Pawan Kumar vs Anand
2022 Latest Caselaw 8791 HP

                                                                         Reportable




                                                                      .
    IN    THE      HIGH     COURT       OF     HIMACHAL          PRADESH, SHIMLA





                       ON THE 27th DAY OF OCTOBER, 2022
                                  BEFORE
                    HON'BLE MR. JUSTICE SANDEEP SHARMA





                        CRIMINAL APPEAL NO. 141 OF 2008
          Between:

          PAWAN KUMAR,





          S/O SH. PREM SINGH, R/O
          CHAJWALI THANA BALH, DISTRICT
          MANDI, H.P.
                                                                            ....APPELLANT

          (MR. BIMAL GUPTA, SENIOR

          ADVOCATE WITH MS. KUSUM
          CHAUDHARY, ADVOCATE)

          AND



          STATE OF HIMACHAL
          PRADESH




          (MS. SVANEEL JASWAL, DEPUTY





          ADVOCATE GENERAL)
                                                                         ....RESPONDENT





    This appeal coming on for hearing this day, the Court passed the following:

                                        JUDGMENT

Instant criminal appeal filed under Section 374 of Cr.PC, lays

challenge to the judgment dated 15.3.2008, passed by the learned

Additional Sessions Judge, Mandi, H.P., in Sessions Trial No. 42 of 2003,

titled State of HP v. Pawan Kumar, whereby learned court below while

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holding the appellant-accused guilty of having committed offence

punishable under Section 363 of IPC convicted and sentenced him to

undergo rigorous imprisonment for a period of two years and pay fine of Rs.

1000/- and in default of payment of fine, he shall undergo rigorous

imprisonment for one month; and under Section 366 IPC, rigorous

imprisonment for three years and pay fine of Rs. 2000/- and in default of

payment of fine, rigorous imprisonment for one month.

2.

Briefly stated facts of the case as emerge from the record are

that deceased Anjana, daughter of complainant Mohan Singh PW1, resident

of Village Chajwali, Tehsil Sadar, District Mandi, who at that relevant time

was studying in school went missing on 26.4.2002. In the evening of

26.4.2002, Smt. Bimla Devi, mother of the deceased Anjana (PW2) after

having found that her daughter Anjana is missing from the house rang up

her husband Mohan Singh, who had gone to Kullu that their minor

daughter was missing from the house. Mohan Singh came from Kullu next

morning and alongwith his brother in law went in search of his daughter

Anjana. On enquiry, it transpired that accused Pawan Kumar, who

happens to be nephew of the complainant Mohan Singh had kidnapped his

daughter from the village in a taxi of person namely Jagdish PW11 to

Sundernagar and from Sundernagar, he took the deceased Anjana in the

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taxi of Lekh Ram (PW6) to Shimla. Mohan Singh (PW1) and his brother in

law Chint Ram went to Shimla in order to trace out Anjana and the

accused, however, they failed to trace out them and as such, lodged report

at Police post Shimla.

3. On 29.4.2002, Mohan Singh received information on telephone

from his wife that his daughter Anjana has expired at Theog in District

Shimla and as such, he went to Theog, where he was told that his daughter

had expired and her body has been sent to Shimla for post mortem

examination. On enquiry, complainant Mohan Singh came to know that

accused had kidnapped his minor daughter to Theog, where they both

consumed poison. Unfortunately, Anjana expired at Theog, whereas

accused survived and case under Section 309 IPC came to be registered

against him at PS Theog. The accused was subjected to trial and

ultimately, was sentenced to simple imprisonment for one month by the

learned trial court vide impugned judgment dated 15.10.2004.

4. Being aggrieved and dis-satisfied with the aforesaid judgment

of conviction and order of sentence passed by the learned trial court,

accused preferred an appeal under Section 374 (3) Cr.PC. Learned

Additional Sessions Judge Shimla vide order dated 7.4.2005 after having

taken note of report of concerned Probation Officer, recommended for grant

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of benefit of provision of Section-4 of the Probation of Offender's Act, as a

consequence of which, accused came to be released on probation, subject

to his furnishing personal bonds with one surety in the like amount with

condition that he shall appear before the court, if called to do so within six

months from the date of passing of the order.

5. After more than 2 months of the alleged incident of kidnapping,

complainant Mohan Singh lodged a complainant at PS Balh, District

Mandi, H.P., alleging therein about kidnapping of his minor daughter by

the accused with an intention to marry her. On the basis of aforesaid

report, FIR Ext.PW1/A came to be lodged against the appellant accused

under Section 363 and 336 of the IPC. After completion of investigation,

police presented challan in the competent court of law, which after having

found prima-facie case against the accused, charged him under Sections

363 and 336 of the IPC, to which he pleaded not guilty and claimed trial.

6. Prosecution with a view to prove its case examined as many as

12 witnesses, whereas accused was afforded an opportunity to lead

evidence, but he failed to lead any evidence in defence, however, he in his

statement recorded under Section 313 Cr.PC, denied the case of the

prosecution in toto.

