@ IN THE HIGH COURT OF JUDICATURE AT JABALPUR,MP. a.¥ H’m’V‘L‘ L:_ Criminal Aggeali I No.‘ ‘3‘ ‘7 f3 Z97. g“ i APPELLANT‘ Kochai @ Bhair, s/e. . (IN JAILL 'r‘ Baiga Gond, age 55 years, y,W R/O. Vill— ‘bandgaonr' E‘s- Lakhanpur Distt— sarguja. MP. . .. "VEI'SUS " : The State of M.P. through Ps- Lakhanpur District- Sarguja, MP. RESPONDENT. Aévmte %m- w? Rk‘AR‘ CRIMINAL APPEAL. u/s. 374(2) OF THE cops OF CRIMINAL PROCEDURE-1973 ° IN THE HIGH COURT OF CHHATTJSGARHA T BIIASPUR CR IMINAL APiaEAL No.1‘57'4/97 Kochai alias Bhairi VS . " State of M.P. (C.G.) ORAL JUmMT Per Hon.R.S. Garg, J Being aggrieved by the judgment dated 18-6-1997 passed in Sessions Trial No.439/96 by the learned Sessions Judge, Sarguja (Ambikapur) w nvicting the ,i K A him to urdergo R.I. for ten years,zhas filed this appealdm- K, 2 . The prosecution case i-n brieii was tl'at 12m prosecutrix Rambai was fell on the ground by the accused and he committed rape upon her. The first information report was lodged by the pros ecutrjx on 16-11-1996, she was sent for her medical report. Memorandums were pregxared and the statements of the witnesses Were recorded. On completion of the investi- gation, tke accused was tried and convio ted and sentenced as referred to above. 4 l 3 . Learned oeunsel f or the a ppellant has not challenged the finding relating to sexual assault upon the prw ecutrix but has made ane single submission that x f as the prosecution fai led in proving the age of the prosecutrix and £urthe‘r that she was below 12 years of age, the accused could not be convicted under Section 376(2)(£) Of Iepoc‘. 4. ‘ 0n the other hand, learned counsel for the State submits that from the medical report, the statements of V the prosecutrix and the statementaplf thegoctor, it appellant under Section 376 (2)(f) I‘P.C. and sentencing Wig tre appellant L, y /—- mm u would clearly appear that the girl was below, $12 years of age,therefore, the court below was justified in convicting the appellant. 5. 'lb pro‘é the age of the girl, theprosecution has relied upon a certificate issued by the Ebad Master of the school. The said document is available on the record as anP/lo. It is to be noted that tl’e said cocument has been produced in the statements of P.W.4 Ramcharan. The proaecution agency in its wisdom dia not examine the Pkad Master,who had issued the certificate nor it produced the original regis ter,on basis of which this certificate was issued. The prosecution agency did not examine anyboéy to prove that he hac made the entries in the original register. Nobody says that tke entries were made in the regular course of business and the certificate,E:.P/lo, was true reproduction of the entry as maintained in the register. It is trite law that productionVof a document is not the proof of the same. In the present case, barring production of the document, the prosecution agency did not care to prove % the contents of the documents. 6 . P.W.,l KnaRam Bai was estimated to be about 11 years of age. She nowl's re said that she was 11 years or less than 12 years. P.W.2 Duhni Bai, the mother of the prosecutrix, did not speak events. single word in relation to the age of the prosecutrix. P.W.6 Dr .Smt. shipra Shrivastava had stated that she rad examined a young girl of ten years and had foum certain injuries in her private parts. Iearred counsel for the $tate submits that this statement of Dr.Smt .shrivastava must be finallyaccepted to‘hold that the proaecutrix was about ten years of age. -3- 7. Opposing the submission, 1e arnea counsel for the accused submits that the estimation made by Dr.Smt. Shrivastava would not take the place oi positive evidence. He submits that the age of the girl could be proved either on the basis of the birth certificate, i an entry from the birth regx' ter. a properly prOVed entry of the school register or on the basis of the statements of the parents or an estimated age can be brought on record on the basis of the Ossification report . 8. In the opinion of this Court, the statement made by the learned counsel for the appellant has £orce. If a doctor simply makes an estimation in relation to the age of 33m somebody, then that remains an estimation which may or may not be correct. In the present case, the Court estimateo the age of the girl to be ll years. Nobody said that the girl was below 12 years. Dr.Smt.Shrivastava did not examine the girl to estimate her age, in fact she had examined the person of tl'e prosec'utrix and was to giVe report about the physical condition of tke presecutrix and the sexual assault made on her. 9. Section 376 {2)(f) I.P.C. says that whoever commits rape on a woman when she is under 12 years of age shall be punished with R. I. for a term which shall not be less than ten years but which may be for life 1’; and shall also be liable to fine. To secure a conviction? under Section 376 (ZHf). the prosecution has to prove beyond shadow of doulét or atleast to a reasonable l certainty that the girl on the date of incident was below 12 years of aget/ - 4 .- 10. In the present case, as the age certifica£e,m.P/10,‘ has not been proved and there is no other legal evidence to hold that the girl was below 12 years of age on the date of the incident, it is not possible to hold that the accused can be convicted under Section 376 (2)(f) of IPC. His conviction and sentences for offence punishable under Section 376 {2)(f) are set-aside Instead he is convicted under Section 376 (1) of . and is awarded seve years R.I.. n 11 Section 376 IPC provides that while convicting a prson and awarding the sentence tke Com shall imp0se fine. The appel lant shall pay tine oi gs.5000/-, in detault of payent of fine, he shall undergo R.I. for one year If the fine amount is recovered. the ame be paid to the prosecutrix aer due verif. ication. 12. he appea is allowed to the extent indicted T l a abve v o . 29-2001 . 6— i M1a’_‘r‘w.f ,i, ,i . , IP.C. ¢ e m . s rt