Maherban Hasan Babu Khan vs The State Of Maharashtra And Anr
2023 Latest Caselaw 4474 Bom

2023:BHC-AS:13849
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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO. 09 OF 2021
                                                   WITH
                                    INTERIM APPLICATION NO. 2384 OF 2021
                                                     IN
                                       CRIMINAL APPEAL NO. 09 OF 2021

               Maherban Hasan Babu Khan                                        ...Appellant
                                       Versus
              The State of Maharashtra and Anr.              ...Respondents
                                                 ...
              Mr. Jagdish Kumar Sanjeev Hegde for the Appellant.
              Mr. N.B. Patil, APP for the Respondent No.1-State.
              Ms Rebecca Gonsalves for Respondent No.2-victim.


                                                  CORAM : SMT. ANUJA PRABHUDESSAI, J.

JUDGMENT DATED : 02nd MAY, 2023.

JUDGMENT :-

1. This Appeal is directed against the judgment dated

18.12.2019 in Special Atrocity Case No.11 of 2016, passed by learned

Special Court at Mangaon, District Raigad. By the impugned

judgment, the learned Judge has held the Appellant guilty of offences

punishable under Sections 4 and 6 of the Protection of Children from

Sexual Offences Act, 2012 (POCSO Act) and Sections 376(2)(i) and

376(2)(j) of the Indian Penal Code. He has been sentenced to undergo

(i) rigorous imprisonment for 7 years with fine of Rs.10,000/- i.d.

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simple imprisonment for 6 months for offence punishable under

Section 4 and (ii) rigorous imprisonment for 10 years with fine of

Rs.10,000/- i.d. simple imprisonment for 6 months for offence under

Section 6 of the POCSO Act. Both sentences have been ordered to run

concurrently. The Appellant was in custody since 21.05.2016, hence

the Appellant has been given benefit under section 428 Cr.P.C. for

setting off the period of detention he had undergone. No separate

sentence is passed for offence under Section 376(2) (i) and (j) of the

Indian Penal Code.

2. The crime against the Appellant, was registered pursuant to

the First Information Report lodged by the victim (P.W.2), who at the

relevant time was a 10th standard student in Vighavali Vibhag High

School. The victim has stated her birth date to be 19/12/2000. She

alleged that the Appellant had sexual relationship with her under the

pretext of marriage. He thereafter went to his native place at Uttar

Pradesh. On 25/03/2016, the victim informed the Appellant that she

was pregnant and requested him to fulfill his promise of marriage. She

called him two days later only to learn that his phone was switched off.

The Appellant did not receive her calls and did not return to Mumbai.

The victim claimed that she is a member of scheduled caste and was a

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minor as on the date of the incident. She therefore lodged the FIR

against the Appellant for subjecting her to penetrative sexual assault

and committing offence of rape despite knowing that she was a

member of the Scheduled Caste. Pursuant to the FIR lodged by the

victim, PI-Nisha Jadhav registered the crime against the Appellant for

offences punishable under Sections 4 and 6 of the POCSO Act, 376 (2)

(i), (j) and (k) of the IPC and Section 3(1)(xii) of the Scheduled Caste

and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the SC and

ST Act).

3. PW8-Datta Nalawade was the Sub Divisional Police Officer

of Mangaon Police Station. He took over the investigation in view of

registration of crime under SC & ST Act. He conducted the scene of

offence panchanama, recorded statements of the witnesses, referred

the victim for medical examination and arrested the Appellant. The

victim gave birth to a child at Sion Hospital, Mumbai. PW8 collected

the relevant documents from the Hospital and sent the blood sample of

the child, the victim and the Appellant for DNA testing. He also

collected the CDR records from the Airtel Mobile Company and Tata

Company. Upon completion of investigation, he submitted a charge-

sheet against the Appellant for the offences as stated above.