7. Learned trial court on the basis of evidence collected on record

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by the prosecution held the accused guilty of having committed offence

punishable under Sections 363 and 336 of IPC and accordingly, convicted

and sentenced him as per description given herein above. In the aforesaid

background, accused has approached this Court in the instant appeal,

praying therein for his acquittal after setting aside the judgment of

conviction and order of sentence recorded by the court below.

8. Mr. Bimal Gupta, learned Senior counsel appearing for the

accused vehemently argued that there is no plausible explanation available

on record qua the delay in lodging the FIR, save and except bald statement

of PW1 Mohan Singh and PW2 Bimla Devi i.e. parents of the deceased

Anjana that they remained under the impression that action with regard to

the alleged incident of kidnapping of their daughter at the hands of the

accused would be taken by Police Station Theog. He submitted that once

parents of the deceased never reported the matter with regard to the alleged

kidnapping of their daughter at PS Theog, there was otherwise no occasion

for the Police Station Theog to take any action, rather PS Theog after having

taken note of the death of deceased registered case under Section 309 IPC

for abatement of suicide against the accused, for which proper trial was

held and accused was held guilty, but ultimately was given benefit of

Section 4 of the Probation of Offenders Act. He further submitted that at

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no point of time, prosecution ever succeeded in proving that at the time of

the alleged incident of kidnapping, age of the deceased Anjana was less

than 16 years and as such, court below after having noticed the conduct of

the deceased ought to have acquitted the accused with whom deceased of

her own volition had gone to Theog. He submitted that PW1 Mohan Singh

categorically deposed that at the time of the alleged incident, age of his

deceased daughter was 16 ½ years, but yet court below placing undue

reliance upon the matriculation certificate Ext.PW1/13 wrongly proceeded

to hold that at the time of the alleged incident deceased was less than 16

years of age. He further submitted that PW8 Rakesh Kumar Panchayat

Secretary categorically deposed while proving birth certificate that there is

interpolation of record. He argued that initially, name of the deceased was

Nirmala, but subsequently same was changed to Anjana and there is no

initial upon the same of any official of the Panchayat and as such, very

basis of recording the date of birth on the matriculation certificate goes and

in that event, court below had no option but to ignore the date of birth

recorded in the matriculation certificate Ext.PW1/B. Lastly Mr. Gupta,

argued that if the statements of all the material prosecution witnesses are

read in conjunction juxtaposing each other, it clearly reveals that there are

lot of contradictions and inconsistencies and as such, ought to have been

.

ignored by the court below while ascertaining the guilt, if any, of the

accused.

9. To the Contrary, Ms. Svaneel Jaswal, learned Deputy Advocate

General while supporting the impugned judgment of conviction and order of

sentence recorded by the court below strenuously argued that delay in

lodging the FIR has been properly explained because admittedly matter

with regard to the alleged kidnapping of the deceased Anjana was very

much in the knowledge of the Police Station Theog and as such, PW1 and

PW2 are right in contending that they remained under the impression that

action with regard to kidnapping of their daughter at the hands of the

accused shall be taken by the PS Theog. She further submitted that

matriculation certificate Ext.PW1/B taken into consideration by the court

below is /was sufficient to conclude that at the time of the alleged incident,

age of the deceased was less than 16 years because as per Section 35 of the

Indian Evidence Act, any public document is per-se admissible. She

further submitted that if date of birth recorded in the matriculation

certificate is perused juxtaposing birth certificate Ext.PW1/A issued by the

concerned Gram Panchayat, which duly came to be proved by PW8 Rakesh

Kumar, Secretary Gram Panchayat, no illegality can be said to have been

committed by the court below while returning finding that at the time of the

.

alleged incident, deceased was less than 16 years of age. While making this

Court peruse statements of material prosecution witnesses especially, PWs

1 and 2, learned Deputy Advocate General strenuously argued that there

are no inconsistencies and contradictions because both have stated that

their daughter Anjana had gone missing on 26.4.2002 and they

subsequently came to know that accused kidnapped her with an intention

to solemnize marriage. Lastly learned Deputy Advocate General contended

that it is not in dispute that in criminal proceedings, accused was

convicted, however, he was subsequently released by the appellate court by

extending the benefit of Section 4 of the Probation of Offenders Act, which

fact itself establishes guilt, if any, of the accused under Sections 363 and

366 of IPC.

10. I have heard the learned counsel for the parties and gone

through the records.

11. Having heard Mr. Bimal Gupta, learned Senior counsel

appearing for the accused and Ms. Svaneel Jaswal, learned Deputy

Advocate General representing the State vis-à-vis reasoning assigned in the

impugned judgment of conviction and order of sentence recorded by the

court below, there appears to be merit in the contention of the learned

Senior counsel appearing for the accused that court below has failed to

.

appreciate the evidence in its right perspective, as a consequence of which,

findings to the detriment of the accused have come to the fore. First of all

this Court finds from the record that alleged incident of kidnapping

happened on 26.4.2002, whereas FIR qua the aforesaid incident came to be

lodged on 29.6.2002 i.e. approximately after two months and three days.

