1. This Appeal calls into question the Judgment, dated 29-
11-2023, in S.T. (POCSO) Case No.51 of 2021, of the Court of the
her sudden illness. On such examination, it was found that PW-1
was pregnant. She revealed to PW-2 that the Appellant was the
father. PW-2 accordingly lodged Exbt. 3, the FIR on 04-10-2021
Bickey Pariyar alias Darjee vs. State of Sikkim 2
before the jurisdictional Police Station, informing that, the
Appellant aged about twenty-three years had raped and
on 28-09-2021. That, her daughter told her that she had been
around 2 p.m. and a week earlier to his friend's place. The FIR was
against the Appellant, under the above mentioned sections of law.
Section 376(3) of the IPC. Charge was also framed under Section
IPC. The Appellant pleaded "not guilty" to the charges and claimed
trial. The Prosecution examined eleven witnesses in an effort to
establish its case beyond reasonable doubt. On closure of
evidence against him. He claimed to be innocent and unaware of
the reasons for his arrest and that he was falsely implicated.
Thereafter, the final arguments of the parties were heard.
culminated in the conviction and sentence as extracted supra.
3. Learned Counsel for the Appellant advanced the
argument that the Prosecution attempted unsuccessfully to
establish that the victim was a minor. The Prosecution relied on
the Seizure Memo for the Birth Certificate. The witnesses furnished
for proof of these said documents were PWs 1, 2 and 10.
place of issuance of the Birth Certificate, its seizure or its contents.
rendered futile for proof of date of birth. Seizure Memo Exbt P-
Certificate. The age of the victim thus stood unproved in terms of
the mandate of law. To fortify her arguments, reliance was placed
on Madan Mohan Singh and Others vs. Rajni Kant and Another1; Lall
Bahadur Kami vs. The State of Sikkim and Mangala Mishra @ Dawa
Tamang @ Jack vs. State of Sikkim . It was next argued that even
Bickey Pariyar alias Darjee vs. State of Sikkim 4
sans proof of duress or threat held out by the Appellant. That, the
Court cannot withstand legal scrutiny as they contradict each other.
examining Doctor. That, discrepancies arise in the victim's
statement under Section 164 of the Cr.P.C. and her evidence before
Appellant deserves the benefit of doubt. Hence, the impugned
4. Learned Additional Public Prosecutor for his part,
victim who was a minor. Assuming that the sexual act was
consent of a minor is no consent. That, there is no ground to
interfere in the impugned Judgment and Order on Sentence.
5. Considering the arguments advanced and having
carefully analysed the evidence on record, including the
the conviction of the Appellant for sexually assaulting her.
Bickey Pariyar alias Darjee vs. State of Sikkim 5
with PW-1, which resulted in their friendship. The victim's friend,
to her by the victim in September, 2021. That, one night the
called up the Appellant and he took them both for a drive in a taxi.
or his brother. The victim returned and informed PW-5 that she
had sex with the Appellant. Later, PW-1 was found to be pregnant
and the pregnancy was terminated. The Trial Court also found that
corroborating the evidence of PW-3 and PW-5. The victim's mother
revealed her pregnancy. The Trial Court considered Exbt P-2/PW-1,
Admission record also indicated the same. Taking into
victim, a Division Bench of this Court (Meenakshi Madan Rai, J. and
Bickey Pariyar alias Darjee vs. State of Sikkim 6
victim was a child, as defined under Section 2(d) of the POCSO Act.
considered and discussed at length by the Court. Reference was
made to State of Bihar vs. Radha Krishna Singh and Others4 wherein
performance of his duties. While considering Section 74 of the
circumstances of a particular case. Even if the entry was made in
as to whether the entry so made has been exhibited and proved.
such entries stood recorded and what was his source of
information. That, the standard of proof required is the same as in
other civil and criminal cases. That, for determining the age of a
unimpeachable documents. In case the date of birth depicted in the
Bickey Pariyar alias Darjee vs. State of Sikkim 7
the aspect of the victim's age. That, Exhibit 7 the victim's Birth
furnished to substantiate the entries made in Exhibit 7. No witness
Memo was found unbelievable. In view of the said circumstance,
the entries in Exhibit 7 was disbelieved by this Court. Relevantly,
(ii) the birth certificate given by a
corporation or a municipal
authority or a panchayat;
Bickey Pariyar alias Darjee vs. State of Sikkim 8
(iii)
and only in the absence of (i) and
(ii) above, age shall be determined
by an ossification test or any other
latest medical age determination
test conducted on the orders of
the Committee or the Board:
Provided such age determination test
conducted on the order of the Committee or the
Board shall be completed within fifteen days from the
date of such order.
(3) The age recorded by the Committee or
the Board to be the age of person so brought before it
shall, for the purpose of this Act, be deemed to be the
true age of that person."
(ii) In Lall Bahadur Kami (supra) this Court was considering
whether the Prosecution was successful in establishing that the age
of the victim was 17 years 8 months at the time of the incident,
i.e., on 05-02-2016. Placing reliance on the decisions of Birad Mal
Singhvi v. Anand Purohit5 and CIDCO vs. Vasudha Gorakhnath
Mandevlekar , it was observed that Exhibit 4, the Birth Certificate
was seized in isolation as neither the School Admission Register nor
the Register of Births and Deaths or the Class-X Marks Statement
of the victim was seized by the I.O. The Court therefore mulled
over whether reliance can be placed on Exhibit 4 solely, merely
because it bears an official stamp and seal of the Registrar of Births
and Deaths. The Court opined that the answer would be in the
negative as none of the Prosecution witnesses have been able to
vouchsafe for the truth of the contents thereof.
(iii) The same Division Bench of this Court (supra) in a
Judgment (authored by Pradhan, J.) in State of Sikkim vs. Girjaman
Rai @ Kami and Others had held as extracted hereinbelow;
"27. Mere production of a birth certificate without
even authenticating the same by proving it through
its maker is however, not enough to prove the age of
the victim. The age of the victim must be proved by
leading clinching evidence. The cogency of the
6 AIR 1988 SC 1796
7 (2009) 7 SCC 283
SLR (2019) Sikkim 266 : 2019 SCC OnLine Sikk 50
Bickey Pariyar alias Darjee vs. State of Sikkim 9
evidence led would ultimately help the Court in
determining the age of the victim."
8. In Birad Mal Singhvi (supra), the Supreme Court held as
extracted hereinbelow;
"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
Hukmichand and Suraj Prakash Joshi was proved and
on the 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 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 to 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 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
Punjab 377, Sakhi Ram v. Presiding Officer, Labour
Court, North Bihar, Muzzafarpur, AIR 1966 Patna 459,
Ghanchi Vora Samsuddin 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 on in (sic) school
certificate in election cases. The Courts have
consistently held that the date of birth mentioned in the
scholar‟s register of 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, ................." [emphasis supplied]
(i) In CIDCO (supra) it was observed by the Supreme
Court as follows;
Bickey Pariyar alias Darjee vs. State of Sikkim 10
"18. The deaths and births register maintained
by the statutory authorities raises a presumption of
correctness. Such entries made in the statutory
registers are admissible in evidence in terms of
Section 35 of the Evidence Act. It would prevail over
an entry made in the school register, particularly, in
absence of any proof that same was recorded at the
instance of the guardian of the respondent. ..........."