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4. The Appellant pleaded not guilty to the charge and claimed

to be tried. The prosecution examined 9 witnesses. The statement of

the Appellant was recorded under Section 313 of the Cr.P.C. The

Appellant has not denied having sexual relation with the victim. He

has stated that they were in love with each other and had planned to

marry. He had gone to his native place to inform his mother about his

marriage plan. While he was at his native place, the victim informed

him that she was pregnant. He told her that he would marry her on

his return. He could not trace the victim after he returned from his

native place. In the meantime, the police arrested him without

disclosing any cause. He claims that the brother of the victim had

opposed the marriage and threatened to send him to jail. He asserts

that he is ready to marry the victim and take care of the child.

5. Learned Special Judge, after considering the evidence on

record and hearing the respective parties, held that the Appellant had

sexual relationship with the victim, who was below 18 years of age

and a child within the meaning of Section 2(d) of the POCSO Act. The

learned Judge further observed that the victim had informed the

Appellant about her pregnancy while he was at his native place. The

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Appellant thereafter switched off his phone and did not try to contact

the victim. The victim gave birth to a child and as per the DNA report

the Appellant is the biological father of the child. Learned Judge

therefore held that the Appellant had subjected the victim to

penetrative sexual assault and rape and hence held him guilty of

offences punishable under Sections 4 and 6 of the POCSO Act and

Section 376(2)(i), (j) and (k) of the IPC and sentenced him as stated

above. The learned Judge held that the prosecution has failed to prove

that the victim is a member of Scheduled Cast or Scheduled Tribe and

hence acquitted the Appellant of offence under Section 3 (1) (xii) of

SC ST Act. Being aggrieved by the conviction and sentence, the

Appellant has filed this appeal.

6. Learned counsel for the Appellant strenuously argued that

the prosecution has failed to examine the author of the School Leaving

Certificate at Exhibit-46, which is relied upon to prove the age of the

deceased. He therefore contends that the School Leaving Certificate at

Exhibit-46 cannot be relied upon to determine the age of the victim.

He submits that there is no cogent and conclusive evidence to prove

that the victim was below 18 years of age. He submits that it was a

consensual relationship between two adults, which would not attract

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penal provisions of rape or penetrative sexual assault.

7. Per contra, learned APP and Ms Gonsalves, learned counsel

for the victim submit that the victim was a 10th standard student and at

the time of the incident she was about 14 to 15 years of age. The

School Leaving Certificate was issued in the year 2010, much prior to

the incident and hence there is no possibility of fabricating the

document. It is further contended that the genuineness of the

certificate was not disputed and as such it is too late in the date to

question the age of the victim as recorded in the said certificate. It is

further submitted that the Ossification test also corroborates the

documentary evidence and amply proves that the victim was a child

within the meaning of Section 2(d) of the POCSO Act. She has relied

upon decision of the Hon'ble Supreme Court in Mohd. Ikram Hussain

vs. State of Uttar Pradesh and Ors., (1964) 5 SCR 86, decision of this

Court, Aurangabad Bench in Damodar Pratapram Jangid vs. The State

of Maharashtra 2016 ALL MR (Cri) 82 and Baburao Vs. The State of

Maharashtra and Ors., 2016 ALL MR (Cri) 4719.

8. I have perused the records and considered the submissions

advanced by the learned counsel for the respective parties.

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9. The Appellant has been held guilty of offences under

Sections 4 and 6 of the POCSO Act which has been enacted to protect

children from offences of sexual assault, sexual harassment and

contains stringent provisions as to safeguard the interest and the well

being of the children. 'Child' within the meaning of Section 2(d) of the

POCSO Act means any person below the age of 18 years. Hence, in

order to attract the provisions of the POCSO Act, the onus is on the

prosecution to prove that the victim was a 'child' within the meaning of

section 2(d) of the POCSO Act.

10. It may be mentioned that Section 34 of the POCSO Act

prescribes the procedure to be followed in case of Commission of

offence by child and determination of age by a Special Court under the

POCSO Act. Section 34 reads thus:-

" 34. Procedure in case of commission of offence by child and determination of age by Special Court

(1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016).