12. It is not in dispute that FIR Ext.PW1/A, which is subject

matter of the present case, was instituted on 29.6.2002, whereas alleged

incident of kidnapping took place on 26.4.2002. Though in the case at

hand, both PW1 and PW2 Mohan Singh and Bimla Devi i.e. parents of the

deceased Anjana, attempted to justify delay in lodging of FIR by stating that

they remained under impression that case with regard to kidnapping

already stands registered against the accused at PS Theog, but after some

time, villagers inquired about the fate of the case and they went to police

station Balh and lodged the FIR. Though it is well settled by now that delay

in lodging of FIR may not be fatal to the case of the prosecution, especially

when there is plausible explanation rendered on record qua the delay, but

here in the case at hand, explanation rendered on record by the

complainant PW1 Mohan Singh and his wife PW2 Bimla Devi, does not

appear to be plausible.

13. Interestingly, when factum with regard to kidnapping, if any, of

.

the deceased Anjana had come to the notice of the complainant PW1

Mohan Singh on 26.4.2002, it is not understood that what prevented him

to lodge FIR then and there, rather as per his own statement, he after

having received the information with regard to missing of his daughter from

his wife Bimla Devi, he came back to Balh and from there, he alongwith his

brother in law Chint Ram went to Shimla. It is not understood that on

what information Mohan Lal alongwith Chint Ram proceeded to Shimla

because factum with regard to accused alleging having taken the deceased

to Theog came to the notice of PW1 Mohan Singh after one day of his arrival

at Shimla. It has come in his statement that though he tried to find out

whereabouts of his daughter Anjana at Shimla, but once she was not

found, he lodged report at police post, Bus stand Shimla. Interestingly,

there is no record with regard to report, if any, lodged by Mohan Singh at

Bus-stand Shimla. He deposed in his statement that his wife PW2 Bimla

Devi telephonically informed him that he should go to Theog, but nowhere

stated that some policemen came to her house at Balh informing therein

factum with regard to death of their daughter Anjana, which fact otherwise

has been stated by PW2 Bimla Devi while making deposition before the

court below. Interestingly, PW1 in his statement deposed that while he

alongwith his brother in law was going back to Balh, same police men came

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and said that he know about the whereabouts of his daughter and he

should go to the Theog. He deposed that after having reached Theog, he

came to know that his daughter Anjana and accused consumed poison and

dead body of his daughter is in the dead house, from where same was

taken to IGMC for post mortem. He categorically deposed that he did not

meet the accused at Theog, though he was admitted in the hospital. PW1

further deposed that he after having received information with regard to

missing of his daughter from his wife reached Balh in the morning of 27th

and from there, directly went to Shimla alongwith his brother in law Chint

Ram, whereas PW2 in her statement deposed that her husband after having

reached home from Kullu went to Sundernagar alongwith brother in law

Chint Ram and Father in law Mal Ram, whereas PW1 Mohan Singh has not

stated something specific with regard to Ram Mal i.e.father of the PW2

Bimla Devi. PW1 Mohan Singh though deposed that he was informed by

PW11 Jagdish Singh that he saw his daughter going in taxi with the

accused towards Sundernagar. He further deposed that above named

Jagdish also told him that accused hired another taxi of Lekh Ram PW6

from Sundernagar to Shimla. PW6 Lekh Ram deposed that he after having

dropped the accused and Anjana at Shimla, came back to Sundernagar.

PW1 nowhere stated that before his arrival at Shimla, he could see PW6

.

Lekh Ram, in whose Taxi allegedly accused and deceased Anjana had

travelled to Shimla. Interestingly, neither Chint Ram nor Mal Ram, ever

came to be examined by the prosecution. As per PW1 Chint Ram

accompanied him to Shimla, where he allegedly lodged report at police post

bus stand Shimla, but no effort ever came to be made by the prosecution to

associate aforesaid witnesses, which could be relevant and material to the

prosecution case. Similarly, police men, who allegedly told PW1 Mohan

Singh that he should go to Theog, also never came to be examined. PW2

Bimla Devi in her statement stated that on the 3rd day, police came to her

house and told her that Anjana had died at Theog and thereafter, she

informed her husband that Anjana had died at Theog, however aforesaid

fact never came to be deposed by PW1 complainant in the court, rather he

deposed that he received a call in the evening of the same day at Theog by

which time, he had already come to know factum with regard to death of

her daughter. PW1 in his cross-examination categorically stated that age of

his elder daughter is about 25 years and age of his younger daughter is 22

to 23 years. He further admitted that there is age difference of 2 to 3 years

in between his children. He stated that Anjana had done her matriculation

and he had sent Anjana to School when she was six years old. He

categorically deposed that when Anjana had completed matriculation her

.

age was 16 ½ years.

