Prashant Ramchandra Kasarkar vs State Of Maharashtra

Rohit B. Deo, J

The appellant is assailing the judgment dated 19Â1Â2019 rendered by the Additional Sessions JudgeÂ3, Yavatmal in Special (POCSO) Case

63/2017, by and under which the appellantÂwho shall be referred to as the 'accused'Âis convicted for offence punishable under Section 376(2)(i)(n)

of the Indian Penal Code (“IPC†for short) and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act

(“POCSO Act†for short) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.10,000/Â, and in default to

suffer simple imprisonment for one year.

The accused is acquitted of offence punishable under Section 417 of the IPC.

The coÂ​accused Sou. Bebi SasaneÂ​the mother of the prosecutrixÂ​who was charged under Section 316 of the IPC is acquitted.

The accused was charged with continuously and dishonestly inducing the prosecutrix to have sexual relationship by promising marriage. The charge

(Exhibit 22) is further that the accused repeatedly committed rape on the prosecutrix, who was then aged less than 16 years, by promising marriage.

The accused is further charged under Section 316 of the IPC in view of the prosecution case that on 16Â6Â2017 the accused caused the prosecutrix

to abort the fetus by inserting stick in the vagina of the prosecutrix. In the context of the sexual relationship, the accused was charged under Sections

417 and 376(2)(i)(n) of the IPC and Sections 4 and 6 of the POCSO Act.

Shri Mir Nagman Ali, learned Counsel for the appellant submits that the sexual relationship between the accused and the prosecutrix is not in

dispute any longer. The result of the DNA Profiling of the fetus and the blood samples of the prosecutrix and the accused has conclusively established

that the accused and the prosecutrix are the biological parents of the aborted child. The only submission, which is canvassed by the learned Counsel

Shri Mir Nagman Ali, is that the sexual relationship was irrefutably consensual and that since the prosecution failed to prove that the prosecutrix was

aged less than 18 years, the accused is entitled to acquittal. In rebuttal, the learned Additional Public Prosecutor Shri C.A. Lokhande, relying on the

evidence of the prosecutrix PW 1 and the Headmaster of Vyankatesh Vidyalaya, Ghodkhindi (PW 8ÂMukund Bawne), would submit that the

prosecution has proved that the date of birth of the prosecutrix is 04Â1Â2001 and that her age was less than 18 years as on the date of establishing

sexual contact.

The only issue which falls for consideration is whether the prosecution has proved the age of the prosecutrix. The accused is not disputing that he

and the prosecutrix were in relationship and that the prosecutrix conceived. In view of the restricted controversy, it would suffice if only that evidence

is reÂ​appreciated as would have bearing on the issue of age of the prosecutrix.

PW 1Âprosecutrix did not support the prosecution. She was declared hostile and was crossÂexamined by the learned Additional Public Prosecutor.

In the examinationÂ​inÂ​chief, the prosecutrix states that her date of birth is 01Â​1Â​2001. In the crossÂ​examination, on behalf of the learned Additional

Public Prosecutor, it is elicited that the correct date of birth is mentioned in the school. However, in the cross examination on behalf of the accused,

the prosecutrix states that she was enrolled in the school by her father and that she is not aware which date of birth is recorded by her father in the

school. She admits that she did not disclose her date of birth to the police. She admits that when she was admitted in the hospital, she was 19 years

old. It is further elicited that her younger brother is 18 years as on the date of recording of the evidence i.e. 04Â8Â2018. In view of the admissions

elicited in the crossÂexamination on behalf of the accused, the statement of the prosecutrix that her date of birth is 04Â1Â2001 cannot be implicitly

relied, and it would be necessary to examine whether the prosecution has proved the date of birth through the other witnesses examined.

PW 3ÂDashrath SasaneÂwho is the father of the prosecutrix did not support the prosecution. In the crossÂexamination on behalf of the accused,

PW 3 admits that the date of birth of the prosecutrix was recorded in the school by approximation and that she left the school three to four years prior

to her admission in the hospital. The only other evidence on the age of the prosecutrix is PW 8ÂMukund Bawne. PW 8 has proved the Bonafide

Certificate Exhibit 58. PW 8 deposed that the Bonafide Certificate is prepared on the basis of admission and leaving register. PW 8 proves the school

record in which the date of birth of the prosecutrix is recorded as 04Â1Â2001. It is elicited in the crossÂexamination that the prosecutrix was

admitted in the school in the 8th Standard and that she was earlier studying in Zilla Parishad School, Pandhari. PW 8 states that the entry of date of

birth of the prosecutrix is taken on the basis of leaving certificate issued by Zilla Parishad School, Pandhari. PW 8 is unable to state on the basis of

which document was the entry of date of birth of the prosecutrix taken at the Zilla Parishad School, Pandhari. PW 8 is not aware as to who gave the

information about the date of birth of the prosecutrix to Zilla Parishad, Pandhari. PW 8 candidly admits that he is not able to state as to whether the

date of birth of the prosecutrix is correct or otherwise.