(2) If any question arises in any proceeding before

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the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person. "

11. In Jarnail Singh vs. State of Haryana, 2013 (7) SCC 163,

the Hon'ble Supreme Court, while considering the issue of

determination of age of a minor victim, has analysed the scope of Rule

12 of the Juvenile Justice (Care and Protection of Children) Rules,

2007 (hereinafter referred to as 'J.J. Rules 2007'). The Supreme Court

has held that though Rule 12 is strictly applicable only to determine

the age of the child in conflict with law, the said statutory provision

should also be the basis for determining age, even of a child, who is a

victim of crime.

12. It may be mentioned that J.J. Rules 2007 were framed in

terms of Section 68 of Juvenile Justice Act, 2000, which has been

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repealed by the Juvenile Justice (Care and Protection of Children) Act,

2015 and corresponding amendment has been made in Section 34 (1)

of the POCSO Act by substituting the words 'Juvenile Justice (Care and

Protection of Children) Act 2000' with 'Juvenile Justice (Care and

Protection of Children) Act, 2015'. Hence, the age of the victim has to

be determined as per Section 94(1) of 2015 Act, which enables the

Committee to determine the age of the person based on the

appearance of the said person brought before it. It is only in case of

reasonable doubt that the Committee or board has to follow the

prescribed procedure for determination of age as provided under

Section 94(2) of 2015 Act, which reads thus:-

" Section 94 Presumption and determination of age:-

(1) .xxx (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

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(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board;

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) xxx. "

13. The procedure prescribed under section 94, to determine

the age of a person, is not materially different from the procedure

prescribed under Rule 12(3) of 2007 Rules, except for some minor

variations. A plain reading of section 94 indicates that when there is

doubt about the age of the person, the age has to be determined first

on the basis of the date of birth certificate from the school or the

matriculation or equivalent certificate from the concerned examination

board and if no such material is available then on the basis of birth

certificate given by a Corporation or a Municipal Authority or

Panchayat and in the absence of such evidence on the basis of

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ossification test or any other medical age determination test. Section

94 does not contain provision regarding benefit of margin of error to

be given to the child or juvenile as provided in Rule 12(3)(b) of 2007

Rules, which provided for benefit to the child or juvenile by

considering his/her age on lower side within the margin of one year.

14. Reverting to the facts, it is the case of the prosecution that

the victim was below 18 years of age. The evidence on record reveals

that she was a student of 10th standard. The victim has deposed that

her date of birth is 19/12/2000. The prosecution has relied upon the

School Leaving Certificate at Exhibit - 46, which was sought to be

proved through PW7 Netaji Krishna Jadhav, the Head Master of

Vighavali Vibhag High School, Mangaon. He has deposed that on

14/06/2010 the victim was given admission in the said school in 5 th

standard and the birth date of the victim as per the General Register of

the School is 19/12/2000. He has stated that the victim had taken

primary education in Raigad Zilla Parishad School, Tilore. The said

School had issued School Leaving Certificate, which was submitted

before Vighavali Vibhag High School, Mangaon, while taking

admission. He has deposed that as per the School Leaving Certificate

issued by Raigad Zilla Parishad School, the birth date of the victim is

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19/12/2000. He has produced School Leaving Certificate issued by

Zilla Parishad School, Raigad at Exhibit-46. He has admitted in the

cross examination that at the time of admission of the victim, he was

not associated with the school and that his evidence is only on the

basis of the records i.e. General Register maintained by the School.

15. The age of the victim is sought to be proved on the basis of

the entry of the birth date in the School Register of Vighavali Vibhag

High School, Mangaon, wherein her date of birth is recorded

19/12/2000. The evidence on record reveals that the victim had taken

admission in Primary School at Raigad Zilla Parishad School. The

entry in the School Register of Vighavali Vibhag High School, Mangaon

is based on the School Leaving Certificate at Exhibit-46, issued by

Raigad Zilla Parishad School. The question for consideration is

whether the entry in the School Register and the School Leaving

Certificate (Exhibit-46), which record the date of birth of the victim

are admissible in evidence and can be relied upon without any

corroboration. A similar question was considered in Satpal Singh Vs.

State of Haryana (2010) 8 SCC 714 wherein the Hon'ble Supreme

Court has observed thus :-

" 20. A document is admissible under Section 35 of

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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.

