Bombay High Court
Suraj S/O Deepak Wathore And Other vs The State Of Maharashtra And Another on 5 March, 2025
2025:BHC-AUG:6664
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
913 CRIMINAL WRIT PETITION NO. 20 OF 2024
1. Suraj S/o. Deepak Wathore,
Age. 24 years, Occu. Mason,
2. Deepak S/o. Devba Wathore,
Age. 46 years, Occu. Labour,
3. Ashabai W/o. Deepak Wathore,
Age. 40 years, Occu. Household,
All R/o. Sarsam, Tq. Himayatnagar,
Dist. Nanded. ....Petitioners
Versus
1. The State of Maharashtra
2. XYZ ...Respondents
Advocate for the Petitioners : Mr. Hande Avinash D.
APP for Respondent No. 1 : Ms. Chaitali Chaudhari-Kutti
Advocate for Respondent No. 2 : Mr. Suraj R. Bagal
h/f. Mr. Gadegaonkar Bharat N.
CORAM : Y. G. KHOBRAGADE, J.
Dated : 05th March, 2025
JUDGMENT :
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1. Rule. Rule made returnable forthwith. With the
consent of both sides, heard finally at the stage of the admission.
2. By the present petition, under Article 227 of the
Constitution of India read with Section 482 of the Code of Criminal
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Procedure, the petitioners have challenged the order dated
10.11.2023, passed by the learned Extra District Judge-1 and
Assistant Sessions Judge, Nanded, below exhibit 103 and 105 in
Special (POCSO) Case No. 62/2021, thereby permitting the
prosecution to produce additional documents i.e. original birth
certificate issued by the competent authority to prove the age of
the victim on the date of commission of offence.
3. The learned counsel appearing for the petitioners
vehemently canvassed that the petitioners are facing trial in
Special (POCSO) Case No. 62/2021 for offences punishable under
Sections 363, 376(2) (N) read with Section 34 of the Indian Penal
Code and Section 6 of the Protection of Children from Sexual
Offences Act (in short 'POCSO'). After due investigation, the I. O.
filed charge sheet against petitioners/accused. Thereafter, the
charge was framed on 27.12.2022 for the offences under Sections
363, 376(2) (N) read with Section 34 of the Indian Penal Code and
Section 6 of POCSO Act.
4. During the course of trial, the prosecution examined
the P.W.1 and P.W. 2. However, both the witnesses P.W.1 and P.W. 2
have stated that, they do not have birth certificate of the victim
(PW2). Both the witnesses undergone cross-examination.
Thereafter, the prosecution has filed Exh. 103 and 105 application
seeking permission to produce original birth certificate issued by
the Health Department N.W.C.M.C.,Nanded of the victim and
Nirgam Utara (Extract of School Admission Register) issued by the
School of the victim to prove date of birth of the victim (PW2). The
petitioners/accused filed their reply at exhibit 107 and resisted
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both applications on the ground that, the prosecution has not
produced documents along with chargesheet under Section 173
(8) of Cr.P.C., 1973. However, the prosecution wanted to refer both
documents first time to the witness in evidence.
5. It is further canvassed on behalf of the petitioners
that, the provisions of Cr.P.C. do not provide for production of
documents after filing charge-sheet and after cross-examination of
the witnesses are over. However, on 10.11.2023, the learned trial
Court passed the impugned order and permitted the prosecution
for production of documents i.e. original birth certificate issued by
the Health Department N.W.C.M.C.,Nanded of the victim and
Nirgam Utara (Extract of School Admission Register) issued by the
School of the victim to prove date of birth of the victim (PW2).
Therefore, the impugned order is illegal and bad in law. Hence,
prayed for quash and set aside.
