Betu Ram vs State Of Himachal Pradesh

Vivek Singh Thakur, J

This application has been preferred by the appellant-convict for suspension of sentence awarded to him by learned Additional Sessions Judge, Fast Track Special Court (POCSO), Kangra at Dharamshala, vide judgment dated 18.09.2025, passed in case FIR No.139 of 2023 dated 13.08.2023, registered at Police Station Jawali, District Kangra, under Section 376 of Indian Penal Code ('IPC') and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO Act') and Section 506 of IPC.

Appellant-applicant has been convicted under Sections 376(3) & 506 of IPC and Section read with Section 5(j)(ii) of POCSO Act.

Appellant-applicant has been sentenced to undergo rigorous imprisonment for a period of 20 years and to pay a fine of Rs.20,000/-, and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months under Section 6 of POCSO Act and rigorous imprisonment for two years under Section 506 of IPC.

As per the custody certificate as on 12.01.2026, the applicant-appellant had undergone imprisonment for period of 2 years, 4 months and 26 days, meaning thereby, as of now, he has undergone more than 2 years and 9 months of imprisonment. At the time of commission of the offence, the applicant-appellant was 23 years old.

Learned counsel for the applicant-appellant has submitted that in the present case, prima facie, arguable point has arisen in the appeal in favour of the applicant-appellant on account of the nature of evidence and its apparent infirmities, and thus, there is every likelihood of the appeal being allowed. However, there is no likelihood of early hearing of the appeal and, therefore, keeping in view the period of custody already undergone, the sentence imposed upon the applicant-appellant deserves to be suspended at this stage.

It has been submitted that the foundation of the offence under the POCSO Act has been shaken for the reason that no birth certificate of the victim has been proved on record in accordance with law.

To substantiate the aforesaid plea, learned counsel for the applicant-appellant has referred to the statement of PW-10 Joginder Singh, Head Teacher, Government Primary School, Paddar, who produced the original Admission & Withdrawal Register pertaining to the first school attended by the victim child. In his cross-examination, PW-10 Joginder Singh stated that he had not made the concerned entries regarding the victim child in the original record brought by him, on the basis whereof he had issued the School Leaving Certificate, and further expressed his ignorance regarding the basis on which the said entries were made in the record/document.

Learned counsel for the applicant-appellant has also referred to the statement of PW-13 Anamika Choudhary, Principal, Government Senior Secondary School, Bharmar, Tehsil Jawali, District Kangra, by pointing out her deposition in cross-examination, wherein she stated that it was correct that the original document pertaining to Exhibit P6/PW2 was with the child victim and she had not brought the original record of the said document/birth certificate of the victim child, but had brought only the School Leaving Certificate of the child victim issued by the school, last attended by her before taking admission in her school. She further stated that the entries in the Admission & Withdrawal Register concerning the admission of the child victim were not made during her tenure and she had not seen the birth certificate of the child victim issued by the Panchayat, Municipal Corporation or Registrar of Births and Deaths.

Learned counsel for the applicant-appellant has also referred to the statement of PW-14 Harbans Lal, Panchayat Secretary, Gram Panchayat Rajol, by referring to his deposition in cross-examination, wherein he stated that the Investigating Officer had not taken the record from the original Family Register maintained in his office and as per the original Family Register at Serial No.300, there were certain overwritings. He further stated that he had not made any entry regarding the child victim or her family members in the register and he was not able to say, on what basis the entries were made in the Family Register.

Learned counsel for the applicant-appellant has also referred to the statement of PW-23 S.I. Raj Kumar, Investigating Officer, who, in his cross-examination, admitted that he had not procured the birth certificate of the child victim from the Panchayat, Municipal Corporation or Registrar of Births and Deaths. He further stated that he had not investigated the basis on which the date of birth of the child victim had been entered in the School Leaving Certificate, Matriculation certificate and mark-sheet of the child.