21. In State of Bihar & Ors. Vs. Radha Krishna Singh & Ors. AIR 1983 SC 684, 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. ...

xxx

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.

xxx

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."

22. Therefore, a document may be admissible, but as

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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

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1587.

23. There may be conflicting entries in the official document and in such a situation, the entry made at a later stage has to be accepted and relied upon. (Vide Durga Singh Vs. Tholu & Ors. AIR 1963 SC 361).

24. While dealing with a similar issue in Birad Mal Singhvi Vs. Anand Purohit AIR 1988 SC 1796, this Court held as under :-

" 15. ... To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. "

25. A Constitution Bench of this Court, while dealing with a similar issue in Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors. AIR 1965 SC 282, observed as under :-

"18. ... The reason why an entry made by a public servant in a public or other official book,

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register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act."

26. In Vishnu Vs. State of Maharashtra (2006) 1 SCC 283, while dealing with a similar issue, this Court observed that very often parents furnish incorrect date of birth to the school authorities to make up the age in order to secure admission for their children. For determining the age of the child, the best evidence is of his/her parents, if it is supported by un- impeccable documents. In case the date of birth depicted in the school register/certificate stands belied by the un- impeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded.

27. Thus, the entry in respect of age of the child seeking admission, made in the school register by semi-literate chowkidar at the instance of a person

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who came along with the child having no personal knowledge of the correct date of birth, cannot be relied upon.

28. Thus, the law on the issue can be summerised that the entry made in the official record by an official or person authorized 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. "

16. It is thus well-settled that an entry of the date of birth, as

recorded in the School Register, is relevant and admissible in evidence

under section 35 of the Evidence Act. However, such entry would be

of no evidentiary value in the absence of the material on the basis of

which the age was recorded. Reliance is also placed on the decision of

the Apex Court in Alamelu and anr. v/s. State, Represented by

Inspector of Police, AIR 2011 SC 715 and the decision of the Division

Bench of this Court in State of Maharashtra v/s. Ramesh Babulal

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Rewatkar, 2017 ALL MR (Cri) 3980. In view of this settled

proposition, it is not necessary to refer to the decisions of the learned

Single Judge of this Court in Damodar Pratapram Jangid and Baburao

(supra).

17. In Mohd. Ikram Hussain (supra), the challenge before the

Apex Court was to the orders passed in Habeas Corpus Petition and

section 491 of the old Code of Criminal Procedure and one of the

questions raised was about the age of the girl. Relying upon the

entries in the School Register and the affidavit filed by the father of the

girl, the Hon'ble Supreme Court observed that the girl was below 18

years of age.

18. In the instant case, as stated earlier, the date of birth of the

victim was recorded in the School Register of Vighavali Vibhag High

School on the basis of the School Leaving Certificate issued by Raigad

Zilla Parishad School. PW7, the Head Master, who had produced the

School Register was admittedly not associated with the School on the

date the said entry was effected. There is absolutely no evidence to

prove as to who had given the date of birth of the victim as

19/12/2000 at the time of her initial admission in Raigad Zilla

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Parishad School. The prosecution has not examined the person who

had recorded the date of birth of the victim in the School Register of

Raigad Zilla Parishad or any other person conversant with the said

fact. It is also to be noted that PW1 and PW5, the elder siblings of the

victim have not disclosed the date of birth of the victim. In such

circumstances and in the absence of evidence as regards the material

on which the date of birth was recorded in the School Register and the

School Leaving Certificate, the entry regarding the age of the victim as

recorded in the School Register and School Leaving Certificate has no

probative value. In such circumstances, the decision in the case of

Mohd. Ikram Hussain (supra) is distinguishable on facts.

19. The prosecution has also sought to prove the age of the

victim on the basis of dental examination. PW4 - Dr. Hemant Suresh

Kakade, the dentist attached to the Sub-District Hospital, Mangaon had

examined the victim clinically as well as radiographically for age

assessment. He has produced the dental examination report at

Exhibit-29. The testimony of PW4 vis-a-vis the dental examination

report at Exhibit-29 reveals that the first and second molar on right

and left side of the mandibular as well as maxilla region had erupted.