9. On the touchstone of the decisions rendered in Lall
Bahadur Kami (supra), Mangala Mishra (supra), Girjaman Rai (supra)
and the observation of the Supreme Court in Birad Mal Singhvi
(supra) and Madan Mohan Singh (supra), while examining the
evidence on record and considering whether Exbt P-2/PW-1 can be
taken as proof of the age of the victim's birth, I would have to
answer in the negative for the following reasons;
(i) As already noticed in the decision of Madan Mohan Singh
(supra), for determining the age of a person, the best evidence is
the evidence of the child‟s parents, with the caveat that it is to be
supported by unimpeachable documents. This caveat appears to
have been inserted by the Court, by way of abundant caution, as
the Courts are to be alive and sensitive to the fact that parents of a
victim child, being interested witnesses and aggrieved by the acts
of sexual assault perpetrated by an accused on their child would
depose in support of the Prosecution case and testify that the
victim was a minor. The production of unimpeachable documents
in such a circumstance would be a firewall to an erroneous
conviction thereby preventing travesty of justice. On the bedrock
of the views expressed hereinabove and the observation of the
Supreme Court on the parameters required for establishing age of
a minor in a litany of decisions as already discussed, I now embark
on examining the evidence so furnished by the Prosecution.
Bickey Pariyar alias Darjee vs. State of Sikkim 11
(ii) PW-2 identified Exbt P-2/PW-1 as the Birth Certificate
of the victim and her date of birth as 03-09-2006. PW-2 did not
state that the Police seized Exbt P-2/PW-1 from her possession.
While PW-11 the I.O. stated that Exbt P-2/PW-1 was seized from
the victim's mother PW-2, under Seizure Memo Exbt P-19/PW-11
and identified Exbt P-19(b) and Exbt P-19(c) as the signatures of
the witnesses to such seizure. The I.O. failed to state the names
of the witnesses to the Seizure Memo, however a perusal of Exbt P-
19/PW-11 would indicate the names of the witnesses at Sl. No.6(i)
and 6(ii). As the said seizure witnesses were not furnished by the
Prosecution to establish seizure of the Birth Certificate from PW-2,
this fact, considered in tandem with the failure of PW-2 to mention
such seizure from her possession, raises suspicions about the
authenticity of the seizure and thereby the document Exbt P-2/PW-
1. In the absence of the seizure witnesses with no reasons
furnished by the I.O. for their absence, an adverse inference as
provided under Section 114 Illustrations (g) of the Evidence Act
can be drawn against the Prosecution. There is therefore no proof
of seizure of Exhibit Exbt P-2/PW-1 which appears to be a
document furnished in isolation.
(iii) Indeed, I am aware that the Supreme Court has time
and again reiterated that conviction based solely on the testimony
of a police officer cannot be questioned and their evidence cannot
always be treated with suspicion. I am also aware that the legal
provision in the Cr.P.C. does not envisage the presence of witnesses
when the I.O. makes seizures, however the conditions prescribed
therein must be fulfilled, which do not appear to be so in the
instant matter. The I.O., after making independent persons stand
Bickey Pariyar alias Darjee vs. State of Sikkim 12
as witnesses to the alleged seizure by way of abundant precaution,
despite their non-requirement as per Section 102 of the Cr.P.C.,
must furnish them as witnesses in the Court to prevent the Court
from drawing an adverse inference on their non-production.
(iv) The Supreme Court in Takhaji Hiraji vs. Thakore
Kubersing Chamansing and Others while discussing non-examination
of a Prosecution witness observed as follows;
"19. .............................. It is true that if a
material witness, who would unfold the genesis of
the incident or an essential part of the prosecution
case, not convincingly brought to fore otherwise, or
where there is a gap or infirmity in the prosecution
case which could have been supplied or made good
by examining a witness who though available is not
examined, the prosecution case can be termed as
suffering from a deficiency and withholding of such a
material witness would oblige the court to draw an
adverse inference against the prosecution by holding
that if the witness would have been examined it
would not have supported the prosecution case. On
the other hand if already overwhelming evidence is
available and examination of other witnesses would
only be a repetition or duplication of the evidence
already adduced, non-examination of such other
witnesses may not be material. In such a case the
court ought to scrutinise the worth of the evidence
adduced. The court of facts must ask itself -- whether
in the facts and circumstances of the case, it was
necessary to examine such other witness, and if so,
whether such witness was available to be examined
and yet was being withheld from the court. If the
answer be positive then only a question of drawing an
adverse inference may arise. If the witnesses already
examined are reliable and the testimony coming from
their mouth is unimpeachable the court can safely act
upon it, uninfluenced by the factum of non-
examination of other witnesses. ......................"
[emphasis supplied]
This observation was reiterated by the Supreme Court in Harvinder
Singh alias Bachhu vs. State of Himachal Pradesh .
(v) Exbt P-11/PW-10 is an extract of the School Admission
Register where the victim's date of birth is recorded as 03-09-
2006. Admittedly, this is not the first school attended by the
victim. The Exhibit makes no mention of the person or document
(2001) 6 SCC 145
2023 SCC OnLine SC 1347
Bickey Pariyar alias Darjee vs. State of Sikkim 13
on the basis of which the victim's date of birth was entered. PW-10
the School Principal has admitted as much, besides elucidating in
her evidence under cross-examination that, she could not say what
documents were submitted in school when the victim was admitted
or the document on the basis of which the birth details of the
victim were entered in the Register Exbt P-11/PW-10. Deducing
from the handwriting on the above Exhibit, the entries therein
appear to be made by a single person, who unfortunately was not
named or furnished as a Prosecution witness. The entries in the
Birth Certificate Exbt P-2/PW-1 remained unverified as the
concerned Register of Births and Deaths was not even furnished
from the concerned Hospital/Public Health Centre and no reason
has been given by PW-11 the I.O. as to why such an important
document, being an official document, was not furnished to bolster
and establish the Prosecution case. As seen from the decisions of
the Supreme Court referred to above, an entry in the Register of
Births and Deaths could have authenticated the date of birth of the
victim. At this juncture, relevant reference is made to the
pronouncement of a Division Bench of this Court in Sancha Hang
Limboo vs. State of Sikkim10, where the question arose as to
whether the authenticity of the contents of Exhibit 2 (the victim's
Birth Certificate) could be raised in appeal, no question having
been raised earlier before the Learned Trial Court. This Court after
examining the entire evidence on record concluded that no
question whatsoever about the age or authenticating of the date of
birth of the victim was raised during trial and relying on Sham Lal
alias Kuldip vs. Sanjeev Kumar and Others it was concluded that if a
SLR (2018) Sikkim 1 : 2018 SCC OnLine Sikk 10
(2009) 12 SCC 454
Bickey Pariyar alias Darjee vs. State of Sikkim 14
public document was admitted without formal proof it cannot be
questioned in appeal. The facts of the instant case are to be
distinguished from Sancha Hang Limboo (supra) as the Birth
Certificate herein was indeed questioned in the evidence of PW-2
and PW-10 during their cross-examination. It is apparent that the
age of the victim was questioned even during the trial.