6. In support of this submissions, the learned counsel
appearing for the petitioners placed reliance on case of
Bhagyashree Prashant Wasankar Versus State of Maharashtra, 2021
ALL MR (Cri) 3030 : 2021 (6) Mh.L.J. (Cri.) 336, wherein, it is
held that, there is no procedure contemplated under Criminal
Procedure for permitting the prosecution witness directly for
production of documents in Sessions trial which were not part of
the chargesheet filed before the Court and additional document
could be produced by filing the procedure of further investigation
as contemplated under Section 173(8) of Cr.P.C., and the
prosecutor taking a call as to whether such documents need to be
produced in order to prove the charge against accused.
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7. On the other hand, learned APP and Mr. B.N.
Gadegaonkar, learned counsel appearing for the victim/respondent
no. 2 submitted that, during course of investigation, the
Investigation Officer filed chargesheet against the accused persons
for the offences punishable under Sections 363, 376(2) (N) r/w
Section 34 of the Indian Penal Code and Section 6 of the POCSO
Act. The I. O. collected various documents and produced the same
with charge-sheet including identity card of the victim, bonafide
certificate issued by the school of the victim, Nirgam Utara (Extract
of Admission of School Register of the victim), progress card and
Unique Aadhar Card, which shows that, the victim was minor on
the date of commission of offence. However, the prosecution
wanted to produce original birth certificate of the victim issued by
the Health Department N.W.C.M.C.,Nanded and original copy of
extract of school register of the victim issued by her School. The
Victim's date of birth shown in the school extracts as well as in
identity card, bonafide certificate issued by the victim's school,
Nirgam Utara (extract of admission of school register of the
victim), progress card and Unique Aadhar card is one and same.
However, the birth certificate issued under the Birth and Death
Registration Act was not available with the prosecution at the time
of filing of the charge-sheet. Therefore, in order to prove the
Victim's date of birth, the prosecution wanted to produce original
birth certificate and Extract of School Admission Register.
Therefore, by allowing the prosecution for production of
documents no prejudice would caused to the accused, hence,
prayed for dismissal of the petition.
8. Section 294 of Cr.P.C., provides as under :
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"294. No formal proof of certain documents.
(1) Where any document is filed before any
Court by the prosecution or the accused, the
particulars of every such document shall be
included in a list and the prosecution or the
accused, as the case may be, or the pleader for
the prosecution or the accused, if any, shall be
called upon to admit or deny the genuineness
of each such document.
(2) The list of documents shall be in such form
as may be prescribed by the State Government.
(3) Where the genuineness of any document is
not disputed, such document may be read in
evidence in any inquiry, trial or other
proceeding under this Code without proof of
the signature of the person to whom it purports
to be signed :Provided that the Court may, in
its discretion, require such signature to be
proved."
9. In Niwas Keshav Raut Versus The State of
Maharashtra, (2015) SCC Online Bom 4214, the co-ordinate bench
of this Court considered the provision of Section 294 of Cr.P.C., and
permitted the prosecution for production of documents. No doubt,
the learned counsel appearing for the petitioners though relied on
case of Bhagyashree Prashant Wasankar (supra), wherein the
witness was tried to produce additional document directly during
the course of trial. Therefore, the co-ordinate bench of this Court
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held in paragraph nos. 19 and 20 as under :
"19. Recourse to Section 294 of the Cr.P.C. can
also not be taken for a witness to claim that he
could directly produce additional documents
during the course of trial or during the course of
recording of his evidence. Section 294 of the
Cr.P.C. pertains to no formal proof of certain
documents and it opens with the words "Where
any document is filed before any Court by the
prosecution or the accused", thereby
demonstrating that the said provision is
applicable only when a document is sought to be
produced either by the prosecution or the
accused and not any third party like a witness. In
fact, in the judgment in the case of Shamsher
Singh Verma Vs. State of Haryana (2016) 15
SCC 485, the Hon'ble Supreme Court has
referred to the object of Section 294 of Cr.P.C.,
1973 and it has been held that same is for
accelerating the pace of trial, by avoiding waste
of time in recording unnecessary evidence. The
judgment of this Court in the case of Niwas
Keshav Raut Vs. The State of Maharashtra
(supra) lays down that Section 294 of Cr.P.C.,
1973 does not place any embargo upon the
prosecution or the accused to file a document at
a stage subsequent to filing of the charge-sheet.
