Conviction,Sentence
Under Section 363 of Indian Penal Code, 1860","Rigorous Imprisonment for 7 years and fne amount of Rs.
2,000/- and in default of payment of fne further additional
imprisonment of 6 months.
Under Section 366(A) of Indian Penal Code, 1860","Rigorous Imprisonment for 10 years and fne amount of Rs.
2,000/- and in default of payment of fne further additional
imprisonment of 6 months.
Under Section 376 (2) ( ) of Indian Penal Code, 1860","Rigorous Imprisonment for 10 years and fne amount of Rs.
2,000/- and in default of payment of fne further additional
imprisonment of 6 months.
Under Section 6 of Protection of Children from Sexua
Ofences Act, 2012.","lRI for 10 years and fne amount of Rs. 2,000/- and in
default of payment of fne further additional imprisonment
of 6 months.
court below are based on the due appreciation of the record and therefore, no interference therewith is required in this appeal.",
(b) He further submits that the prosecution has duly proved the age of the prosecutrix to be below 18 years on the date of incident by producing her,
mark-sheet marked as Article A duly proved by her father (PW-1), and therefore, also the judgment impugned is fully justifed.",
8. I have heard learned counsel for the parties, considered their rival contentions and perused the record meticulously with utmost circumspection.",
Analysis and Conclusions,
9. The frst question to be decided by this Court is whether the prosecutrix was below 18 years of age and as such minor, on the date of incident? In",
this regard the prosecution has examined father of the prosecutrix (PW-1), who has stated in his deposition that date of birth of his daughter",
(prosecutrix) is 16.04.1997. To substantiate this fact, he has produced the mark-sheet marked as Article A issued by Head Master, Government",
Primary School Sanjari, Block Dondilohara, District Durg, CG, which also contains her date of birth as 16.04.1997. The proscutrix (PW-2) has stated",
that she did not remember her date of birth as it was got recorded in the school by her father (PW-1). She however has stated that at the time of,
incident she was minor.,
10. The Hon’ble Supreme Court in case of Satpal Singh Vs. State of Haryana (Supra) held as under:-,
20. A document is admissible under Section 35 of the Indian Evidence Act, 1872 (hereinafter called as ‘Evidence Act’) being a public",
document if prepared by a government official in the exercise of his official duty. However, the question does arise as what is the",
authenticity of the said entry for the reason that admissibility of a document is one thing and probity of it is different.,
22. 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 Raj Vs. Bodh Raj AIR 2008 SC 632;,
and Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh & Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the entry",
was made in an official record by the concerned official 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. Such entries may be in any public document,",
i.e. school register, voter list or family register prepared under the Rules and Regulations etc. in force, and may be admissible under Section",
35 of the Evidence Act as held in Mohd. Ikram Hussain Vs. The State of U.P. & Ors. AIR 1964 SC 1625; and Santenu Mitra Vs. State of,
West Bengal AIR 1999 SC 1587.,
28. Thus, the law on the issue can be summerised 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 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.,
In case of Birad Mal Singhvi Vs. Anand Purohit (Supra) it was held that the entries regarding dates of birth contained in the scholar's register and the,
secondary school examination have no probative value, as no person on whose information the date of birth of the aforesaid candidates was mentioned",
in the school record is examined.,
In case of Jarnail Singh Vs. State of Haryana (2013) 7 SCC 263 the Hon’ble Supreme Court held as under:-,
“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 for a child who is a victim of crime. For, in our view, there is",
hardly any difference in so far 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-PW6. 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 concerned child, 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 concerned child, on the basis of medical opinionâ€.",
11. In light of the above principles of law as highlighted, it is to be determined whether the prosecution was able to prove the age of prosecutrix as",
below 18 years. In order to prove the date of birth of the prosecutrix, prosecution examined her father (PW-1). He has proved Article A which is the",
Mark-sheet cum certifcate of District Primary Certifcate Examination, 2009. It was issued by the Head Master of Government Primary School,",
Sanjari, Block â€" Dondi Lohara (C.G.). It also contains the signature of Secretary, District Primary Certifcate Examination, District Durg (C.G.) and",
District Education Ofcer, District Durg (C.G.). Article A clearly refects the date of birth of prosecutrix as 16.04.1997. Apart from this father of",
prosecutrix (PW-1) also deposed that at the time of incident prosecutrix was aged about 16 years. He further deposed that date of birth of prosecutrix,
is 16.04.1997. He stated that he has noted the date of birth of all his children. He also deposed that he has admitted the prosecutrix in the school. He,
denied the suggestion that at the time of admission of prosecutrix in school he has informed her date of birth and age by a guess. He also deposed that,
as per his knowledge her daughter never failed during study. Prosecutrix (PW-2) has deposed that she does not remember her date of birth. She has,
studied at Sukuldaihan Primary School, Sanjari. Her father has recorded her date of birth in the School. Mark sheet cum certifcate (Article-A) was",
for the examination year of 2009. Date of birth of prosecutrix mentioned in Article A is 16.04.1997. Therefore, in light of the above discussion and",
judgments of the Hon’ble Supreme Court Article-A can be relied upon to prove the age of the prosecutrix as it is prepared by a government ofcial,
in the exercise of his ofcial duty. Hence, the prosecution was able to prove that on the date of incident, the prosecutrix was less than 18 years.",
12. The next question which is required by this Court is whether the accused/appellant made physical relations with the prosecutrix with or without,
consent? The best witness to prove this fact can be the prosecutrix herself. She has stated that appellant took her forcibly from Sukuldaihan by,
allurement. She further stated that appellant continuously committed wrong act (committed physical relation like husband and wife). Appellant took her,
on the pretext of marriage but did not marry to her. She was subjected to lengthy cross examination. She has stated in her deposition that she and the,
accused visited several places by several means such as by train, by bus and by walk. She has further stated that where ever they stayed, they used",
to go for labour work. She stated that when appellant took her at that time she was minor. Her evidence further goes to show that the,
accused/appellant also ill-treated her and quite often subjected her to beat also. After careful examination of the prosecutrix, it appears that she",
remained frm with regard to physical relation committed by the appellant. Since the prosecutrix is found to be less than 18 years therefore, her consent",
has no signifcance. Though the medical evidence does not support the case of prosecution, it would not be fatal to prosecution. On examination of the",
statement of prosecutrix in its entirety she appears to be credible witness.,
13. The learned trial court after due appreciation convicted and sentence the appellant as aforesaid. The fnding recorded by the learned trial court do,
not appear to be perverse. Hence, no interference is called for in this appeal.",
14. As a consequence of the above discussion the appeal fails and is hereby dismissed.,