14. If the statements of both the material prosecution witnesses

PW1 and 2 are read in conjunction juxtaposing each other, this Court is

persuaded to agree with Mr. Bimal Gupta, learned Senior counsel,

appearing for the petitioner that there are material contradictions and

inconsistencies in the statements of both the aforesaid witnesses. Moreover

two material prosecution witnesses, apart from PW1 and PW2, who had

information with regard to alleged kidnapping of Anjana by the accused

namely Chint Ram and Mal Ram never came to be examined by the

prosecution. There is contradiction with regard to receipt of information

with regard to death of deceased Anjana at Theog by PW1 and PW2. As per

PW1, he was informed with regard to whereabouts of his missing daughter

by some policeman and thereafter, he proceeded to Theog, whereas PW2

deposed that on 3rd day of the alleged incident, she was informed by the

police that her daughter is found dead at Theog in the morning, whereafter

she allegedly informed her husband at Shimla. If it is so, it means that

PW1 Mohan Singh was in Shimla for three days as per her version, whereas

as per version of Mohan Singh, he was in Shimla for 1 and 2 days and

thereafter after having received information from the police about

whereabouts of his daughter proceeded to Theog, where information was

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given to him that his daughter Anjana has died after consuming poison. It

has nowhere come in the statement of PW1 Mohan Sing that at Theog, he

lodged report, if any, with regard to alleged kidnapping of his daughter by

the accused, rather he after having received information with regard to

death accompanied the police to IGMC Shimla and from there, he took body

of the deceased daughter to his village for cremation.

15. There are two other material prosecution witnesses PW4 Lali

Devi and PW5 Ram Pal, at whose residence at Theog, both the accused and

deceased Anjana stayed during the day time before the unfortunate death

of the deceased Anjana. As per these witnesses, accused was known to

them as he had worked in their shop 2-3 years back. As per these

witnesses, accused had introduced the deceased Anjana as his wife and

thereafter they both had gone in a room for rest. PW4 deposed that at

about 3-4 pm, when she went to wake the accused and Anjana in the room,

accused Pawan Kumar stated that Anjana is not feeling well and she was

inside the room. PW4 further deposed that accused told her that he had

consumed liquor and as such was not feeling well. She alleged that her

husband came home at 7pm and then accused told him that he and Anjana

had consumed poison. PW5 Ram Pal called the neighbour Banka Ram and

went to the police station Theog. Police came from police station Theog and

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found Anjana dead in the room. Interestingly, Banka Ram, who

accompanied PW5 Ram Pal, never came to be examined by the prosecution.

Though it clearly emerges from the statements of aforesaid material

prosecution witnesses that accused had introduced the deceased Anjana as

his wife, but at no point of time, deceased Anjana complained with regard

to her alleged kidnapping by the accused, rather she of her own volition

stayed in the room with the accused for some time in the house of PW4 and

PW5. PW4 has categorically deposed that when Anjana reached her house,

she was not frightened or perplexed and told her that they have come from

Sundernagar and they would go in the evening.

16. Leaving everything aside, this Court finds from the record that

though dead body of deceased Anjana was taken for post mortem to IGMC,

Shimla, but if the post mortem report placed on record Ext.PW3/C is

perused in its entirety, it nowhere stated something specific with regard to

cause of death, rather it has been stated that report of death shall be given

after the receipt of chemical examination of the Viscera. Final report of

post mortem on the basis of viscera, if any, never came to be placed on

record. Though omission on the part of the prosecution to place on record

postmortem report complete in all respects may not be of much relevance

as far as this case is concerned, but certainly it creates doubt with regard

.

to story of the prosecution. Since there are material contradictions and

inconsistencies in the statements of material prosecution witnesses,

especially PW1 and PW2, court below ought to have exercised due caution

and care while placing reliance on the statements of aforesaid witnesses. If

the statements of both the aforesaid witnesses are read in conjunction, it

clearly emerges that accused was their nephew and he was residing in the

same house. Though prosecution has attempted to carve out a case that

accused kidnapped the deceased Anjana with a view to solemnize marriage,

but there is no whisper, if any, in the statement of PW1 and PW2 with

regard to intimate relationship, if any, inter-se accused deceased Anjana,

rather both PW1 and PW2 have categorically deposed that accused was

their nephew and he had been residing with them only. Aforesaid

statements made by PW1 and PW2 gains significance on account of

statement made by PW6 Lekh Ram, who dropped the accused and deceased

Anjana in his taxi from Sundernagar to Shimla. He deposed that in the

year, 2002, one boy and girl came to him. Boy claimed that girl was his

sister and he hired taxi to Shimla. He also deposed that girl was feeling

some sort of tiredness while coming to Shimla. Though he stated that next

day, one person inquired as to where he had taken the passengers to the

Shimla and he had told him that one boy and girl had hired his taxi to

.

Shimla but he cannot identify the person who had hired his taxi.

17. No doubt, PW4 in her statement deposed that accused Pawan

Kumar told her that Anjana was his wife but that may not be sufficient to

conclude intimate relationship, if any, inter-se accused and deceased

Anjana, especially when she in her cross-examination admitted that

deceased was appearing from her dress and make up to be unmarried girl.

She further stated in her cross-examination that she did not inquire from

the accused as to when their marriage was solemnized. Though PW1 in

initial complaint given to the police claimed that accused had kidnapped

his daughter with a view to solemnize marriage, but on what basis he gave

this information to the police, is totally missing. Neither PW1 nor PW2

deposed that in past their daughter and accused had some kind of

relationship and they wanted to solemnize marriage. It is difficult to believe

that though accused was living in the house of the complainant and he had

no knowledge/intimation with regard to his relationship with his daughter.

