Madras High Court
M.Marimuthu vs The State on 18 October, 2022
Crl.A(MD)No.487 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.10.2022
CORAM :
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH
CRL.A.(MD)No.487 of 2019
M.Marimuthu .. Appellant / Accused
Vs.
The State, through The Inspector of Police,
All Women Police Station,
Srivaikuntum,
Tuticorin District.
(Crime No.18 of 2015) .. Respondent / Complainant
1/23
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Crl.A(MD)No.487 of 2019
PRAYER: Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure, praying to call for the judgment, dated 10.09.2019 made in
Spl.S.C.No.38 of 2016, on the file of the learned Sessions Judge, Mahalir
Neethimandram, (Fast Track Mahila Court), Thoothukudi and set aside the
same and allow this Criminal Appeal.
For Appellant : Mr.V.Kathirvelan,
Senior Counsel
for Mr.K.Prabhu
For Respondent : Mr.A.Thiruvadi Kumar,
Additional Public Prosecutor
JUDGMENT
J. NISHA BANU, J.
AND
N. ANAND VENKATESH, J.
This Criminal Appeal has been filed against the Order and
Judgment of the learned Sessions Judge, Mahalir Neethimandram, (Fast
Track Mahila Court), Thoothukudi, made in Spl.S.C.No.38 of 2016, dated
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10.09.2019, convicting and sentencing the appellant in the following
manner :
Provisions under Sentence of imprisonment and
Sl.No.
which convicted fine amount
1. 5(j)(ii) r/w 6 of To undergo life imprisonment
POCSO Act and to pay a fine of Rs.5,000/-
(Rupees Five Thousand only)
and in default, to undergo six
months rigourous imprisonment.
2. 506(ii) IPC To undergo seven years rigorous
imprisonment and to pay a fine
of Rs.1,000/- (Rupees One
Thousand only) and in default,
to under go six months
rigourous imprisonment.
2. The case of the prosecution is that the victim girl was aged
about 17 years and she was studying in 12th standard in Government High
School. The appellant developed an affair with the victim girl and that a
false promise was made to marry her and he had sexual intercourse with the
victim girl several times. The victim girl also became pregnant on one
occasion and she delivered a stillborn child on 12.01.2016.
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3. The victim girl gave a complaint (Ex.P1) before the
respondent police and an FIR (Ex.P21) was registered by P.W.14. The
investigation was taken up by P.W.15 and on completion of investigation,
the final report came to be laid before the Court below.
4. After serving copies to the appellant under section 207 of
Cr.P.C., the Court below framed charges against the appellant for offence
punishable under Section 5(j) (ii) r/w.6 of Prevention of Children from
Sexual Offences Act, 2012 (herein after referred to as "the Act") and Section
506(ii) IPC.
5. The prosecution examined P.W.1 to P.W.15 and marked
Ex.P1 to Ex.P23. The incriminating materials collected during the course of
trial was put to the appellant while he was questioned under Section 313 (1)
(b) Cr.P.C. and he denied the same as false.
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Crl.A(MD)No.487 of 2019
6. The Court below, on considering the facts and circumstances
of the case and on appreciation of evidence, came to the conclusion that the
prosecution has proved the case beyond reasonable doubts and convicted
and sentenced the appellant in the manner stated supra. Aggrieved by the
same, the present Criminal Appeal has been filed before this Court.
7. Heard Mr.V.Kathirvelan, learned Senior Counsel for
Mr.K.Prabhu, learned counsel appearing on behalf of the appellant and
Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing on
behalf of the respondent.
8. We have carefully gone through the materials available on
record and considered the submissions made on either side.
9. The relationship between the appellant and the victim girl
and their indulgence in regular physical intercourse, are not in dispute and it
has been substantially established before the Court below. In view of the
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consensual sexual act between the appellant and the victim girl, there seems
to be some understanding between the parties at a later point of time. That
is the reason why, P.W.1, P.W.2 and P.W.3, who were recalled on 05.06.2017
completely went against the earlier evidence given by them and spoke in
favour of the appellant.
10. The Court below rightly disregarded the subsequent stand
taken by P.W.1 to P.W.3 and went by the earlier version of P.W.1 to P.W.3
and considered the same along with scientific evidence and came to a
conclusion that the offence has been made out as against the appellant.
11. The main thrust of the argument of the learned Senior
Counsel appearing on behalf of the appellant was that the prosecution failed
to prove that the victim girl was a minor at the relevant point of time and
Ex.P9 and Ex.P10 are not conclusive prove to confirm the age of the victim
girl.
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12. There is no doubt in our mind that the appellant and the
victim girl were indulging in physical intercourse with consensus.
Therefore, the only issue to be considered is as to whether the victim girl
was a minor at the relevant point of time and whether the prosecution has
established the said fact. If this fact has not been established, the offence
against the appellant will not be made out.
