"The date of birth mentioned in the scholars' register
has no evidentiary value unless the person who made
the entry or who gave the date of birth is
examined....Merely because the documents Exs. 8, 9,
10, 11, and 12 were proved, it does not mean that the
contents of documents were also proved. Mere proof
of the documents Exs. 8, 9, 10, 11 and 12 would not
tantamount to proof of all the contents or the
correctness of date of birth stated in the documents.
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.
48. We may further notice that even with reference to Section
35 of the Indian Evidence Act, a public document has to be
tested by applying the same standard in civil as well as
criminal proceedings. In this context, it would be appropriate
to notice the observations made by this Court in the case of
Ravinder Singh Gorkhi Vs. State of U.P.4 held as follows:-
13. In case of Rishipal Singh Solanki Vs. State of Uttar Pradesh & Others,
XXXX XXXX XXXX
33.3. That when a claim for juvenility is raised,
the burden is on the person raising the claim to
satisfy the Court to discharge the initial burden.
However, the documents mentioned in Rule
12(3)(a)(i), (ii), and (iii) of the JJ Rules
2007 made under the JJ Act, 2000 or sub-
section (2) of section 94 of JJ Act, 2015, shall be
sufficient for prima facie satisfaction of the
Court. On the basis of the aforesaid documents a
presumption of juvenility may be raised.
33.4. The said presumption is however not
conclusive proof of the age of juvenility and
the same may be rebutted by contra evidence let
in by the opposite side.
33.5. That the procedure of an inquiry by a
Court is not the same thing as declaring the age
of the person as a juvenile sought before the JJ
Board when the case is pending for trial
before the concerned criminal court. In case of
an inquiry, the Court records a prima facie
conclusion but when there is a determination of
age as per sub-section (2) of section 94 of 2015
Act, a declaration is made on the basis of
evidence. Also the age recorded by the JJ Board
shall be deemed to be the true age of the person
brought before it. Thus, the standard of proof in
an inquiry is different from that required in a
proceeding where the determination and
declaration of the age of a person has to be
made on the basis of evidence scrutinized and
accepted only if worthy of such acceptance.
33.6. That it is neither feasible nor desirable to
lay down an abstract formula to determine the
age of a person. It has to be on the basis of the
material on record and on appreciation of
evidence adduced by the parties in each case.
33.7 This Court has observed that a
hypertechnical approach should not be adopted
when evidence is adduced on behalf of the
accused in support of the plea that he was a
juvenile.
33.8. If two views are possible on the same
evidence, the court should lean in favour of
holding the accused to be a juvenile in borderline
cases. This is in order to ensure that the benefit
of the JJ Act, 2015 is made applicable to the
juvenile in conflict with law. At the same time,
the Court should ensure that the JJ Act, 2015 is
not misused by persons to escape punishment
after having committed serious offences.
33.9. That when the determination of age is on
the basis of evidence such as school records, it
is necessary that the same would have to be
considered as per Section 35 of the Indian
Evidence Act, inasmuch as any public or official
document maintained in the discharge of
official duty would have greater credibility than
private documents.
33.10. Any document which is in consonance
with public documents, such as matriculation
certificate, could be accepted by the Court or the
JJ Board provided such public document is
credible and authentic as per the provisions of
the Indian Evidence Act viz., section 35 and
other provisions.
33.11. Ossification Test cannot be the sole
criterion for age determination and a mechanical
view regarding the age of a person cannot be
adopted solely on the basis of medical opinion by
radiological examination. Such evidence is not
conclusive evidence but only a very useful
guiding factor to be considered in the absence of
documents mentioned in Section 94(2) of the JJ
Act, 2015."