Leaving everything aside, version putforth by PWs 1 and 2 being totally

contradictory, otherwise could not be given much weightage by the court

while holding the accused guilty of his having committed offence

punishable under Section. Reliance is placed on Judgment passed by the

Hon'ble Apex Court in C. Magesh and Ors. v. State of Karnataka (2010)

.

5 SCC 645, wherein it has been held as under:-

"45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency.

Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U.P., 2008 (11) SCR 286 has held:- (SCC p. 704, para 14) "14. The evidence must be tested for its inherent

consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."

46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so", hence utmost caution is required to be exercised in dealing

with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in

evidence amongst all the witnesses."

18. Though after having carefully perused the statements of

material prosecution witnesses, this Court has no hesitation to conclude

that prosecution was unable to prove beyond reasonable doubt that

accused kidnapped the deceased Anjana on the date of the alleged incident,

but even if for the sake of arguments, it is presumed that accused with a

view to solemnize marriage kidnapped the deceased Anjana, this Court

having taken note of the conduct of the deceased that she of her own

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volition and without there being any external pressure joined the company

of the accused and thereafter, introduced herself as wife of the accused to

PW4 Smt. Lali Devi, this Court finds it difficult to agree with Ms. Svaneel

Jaswal, learned Deputy Advocate General that accused taking undue

advantage of innocence of minority and innocence of the victim-prosecutrix,

made her elope with him. No doubt, in the instant case, prosecution has

succeeded in proving the age of the deceased to be less than 16 years by

placing on record matriculation certificate, but now question remains

whether aforesaid certificate ever came to be proved on record by leading

cogent or convincing evidence or not. No Doubt, PW1 complainant placed

on record the aforesaid certificate to prove that at the time of the alleged

incident, age of the deceased was less than 16 years but whether mere

exhibition of aforesaid document is sufficient to prove the same is a

question needs to be determined at the first instance. Section 35 of the

Indian Evidence Act though suggests that an entry in any public or other

official book, register or record or an electronic record, stating a fact in

issue or relevant fact, and made by a public servant in the discharge of his

official duty is itself a relevant fact, but till the time record on the basis of

which such entry came to be made in the certificate is not produced and

proved by the person, who made entry, it cannot be said that such

.

certificate stands proved in the case at hand. On one hand, prosecution

placed on record birth certificate Ext.PW8/A, which came to be proved by

PW8 Rakesh Kumar i.e. Panchayat Secretary, who deposed that date of

birth of Anajana Kumari is recorded in the record is 22.10.1986 and her

name is entered at page No. 20. However in his cross-examination, he

admitted that there is cutting in the name of Anjana. While stating that

cutting was not made by him, he stated that cutting in the name has not

been initialed or attested by any of the officials of the panchayat.

Prosecution while proving matriculation certificate has not been able to

prove that date of birth recorded in the matriculation certification is based

upon birth certificate issued by the Panchayat Secretary, Gram Panchayat,

rather prosecution attempted to prove from the record of Gram Panchayat

that date of birth of the deceased Anjana was 22.10.1986. However as has

been taken note herein above, statement of PW8 Rakesh Kumar becomes

doubtful on account of his admission made in the cross-examination that

there is interpolation in the record. He stated that initially Nirmala Devi

was written in the first column and there is cutting and name Anjana is

mentioned and there are no initials of the any of the official of the

Panchayat on the cutting.

19. In the absence of evidence to show on what material the entry

.

of date of birth in the matriculation certificate was made, mere production

of a copy of matriculation certificate, though a public document, in terms

of Section 35, is/was not sufficient to prove the age of the deceased. To

render a document admissible under Section 35, provisions are required to

be satisfied i.e. entry that is relied on must be one in a public or other

official book, register or record; (ii) it must be an entry stating a fact in

issue or a relevant fact, and (iii) it must be made by a public servant in

discharge of his official duties, or in performance of his duty especially

enjoined by law. Reliance is placed upon judgment passed by the Hon'ble

Apex Court in Babloo Pasi v. State of Jharkhand and Anr, (2008) 13

SCC 133, wherein it has been held as under:

"27.Insofar as the Board is concerned, it is evident that it has

mechanically accepted the entry in Voters List as conclusive without appreciating its probative value in terms of the provisions of Section

35 of the Indian Evidence Act, 1872. Section 35 of the said Act lays down that an entry in any public or other official book, register, record, stating a fact in issue or relevant fact made by a public

servant in the discharge of his official duty especially enjoined by the law of the country is itself a relevant fact.