10. In view of the above obtaining facts and circumstances
and the consequent discussions, I am of the considered view that it
cannot be said that the age of the victim has been proved beyond
reasonable doubt and on this aspect I am constrained to differ with
the findings of the Learned Trial Court, which, while relying on the
Birth Certificate solely and the evidence of PW-2, unsupported by
unimpeachable evidence, concluded that she was a minor.
11. In a case like the present one, it is absolutely
imperative that the Prosecution should prove the age of the victim
beyond reasonable doubt. Any grey areas or lacuna in such proof
have to be viewed by the Courts with the seriousness and gravity it
deserves. The Court has to be alive to the fact that an erroneous
consideration of date of birth of the alleged victim, sans adequate
proof, would render a person suspected of having committed the
offence, to long years of incarceration and most of his productive
life being laid to waste in front of his eyes.
12. In light of the fact that the victim's age has not been
proved, it is essential to examine the evidence of the victim with
regard to the sexual acts being consensual or otherwise. PW-1
stated that;
".........................................................
I had seen the accused for the first time in
August 2021 in Rxx Gxxx where I had gone to vist my
eldest sister. The accused was living in a room next
Bickey Pariyar alias Darjee vs. State of Sikkim 15
to my sister's house. We did not speak to each other
but he started to follow me through facebook.
Thereafter, we became friends and started chatting
in social media and finally met on 22.08.2021 in Pxxx
Hxxxx and we went for a drive together till Chorten
Gumpa.
The next day we met again in a room of one of
Bickey‟s friend below Axxxx Gym. That was when we
first had our physical relation.
Q. Can you tell the Court exactly what you mean
by the term „physical‟?
Ans: We had sex.
Thereafter, we met again on 07.09.2021 in his
house where we once again had sex. Later, when my
family found about my relationship with Bickey my
family members lodged a complaint against him. I
was then sent to live with my Chama(Aunt). Later, as
I began started stomach pain I was taken to Mxxxxxx
hospital where on medically examined I was found to
be pregnant. Thereafter, my family reported the
matter to the Sadar police station(PS). I thereafter
underwent an abortion. Thereafter, the police came
to the hospital and took down my statement. I was
also taken for counselling.
.................................................." [emphasis supplied]
Her cross-examination does not decimate the fact that the physical
relations were consensual, she was in a romantic relationship with
the Appellant and she, of her own accord, went with the Appellant.
This is fortified by the evidence of PW-5 according to whom PW-1
had voluntarily told her that she had sexual relations with the
Appellant in September, 2021 and again had another such
encounter. That, PW-1 had lied to her parents of having gone out
to town with PW-5, when in fact, she was with the Appellant,
thereby proving that all acts of the victim with the Appellant were
voluntary and consensual. The victim is not the Complainant, it is
not the Prosecution case that she was forced into the act.
13. PW-2 deposed in Court that on 02-10-2021 her
daughter suddenly fell ill and on her medical examination she came
to learn that the child was pregnant. She lodged the FIR Exbt P-
2/PW-1 on 04-10-2021. However, in the FIR she claims to have
learnt through the Doctor on 28-09-2021 that PW-1 was pregnant.
Bickey Pariyar alias Darjee vs. State of Sikkim 16
These anomalies in the dates have gone unexplained by the
Prosecution which is indeed indicative of slipshod and callous
investigation.
14. The evidence of PW-8 is touched upon briefly as the
crux of the Prosecution case pivots around the alleged pregnancy
of the victim, to examine whether there was proof of pregnancy as
alleged and as a tangential consideration whether the Prosecution
case is thereby worthy of reliance. PW-8 stated that pregnancy
was confirmed by a serum beta HCG test, but admitted that urine
test for pregnancy is not 100% correct. Besides, it is noticed that
the blood test report, medical report, or the ultra sound report
after the ultra sound of the victim was conducted by the concerned
doctor for the alleged pregnancy were not filed before the Court
and PW-8 and the I.O. PW-11 admitted as much. It is also worth
noticing that PW-8 claims that ultrasound on the victim was
conducted on 30-09-2021 and the last medical test done on 05-10-
2021 but the "case summary" Exbt P-5/PW-8 is dated 29-11-2021,
with no explanation whatsoever for the delay in its preparation
which exceeded a month. PW-8 admitted that the victim was
examined by one Dr. Annet Thatal but neither the medical
examination report nor the examining Doctor were furnished by the
Prosecution to establish the allegation of pregnancy. It thus
emanates that in the absence of the aforementioned documents,
the Prosecution case lacks proof of the very crux of its case, i.e.,
the victim's pregnancy due to sexual assault. The Trial Court
considered Exbt P-5/PW-8 the Case Summary as proof of the
pregnancy and thereby sexual assault, notwithstanding the fact
that it was only a summary of what had transpired in the hospital
Bickey Pariyar alias Darjee vs. State of Sikkim 17
and not of the alleged pregnancy. This document cannot fill the
lacuna in the Prosecution case created by the non-production of
the actual documents as proof of the medical tests of the victim.
15. In view of the above facts and circumstances and
having appreciated holistically the entire evidence on record, it
concludes that the Prosecution has failed to establish that the
victim was a minor and that the Appellant had forcefully sexually
assaulted her or forced her into a sexual relationship.
16. Consequently, the Appeal is allowed.
17. The conviction and sentence imposed on the Appellant
vide the impugned Judgment and Order on Sentence of the
Learned Trial Court are set aside.
18. The Appellant is acquitted of the offence under Section
4(2) of the POCSO Act.
19. He be set at liberty forthwith, if not required to be
detained in any other case.
20. Fine, if any, deposited by the Appellant in terms of the
impugned Order on Sentence, be reimbursed to him.
21. No order as to costs.
22. Copy of this Judgment be forwarded to the Learned Trial
Court for information and compliance along with its records.
23. A copy of this Judgment be made over to the
Appellant/Convict through the Jail Superintendent, Central Prison,
Rongyek and to the Jail Authority for information and necessary
steps.
( Meenakshi Madan Rai )
Judge
05-03-2025
Approved for reporting : Yes
ds
THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
-------------------------------------------------------------
Bickey Pariyar alias Darjee,
Son of Robin Pariyar,
Resident of Mickkhola,
Namchi,
District: Namchi, Sikkim.
Presently: Rongyek Jail .... Appellant
versus
State of Sikkim .... Respondent
--------------------------------------------------------------------------
JUDGMENT
Bhaskar Raj Pradhan, J.
I have had the privilege of carefully reading the
judgment prepared by my esteemed colleague, Justice
Meenakshi Madan Rai. It has been held that the prosecution
has failed to establish that the victim was a minor and the
appellant had sexually assaulted her or forced her into
sexual relation. However, I am unable to agree with the
findings therein. I, therefore, respectfully record my
reservation and dissent as noted hereinafter.