14. Recently, in case of P. Yuvaprakash Vs. State represented by Inspector
of Police, 2023 (SCC Online) SC 846, Hon'ble Supreme Court has held
in para 14 to 17 as under :
"14. Section 94 (2)(iii) of the JJ Act clearly indicates
that the date of birth certificate from the school or
matriculation or equivalent certificate by the
concerned examination board has to be firstly
preferred in the absence of which the birth certificate
issued by the Corporation or Municipal Authority or
Panchayat and it is only thereafter in the absence of
these such documents the age is to be determined
through "an ossification test" or "any other latest
medical age determination test" conducted on the
orders of the concerned authority, i.e. Committee or
Board or Court. In the present case, concededly, only
a transfer certificate and not the date of birth
certificate or matriculation or equivalent certificate
was considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the victim as
11.07.1997. Significantly, the transfer certificate was
produced not by the prosecution but instead by the
court summoned witness, i.e., CW-1. The burden is
always upon the prosecution to establish what it
alleges; therefore, the prosecution could not have
been fallen back upon a document which it had never
relied upon. Furthermore, DW-3, the concerned
Revenue Official (Deputy Tahsildar) had stated on
oath that the records for the year 1997 in respect to
the births and deaths were missing. Since it did not
answer to the description of any class of documents
mentioned in Section 94(2)(i) as it was a mere
transfer certificate, Ex C-1 could not have been relied
upon to hold that M was below 18 years at the time of
commission of the offence.
15. In a recent decision, in Rishipal Singh Solanki vs.
State of Uttar Pradesh & Ors. this court outlined the
procedure to be followed in cases where age
determination is required. The court was dealing with
Rule 12 of the erstwhile Juvenile Justice Rules (which
is in pari materia) with Section 94 of the JJ Act, and
held as follows:
"20. Rule 12 of the JJ Rules, 2007 deals with the
procedure to be followed in determination of
age. The juvenility of a person in conflict with
law had to be decided prima facie on the basis of
physical appearance, or documents, if available.
But an inquiry into the determination of age by
the Court or the JJ Board was by seeking
evidence by obtaining: (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. Only in the
absence of either (i), (ii) and (iii) above, the
medical opinion could be sought from a duly
constituted Medical Board to declare the age of
the juvenile or child. It was also provided that
while determination was being made, benefit
could be given to the child or juvenile by
considering the age on lower side within the
margin of one year."
16. Speaking about provisions of the Juvenile Justice
Act, especially the various options in Section 94 (2) of
the JJ Act, this court held in Sanjeev Kumar Gupta vs.
The State of Uttar Pradesh & Ors that:
"Clause (i) of Section 94 (2) places the date of
birth certificate from the school and the
matriculation or equivalent certificate from the
2021 (12) SCR 502 [2019] 9 SCR 735
concerned examination board in the same
category (namely (i) above). In the absence
thereof category (ii) provides for obtaining the
birth certificate of the corporation, municipal
authority or panchayat. It is only in the absence
of (i) and (ii) that age determination by means
of medical analysis is provided. Section 94(2)
(a)(i) indicates a significant change over the
provisions which were contained in Rule 12(3)
(a) of the Rules of 2007 made under the Act of
2000. Under Rule 12(3)(a) (i) the matriculation
or equivalent certificate was given precedence
and it was only in the event of the certificate not
being available that the date of birth certificate
from the school first attended, could be
obtained. In Section 94(2)(i) both the date of
birth certificate from the school as well as the
matriculation or equivalent certificate are placed
in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of
West Bengal, this court, through a three-judge bench,
held that the burden of proving that someone is a
juvenile (or below the prescribed age) is upon the
person claiming it. Further, in that decision, the court
indicated the hierarchy of documents that would be
accepted in order of preference."
15. Thus, the evidence brought on record by the prosecution with regard to
the age of the victim cannot be held reliable in absence of the
proposition laid down by the Supreme Court in the above judgment.
16. Now, the questions comes whether the appellant after taking the Victim
with him, committed rape with her or not?
17. The Victim (PW1) in her statement has deposed that the appellant, after
telling her for roaming his village, had taken her with him to his house,
where he forcibly committed sexual intercourse with her 2-3 times. She
stated that when she was not found in the house and the appellant was
not also in village, then her father reached to the village of the appellant
from where she was recovered. At para 4 of her deposition, she stated
that after the above incident, the appellant has again taken her to his
village at Jhara, where he kept her for about 1-2 months and during this
period also, the appellant committed forcible sexual intercourse with her.
