IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 289 of 1998 ~~~~~~ Against the judgment of conviction dated 04.07.1998 and order of sentence dated 08.07.1998 passed by Sri Birendra Kumar, learned Additional Sessions Judge – 3rd, Bhagalpur, in Sessions Trial No. 368 of 1997. ~~~~~~ Shyama Kant Jha, Son of Late Anirudh Jha, resident of village – Darha, P. S. – Shahkund (Sajour), District – Bhagalpur. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Mr. Krishna Mohan, Advocate. Mr. Praveen Kumar, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. Perused the reports. 3. The appellant has been convicted for the offence under Sections 363, 366A and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years for the offence under Section 366A of the Indian Penal Code and seven years for the offence under Section 376 of the Indian Penal Code with a fine of Rs.5000/- and in default of payment of fine to undergo rigorous imprisonment for one year. The appellant has further been sentenced to pay a fine of Rs.5,000/- for the offence under Section 376 of the Indian Penal Code which shall be payable to the victim girl and in default of payment of fine to undergo rigorous imprisonment for one year. No separate sentence has been awarded for the offence under Section 363 of the Indian Penal Code. However, it has been ordered that both 2 the sentences shall run concurrently. 4. The prosecution case as alleged in the fardbeyan of informant Amar Nath Jha (P.W. 4), the brother is that the victim who was 13-14 years of age on 26.01.1997 at about 3:00 P.M. his neighbour accused Shyama Kant Jha came to the house of the informant and disclosed that his mother is ill hence unable to cook food so Mamta Kumari @ Tinki be permitted to cook food in the house of the accused person. The informant sent his sister Mamta Kumari to the house of the accused. When Mamta Kumari did not return till 9:00 P.M. then the informant made out a search but the victim was not found at the house of the accused and the accused was also not there. The father, mother and son of Shyama Kant Jha disclosed that the informant along with Mamta Kumari have been seen to have gone towards Andhari river. 5. The informant reported the matter to Sajour out post at 9:00 P.M. on 26.01.1997. On 27.01.1997 he gave a written report (Ext. 1) to the police station. The written report/fardbeyan was forwarded by P. W. 7 to the Officer-In-Charge, Sahkund with endorsement on it. On the basis of the said fardbeyan/written report First Information Report was drawn bearing Shakund P. S. Case No. 09 of 1997 for the offence under Sections 363, 366A and 376 of the Indian Penal Code. 6. During investigation the victim was apprehended and the statement of the victim was recorded by the Judicial Magistrate – Ist Class, under Section 164 Cr.P.C (Ext. B). The victim was examined by the doctor who gave his report (Ext. 3). The police after investigation submitted charge-sheet for the offence under Sections 363, 366A and 376 of the Indian Penal Code. During trial seven witnesses were examined by the prosecution and the documentary evidence adduced are Ext. 1 fardbeyan, Ext. 2 First Information Report, Ext. 3 the doctor’s report and Ext. 4 transfer certificate of the victim from School. 3 7. The defence did not adduce oral evidence but prove Ext. A series love- letters written by the victim to the appellant and Ext. B statement of the victim recorded under Section 164 Cr. P. C. 8. The trial court taking into consideration the evidence of P. W. 4 the informant, who is brother of the victim having supported the prosecution case as alleged in the fardbeyan and the evidence of P. Ws. 1, 2 and 3 who are brother, mother and grand-mother also supported the prosecution case that the informant Shyama Kant Jha came and asked them to send Mamta Kumari the victim to his house to cook food as his mother is ill and then Mamta Kumari was sent and they have asserted that the age of Mamta Kumari is 14 years. 9. P. W. 5 is the victim and she in her evidence also supported the prosecution case as alleged in the fardbeyan that Shyama Kant Jha took her at his house in pretext of cooking food. Thereafter Shyama Kant Jha asked her to follow him to cinema and was compelled to follow him under threat to destroy her family. He took her to Nathnagar and then to Manjara at the Sasural of his sister and she was raped there. Then she was brought to Bhagalpur and kept at Nirmala Hotel for about 20-25 days and was raped and then her statement under Section 164 Cr. P. C. recorded. However, she in her cross-examination has stated that she left the house of Shyama Kant Jha prior to proceeding from the house of Shyama Kant Jha and after ten minutes of her leaving the hosue, Shyama Kant Jha left the house to join her when she had traveled for some distance and has also admitted to have sexual intercourse with the appellant prior to the occurrence and has a pregnancy of 12 to 14 weeks. She has also admitted in cross-examination that the letters proved as Ext. A series in her writing though asserted that it was written under force. The I.O. has proved the fardbeyan and First Information Report and has asserted that he inquired about the age and admission register and found the name of the victim at serial no. 4 76 with date of birth as 24.09.1983. 10. The defence of the accused persons is that Mamta Kumari was adult on the date of the occurrence and she out of her own sweet will had gone to the house of Shyama Kant Jha remained with him out of her own sweet will and hence was a consenting party and has relied upon Ext. A series the lover letters written by the victim to the appellant and her statement under Section 164 Cr. P. C. recorded on 26.02.1997 by the Judicial Magistrate, Ist Class in which she disclosed her age as 20 years and the Judicial Magistrate has also adduced her age as 20 years and the doctor has mentioned her age as below 18 years means more than 17 years and less than 17½ and hence she was a consenting party. 