Madhya Pradesh High Court
Ravi Ahirwar vs The State Of Madhya Pradesh on 25 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 25th OF AUGUST, 2025
CRIMINAL APPEAL No. 13572 of 2024
RAVI AHIRWAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Aseem Kumar Dixit - learned counsel for the appellant.
Ms. Shweta Yadav - learned Dy. Advocate General for the respondent/
State.
Mr. Jafar Khan - learned counsel for the objector.
JUDGMENT
Per: Justice Vivek Agarwal
This case is heard finally with the consent of learned counsel for the
parties.
Accordingly, I.A. No. 31888 of 2024 , which is an application on
behalf of the appellant for suspension of sentence and grant of bail, is
dismissed as withdrawn.
This appeal is filed by the appellant being aggrieved of the judgment
dated 08.07.2024 passed by the Third Additional Sessions Judge and Special
Judge (under POCSO Act, 2012), Sagar in S.C. No. 97/2023 whereby the
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appellant has been convicted under Section 5(L)/6 of the POCSO Act and
sentenced to R.I. for 20 years with fine of Rs.5,000/-; in default 2 years'
additional R.I. The appellant has also been convicted under 376(2)(n) of IPC,
but not separately sentenced.
2. Learned counsel for the appellant submits that the prosecutrix was a
consenting party. She was an adult at the time of the incident. The appellant
and the victim have performed their marriage. As admitted by the victim and
her mother her correct date of birth is 23.12.2004 and incident is of
22.07.2023, therefore at the time of the incident age of the victim was over
18 years. It is submitted that it's a case of consensual relationship between
two consenting adults, therefore, provisions of Section 5(L)/6 of the POCSO
Act and Section 376(2)(n) of IPC will not be attracted.
3. Ms. Shweta Yadav, learned Dy. Advocate General for the State
and Shri Jafar Khan, learned counsel for the objector, vehemently oppose the
prayer.
4. After hearing learned counsel for the parties and going through the
record, it is evident that P.W.1 victim has admitted that her date of birth is
23.12.2004. She further admitted that on 22.07.2023, without informing
anybody, she had left her home as she was continuously taking to the
accused and they had liking for each other. She stated that she was taken to
Makronia by appellant in an auto and from Makronia railway station she was
taken to Bina and from Bina to Bhopal where they stayed as husband and
wife after performing marriage. This witness admitted that at the time of the
incident her age was above 18 years and this is what she had informed the
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appellant, as a result of which they had performed marriage. The appellant
was treating her well. The mother of the victim (P.W.2) in paragraph 4 of her
cross-examination admitted that when victim had left her home, she was
above 18 years of age. She further accepted that victim had performed
marriage with the appellant with her consent. She stated that in the school
she had reduced the age of the victim by one year and recorded it. She
admitted that actual date of birth of the victim is 23.12.2004. Thereafter, in
paragraph 5 of her cross-examination this witness admitted that exactly after
one year, another daughter was born to her at Dafrin Hospital, Sagar who
died after 6 months. The third child was born on 19.03.2008. Even witness
was confronted by the Public Prosecutor and she was informed that if she
fails to give correct information then she can face the consequences including
imprisonment, yet in cross-examination she has supported the claim of the
victim that her date of birth is 23.12.2004.
5. P.W.3 Anil Kumar Sen, Headmaster of the concerned school has
admitted that he cannot say as to whether mother of the victim had given
date of birth of the victim as 23.12.2004 or not. He has admitted that he was
not posted at the time of preparation of Dakhil Kharij Panji (Ex. P/12).
6 . P.W.7 Dr. Pratibha Goel stated that she had examined the victim.
The victim had informed her that she had gone with the appellant on her own
and they stayed in a room at Bhopal where they established physical
relationship. They had performed marriage on 28.07.2023 in a temple. Her
secondary sexual characteristics were fully developed. There were no injury
marks on any of the private parts of the victim. Two vaginal slides were
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prepared. DNA report says that no Y STR DNA profile was found on the
sample drawn from the victim.
7. P.W.9 Savita Dubey, clerk from the Nagar Nigam admitted that in
Ex. P/27 name of the child is not mentioned. She admitted that parents of the
victim had not given any intimation in regard to date of birth of the victim.