2. On examination of the evidence led by the
prosecution and the cross-examination of the prosecution
witnesses by the defence, I am of the view that:-
(i) the evidence of the victim, the victim's mother (PW-2)
and Dr. Anup Pradhan (PW-8) corroborated by the case
summary (exhibit P-5) of the hospital where the victim was
Bickey Pariyar alias Darjee vs. State of Sikkim
admitted and the medical certificate (exhibit P-6) issued by
Dr. Anup Pradhan (PW-8) establishes without doubt that the
appellant had sexual intercourse with the victim which made
her pregnant and later was aborted.
(ii) the evidence of the victim's mother (PW-2) and the
victim corroborated by the victim's original birth certificate
(exhibit P-2), the certificate (exhibit P-10) issued by the
Principal (PW-10) of the Government Girls' Senior Secondary
School where the victim was studying, the attested copy of
the school admission register (exhibit P-11) produced and
exhibited by the Principal (PW-10) clearly establishes that
the victim was born on 03.09.2006 and therefore, she was a
child as defined in section 2(d) of The Protection of Children
from Sexual Offences Act, 2012 (the POCSO Act, 2012) at the
time of the offence.
(iii) the birth certificate (exhibit P-2) proved by the
victim's mother (PW-2) to whom it was issued and by the
victim for whose benefit it was issued is a "public document"
admissible without the evidence of the maker thereof.
Similarly, the school admission register is also a "public
document" maintained in the ordinary course of its business
of the Government Girls' Senior Secondary School. The
attested copy of the school admission register (exhibit P-11)
has been proved by the Principal (PW-10) who was its
custodian and the contents verified by the learned Special
Bickey Pariyar alias Darjee vs. State of Sikkim
Judge on comparison with the original school admission
register produced for its inspection. The certificate (exhibit
P-10) issued by the Principal (PW-10) and proved during trial
is a certificate certifying the entries kept by the Government
Girls' Senior Secondary School in the school admission
register regarding the victim's date of birth and therefore,
also admissible in evidence.
The Conviction
3. The appellant was convicted and sentenced with
simple imprisonment for a term of twenty years and fine of
rupees two thousand for the offence under section 4(2) of the
POCSO Act, 2012. In default of payment of fine, the
appellant was to undergo additional term of two months
simple imprisonment. Period of imprisonment already
undergone by the appellant during investigation and trial
was to be set off against the sentence.
4. The learned Special Judge has concluded that the
victim's mother (PW-2) has identified the victim's birth
certificate (exhibit P-2) and has confirmed that her date of
birth was 03.09.2006. The learned Special Judge has taken
note of the fact that the victim also stated that her birth date
was 03.09.2006. The learned Special Judge did not find any
reason to doubt the veracity of the birth certificate (exhibit
P-2) since the victim's date of birth in her school admission
record is also the same. According to the learned Special
Bickey Pariyar alias Darjee vs. State of Sikkim
Judge, the Principal (PW-10) has corroborated that in the
school records the victim's date of birth has been registered
as 03.09.2006. Taking into consideration the evidence of the
victim's mother (PW-2) supported by the victim's birth
certificate (exhibit P-2) and the school records, the learned
Special Judge concluded that the victim's date of birth was
indeed 03.09.2006 and about 15 years old during the
relevant time. The learned Special Judge concluded that the
sexual intercourse between the appellant and the victim was
consensual but as the victim was found to be a minor, the
appellant was convicted for the offence under section 4(2) of
the POCSO Act, 2012. However, the learned Special Judge
opined that the appellant may not be punished for the same
offence under sections 5(l) and 5(j)(ii) of the POCSO Act,
2012 and under sections 376(2)(n) and 376(3) of the Indian
Penal Code, 1860.
Submissions
5. Ms Puja Lamichaney, learned counsel for the
appellant, submits that the conclusion arrived at by the
learned Special Judge that the victim was a minor is flawed
as prosecution had failed to prove the victim's birth
certificate (exhibit P-2), certificate (exhibit P-10) issued by
the Principal and attested copy of the school admission
register (exhibit P-11) in the manner required by law. She
relied upon Madan Mohan Singh and others vs. Rajni Kant and
Bickey Pariyar alias Darjee vs. State of Sikkim
another1, Lall Bahadur Kami vs. The State of Sikkim2, Mangala
Mishra @ Dawa Tamang @ Jack vs. State of Sikkim3. It was
submitted that production of the certificates is not enough
and the prosecution ought to produce the officers who made
the relevant entries in the registers and the evidence
produced before them which satisfied them to make the
entries. She further submitted that the seizure memo
(exhibit P-19) by which the birth certificate (exhibit P-2) was
seized, was not proved by the two witnesses named therein
as both of them were not produced during trial. The learned
counsel submits that as the minority of the victim has not
been proved, the act being consensual the appellant is liable
to be acquitted of all charges.
6. Alternatively, the learned counsel relied upon the
order of the Supreme Court in K. Dhandapani vs. The State by
the Inspector of Police4. The appellant therein was the
maternal uncle of the prosecutrix. He was convicted after
trial for committing of offence of rape under sections 5(j)(ii)
read with section 6, 5(l) read with section 6 and 5(n) read
with section 6 of the POCSO Act, 2012. The High Court
upheld the conviction and sentence. The appellant therein
preferred Special Leave Petition before the Supreme Court.
During the hearing, it was argued by the learned counsel for
1 (2010) 9 SCC 209
2 SLR (2017) Sikkim 585
3 SLR (2018) Sikkim 1373
2022 SCC Online SC 1056
Bickey Pariyar alias Darjee vs. State of Sikkim
the appellant that in fact he had married the prosecutrix
and they had two children. It was submitted that the
Supreme Court should exercise its power under Article 142
of the Constitution to do complete justice and it would not
be in the interest of justice to disturb the family life of the
appellant and the prosecutrix. Thereafter, the statement of
the prosecutrix was recorded by the District Judge on the
direction of the Supreme Court in which she stated that she
has two children who were being taken care of by the
appellant and she was leading a happy married life. In the
peculiar facts and circumstances of the case, the Supreme
Court held that the conviction and sentence of the appellant,
who is the maternal uncle of the prosecutrix, deserve to be
set aside in view of the subsequent events which had been
brought to the notice of the Court. It was held that the
Supreme Court cannot shut its eyes to the ground reality
and disturb the happy family life of the appellant and the
prosecutrix. It was also noted that the Supreme Court was
informed about the custom in Tamil Nadu of the marriage of
a girl with the maternal uncle. The appeal was therefore
allowed and the conviction and sentence set aside.
7. The learned counsel for the appellant in the
present case submitted that the factual situation was similar
to that of K. Dhandapani (supra) as the victim desired to
marry the appellant and was living with his mother.
Bickey Pariyar alias Darjee vs. State of Sikkim
8. The learned Additional Public Prosecutor
submitted that the prosecution has been able to prove the
case against the appellant beyond a reasonable doubt. The
deposition of the victim clearly establishes the offence
alleged. The victim's deposition is corroborated by the
depositions of her mother (PW-2) - the first informant, and
other prosecution witnesses.