11. However, the victim in her statement under Section 164 Cr. P. C. stated her age as 20 years and the learned Magistrate also assessed her age as 20 years and she stated in her statement under Section 164 Cr. P. C. which is Ext. B that she has married with the appellant out of her own sweet will at Deoghar and none has threatened and she has a pregnancy of 4 – 5 months. 12. P. W. 6 is the doctor who examined the victim during investigation and found her age on the basis of radiological examination below 18 years. The doctor in his evidence in cross-examination has stated that below 18 years means more than 17 years but less than 17½ years. The doctor found old tear of hymen on the person of the victim and found the pregnancy of the victim of 12 to 14 weeks. 13. The trial court taking into consideration the evidence of P. Ws. 1 to 5 who deposed that the age of the victim as 14 years. The evidence of the doctor P.W. 6 who has reported her age as below 18 years meaning thereby in between 17 to 17- 1/2 years and the victim in her statement under Section 164 Cr. P. C. stated her age as 20 years as well as the age of the victim in the transfer certificate Ext. 4 mentioned as 24.09.1983. Hence, held that the evidence of the doctor based on 5 radiological examination is not reliable as the radiologist has not been examined nor it appears that the detail examination was made for confirming the age of the victim. 14. The trial court further taking into consideration the age of the victim mentioned in the statement under Section 164 Cr. P. C. cannot be relied in view of the statement of the victim in her evidence that it was not voluntarily and was forced by the accused and the trial court taking into consideration the Ext. 4 the transfer certificate issued by the Headmaster of K. L. High School, Narayanpur and in the First Information Report it is disclosed that the victim girl was a student of Narayanpur School and after passing class VIIIth she had just entered the class IXth at the time of occurrence. 15. The trial court further took into consideration the evidence of P. W. 7 who in his evidence has stated that during the course of investigation he visited High School and examined the admission register which mentioned the name of Mamta Kumari at serial no. 76 and the date of birth as 24.09.1983 and hence held that there is nothing on record to doubt the genuineness of Ext. 4 and hence held that the victim was less than 16 years on the date of the occurrence and hence convicted the appellant for the offence under Sections 363, 366A and 376 of the Indian Penal Code. 16. Learned counsel for the appellant, however, contended that the victim in her statement has admitted that she has sexual intercourse with the appellant and was pregnant since before the alleged occurrence and this fact is supported from the evidence of the doctor on her medical examination on 26.02.1997 when the pregnancy on person of victim was 12 – 14 weeks found out. The series of letter Ext. A series in which admission regarding the conceiving a foist through the accused and though the victim asserted those letters written under compulsion but 6 the trial court itself disbelieved the assertion of victim that it was written under compulsion and in this circumstance the prosecution case that the victim was kidnapped in pretext of cooking food falls to ground when the victim has already admitted that sexual intercourse with the appellant prior to the occurrence then she may not have became ready to go to cook food and further the evidence that the victim left the house of the accused for Nathnagar even prior to leaving the house by the appellant and hence there was sufficient opportunity for her to flee away but the victim having not chosen so, it is clear that she was a consenting party as she did not disclose or make any attempt to flee away when there is sufficient opportunity at Nirmala Hotel and other places. It has further been contended that the age of the girl on the basis of transfer certificate issued during the investigation after the occurrence when there was no occasion to take the transfer certificate when the victim was traceless with the accused. 17. Learned counsel for the State, however, contended that the prosecution has proved the charge and the victim was below 16 years, the consent has lost its relevance. Hence the most crucial question for consideration is about the age of the victim where the victim was less than 16 years at about the date of occurrence. 18. However, with regard to the age the three types of evidence have been brought on record. Ext. 4 is the transfer certificate issued on 03.02.1997 said to be issued by the Principal. However, the Headmaster of the school has neither been examined as a witness nor any clerk or the person who issued the transfer certificate has been examined nor the school register has been brought in evidence nor the father and mother of the victim has come forward to depose the exact date of birth of the victim. However, the entry made in the school register regarding the age of the person is not of much evidentiary value in the absence of the material on which the age was recorded. Here though P. W. 7 has stated in his evidence that he 7 verified the register and found entry no. 76 mentioned the age of the victim mentioned as in the transfer certificate but either in transfer certificate or in evidence of P. W. 7 it has not been mentioned what is the material on the basis of which age was recorded and hence the entry has got no probative value unless the person on whose information the entry made is examined and hence the determination of age on the basis of entry made in school register on the basis of which Ext. 4 is issued is not relevant unless the person on whose information entry made is examined. 