There can be no quarrel with the said
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proposition. Yet, it cannot come to the aid of the
witness in the present case, who has sought
permission of the Sessions Court to directly
produce documents during the course of trial
and at the time of recording his evidence.
20. A perusal of the impugned order shows that
there is a reference made to Section 242 of the
Cr.P.C., 1973. A perusal of the said provision
would show that it pertains to the power of the
Magistrate to issue summons to any witness on
the application of the prosecution, directing such
witness to produce any documents or thing. In
this provision also, the words "on the application
of the prosecution", have been used. Even
otherwise, Section 242 of the Cr.P.C., 1973 is
found in Chapter XIX pertaining to trial of
warrant cases by the Magistrate. But, in the
present case, the Court below is concerned with
a sessions trial under Chapter XVIII of the Cr.P.C.
Therefore, reference to Section 242 of the Cr.P.C.
by the Court below is also misplaced."
10. However, in case in hand, the learned Special Court
passed the impugned order dated 10.11.2023 below exhibit 103 &
105 and permitted the prosecution for production of original birth
certificate and the victim's extract of School Admission Register.
The birth certificate issued under the Birth and Death Registration
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Act, is a public document and it is admissible under Section 35 of
the Evidence Act.
11. It is not a case of the petitioners/accused that, the
victim's date of birth recorded in the documents i.e. identity card,
school bonafide certificate, extract of School admission Register,
School progress card Aadhar Card and the date of birth recorded
in the Birth Certificate issued under the Birth and Death
Registration Act and the School Admission Extract are different.
The Petitioners/Accused are already supplied charge-sheet with
documents including identity card, bonafide certificate issued by
the victim's school, Nirgam Utara (Extract of School Admission
Register of the victim), progress card and Unique Aadhar Card.
Therefore, the petitioners/accused are very much aware about
date of birth of the victim. Since the prosecution wanted to
produce original victim's birth certificate and original Extract of
School Admission Register of the victim in order to corroborate
birth certificate of the victim. Therefore, it cannot be said that the
petitioners accused not known about date of birth of the victim.
The petitioners/accused have not denied about service of identity
card, school bonafide certificate, extract of school admission
register, progress card Aadhar card of the victim. Therefore, no
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prejudice would cause to the Petitioners, if the prosecution
permitted to produce said documents.
12. Needless to say that, the prosecution examined the
P.W.1 victim's father at exhibit 82, who faced cross-examination
conducted on behalf of accused nos. 1 to 4. It is a matter of record
that P.W. 1, the victim's father, deposed that his daughter/victim
(P.W. 2) was born on 07.08.2004, but he does not have the birth
certificate of the victim. The P. W. 2 Victim deposed at exhibit 100
and stated that, she had taken admission in first standard in the
school at Vazirabad, Nanded but admitted at she is not having
birth certificate.
13. Since, both the witness stated that they are not having
birth certificate, therefore, the prosecution wanted to produce
victim's birth certificate. Therefore, merely because the trial Court
permitted the prosecution to produce the victim's birth certificate
issued under the Birth and Death Registration Act, the petitioner's
defence is not going to be washed out. Needless to say that if
documents are referred to in examination-in-chief to the witness,
the petitioners/accused will have the right to cross-examine the
said witnesses. In view of above discussion, impugned dated
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10.11.2023 passed by the learned trial Court does not appear
illegal bad in law and no grounds are set out to interfere with said
findings. Therefore, petition is deserved to be dismissed.
Accordingly, petitioner is dismissed. Rule is discharged.
( Y. G. KHOBRAGADE, J. )
SPC-
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