The facts
9. The facts narrated in paragraph 2 of the judgment
of Justice Meenakshi Madan Rai do not require reiteration.
However, what transpired during the trial is relevant and
these relevant facts are highlighted below.
10. The victim in her deposition stated that she was
16 years old and studying in Class-VIII as on 1st July, 2022.
She also deposed that her date of birth was 03.09.2006 and
exhibited her birth certificate (exhibit P-2) without any
objection from the defence. The victim stated that she had
seen the appellant for the first time in August 2021 who was
living in a room next to her sister's house. They started
following each other on facebook, became friends and started
chatting on social media. They finally met on 22.08.2021
and on the next day they had sex in the appellant's friend's
room. They again met in the appellant's house on
07.09.2021 and once again had sex. When her family found
out about the relationship, complaint was filed. She also
Bickey Pariyar alias Darjee vs. State of Sikkim
stated that she was therefore medically examined and found
to be pregnant. Thereafter, the matter was reported to the
police station and then she had an abortion. The above facts
have not been demolished during cross-examination.
11. What the victim stated in her deposition is
corroborated by the deposition of the victim's mother (PW-2)
who proved the FIR (exhibit-3) lodged by her. The FIR
(exhibit-3) also corroborates the victim's deposition. The
victim's mother (PW-2) identified the victim's birth certificate
(exhibit P-2) without any objection from the defence. During
cross-examination, the defence simply suggested that it was
not a fact that the victim's date of birth was not 03.01.2006
and the birth certificate (exhibit P-2) was not of the victim.
The victim denied the suggestions.
12. The victim deposed that she had sexual
intercourse with the appellant on 23.08.2021 and
07.09.2021 in fair detail as to time and place. The case
summary (exhibit P-5) of the hospital proved by Dr. Anup
Pradhan (PW-8) records that the victim was admitted to the
hospital on 28.09.2021, examined on 30.09.2021, after
which on 01.10.2021 on confirmation of pregnancy, suction
evacuation was performed on her. The victim was discharged
on 05.10.2021. The FIR (exhibit 3) proved by the victim's
mother (PW-2) was lodged by her on 4.10.2021 after the
victim's pregnancy was confirmed. These facts are recorded
Bickey Pariyar alias Darjee vs. State of Sikkim
in the certificate issued by the hospital on 29.11.2021
(exhibit P-6) as well. Both these documents have been
proved by Dr. Anup Pradhan (PW-8) who was the signatory
thereto. The failure to examine the other signatory, i.e., Dr.
Annet Thatal, would have no consequence as such.
13. The appellant's friend (PW-3) corroborated the
deposition of the victim about going to the appellant's
friend's house on 23.08.2021, when he deposed that during
August-September, 2021, the appellant had taken his room
keys and returned it after some hours. The fact that the
victim had gone out with the appellant during September
2021 is corroborated by the victim's friend (PW-5) as well.
The victim's sister (PW-4) confirmed that, in fact, the victim
was having side pains towards the end of September 2021
and the victim's mother (PW-2) had taken her to the hospital
where she was admitted for two days to undergo a test
where she was found to be pregnant.
14. On an overall assessment of the facts proved by
the prosecution through its various witnesses, there is
nothing on record to suspect that what the victim deposed
with certainty about her relationship, the two incidents with
details as to time and place were untrue. The victim's
deposition is of sterling quality and therefore, reliable.
Bickey Pariyar alias Darjee vs. State of Sikkim
The victim was a minor
15. The victim has categorically deposed that she was
sixteen years old and studying in Class-VIII at the time of
deposition, i.e., 1st July, 2022, which makes her fifteen years
old when she had sexual intercourse with the appellant. The
victim exhibited her birth certificate (exhibit P-2) and proved
it without an objection from the defence. She categorically
stated that her date of birth was 03.09.2006. There is no
denial in the cross-examination by the defence as to her date
of birth. The victim's birth certificate (exhibit P-2) has been
proved by the victim's mother (PW-2) as well and she
identified the same in Court without any objection from the
defence. The victim's mother also reiterated that the victim's
date of birth was 03.09.2006 and her evidence withstood the
cross-examination by the defence.
16. The Principal (PW-10) of the Government Girls'
Senior Secondary School produced the original school
admission register maintained by the school and proved the
attested copy of the school admission register (exhibit P-11)
in which the details of the victim had been recorded. It
records her date of birth as 03.09.2006 and also the birth
certificate number and date. The original school admission
register was compared with the attested copy of the school
admission register (exhibit P-11) by the learned Special
Judge and found to be true. Besides the school admission
Bickey Pariyar alias Darjee vs. State of Sikkim
register, the Principal (PW-10) also proved a letter written by
her in response to a notice under section 91 of the Cr.P.C. in
which the victim's date of birth, i.e., 03.09.2006, is also
mentioned. The Principal (PW-10) also proved that along
with the certificate (exhibit P-10), an attested copy of the
school admission register (exhibit P-11) had also been
enclosed. The school admission register contains sufficient
details about the victim to safely infer that the entries were
based on correct information provided.
The Birth Certificate & the School Admission Register
are Public Documents
17. The birth certificate (exhibit P-2) and the school
admission register maintained by the Government Girls'
Senior Secondary School are public documents and
therefore admissible in evidence without examining its
authors. The birth certificate (exhibit P-2) providing details
of the date of birth of the victim registered by the Registrar
given to the informant have been proved by the victim and
her mother (PW-2).
18. The birth certificate (exhibit P-2) issued by the
Chief Registrar of Births and Deaths, Health and Family
Welfare Department, Government of Sikkim, is a certificate
issued under section 12/17 of the Registration of Births and
Deaths Act, 1969. It bears the signature of the Issuing
Authority, i.e., the Registrar of Births and Deaths. Section
Bickey Pariyar alias Darjee vs. State of Sikkim
12 mandates that the Registrar shall, as soon as the
registration of a birth or death has been completed give, free
of charge to the person who gives information under section
8 or section 9 an extract of the prescribed particulars under
his hand from the register relating to such birth or death.
Section 17 provides that any person could cause a search to
be made by the Registrar for any entry in a register of births
and deaths and obtain an extract from such register relating
to any birth or death. Sub-section 2 of section 17 provides
that all extracts given under the section shall be certified by
the Registrar or any other officer authorised by the State
Government to give such extracts as provided in section 76
of the Indian Evidence Act, 1872, and shall be admissible in
evidence for the purpose of proving the birth or death to
which the entry relates. Chapter II of the Registration of
Births and Death Act, 1969 relates to appointments of
various Registrars. It is seen that the Chief Registrar, the
District Registrar and the Registrars are all appointed by the
State Government. As such, they are all public servants.
Section 77 of the Indian Evidence Act, 1872 provides that
certified copies of public documents may be produced in
proof of the content of the public documents or parts of the
public documents of which they purport to be copies.
