. The Trial Court has convicted the appellant for offence under Section 376(h)(m) I.P.C. 376 (2)(h) and (m) reads as under:,,
(h) commits rape on a woman knowing her to be pregnant; or (m) while committing rape causes grievous bodily harm or maims or disfigures or",,
endangers the life of a woman.""",,
26. It is not the case of the prosecution that the prosecutrix was pregnant and still rape was committed on her. Further there is no allegation that while,,
committing rape, the appellant had caused any grievous bodily harm or maims or disfigured or endangered the life of the prosecutrix. Thus, the",,
conviction of the appellant for the offence under Section 376(2)(h) and (m) of I.P.C. is set aside.,,
27. Now the question is that whether the appellant, in absence of charge under Section 376(1) of I.P.C., can be convicted. Offence under Section",,
376(2)(h) and (m) IPC are graver offence and the element of rape is involved. Therefore, this Court is of the considered opinion, that although no",,
charge under Section 376(1) of I.P.C. was framed against the petitioner, however, under the facts and circumstances of the case, he can be convicted",,
under Section 376(1) IPC. Accordingly, the appellant is convicted under Section 376 (1) of IPC.",,
28. The minimum sentence for offence under Section 376 I.P.C, at the relevant time was seven years. The appellant was aged about 21 years on the",,
date of incident. Under the facts and circumstances of the case, the appellant is sentenced to rigorous imprisonment of seven years and a fine of Rs.",,
5000/-. In default, he would serve rigorous imprisonment of 6 months. The sentence for the remaining offence under Sections 363, 366 IPC, shall",,
remain the same. The sentences are directed to run concurrently.,,
29. The appellant is in jail.,,
30. With aforesaid modification, the judgment and sentence dated 30-4-2015 passed by Additional Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No.",,
89 of 2014 is hereby affirmed.,,
31. The appeal succeeds and is allowed to the extent mentioned above.,,