Learned counsel for the applicant-appellant has submitted that the Prosecution has placed reliance only upon copy of school records, copy of Admission & Withdrawal Register and School Leaving Certificates, without production of the original source documents thereof, and the Prosecution witnesses have admitted lack of knowledge regarding the basis of the entries. Therefore, the evidence relating to the date of birth of the child victim is doubtful and, thus, cannot be made basis to conclude that child victim was minor.

It has been further submitted that the parents of child victim, despite being best witnesses with regard to the age of the child victim, have not been examined and, thus, on account of withholding of material witnesses, the applicant-appellant is entitled to acquittal and, at this stage, at least for suspension of sentence.

Learned counsel for the applicant-appellant has also referred to the pronouncement of the Apex Court in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681, wherein it has been held that a xerox copy/photocopy/facsimile copy, in the absence of the original, is not admissible in evidence and non-compliance of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short 'Juvenile Justice Rules, 2007') is also fatal to prosecution.

Learned counsel for the applicant-appellant has also referred to the pronouncement of the Apex Court in Biradmal Singh v. Anand Purohit, AIR 1988 SC 1769, wherein it has been held that the probative value of a document depends upon the source of information on the basis of which the entry is made by a public servant in the public record and that probative value cannot, by itself, be treated as formal proof of the document.

Learned counsel for the applicant-appellant has also referred to the judgment passed by the Apex Court in Satpal Singh v. State of Haryana, (2010) 8 SCC 714, with the submission that the Apex Court has held that unless the entry in the school register/certificate is proved in accordance with law, the provision of Section 35 of the Evidence Act cannot be made the basis to accept the authenticity of such entry, and that standard of proof for proving a document remains the same in cases under the POCSO Act as in any other civil or criminal case.

To substantiate his plea, learned counsel for the applicant-appellant has also referred, pronouncement of the Apex Court in P. Yuvaprakash vs. State, 2023 SCC Online SC 846 and judgment dated 17.11.2023 passed by this High Court in Criminal Appeal No.332 of 2019 along with Criminal Appeal No.199 of 2019, titled as State of Himachal Pradesh vs. Pratap Singh.

Learned counsel for the applicant-appellant has submitted that there are serious doubts regarding scientific evidence, i.e. DNA evidence and chain of custody of the samples. To substantiate this plea, he has referred to the statements of PW-8 Constable Sandeep Singh and PW-27 Dr. Ashwani Bhardwaj, Scientific Officer, DNA Division, RFSL, with the submission that there was delay in sending the samples to the RFSL and there was no documentation regarding sealing, vial numbers or FTA card numbers. It has further been submitted that there was non-compliance with the standard forensic protocol and glaring contradictions regarding handling and custody of the samples.

Lastly, it has been contended by learned counsel for the applicant-appellant that the place of occurrence has not been established and the scene of crime itself remained unproved and, therefore, there is a fair likelihood of acquittal of the appellant.

Learned Deputy Advocate General has submitted that the date of birth of the child victim stands proved from the statements of PW-2 (victim), PW-10 Joginder Singh, PW-13 Anamika Choudhary and PW-14 Harbans Lal, and the copy of the Matriculation certificate has been proved on record as Exhibit P6/PW2. It has been further submitted that the date of birth recorded in the said certificate stands corroborated by the other evidence on record, i.e. School Leaving Certificate of Government Primary School, Takhnar (Exhibit P-23/PW-10), being the first school attended by the child victim; School Leaving Certificate of Government Middle School, Takhnar (Exhibit P-29/PW-13) and Admission & Withdrawal Register of Government Senior Secondary School (Exhibit P-30/PW-13), which further stand corroborated by the entries in the Parivar Register, Exhibits P-31/PW-14 and P-32/PW-14.

It has been further submitted by learned Deputy Advocate General that proper identification forms of the child victim as well as the appellant-accused were filled in and sent to the Forensic Science Laboratory along with the FTA cards for chemical analysis, and in the FSL report, it has been categorically concluded that the DNA profile obtained from the blood on the FTA card of the baby of the child victim clearly established that the child victim was the biological mother of the said baby and the applicant-appellant was the biological father of the baby.

Learned Deputy Advocate General submits that in view of aforesaid conclusive evidence on record, there is no chance of acquittal of the respondent.