The prosecutrix was admitted in the 8th Standard in Vyankatesh Vidyalaya of which PW 8 is the Headmaster. PW 8 admits that the date of birth

of the prosecutrix is recorded in the school record on the basis of the leaving certificate issued by the Zilla Parishad, Pandhari where the prosecutrix

was first admitted. The prosecution has not examined the person who recorded the date of birth of the prosecutrix in the record of the Zilla Parishad,

Pandhari. No evidence is adduced to show the basis on which the age of the prosecutrix is recorded in the first school which she attended. No attempt

is made by the prosecution to bring on record, the name of the person who gave the information of the date of birth of the prosecutrix to the Zilla

Parishad School, Pandhari. The primary material on the basis of which the entry of the date of birth is taken, is not proved and therefore, the school

leaving certificate on which heavy reliance is placed by the learned Sessions Court, is of no evidentiary value.

In Dilip s/o Bhaiyyasingh Tekan vs. State of Maharashtra, 2018 ALL MR (Cri) 5092, the Division Bench noted that the prosecutrix did state her

date of birth in the deposition, however, she admitted that she did not disclose the date of birth to the police.

In State of Maharashtra vs. Ramesh Babulal Rewatkar, 2017 ALL MR (Cri) 3980, the Division Bench found that while the school record was

based on the leaving certificate issued by the primary school, no data from primary school was brought on record. The Division Bench considers the

evidentiary value of the school record thus:

“6. The prosecution has relied upon the evidence of P.W.3 Keshaorao Chaple, who happens to be headmaster of a Secondary School where the

victim was studying. Her name was removed from school records on 31.03.2000. This person issued school leaving certificate. He proved that school

leaving certificate at Exh.31 and deposed that as per school records, date of birth of victim was 10.05.1986. Before Court, he also produced original

admission register i.e. Dakhal Kharij Register of the school and proved entries regarding admission of victim at Exh.32. His cross examination shows

that his school was not taking entry of date of birth on the say of guardian. He was not in the school in 1996 when victim took admission. He denied

that entry of date of birth in school records was not on the strength of any document. He stated that school had taken that entry on the basis of a

certificate of standard IV.

This evidence of P.W. 3 Keshav, therefore, shows that entry in dakhal kharij register (Exh.32), was taken on the basis of the school leaving

certificate issued by the primary school. This fact appears recorded against name of victim. She had taken admission in 5th standard and left school

when she was taking admission in 9th standard. Her date of birth mentioned in Exh.32 is 10.05.1986. On the basis of this material in dakhal kharij

register, P.W.3 issued school leaving certificate at Exh.31.

Thus, Exh.32 does not contain record of date of birth reported on the first occasion. It derives that information from certificate issued by the

primary school. Moreover, when entries at Exh.32 were taken, P.W.3 was not in the school. Thus, he is not the person who has taken those entries.

Exh.31 is the school leaving certificate issued by P.W 3 and it contains data as per Exh.32. Thus, nobody has proved correctness of data contained in

Exh.32. School leaving certificate of primary school has not been produced before the Court.

Precisely for this reason the trial Court has found that the prosecution could not establish the status of victim as a minor.

Similar controversy has been looked into by this Court in a judgment reported at 2011 All MR (Cri) 538 = 2011 (4) LJSoft 184 (Shaikh Feroz

Shaikh Jainoddin .vrs. State of Maharashtra and another). There such a later school leaving certificate has not been relief upon as proof of date of

birth. Division Bench of this Court in judgment reported at 2014 All MR (Cri) 1169 = 2014 (4) LJ Soft 78 (Sandeep Kisan Waghe .vrs. State of

Maharashtra), found that the evidence of date with school first attended must be brought on record in such matters. We are in full agreement with this

view. Date of birth as recorded initially must be proved and could have been proved by the prosecution. That has not been done in the present

matter.â€​

In the present case, while the school leaving certificate issued by the previous school is exhibited (Exhibit 60), no evidence is adduced to bring on

record the source of the information on the basis of which the entry of date of birth is taken in Exhibit 60. No employee of the concerned school is

examined and PW 8 who is the Headmaster of the School in which the prosecutrix was admitted in the 8th Standard is in no possession to vouch for

the correctness of the date of birth recorded in Exhibit 60. It would be apposite to refer to the observations of the Hon'ble Supreme Court inA lamelu

& Another vs. State represented by Inspector of Police, (2011) 2 SCC 385, which reads thus :

“39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ext. P16

and the certificate issued by PW 8 Dr. Gunasekaran, Radiologist, Ext. P4 and Ext. P5.