She deposed that she had objected, but the appellant had committed
marpeet with her. She stated that the appellant, on the pretext of
marriage, had committed sexual intercourse with her. At para 5, she
stated that the appellant, thereafter left her at Railway Station Mandir
Hasod and fled away from there. She reached to her house and narrated
the entire incident to her mother and subsequently, they lodged the
report. In cross-examination of this witness at para 14, she has admitted
that while she was being taken in the train from Railway Station Mandir
Hasod to Village Jhara, she has never raised any alarm that she was
being forcibly taken by the appellant.
18. Mother (PW3) of the Victim in her statement has stated that the Victim
(PW3) has left her house by herself for 2-3 days and subsequently, she
lodged the missing report. She stated further that about one week later,
the Victim returned. This witness deposed that the victim (PW1) has
never stated anything with regard to the incident. This witness in cross-
examination has stated that it is incorrect to say that the appellant, after
alluring the victim, has taken her with him and without her consent he
made physical relationship with her.
19. Dr. Vijay Laxmi Anant (PW5) has deposed that the Victim (PW1) was
brought before her for medical examination. On internal examination,
she found that no sticky coagulated discharge was found on her pubic
hair and vulva. There was no foul smell coming from her vagina. The
hymen was torn at 2, 7 and 5 o'clock positions. Two fingers were going
in easily. She had prepared two slides from the vaginal secretion of the
victim and sealed them and handed them over to the same lady constable
for chemical examination. She gave her opinion that the Victim was
habitual of sexual intercourse.
20. After going through the statements of the Victim (PW1), it appears that
the appellant was well knowing the Victim. The victim has categorically
stated in examination-in-chief that she was being taken by the appellant
from the Mandir Hasod Railway Station to Village- Jhara twice. She has
categorically stated that the appellant had taken her twice to his village.
First time for two days and second time, he kept her for about 1-2
months, where, on the pretext of marriage he developed corporeal
relation with her. In cross-examination, she has admitted that she had
never raised any alarm on the way while she was being taken to village
Jhara.
21. On perusal of her statement, it is apparent that the Victim voluntarily
visited the village of the appellant not once but twice. It is quite
unnatural that if someone is taken forcibly once, he would definitely
would not go again there. Rather, it reflects from her statement that the
Victim has voluntarily went with the appellant. Thus, the statement of
the Victim is hard to believe that the appellant had forcefully taken her.
Further, the mother of the Victim has stated that the Victim herself left
the house.
22. Thus, the act of the Victim and her family members does not inspire the
confidence of this Court towards the guilt of the appellant because of the
material contradictions in their statements.
23. For the foregoing reasons, the prosecution has not proved that the
appellant had forcefully taken away the Victim, rather it appears that the
Victim has voluntarily went with the appellant. Since, it has also not
proved that at the time of incident the Victim was minor, thus, the Victim
was very much capable to give her own consent while going with the
appellant, therefore, we are of the view that the appellant is entitled to be
acquitted.
24. Accordingly, the Criminal appeal is allowed. The judgment dated
15/03/2021 is set-aside. The accused is acquitted of the charges for
which he was tried. It is stated that the appellant is in jail. He shall be
released forthwith if no longer required in any other criminal case.
25. Keeping in view the provisions of Section 437-A of the CrPC, the
accused-appellant, is directed to forthwith furnish a personal bond in
terms of Form No. 45 prescribed in the Code of Criminal Procedure of
sum of Rs.25,000/- each with two reliable sureties in the like amount
before the Court concerned which shall be effective for a period of six
months along with an undertaking that in the event of filing of Special
Leave Petition against the instant judgment or for grant of leave, the
aforesaid appellant on receipt of notice thereof shall appear before the
Hon'ble Supreme Court.
26. The trial court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary
action.
Sd/- Sd/-
(Bibhu Datta Guru) (Ramesh Sinha)
Judge Chief Justice
Rahul/Gowri