28. It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record;

(ii) it must be an entry stating a fact in issue or a relevant fact, and

(iii) it must be made by a public servant in discharge of his official

.

duties, or in performance of his duty especially 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 the entry regarding

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. (See: Birad Mal Singhvi Vs. Anand Purohit)

29.Therefore, on facts at hand, in the absence of evidence to show on what material the entry in the Voters List in the name of the accused was made, a mere production of a copy of the Voters List, though a public document, in terms of Section 35, was not sufficient to prove

the age of the accused. Similarly, though a reference to the report of

the Medical Board, showing the age of the accused as 17-18 years, has been made but there is no indication in the order whether 1988 (Supp) SCC 604 the Board had summoned any of the members of the

Medical Board and recorded their statement. It also appears that the physical appearance of the accused, has weighed with the Board in coming to the afore-noted conclusion, which again may not be a

decisive factor to determine the age of a delinquent. Insofar as the High Court is concerned, there is no indication in its order as to in

what manner Rule 22(5)(iv) has been ignored by the Board. The learned Judge seems also to have accepted the opinion of the Medical

Board in terms of the said Rule as conclusive. Therefore, the afore- stated ground on which the High Court has set aside the opinion of the Board and holding the accused to be a juvenile, cannot be sustained."

20. An entry relating to date of birth made in the school register is

relevant and admissible under Section 35 of the Act but the entry regarding

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. In this regard, reliance is placed upon judgment passed by

the Hon'ble Apex Court in Birad Mal Singhvi v. Anand Purohit, 1988

(Supp) SCC 604. Paras 14 and 17 of the afore judgment read as under:

"14 We would now consider the evidence produced by the respondent

on the question of age of Hukmi Chand and Suraj Prakash Joshi. The respondent examined Anantram Sharma PW 3 and Kailash Chandra Taparia PW5. Anantram sharma PW 3 has been the Principal of New

Government Higher Secondary School, Jodhpur since 1984. On the

basis of the scholar's register he stated before the High Court that Hukmi Chand joined school on 24.6. 1972 in 9th class and his date of birth as mentioned in scholar's register was 13.6.1956. He made this statement on the basis of the entries contained in the scholar's

register Ex. 8. He admitted that entries in the scholar's register are made on the basis of the entries contained in the admission form. He could not produce the admission form in original or its copy. He

stated that Hukmi Chand was admitted in 9th class on the basis of

transfer certificate issued by the Government Middle School, Palasni from where he had passed 8th standard. He proved the signature of Satya Narain Mathur the then Principal who had issued the copy of

the scholar's register Ex. 8. Satya Narain Mathur was admittedly alive but he was not examined to show as to on what basis he had mentioned the date of birth of Hukmi Chand in Ex. 8. The evidence of Anantram Sharma merely proved that Ex. 8 was a copy of entries in scholar's register. His testimony does not show as to on what basis the entry relating to date of birth of Hukmi Chand was made in the

scholar's register. Kailash Chandra Taparia PW 5 was Deputy

.

Director (Examination) Board of Secondary Education, Rajasthan, he

produced the counter foil of Secondary Education Certificate of Hukmi Chand Bhandari. a copy of which has been filed as Ex. 9. He

also proved the tabulation record of the Secondary School Examination 1974, a copy of which has been filed as Ex. 10. In both these documents Hukmi Chand's date of birth was recorded as 13.6.1956. Kailash Chandra Taparia further proved Ex. 11 which is

the copy of the tabulation record of Secondary School Examination of 1977 relating to SuraJ Prakash Joshi. In that document the date of birth of Suraj Prakash Joshi was recorded 11.3.1959 Kailash Chandra Taparia stated that date of birth as mentioned in the

counter foil of the certificates and in the tabulation form Ex. 12 was

recorded on the basis of the date of birth mentioned by the candidate in the examination form. But the examination form or its copy was not produced before Court. In substance the statement of the

aforesaid two witnesses merely prove that in the scholar's register as well as in the Secondary School examination records the date of birth of a certain Hukmi Chand was mentioned as 13.6.1956 and in the

tabulation record of Secondary School Examination a certain suraj Prakash Joshi's date of birth was mentioned as 11.3.1959. No

evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who

had filed nomination nation papers. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs. 8,

9. 10. 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence

is missing, because no evidence was placed before the Court to show

.

on whose information the date of birth of Hukmi Chand and the date

of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two

candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best person to depose

about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash

Chandra Taparia merely prove the documents but the contents of

those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry

contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the

person concerned. If the entry in the scholar's register regarding date of birth is made in the basis of information given by parents, the

entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date

of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 1(). 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. Since the truth of the fact, namely, the date of birth of HukmiChand and Suraj Prakash Joshi was in issue, mere proof of

the documents as produced by the aforesaid two witnesses does not

.

furnish evidence of the truth of the facts or contents of the

documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents

could be proved by admissible evidence i.e. by the evidence of those persons who could vouch safe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts. namely, the date of birth of Hukmi Chand and

of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.