Undoubtedly, the transfer certificate, Ext. PÂ16 indicates that the girl's date of birth was 15Â6Â1977. Therefore, even according to the aforesaid

certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31Â7Â1993. The transfer

certificate has been issued by a Government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under

Section 35 of the Indian Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age

of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would

have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.

We may notice here that PW 1 was examined in the Court on 9Â8Â1999. In his evidence, he made no reference to the transfer certificate (Ext.

P16). He did not mention the girl's age or date of birth. PW 2 was also examined on 9Â8Â1999. She had also made no reference either to her age or

to the transfer certificate. It appears from the record that a petition was filed by the complainant under Section 311 Cr.P.C. seeking permission to

produce the transfer certificate and to recall PW 2. This petition was allowed. She was actually recalled and her examination was continued on 26Â‐

4Â2000. The transfer certificate was marked as Ext. P16 at that stage, i.e., 26Â4Â2000. The judgment was delivered on 28Â4Â2000. In her crossÂ‐

examination, she had merely stated that she had signed on the transfer certificate, Ext. P16 issued by the School and accordingly her date of birth

noticed as 15Â6Â1977. She also stated that the certificate has been signed by the father as well as the Headmaster. But the Headmaster has not

been examined. Therefore, in our opinion, there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate.

Considering the manner in which the facts recorded in a document may be proved, this Court in Birad Mal Singhvi Vs. Anand Purohit, observed as

follows: (SCC pp. 618Â19, para 14) ""14....The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made

the entry or who gave the date of birth is examined ... Merely because the documents Exts. 8, 9, 10, 11, and 12 were proved, it does not mean that the

contents of documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or

the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi

was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents

of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be

proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such

kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the

circumstances, the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could

not be accepted. (emphasis supplied)

The same proposition of law is reiterated by this Court in Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:

(SCC p.751, para 16)

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 issueâ€​.

In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in

his evidence. The Headmaster has not been examined at all. Therefore, the entry in the transfer certificate cannot be relied upon to definitely fix the

age of the girl.

In fixing the age of the girl as below 18 years, the High Court relied solely on the certificate issued by PW 8 Dr. Gunasekaran. However, the High

Court failed to notice that in his evidence before the Court, PW 8, the XÂray expert had clearly stated in the crossÂexamination that on the basis of

the medical evidence, generally, the age of an individual could be fixed approximately. He had also stated that it is likely that the age may vary from

individual to individual. The doctor had also stated that in view of the possible variations in age, the certificate mentioned the possible age between one

specific age to another specific age. On the basis of the above, it would not be possible to give a firm opinion that the girl was definitely below 18

years of age.

In addition, the High Court failed to consider the expert evidence given by PW 13 Dr. Manimegalaikumar, who had medically examined the victim.

In his crossÂexamination, he had clearly stated that a medical examination would only point out the age approximately with a variation of two years.

He had stated that in this case, the age of the girl could be from 17 to 19 years. This margin of error in age has been judicially recognized by this Court

in Jaya Mala Vs. Government of J.& K. In the aforesaid judgment, it is observed as follows: (SCC p.541, para 9)

However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on

either side.

The learned trial Court has relied on the decision of the Hon'ble Apex Court in Mahadeo s/o Kerba Maske vs. State of Maharashtra and Another,

(2013) 14 SCC 637. However, the learned trial Court did not notice that the observations which the trial Court reproduced are made by the Hon'ble

Apex Court in the light of the evidence of PW 12ÂUttamrao Jadhav who was the Headmaster of the Primary School where the victim was first

admitted.

I am satisfied that the prosecution has failed to prove the date of birth of the prosecutrix and since indubitably the relationship was consensual, the

accused is entitled acquittal.

The judgment and order dated 19Â​1Â​2019 rendered by the Additional Sessions JudgeÂ​3, Yavatmal in Special (POCSO) Case 63/2017 set aside.

The appellantÂaccused is acquitted of the offence punishable under Section 376(2)(i)(n) of the Indian Penal Code and Section 5(l) read with

Section 6 of the POCSO Act

The appellantÂ​accused shall be released from Jail custody unless his custody is required in connection with any other crime.

The fine, if any, paid by the appellantÂ​accused be refunded to him.

The appeal is allowed accordingly.