13. For the purpose of considering this limited issue, this Court
has to take into consideration Ex.P9 and Ex.P10 which were marked
through P.W.8, who was working as the Headmistress of the Government
School. Ex.P9 is the Secondary School Leaving Certificate of the victim
girl where the date of birth is found as 29.03.1999. The same has also been
certified by the Headmistress through Ex.P10. P.W.8, in her evidence, has
stated that this date of birth was entered when the victim girl joined sixth
standard in the School and her birth certificate was not called for, when this
date of birth was entered in the School records.
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14. It is now a settled law that in so far as ascertaining the age
of a minor girl, there is no procedure under the POCSO Act and hence, only
the procedure prescribed under the Juvenile Justice (Care and Protection of
Children) Rules, 2007, has to be followed. The law and this issue was
settled by the Division Bench of this Court in Subramaniam .Vs. The
State reported in 2016(4) MLJ (Crl.) 385.
15. Rule 12 (3) of the Juvenile Justice (Care and Protection of
Children) Rules, 2007 (hereinafter referred to as the Rules) reads as under :
“12. Procedure to be followed in
determination of Age.:-
(1) xxxxx
(2) xxxxx
(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 –
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(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
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be the conclusive proof of the age as regards such
child or the juvenile in conflict with law.
16. It is clear from the aforesaid provision that the option that is
available in the preceding clause will over-ride the option expressed in the
subsequent clause. Accordingly, where the matriculation or equivalent
certificate is available, no other options can be relied upon. Only in the
absence of such certificate, the second option of considering the birth
certificate as provided under clause a (ii) can be resorted to.
17. The Delhi High Court had an occasion to deal with Rule 12
in State (Government of NCT of Delhi) Vs. Shailesh Kumar reported in
2019 SCC online Delhi - 8318 and it was held as follows :
"16. The sole question for a decision in this case
hinges on determining the age of a victim of crime. In
Jarnail Singh Vs. State of Haryana reported as (2013) 7
SCC 263, the Supreme Court has held that Rule 12 of
the JJ Rules though strictly applicable to a child in
conflict with law, would also extend in cases where the
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Court is required to determine the age of a child, who
is a victim of a crime. Rule 12(3) lays down the
procedure to be followed in determination of age and
reads as follows:-
"12. Procedure to be followed in determination
of Age.-...
(1) xxxxx
(2) xxxxx
(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
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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."
17. In the instant case, the matriculation or
equivalent certificate of the victim is not available as
she deposed that she gave up studies after 9th class.
Rule 12(3)(a) contemplates that in the absence of the
matriculation or equivalent certificate, the date of birth
certificate from the school first attended can be used as
evidence to determine the age of a child. Mr.Ashok
Kumar Chaudhary (PW-3), a teacher in the school
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where the victim has studied, had produced the school
records, which showed that the victim was admitted in
MC Primary School, Vikas Block Sirsia, District
Sarawasti, UP in class-I on 12.08.2005. The school
record notes her date of birth as 10.01.2000. However,
PW-3 went on to state that there is no other record of
admission of the victim available in the school and nor
could he state as to what was the nature of the
document submitted by the victim"s parents at the time
of her admission, for recording her date of birth in the
school register.
18. It is well settled that an entry of the date of
birth made in the school admission register would have
evidentiary value only if there is material available
based on which the age was so recorded. In the case of
Brij Mohan Singh vs. Priya Brat Narain Sinha and Ors.
reported as AIR 1965 SC 282, the Supreme Court held
that an entry of birth recorded in the school register
maintained by an illiterate Chowkidar, was not
admissible and had no probative value within the
meaning of Section 35 of the Indian Evidence Act. For
ready reference, Section 35 of the Indian Evidence Act
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is reproduced below:-
"35. Relevancy of entry in public [record or
an electronic record] made in performance of
duty.--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, or by any other person in performance of a
duty specially enjoined by the law of the country
in which such book, register, or [record or an
electronic record] is kept, is itself a relevant fact."
19. In Birad Mal Singhvi vs. Anand Purohit
reported as 1988 Supp. SCC 604, where a question
arose with regard to eligibility of a candidate
participating in an election to the State Legislative
Assembly, in the context of attaining the age of 25
years as stipulated, the Supreme Court held as below:-
15........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
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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 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. ..." (emphasis added)
20. The probative value of the entry regarding
the date of birth made in a school register has come up
for consideration by the Supreme Court and the High
Courts in several other cases and the common view
expressed is that no probative value can be attached to
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such a record unless and until the parents are examined
or the person on whose information the entry may have
been made, is examined.