17. The appellant was declared elected aS he had polled majority of

valid votes. His election could not be set aside unless the respondent-

election petitioner was able to prove that Hukmichand and Suraj Prakash Joshi had attained the age of 25 years on the date of nomination by producing cogent and reliable evidence before the

High Court. The burden to prove that fact was on the respondent throughout and he could not and did not discharge that burden merely by producing the documentary evidence Ex. 8, 9, 10, 11 and

12 or on the basis of oral testimony of Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5. As discussed earlier these

documents do not conclusively prove the dates of birth of Hukmi Chand and Suraj Prakash Joshi. 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 dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value. The High Court committed serious documents. In our view the

High Court's entire approach in considering the question of dates of

.

birth was wholly misconceived. The burden to prove the fact in issue,

namely, the dates of birth of Hukmichand and Suraj Prakash Joshi was on the respondent who was the election petitioner. The

respondent could not succeed if no evidence was produced by the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry contained

in the electoral roll regarding the age of two candidates was incorrect. It appears that in his list of witnesses the appellant had included the name of Suraj Prakash Joshi and his father Maghdutt Joshi as witnesses but they were not examined by him. Similarly, Hukmi

Chand was also cited by the appellant but he was also not examined

instead Navratan Mal Bhandari, brother of Hukmi Chand was examined as PW 4 and Ghanshyam Chhangani was examined as PW 6 by the appellant, who supported the appellants case that Hukmi

Chand and Suraj Prakash Joshi had not attained the age of 25 years on the date of nomination. Since the appellant had not examined Hukmi Chand. Suraj Prakash Joshi or their parents, the High Court

drew adverse inference against him. The High Court committed serious error in doing so. There was no question of drawing adverse

inference against the appellant, as the burden to prove the age of Hukmi Chand and Suraj Prakash joshi was on the election petitioner

and since he had failed to prove the same by cogent evidence no adverse inference could be drawn against the appellant. In fact. burden was on the respondent to prove his case by producing the Hukmichand and Suraj Prakash Joshi, or their parents to prove and corroborate the dates of birth as mentioned in the school register and the certificate. If he failed to do that he could not succeed merely because appellant had not produced them. In the circumstances no

adverse inference was at all possible to be drawn against the

.

appellant for not examining Hukmi Chand and Suraj Prakash Joshi

or their parents."

21. In Alamelu and Anr v. State represented by Inspector of

Police (along with connected matters) 2011 (2)385, it has been held as

under:

"42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit1, observed as follows:-

"14.....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. Since the truth of the

fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents.

The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents

could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of

birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted." (emphasis supplied).

43. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal2, where this Court observed as follows:-

"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to

be a due proof of its contents. Its execution has to be proved by

.

admissible evidence, that is, by the "evidence of those persons

who can vouchsafe for the truth of the facts in issue"."

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.

45. In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW8 Dr. Gunasekaran.

However, the High Court failed to notice that in his evidence before the Court, PW8, the X-ray Expert had clearly stated in the cross- examination that on the basis of the medical evidence, generally, the age of an (2003) 8 SCC 745 individual could be fixed approximately. He had also stated that it is likely that the age may vary from

individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age

between one specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18 years of age.

46.In addition, the High Court failed to consider the expert evidence

given by PW13 Dr. Manimegalaikumar, who had medically examined the victim. In his cross-examination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years. He had stated that in this case, the age of

the girl could be from 17 to 19 years. This margin of error in age has been judicially recognized by this Court in the case of Jaya Mala Vs.

Home Secretary, Government of Jammu & Kashmir & Ors.3, In the aforesaid judgment, it is observed as follows:-

"9......However, it is notorious and one can take judicial notice

that the margin of error in age ascertained by radiological examination is two years on either side."

47. We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date.

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:-

"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose

of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the

purpose of determining the age of a (2006) 5 SCC 584 party to the lis, having regard to the provisions of Section 35 of the

Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by

the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted. (emphasis supplied)."

22. It is quite apparent from the aforesaid exposition of law laid

down by the Hon'ble Apex Court that court of law for the purpose of

determining the age of party to the lis, having regard to the provisions

of Section 35 of the Evidence Act will have to apply the same standards in

civil as well as criminal cases. No different standard can be applied in case

of an accused as in a case of abduction or rape, or similar offence where

the victim or the prosecutrix although might have consented with the

accused, if on the basis of the entries made in the register maintained by

.

the school, a judgment of conviction is recorded, the accused would be

deprived of his constitutional right under Article 21 of the Constitution.

Since in the case at hand though prosecution placed on record

matriculation certificate showing date of birth of the deceased to be

22.10.1986, but since no record on the basis of which such entry came to

be incorporated in the matriculation certificate came to be placed on record

or proved by official, who made such entry, no much reliance could be

placed upon the same. Apart from above, another document placed on

record to prove date of birth of deceased Anjana is Panchayat Certificate,

wherein though date of birth of deceased has been shown as 22.10.1986,

but as has been noticed herein above, PW8 Rakesh Kumar, has

categorically admitted that there is interpolation in the records and while

cutting, none of the official has initialed the same and as such, court below

otherwise could not have placed much reliance upon the same.

23. Leaving everything aside, (PW1) father of the deceased in his

statement categorically stated that age of his daughter was 16 ½ years at

the time of the alleged incident. If it is accepted, there is contradiction on

account of certificates placed on record by the prosecution to prove the age

of the deceased. At this stage, Ms. Svaneel Jaswal, learned Deputy

.