Section 79 mandates that the Court "shall presume" to be
genuine every document purporting to be a certificate,
Bickey Pariyar alias Darjee vs. State of Sikkim
certified copy, or other document, which is by law declared
to be admissible as evidence of any particular fact and which
purports to be duly certified by any officer of the State
Government. Section 79 also provides that the Court "shall"
also presume that any officer by whom any such document
purports to be signed or certified held, when he signed it, the
official character he claims in such paper.
19. Both the public documents were exhibited by the
prosecution without a protest from the defence.
Section 79 of the Indian Evidence Act, 1872 mandates
the Court to presume that public documents are
genuine.
20. The Supreme Court in Neeraj Dutta vs. State (NCT of
Delhi)5, opined:
"Presumptions
64. Courts are authorised to draw a particular inference
from a particular fact, unless and until the truth of such
inference is disproved by other facts. The court can, under
Section 4 of the Evidence Act, raise a presumption for
purposes of proof of a fact. It is well settled that a
presumption is not in itself evidence but only makes a prima
facie case for a party for whose benefit it exists. As per
English law, there are three categories of presumptions,
namely, (i) presumptions of fact or natural presumption;
(ii) presumption of law (rebuttable and irrebuttable); and (iii)
mixed presumptions i.e. "presumptions of mixed law and
fact" or "presumptions of fact recognised by law". The
expressions "may presume" and "shall presume" in Section 4
of the Evidence Act are also categories of presumptions.
Factual presumptions or discretionary presumptions come
under the division of "may presume" while legal
presumptions or compulsory presumptions come under the
division of "shall presume". "May presume" leaves it to the
discretion of the court to make the presumption according to
the circumstances of the case but "shall presume" leaves no
(2023) 4 SCC 731
Bickey Pariyar alias Darjee vs. State of Sikkim
option with the court, and it is bound to presume the fact as
proved until evidence is given to disprove it, for instance, the
genuineness of a document purporting to be the Gazette of
India. The expression "shall presume" is found in Sections
79, 80, 81, 83, 85, 89 and 105 of the Evidence Act.
[emphasis supplied]
Section 35 of the Indian Evidence Act, 1872
21. Section 35 of the Indian Evidence Act, 1872
provides 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, 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 electronic
record is kept, is itself a relevant fact. Thus, the birth
certificate (exhibit P-2) issued by the Registrar of Births and
Deaths under the Registration of Births and Death Act, 1969
and the certified copy of the school admission register
(exhibit P-11) maintained in the ordinary course of their
business by the Government Girls' Senior Secondary School
which recorded the date of birth of the victim as 03.09.2006
would be relevant facts.
Documents made ante litem motam can be relied upon
safely when such documents are admissible under
section 35 of the Indian Evidence Act, 1872
22. The birth certificate (exhibit P-2) dated
01.11.2006 and the school admission register were issued
and recorded prior to the crime which was in the year 2021.
It is settled law that documents made ante litem motam can
Bickey Pariyar alias Darjee vs. State of Sikkim
be relied upon safely when such documents are admissible
under section 35 of the Indian Evidence Act, 1872. It has
been held so by the Supreme Court in Murugan vs State of
Tamil Nadu6.
23. In Harpal Singh and Another vs. State of Himachal
Pradesh7, the Supreme Court held:
"3. In the instant case the prosecution has proved the age of
the girl by overwhelming evidence. To begin with, there is the
evidence of Dr Jagdish Rai (PW 14) who is a radiologist and
who, after X-ray examination of the girl found that she was
about 15 years of age. This is corroborated by Ext. PF, which
is an entry in the admission register maintained at the
Government Girls' High School, Samnoli (wherein the girl
was a student) and which is proved by the Headmaster. That
entry states the date of birth of the girl as October 13, 1957.
There is yet another document viz. Ext. PD, a certified copy
of the relevant entry in the birth register which shows that
Saroj Kumari, who according to her evidence was known as
Ramesh during her childhood, was born to Lajwanti, wife of
Daulat Ram on November 11, 1957. Mr Hardy submitted
that in the absence of the examination of the
officer/Chowkidar concerned who recorded the entry, it was
inadmissible in evidence. We cannot agree with him for the
simple reason that the entry was made by the concerned
official in the discharge of his official duties, that it is
therefore clearly admissible under Section 35 of the Evidence
Act and that it is not necessary for the prosecution to
examine its author. From whatever angle we view the
evidence, the conclusion is inescapable that Saroj Kumari
was below 16 years of age at the time of the occurrence.
Accordingly we agree with judgments of the courts below and
see no merit in this appeal which is dismissed."
[emphasis supplied]
24. The Supreme Court in Sham Lal vs. Sanjeev
Kumar8, held:
"Question 3
21. One of the documents relied upon by the learned
District Judge in coming to the conclusion that the plaintiff is
(2011) 6 SCC 111
(1981) 1 SCC 560
(2009) 12 SCC 454
Bickey Pariyar alias Darjee vs. State of Sikkim
the son of the deceased Balak Ram is Ext. P-2, the school
leaving certificate. The learned District Judge, while dealing
with this document has observed:
"On the other hand, there is a public document in the shape
of school leaving certificate, Ext. P-2 issued by Head Master,
Government Primary School, Jabal Jamrot recording Kuldip
Chand alias Sham Lal to be the son of Shri Balak Ram. In the
said public document as such Kuldip Chand alias Sham Lal
was recorded as son of Shri Balak Ram."
The findings of the learned District Judge holding Ext. P-2 to be
a public document and admitting the same without formal
proof cannot be questioned by the defendants in the present
appeal since no objection was raised by them when such
document was tendered and received in evidence.
22. It has been held in Dasondha Singh v. Zalam
Singh [(1997) 1 PLR 735 (P&H)] that an objection as to the
admissibility and mode of proof of a document must be taken at
the trial before it is received in evidence and marked as an
exhibit. Even otherwise such a document falls within the ambit
of Section 74, Evidence Act, and is admissible per se without
formal proof.
[emphasis supplied]
25. In the light of the clear exposition of the Supreme
Court as above, the mere denial by the defence in the cross-
examination of the victim and her mother (PW-2) that
03.09.2006 was not the date of birth of the victim and that
the birth certificate was not of the victim would not disprove
the "legal presumption" or the "compulsory presumption"
under section 79 of the Indian Evidence Act, 1872 as no
evidence to disprove it was presented by the defence. Both
the victim and her mother (PW-2) had denied the suggestion.
The judgments cited by the learned counsel for the
appellant
26. In Madan Mohan Singh (supra), the facts were
different than the present case. In that case, as noted by the
Supreme Court the documents placed on record were school
Bickey Pariyar alias Darjee vs. State of Sikkim
leaving certificate, school registers, voters lists, and other
documents prepared by authorised persons in exercise of
their official duty. The Supreme Court noted the entries
made in the electoral rolls for the legislative assembly for
three consecutive elections which recorded different
particulars of the same lady. The Supreme Court found that
as per the first document the lady should have been born in
1941 as she was 34 years of age in 1975; as per the second
list she should have been born in 1943 as she was 36 years
of age in 1979. The Supreme Court also noted that
immediately after one year in 1980 she became 41 years of
age and according to this document she should have been
born in 1939. It was held by the Supreme Court that there is
so much inconsistencies that these documents cannot be
read together for the reason that in 1979 if the lady was 36
years of age, in 1980 she has been shown 41 years of age.