19. The occurrence is dated 26.01.1997 and it is alleged that the victim was kidnapped by the accused persons. The victim appeared in court on 22.02.1997 and her statement recorded on 24.02.1997. Ext. 4 has been issued by the Principal on 03.02.1997. The reason for leaving the school mentioned in the Ext. 4 is the wish of the guardians. However, under the circumstance there was no occasion to take the said transfer certificate when the victim was kidnapped and there was no occasion to leave the school has only been shown to be one year back. The evidentiary value of proving the age on the basis of documentary evidence is admissible under Section 35 of the Evidence Act and it is relevant to quote paragraph 15 of decision reported in AIR 1988 SC 1796 (Birad Mal Singhvi V. Anand Purahit). “15 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 preson 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 8 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, Muzaffarpur, AIR 1966 Patna 459, Ghanchi Vora Samsuddin Isabhai v. State of Gujarat, AI.R. 1970 Guj 178 and Radhan 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 of secondary school certificate has no probative value unless either the parents are examined on the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Sri Jagannath Prasad, (1962) 42 ELR 465 (All), K. Paramalali v. L. M. Alangaram, (1967) 31 ELR 401 (Mad), Krishna Rao Maharu Patil v. Onkar Narayan Wagh, (1958) 14 ELR 386 (Bom).” 20. And this view has further been confirmed in decision reported in AIR 2011 SC 715 (Alamelu and another v. State, Represented by Inspector of Police) With (Sekar and another v. State, Represented by Inspector of Police) With (Rangaswamy and another v. State, Represented by Inspector of Police.) while considering the evidence has cited an observation reported in AIR 2004 SC 175 “The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue.” Hence it is well settled that mere proof of the document (transfer certificate Ext. 4) by formal witness and even the evidence of the I.O. that he verified the fact of age mentioned in the register does not furnish evidence of the truth of the fact or content of the document. The truth or otherwise of the fact in issue namely the date of birth of the victim could be proved by admissible evidence i.e. by the evidence of those persons who gave vouchsafe for the truth of the fact in issue. No evidence produced to prove the date of birth of the victim in 9 such circumstance. The date of birth mentioned in the transfer certificate cannot be accepted as the document has no probative value and hence determining the age of victim on the basis of entry is not sustainable. Hence, the age of the victim could not have been fixed on the basis of transfer certificate. There is no reliable evidence to vouchsafe the correctness of the date of birth recorded in transfer certificate. The medical evidence does not rule out the possibility of the girl being major specifically with regard to the age enunciated by victim in her statement under Section 164 Cr. P. C. and the court having assessed her age as 20 years. However, the doctor has assessed the age of the victim on the basis of radiological examination to be less than 17 years and he has mentioned that it is more than 17 but less than 17½ years. However, it is well settled that the age of the victim on the basis of radiological examination is not the exact date but has its variation of two years plus minus. However, when two possibilities are equally possible then one in favour of the accused is required to be taken. However, it is well settled that the age accrued by the doctor by radiological examination is not the exact age but a variation of + - 2 years then one is taken in favour of accused is required to be preferred. This presumption coupled with the fact that the victim in her statement under Section 164 Cr. P. C. has stated her age as 20 years and the Judicial Magistrate who recorded her statement also assessed her age as 20 years. 21. However, the trial court misdirected itself in disbelieving the evidence of the victim that she in her statement has stated that she gave that evidence under the threat. However, having regard to the facts and circumstances a reliance on the statement of the victim that her statement was recorded under duress is not acceptable in view of the fact that the victim herself had a pregnancy of 12 to 14 weeks and hence it is apparently established that she had a sexual intercourse with the appellant prior to the occurrence and further having regard to the evidence in 10 cross-examination that she came out from the house of Shyama Kant Jha even prior to Shyma Kand Jha came out and there was much gap in between and she had sufficient opportunity to flee away but she did not do so and hence in such circumstance it cannot infer that the victim gave her statement before the Magistrate under duress or threat. 22. Having regard to the fact the date of birth on the basis of the documentary evidence Ext. 4 having been established the age on the basis of Ext. 4 is not acceptable and hence the finding recorded by the learned lower court that the age of the girl was below 16 years on the basis of Ext. 4 is hereby set aside. 23. However, having regard to the fact the evidence of the victim in her statement under Section 164 Cr. P. C. as 20 years and further the evidence of the doctor on the basis of radiological finding which is more than scientific in nature apparently 17 to 17½ years and if two years taken the margin of error be taken as two years her age was 17½ to 19½ years and once it is established that the victim was more than 18 years then the evidence are sufficient to establish that she was a consenting party. Hence, the order of conviction and sentence recorded by the lower court is hereby set aside and accordingly, this appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 30th November, 2011. N.A.F.R./Kundan.