Advocate General placed reliance upon judgment passed by the Hon'ble

Apex Court in State of Madhya Pradesh v. Anoop Singh, 2015 7 SCC

773 to contend that certificate proving the age of prosecutrix to be below

sixteen is sufficient to hold the accused guilty of having committed offence

punishable under Sections 363 366 and 376 of IPC, relevant paras of the

aforesaid judgment read as under:

"12. We believe that the present case involves only one issue for this

Court to be considered, which is regarding the determination of the

age of the prosecutrix.

13. In the present case, the central question is whether the

prosecutrix was below 16 years of age at the time of the incident. The prosecution in support of their case adduced two certificates, which were the birth certificate and the middle school certificate. The date

of birth of the prosecutrix has been shown as 29.08.1987 in the Birth Certificate (Ext. P/5), while the date of birth is shown as 27.08.1987

in the Middle School Examination Certificate. There is a difference of just two days in the dates mentioned in the abovementioned

Exhibits. The Trial Court has rightly observed that the birth certificate Ext. P/5 clearly shows that the registration regarding the birth was made on 30.10.1987 and keeping in view the fact that registration was made within 2 months of the birth, it could not be guessed that the prosecutrix was shown as under-aged in view of the possibility of the incident in question. We are of the view that the discrepancy of two days in the two documents adduced by the

prosecution is immaterial and the High Court was wrong in

.

presuming that the documents could not be relied upon in

determining the age of the prosecutrix.

14. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of

Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3)

reads as under:

"Rule 12(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."

15. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske (supra) as under:

"Under rule 12(3)(b), it is specifically provided that only in the

absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can

be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well." (Emphasis supplied)

This Court therefore relied on the certificates issued by the school in

determining the age of the prosecutrix. In paragraph 13, this Court observed:

"13.In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the proseuctrix did her V standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where

the prosecutrix had her initial education, also confirmed the

.

date of birth as 20.05.1990. the reliance placed upon the said

evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of

age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same."

16. In the present case, we have before us two documents which

support the case of the prosecutrix that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is

immaterial and just on this minor discrepancy, the evidence in the

form of Exts. P/5 and P/6 cannot be discarded. Therefore, the Trial Court was correct in relying on the documents.

17. The High Court also relied on the statement of PW-11 Dr. A.K.

Saraf who took the X-ray of the prosecutrix and on the basis of the ossification test, came to the conclusion that the age of the

prosecutrix was more than 15 years but less than 18 years. Considering this the High Court presumed that the girl was more

than 18 years of age at the time of the incident. With respect to this finding of the High Court, we are of the opinion that the High Court should have relied firstly on the documents as stipulated under Rule

12(3)(b) and only in the absence, the medical opinion should have been sought. We find that the Trial Court has also dealt with this aspect of the ossification test. The Trial Court noted that the respondent had cited Lakhan Lal Vs. State of M.P., 2004 Cri.L.J. 3962, wherein the High Court of Madhya Pradesh said that where the doctor having examined the prosecutrix and found her to be below

18½ years, then keeping in mind the variation of two years, the

.

accused should be given the benefit of doubt. Thereafter, the Trial

Court rightly held that in the present case the ossification test is not the sole criteria for determination of the date of birth of the

prosecutrix as her certificate of birth and also the certificate of her medical examination had been enclosed.

18. Thus, keeping in view the medical examination reports, the

statements of the prosecution witnesses which inspire confidence and the certificates proving the age of the prosecutrix to be below 16 years of age on the date of the incident, we set aside the impugned judgment passed by the High Court and uphold the judgment and

order dated 24.04.2006 passed by the third Additional Sessions

Judge, Satna in Special Case No.123/2003."

24. However, having carefully perused the aforesaid judgment, this

court finds no application of the aforesaid judgment in the case at hand

because facts are totally different. In the aforesaid case, question before

the Hon'ble Apex Court was whether court was right in placing reliance on

the report of ossification test given by the radiologist ignoring other

documents placed on record suggestive of the fact that age of victim-

prosecutrix at the time of the alleged incident was less than 16 years.

Hon'ble Apex Court having taken note of Rule 12 (3) (b) of Juvenile Justice

(Care and Protection of children) Rules 2007, ruled that medical opinion

can be sought from the duly constituted medical board only if matriculation

or equivalent certificate of date of birth certificate are not available. Since

in that case, matriculation and birth certificate were available, but court

.

placing reliance upon ossification test report given by the radiologist

proceeded to hold that victim was above 16 years of age, Hon'ble Apex

Court set aside the judgment. Herein, as as been discussed in detail,

matriculation certificate as well as date of birth certificate issued by board

of school education and Gram Panchayat never came to be proved in

accordance with law and as such, court below may not have placed much

reliance upon the same while holding the deceased to be less than 18 years

of age.

25. Consequently, in view of the detailed discussion made herein

above as well as law taken into consideration, this Court has no hesitation

to conclude that court below has failed to appreciate the evidence in its

right perspective and as such, judgment of conviction and order of sentence

dated 15.3.2008 is not sustainable in the eye of law and accordingly, same

are quashed and set aside and appellant is acquitted of the charge framed

against him. Bail bonds if any, discharged. Present appeal is disposed of

alongwith pending applications if any

27th October, 2022 (Sandeep Sharma), (manjit) Judge