So, after expiry of one year her age has gone up by five
years. Similar inconsistencies were recorded with regard to
other document as well. The Supreme Court held that the
aforesaid document placed on record by the appellants and
so heavily relied upon by them if taken into consideration,
they would simply lead to not only improbabilities and
impossibilities but absurdities also. It is in this context that
the Supreme Court held that therefore a document may be
admissible, but as to whether the entry contained therein
Bickey Pariyar alias Darjee vs. State of Sikkim
has any probative value "may still be required to be
examined" in the facts and circumstances of a particular
case.
27. I am afraid that in the present case, the exhibited
public documents which establishes the proof of age of the
victim has no such improbabilities, impossibilities or
absurdities for this Court to venture to examine its probative
value.
28. In Lall Bahadur Kami (supra), we had noted the
conflicting evidence given by the prosecution witnesses of
the birth certificate and the fact that none of the prosecution
witnesses have been able to vouch safe for the truth of the
contents thereof. We had also noted that neither the school
admission register nor the register of births and deaths or
the Class X mark sheet were seized by the investigating
officer. It is in that fact situation that we sought to examine
the probative value of the birth certificate which was seized
in isolation.
29. In the present case, as held earlier, the victim's
mother who would be the most natural person to give
evidence about the birth of the victim, has categorically
stated that the victim was born on 03.09.2006 and identified
the birth certificate (exhibit P-2) as the birth certificate of the
victim. The victim herself stated that she was born on
03.09.2006, identified her birth certificate (exhibit P-2),
Bickey Pariyar alias Darjee vs. State of Sikkim
deposed that she was 16 at the time of her deposition, i.e.,
01.07.2022 and that she was studying in Class VIII then.
30. In Mangala Mishra (supra), we noted the exposition
of law by the Supreme Court in Madan Mohan Singh (supra)
distinguishing between the admissibility of a document and
its probative value while noting the conflicting evidence led
by the prosecution regarding seizure of the birth certificate
of the victim. We also noted that the victim's mother who
was examined as a prosecution witness neither made any
claim that the birth certificate was seized by her nor did she
mention about the victim's age. We noted that there was
conflicting evidence as to from whom the birth certificate of
the victim was seized from. After examining section 94 of the
JJ Act of 2015, we held that in the first instance the date of
birth from the school or matriculation of the child is
unavailable then resort can be taken to a birth certificate
given by a corporation or a municipal authority. We held
that the provisions of section 94 of the JJ Act of 2015 have
not been complied with and hence the prosecution had failed
to establish the first requirement of the case under POCSO
Act, viz., to establish that the victim was below the age of 18
years as is the requisite provided under section 2(d) of the
POCSO Act.
31. The learned counsel for the appellant also
emphasised on a suggestion by the defence during the cross-
Bickey Pariyar alias Darjee vs. State of Sikkim
examination of the Principal (PW-10). It was suggested that
the school of which she was the principal and in which the
school admission register was maintained was not the first
school attended by the victim. This suggestion as is clear is
as per the requirement of Rule 12(3)(a)(ii) of the Juvenile
Justice (Care and Protection of Children) Rules, 2007 (the
2007 Rules). However, this is not the requirement of section
94 of JJ Act of 2015. JJ Act of 2015 has replaced Rule 12 of
the 2007 Rules. As such, the suggestion of the defence has
no consequence whatsoever in the facts of the present case
as the FIR (exhibit P-3) was lodged on 04.10.2021 when the
JJ Act of 2015 had already been enforced. There is no
suggestion by the defence that the entry made in the school
admission register was untrue. As noted above, the attested
copy of the school admission register (exhibit P-11) contains
the details of the victim's birth certificate.
The Seizure Memo
32. The learned counsel for the appellant submitted
that the seizure memo (exhibit P-19) was not proved by the
two witnesses who were named in it. Thus, even the seizure
of the birth certificate (exhibit P-2) is suspect.
33. The Investigating Officer deposed that the birth
certificate of the victim was seized from her mother vide
seizure memo (exhibit P-19) wherein exhibit P-19(a) is the
signature of the victim's mother. He also identified the
Bickey Pariyar alias Darjee vs. State of Sikkim
signatures of the witnesses in the seizure memo and the
birth certificate (exhibit P-2) seized through the seizure
memo.
34. Nothing substantial was brought out during the
cross-examination of the Investigating Officer (PW-11) to
demolish the facts stated by him in his examination-in-chief
regarding the investigation and the seizure of the birth
certificate (exhibit P-2).
35. The birth certificate (exhibit P-2) was seized by the
Investigating Officer (PW-11) from the victim's mother (PW-2)
through seizure memo (exhibit P-19) which was exhibited by
him as its maker - a police officer who is authorised to
conduct the search. It is noticed that the seizure memo is
under section 102 Cr.P.C. The said provision does not
mandate the requirement of any witnesses for the procedure.
There is no such inflexible proposition of law that there
ought to be independent witnesses associated with the
seizure. Section 102 Cr.P.C does not require it. The police
officer in the course of investigation can seize any property if
such property is necessary to link with the commission of
offence. However, the seizure memo (exhibit P-19) records
that the seizure was effected in the presence of the two
witnesses. The two witnesses however were not cited as
witnesses in the final report. They were, therefore, not
examined. The Investigating Officer (PW-11) was examined
Bickey Pariyar alias Darjee vs. State of Sikkim
and he proved the seizure memo (exhibit P-19). No
suggestion was given by the defence to the Investigating
Officer (PW-11) that the two witnesses named in the seizure
memo were withheld for any purpose. The seizure memo
(exhibit P-19) records the seizure of only the birth certificate
(exhibit P-2) of the victim from her mother (PW-2). The birth
certificate (exhibit P-2) had been produced in the original
and exhibited by the victim without any objection from the
defence. The victim's mother (PW-2) was also examined. She
did not depose that the birth certificate (exhibit P-2) was
seized from her although she identified the birth certificate
(exhibit P-2). The defence did not suggest that the birth
certificate of the victim (exhibit P-2) was not seized from her.
The identification of the signature [exhibit P-19(a)] of the
victim's mother in the seizure memo (exhibit P-19) by the
Investigating Officer (PW-11) was not objected to by the
defence. The seizure memo (exhibit P-19) shows the seizure
of the birth certificate (exhibit P-2) and nothing else. In the
circumstances, it would be extremely difficult for the Court
to disbelieve the Investigating Officer (PW-11) when he
deposed about the seizure of the birth certificate (exhibit P-2)
and in those circumstances, question the veracity of the
birth certificate (exhibit P-2) itself. Even if the prosecution
failed to produce the witnesses to the seizure, the birth
certificate (exhibit P-2) which has been proved by both the
Bickey Pariyar alias Darjee vs. State of Sikkim
victim and her mother (PW-2) in whose custody it ought to
have been, cannot be wished away. As such, the
presumption under section 114(g) of the Indian Evidence
Act, 1872 would be of no benefit to the appellant merely
because the two seizure witnesses were not produced. As
held above, there was not a suggestion from the defence that
the birth certificate (exhibit P-2) was a false certificate.