No doubt, PW-2 child victim, in her statement, produced a copy of the Matriculation certificate indicating her date of birth as 06.09.2007 so as to prove that at the time of commission of the offence, she was a minor. However, it is a matter of record that PW-2 child victim, in the very first line of her examination-in-chief, stated that her date of birth was 06.09.2007 and also placed on record the Matriculation certificate (Exhibit P6/PW2). In cross-examination, not even a single question was put to this witness disputing her statement that her date of birth was 06.09.2007.

No question disputing the genuineness or correctness of the copy of the Matriculation certificate, placed on record, was put to the witness, much less disputing the entry of date of birth recorded therein as 06.09.2007. It is settled law that facts stated in the examination-in-chief, if not disputed in cross-examination, are treated as admitted. It is also settled that admitted facts need not be proved by leading any further evidence. Once the date of birth, stated by the child victim was not disputed in cross-examination, nor the veracity of the copy of the Matriculation certificate, including the date of birth recorded therein, was disputed, the date of birth of the child victim has to be treated as proved.

Therefore, at the time of the incident, the child victim was 16 years old. She was ravished by the applicant-appellant and, as a result thereof, became pregnant and gave birth to a child. DNA profiling of the blood sample of the baby has established that the child victim is the biological mother of the baby and the applicant-appellant is the biological father of the baby.

Plea of learned counsel for the applicant-appellant that the date of birth has not been proved in accordance with the provisions of Rule 12 of the Juvenile Justice Rules, 2007, is also not acceptable for the reason that the same is now governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, wherein, under Section 94, the order of preference for determination of age of a juvenile/child victim has been altered. Under the said provision, the school certificate or Matriculation certificate is required to be considered in the first instance and thereafter the date of birth certificate issued by the Registrar of Births and Deaths is to be considered.

Even if it is considered that PW-2 child victim had not produced the original Matriculation certificate, it has been clarified in the statement of PW-13 Anamika Choudhary, who, in her cross-examination, denied the suggestion that the mark-sheet (Exhibit P-6/PW-2) was not correct as per the original record, as she had produced the original record before the Court. The Trial Court has also clearly recorded that the original record was seen and returned. Therefore, the mark-sheet/copy of the Matriculation certificate (Exhibit P-6/PW-2) stands corroborated and substantiated by PW-13 Anamika Choudhary. The date of birth of the child victim also stands corroborated from the school leaving certificates (Exhibits P-23/PW-10 and P-29/PW-13), extract of the Admission and Withdrawal Register (Exhibit P-30/PW-13) and copy of the Parivar Register (Exhibit P-32/PW-14).

No doubt, in view of Section 94 of the Juvenile Justice Act, 2015, precedence has to be given to school certificate or Matriculation certificate. In the present case, copy of the Matriculation certificate is on record and the entry regarding the date of birth therein stands duly corroborated by other supportive evidence. There is no legal bar in considering other evidence for corroboration of the date of birth recorded in the Matriculation certificate.

In view of aforesaid evidence on record, the judgments referred by learned counsel for applicant-appellant (supra) are not relevant and thus, inapplicable in present case.

FTA cards of the child victim and the applicant-appellant were sent for chemical analysis along with the identification forms of the child victim (Exhibit P-5/PW-2) as well as the applicant-appellant (Exhibit P-32/PW-15), and therefore, there is no infirmity in linking the RFSL report with the applicant-appellant as well as the child victim.

Taking into consideration the aforesaid facts and circumstances, we are of the considered opinion that this is not a case where, ex facie, it appears that there is a likelihood of acquittal of the appellant at the time of final hearing and, therefore, the present application, being devoid of merit, deserves dismissal. Therefore, at this stage, the applicant-appellant is not entitled to suspension of sentence. Accordingly, the application is dismissed.

Needless to say, the aforesaid observations made in the applications, shall not have any bearing on the final adjudication of the appeals, as these observations are preliminary in nature by considering the material on record, prima facie, for purpose of suspension of sentence of the applicant-appellant.