The dental examination report reveals that third molar/wisdom tooth

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was not clinically seen. The radiographic report indicated that crown

and root of second molar were well formed whereas the crown of third

molar was formed but roots were not well formed. PW4 has deposed

that he did not notice the wisdom tooth i.e., the third molar and on

this basis he opined that the age of the victim was approximately 15 to

17 years. In his cross-examination he has admitted that wisdom tooth

can erupt at any time after 18 years of age.

20. The evidence of this witness clearly indicates that he has

assessed the age of the victim as 15 to 17 years in view of absence of

third molar, which is normally referred to as wisdom tooth. As per

Modi's Medical Jurisprudence, the second molars erupt between 12 to

14 years whereas the third molar erupts between 17 to 25 years. It is

thus evident that all the permanent teeth except the wisdom tooth,

erupt by the time the average boy or girl reaches the age of puberty

whereas, wisdom tooth erupt between the ages of 17 to 25 years.

Eruption of wisdom tooth may at the most suggest that the age of the

person is 17 years or above but non-eruption or absence of wisdom

tooth does not conclusively prove that the person is below 18 years of

age. Therefore, the mere fact that wisdom tooth have not erupted is

not of great importance in assessing the age.

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21. The evidence of PW9-Dr. Gautam Keshav Desai, Medical

Superintendent in Sub-District Hospital, Mangaon reveals that the

Investigating Officer had sent a requisition for ossification test of the

victim. This witness has produced the said requisition letter alongwith

the report (Exhibit-68) issued by the Medical Officer. The said report

at Exhibit-68 reveals that the victim was examined by Dr. Patel,

Orthopedic Surgeon and he had opined that Epiphysis of both wrists

was not united and hence the victim was below 18 years of age.

22. It is to be noted that this certificate was not admitted under

Section 294 of Cr.P.C. The prosecution has merely produced this

certificate through PW9 -Dr. Gautam, who has stated his qualifications

to be MBBS and DGO. He is not the author of the said report. The

prosecution has not examined the Orthopedic Surgeon, who had

examined the victim, the Medical Officer, who had submitted the report

or any other Orthopedic Surgeon or Radiologist, who could explain the

basis of such opinion. Hence, the report at Exhibit-68 has no

evidentiary value in view of non examination of the Doctor. Moreover,

the contents of the report at Exhibit-68 were not put to the Appellant in

Section 313 statement, which is a great lacuna in the prosecution case.

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23. It is also well settled that Ossification test or other medical

test though is a guiding factor for determining the age, it is not

conclusive or incontrovertible and leaves a margin of error of two years

on either side. It is also a settled position that the benefit of doubt with

regard to the age of the victim always goes in favour of the accused. In

the instant case, PW4 has assessed the age of the victim approximately

as 15 to 17 years. Considering the margin of error in age even as one

year, the victim would be 18 years of age and would not be a child

within the meaning of Section 2(d) of the POCSO Act.

24. The prosecution has also not adduced any evidence

regarding the victim's physical growth and development and secondary

sexual character. This discrepancy also leaves room for ample doubt

with regard to the correct age of the victim, the benefit of which must

necessarily go in favour of the Appellant.

25. The prosecution has therefore failed to prove beyond

reasonable doubt that the victim was below 18 years of age. This was

relevant as the evidence on record otherwise indicates that the physical

relationship between the Appellant and the victim was consensual. In

the absence of evidence to prove that the victim was below 18 years of

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age, the provisions of the POCSO Act cannot be invoked and

consensual relationship would not constitute rape within the meaning

of Section 375 of the IPC.

26. Under the circumstances and in view of discussion supra,

the prosecution has failed to prove the guilt of the Appellant beyond

reasonable doubt. Hence, the Appeal is allowed. The Appellant is

acquitted of offences punishable under Sections 4 and 6 of the

Protection of Children from Sexual Offences Act, 2012 (POCSO Act)

and Sections 376(2)(i) and 376(2)(j) of the Indian Penal Code.

27. Appeal stands disposed of in above terms. Interim

Application stands disposed of in view of disposal of Appeal.

(SMT. ANUJA PRABHUDESSAI, J.)