36. The records of the learned Special Court reveal
that the prosecution had placed the original birth certificate
of the victim (exhibit P-2), the certificate (exhibit P-10) of the
Principal (PW-10) certifying the date of birth as recorded in
the school admission register and the attested copy of the
school admission register (exhibit P-11) which was compared
with the original school admission register produced and
examined by the learned Special Court and found to be true.
There is no suggestion from the defence that what is
recorded therein is not the truth. The date of birth recorded
in all the three documents is 03.09.2006. These documents
corroborate what both the victim as well as her mother (PW-
2) deposed before the Court. Additionally, the victim while
deposing on 1st July, 2022, also stated that she was 16 years
and studying in Class VIII. The victim exhibited her birth
certificate (exhibit P-2) and her mother (PW-2) identified it
before the Court. The only suggestion given by the defence to
the victim regarding the birth certificate (exhibit P-2) was
Bickey Pariyar alias Darjee vs. State of Sikkim
that it was not hers. The victim emphatically denied the
suggestion. During the cross-examination of the victim's
mother (PW-2), a suggestion was made that the date of birth
of the victim was not 03.01.2006 and that exhibit P-2 was
not her birth certificate. The victim's mother also
emphatically denied the suggestions.
37. Thus, the seizure of the birth certificate (exhibit P-
2) of the victim cannot be doubted. Merely because the two
witnesses to the seizure memo (exhibit P-19) were not
examined, the birth certificate cannot be thrown out without
consideration.
38. In Lakhi Ram Tambi9, we have held that the birth
certificate is a public document admissible in evidence and
as no objection was raised when it was admitted in evidence
nor any issue raised on its probative value it cannot be
questioned by the defence at the stage of appeal. I am not
inclined to accept a contrary view to that of the Division
Bench of this Court.
Determination of the age of the victim following the
procedure under section 94 of the JJ Act of 2015
39. It is now well settled that the determination of the
age of the victim under the POCSO Act can be carried out
through an enquiry as contemplated under section 94 of the
SLR 2019 Sikkim 45
Bickey Pariyar alias Darjee vs. State of Sikkim
JJ Act of 2015. Section 94 of the JJ Act of 2015 reads as
under:
"94. Presumption and determination of age.(1)
Where, it is obvious to the Committee or the Board,
based on the appearance of the person brought before it
under any of the provisions of this Act (other than for
the purpose of giving evidence) that the said person is a
child, the Committee or the Board shall record such
observation stating the age of the child as nearly as may
be and proceed with the inquiry under section 14 or
section 36, as the case may be, without waiting for
further confirmation of the age.
(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether the
person brought before it is a child or not, the Committee
or the Board, as the case may be, shall undertake the
process of age determination, by seeking evidence by
obtaining -
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the
concerned examination Board, if available; and in the
absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age
shall be determined by an ossification test or any other
latest medical age determination test conducted on the
orders of the Committee or the Board:
Provided such age determination test conducted on
the order of the Committee or the Board shall be
completed within fifteen days from the date of such
order.
(3) The age recorded by the Committee or the Board to
be the age of person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of that
person."
40. It is noticed that section 94(2) of the JJ Act of
2015, mandates that the committee or the board shall
undertake the process of age determination "by seeking
evidence by obtaining" the certificates mentioned in sub-
section 2(i) and sub-section 2(ii) without any further
requirement.
Bickey Pariyar alias Darjee vs. State of Sikkim
41. The Supreme Court in P. Yuvaprakash vs. State Rep.
By Inspector of Police10, held that from a conjoint reading of
Section 34 of the POCSO Act and Section 94 of the JJ Act of
2015, it is evident that wherever a dispute with respect to
the age of a person arises in the context of her or him being
a victim under the POCSO Act the courts have to take
recourse to the steps indicated in Section 94 of the JJ Act
and the three documents in order of which the JJ Act
requires consideration.
42. In Ashwani Kumar Saxena vs. State of Madhya
Pradesh11, the Supreme Court while examining the
provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000, held that age determination inquiry
contemplated under the JJ Act and the 2007 Rules has
nothing to do with the enquiry under other legislations, like
entry in service, retirement, promotion, etc. There may be
situations where the entry made in the matriculation or
equivalent certificates, date of birth certificate from the
school first attended and even the birth certificate given by a
corporation or a municipal authority or a panchayat may not
be correct. But Court, Juvenile Justice Board or a
Committee functioning under the JJ Act is not expected to
conduct such a roving enquiry and to go behind those
certificates to examine the correctness of those documents
2023 SCC Online SC 846
(2012) 9 SCC 750
Bickey Pariyar alias Darjee vs. State of Sikkim
kept during the normal course of business. Only in cases
where those documents or certificates are found to be
fabricated or manipulated, the Court, the Juvenile Justice
Board or the Committee need to go for medical report for age
determination.
43. It is, therefore, clear that the mandate of section
94 of the JJ Act of 2015 has been fulfilled by the prosecution
by producing the date of birth certificate from the school
(exhibit P-10), the attested copy of the school admission
register (exhibit P-11) as well as the birth certificate (exhibit
P-2) issued by the Registrar of Births and Death, Health &
Family Welfare Department, Government of Sikkim (exhibit
P-2). Sub-section 3 of section 94 provides that the age
recorded by the committee or the board to be the age of the
person so brought before it shall, for the purpose of this Act,
be deemed to be true age of that person. If the Special Court
conducting the trial of the POCSO case is required to follow
the JJ Act of 2015 as per the dicta of the Supreme Court
[see P. Yuvaprakash (supra)] then the age recorded by the
Special Court must be deemed to be the true age of the
victim unless it is shown by cogent evidence that it is
untrue. The learned Special Court has categorically held
that the prosecution has been able to prove that the victim
was born on 03.09.2006.
Bickey Pariyar alias Darjee vs. State of Sikkim
44. In the facts and circumstances of the present
case and the analysis of the evidence produced by the
prosecution and cross-examination of the prosecution
witnesses by the defence, I am of the view that the
prosecution has been able to establish beyond reasonable
doubt that the victim was in fact a minor at the time of the
offence. Therefore, although the proved sexual acts between
the victim and the appellant were consensual, the POCSO
Act of 2012 does not permit any concession. Consent of a
minor is no consent at all. Resultantly, the impugned
judgment passed by the learned Special Judge is upheld and
the appeal dismissed.
45. In K. Dhandapani (supra), the Supreme Court in
the peculiar facts of the case exercised the power it had
under Article 142 of the Constitution of India which power
we do not possess. In the circumstances, the appellant and
the victim may approach the Supreme Court, if so advised.
(Bhaskar Raj Pradhan)
Judge
5th March, 2025
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