She could not say as to in regard to which of the child, intimation was
received from the hospital. She admitted that there is no record in the
Municipal Corporation to show as to in regard to which number of child
intimation was received, for whom date of birth is mentioned as 23.12.2005.
8 . When all the aforesaid facts are taken into consideration, it is
evident that the prosecution has failed to prove the age of the victim, mother
of the victim has categorically stated that date of birth of the victim is
23.12.2004, which makes her major at the time of the incident. Prosecution
has failed to prove that victim was minor at the time of the incident, onus of
which was on the prosecution in the light of the judgment Birad Mal Singhvi
v. Anand Purohit, 1988 SC 1796 in which Hon'ble Supreme Court has held
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 PW 5. Anantram Sharma PW 3 has been the
Principal of New Government High 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 Ninth 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
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register are made on the basis of 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 Ninth class on the basis
of transfer certificate issued by the Government Middle School,
Palasani from where he had passed eight 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 counterfoil of Secondary Education 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 as 11-3-1959. Kailash Chandra Taparia stated that date
of birth as mentioned in the counterfoil 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 the 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
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to prove that the aforesaid documents related to Hukmi Chand and
Suraj Prakash Joshi who had filed nomination 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 persons to depose about the date
of birth of a person. If entry regarding date of birth in the scholar's
register is made on the information given by parents or someone
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
scholars' 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's 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 on 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, 10, 11, and 12 were proved, it does not mean that the
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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.
15. The High Court held that in view of the entries contained in
the Exs. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3
and Kailash Chandra Taparia PW 5, the date of birth of Hukmi
Chand and Suraj Prakash Joshi was proved and on that assumption
it held that the two candidates had attained more than 25 years of
age on the date of their nomination. In our opinion the High Court
committed serious error. Section 35 of the Indian Evidence Act
lays down that entry in any public, official book, register, record
stating a fact in issue or relevant fact and made by a public servant
in the discharge of his official duty specially enjoined by the law
of the country is itself the relevant fact. 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
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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 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 Raja Janaki Nath
Roy v. Jyotish Chandra Acharya Chowdhury,AIR 1941 Cal 41 a
Division Bench of the Calcutta High Court discarded the entry in
school register about the age of a party to the suit on the ground
that there was no evidence to show on what material the entry in
the register about the age of the plaintiff was made. The principle
so laid down has been accepted by almost all the High Courts in
the country, see Jagan Nath v. Moti Ram ,AIR 1951 Punj 377
, Sakhi Ram v. Presiding Officer ,AIR 1966 Pat 459 , Ghanchi
Vora Samsuddisn Isabhai v. State of Gujarat, AIR 1970 Guj 178
and Radha Kishan Tickoo v. Bhushan Lal Tickoo, AIR 1971 J&K
62, In addition to these decisions the High Courts of Allahabad,
Bombay, Madras have considered the question of probative value
of an entry regarding the date of birth made in the scholar's
register or in school certificate in election cases. The courts have
consistently held that the date of birth mentioned in the scholar's
register or secondary school certificate has no probative value
unless either the parents are examined or the person on whose
information the entry may have been made, is examined,
see Jagdamba Prasad v. Jagannath Prasad, [42 ELR 465 (All
HC)] K. Paramalali v. L.M. Alangam, (1967) 31 ELR 401 (Mad)
, Krishna Rao Maharu Patil v. Onkar Narayan Wagh, (1958) 14
ELR 386 (Bom) ."
9. In view of the aforesaid, we are of the opinion that since
prosecution has failed to prove that victim was minor on the date of the
incident, conviction of the appellant under Sections 5(L)/6 of the POCSO
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Act and 376(2)(n) of IPC cannot be sustained in the eyes of law, therefore,
impugned judgment of conviction of the appellant dated 08.07.2024 is set
aside. The Appeal is allowed.
10. The appellant Ravi Ahirwar is in jail. He be set at liberty
forthwith, if not required in any other case.
11. The case property be disposed of as per the directions of the
Trial Court.
12. Record be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VSG