21. In Sushil Kumar vs. Rakesh Kumar reported
as AIR 2004 SC 230, the Supreme Court held thus:-
"34. In the aforementioned backdrop the
evidences brought on record are required to be
considered. The Admission Register or a Transfer
Certificate issued by a Primary School do not
satisfy the requirements of Section 35 of the
Indian Evidence Act. There is no reliable
evidence on record to show that the date of birth
was recorded in the school register on the basis of
the statement of any reasonable person."
22. In Satpal Singh vs. State of Haryana reported
as (2010) 8 SCC 714, the Supreme Court held that a
document may be admissible under Section 35 of the
Indian Evidence Act being a public document if
prepared by a government official in exercise of his
official duty but whether the entry contained therein
has any probative value would still require to be
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examined in the facts and circumstances of a particular
case. Citing several earlier decisions, the Supreme
Court held that even if the entry was made in an
official record by the official concerned in discharge of
his official duty, it may have weight, but would still
require corroboration by the person on whose
information the entry has been made and whether the
entry so made has been exhibited and proved. The
Supreme Court summarized the law in the following
words:-
"28. Thus, the law on the issue can be
summarised that the entry made in the official
record by an official or person authorised in
performance of an official duty is admissible
under Section 35 of the Evidence Act but the
party may still ask the court/authority to examine
its probative value. The authenticity of the entry
would depend as to on whose
instruction/information such entry stood recorded
and what was his source of information. Thus,
entry in school register/certificate requires to be
proved in accordance with law. Standard of proof
for the same remains as in any other civil and
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criminal case." (emphasis added)
23. In the present case, the father of the victim,
PW-5 deposed that he did not know the date of birth of
his daughter as he was illiterate, nor was he in a
position to state her current age. He stated that he got
the victim admitted in the school in class-I in the
village and at that time, she was about 3-4 years old. In
his cross-examination, PW-5 admitted that he did not
have any proof regarding his daughter"s date of birth.
It is therefore clear that the father of the victim had not
submitted any document to the school at the time of
getting his daughter admitted in class-I, on 12.08.2005,
to establish her date of birth as 10.01.2000, as recorded
by the school. He was candid enough to state that being
illiterate, he did not know the date of birth of the
victim and that she was between 3-4 years old when
she was admitted in class-I.
24. In the absence of any primary material based
on which the age of the victim was recorded in the
school register, it is not possible to accept her date of
birth as 10.01.2000. Moreover, even the teacher from
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the school in question, who had appeared as PW-3, had
stated that he had given a handwritten document to the
police on 17.12.2014 (Ex.PW3/C), wherein he had
recorded that when a child attains the age of 5+ years,
the parents approach the school for their admission. If
one goes by the said statement, then the testimony of
the victim"s father to the effect that he had got her
admitted in class-I when she was about 3-4 years,
cannot be accepted, as it is premised on mere guess
work."
18. It is clear from the above judgment that while the School
records the date of birth of the student, the same has to have the source from
the certificate given by the School first attended by the student. In the
absence of the same, whatever date of birth has been entered in Ex.P9 and
certified in Ex.P10 can be taken to be the correct date of birth of the victim
girl. In other words, the date of birth as found in Ex.P9 and Ex.P.10 does
not have the primary material as is mandated under Rule 12(3)(a)(ii) of the
Rules. Hence, mere production of the school records showing the date of
birth of the victim girl would not suffice. Hence, this Court has to hold that
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the prosecution has failed to discharge the burden cast on them to prove the
age of the victim girl that she was below 18 years of age at the time of the
alleged commission of offence. The Court below failed to take note of this
vital fact and went wrong in convicting and sentencing the appellant for the
offences for which he was charged.
19. In the result,
(i) This Criminal Appeal stands allowed.
(ii) The conviction and sentence imposed on the
appellant, vide judgment and order, dated
10.09.2019, passed by the learned Sessions
Judge, Mahalir Neethimandram, (Fast Track
Mahila Court), Thoothukudi, in S.C.No.38 of
2016, is set aside and the appellant is acquitted
from all charges.
(iii) Fine amount, if any, paid by him, shall be
refunded.
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(iv) Bail bond, if any, executed by the appellant
and the sureties shall stand terminated.
[J.N.B., J.] & [N.A.V., J.]
18.10.2022
Index : Yes/No
Internet : Yes
rm
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Crl.A(MD)No.487 of 2019
To
1.The Sessions Judge,
Mahalir Neethimandram,
(Fast Track Mahila Court),
Thoothukudi
2.The Inspector of Police,
All Women Police Station,
Srivaikuntum,
Tuticorin District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
4.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.487 of 2019
J. NISHA BANU, J.
AND
N. ANAND VENKATESH, J.
rm
JUDGMENT MADE IN
CRL.A.(MD)No.487 of 2019
18.10.2022
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