Determination of the age of a victim or of an accused person is a very important jurisdictional and substantive issue, which determines the applicability of the POCSO Act and the Juvenile Justice Act
Section 34 (2) of the POCSO Act requires the Special Court to satisfy itself about the age of the child and record in writing its reasons for arriving at a conclusion in this regard. The section is reproduced below for ease of reference.
“34. Procedure in case of commission of offence by child and determination of age by Special Court- (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.”
The Supreme Court in Jarnail Singh vs State of Haryana (2013) 7 SCC 263 held that the provisions of the Juvenile Justice Act and Rules would equally apply to determine the age for both a victim as well as an accused person.
In particular, the Supreme Court relied on Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007.
“12. Procedure to be followed in determination of Age.
(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.”
The documents listed in Rule 12 (3) therefore become critical to establish the age of the child, and are referred to in several of the judgements listed below.
While these judgments are in the context of determination of the age of a victim in POCSO case, they could in some instances, equally apply to determination of juvenility of a child “in conflict with law”.
Facts: In this case, PWs-1 to 13 were examined and a number of exhibits were also marked. PW-1, Tukaram Nagnath Surwase, who is the father of the prosecutrix, lodged the complaint, Exhibit-26. PW-3 is the prosecutrix. PW-8 is Dr. Aruna Varte, who examined PW-3 and through her Exhibit 38 the medical report was marked. PW-11 is the Head Mistress of the school where the prosecutrix was admitted to Vth Standard. PW-11 produced Exhibit 54, the school leaving certificate, which disclosed the date of birth of the prosecutrix, as 20.05.1990. PW-12, Uttamrao Jadhav who is the Head Master of Jawahar Primary School, Latur stated that the prosecutrix was admitted in his school on 30.08.1995 in Ist standard, that at the time of admission, the father of the prosecutrix produced a birth certificate issued by Gram Panchayat, disclosing the date of birth of prosecutrix as 20.05.1990. PW-12 produced the admission form Exhibit 56 and transfer certificate Exhibit 57 which mention the date of birth of the prosecutrix as 20.05.1990.
“11. Under Rule 12 (3) (b), it is specifically provided that only in the absence of alternative methods described under 12 (3) (a) (i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the Courts for the purpose of ascertaining the age of a victim as well.
12. In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20.05.1990, and this document was also proved by PW-11. Apart from the transfer certificate as well as the admission form maintained by the primary school Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.5.1990. The reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same.”
Brief Facts: When the Child was missing, the parents filed a missing complaint. The survivor was recovered with the accused and she revealed that the accused had kidnapped and raped her. The accused was convicted under sections 366, 376(g) and 120B of the IPC. The accused approached the High Court where the conviction was upheld and then he approached the Supreme Court.
Decision: The appeal was dismissed.
The Court reviewed the existing evidence and responded to the claims of the accused’s counsel which was that the survivor was the one who lured the accused, wanted to marry him and had consensual sexual intercourse with him. The Court held that
“In so far as the issue of having gone with the Accused-Appellant Jarnail Singh of her own free will, and of having had sexual intercourse with him consensually, it is necessary only to examine the uncontested deposition of the prosecutrix VW-PW6.” (para 15)
Thereafter, addressing the contention that the survivor was a minor, the Court looked at the bone ossification test and stated that:
“Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime.” (para 20)
Brief Facts: The survivor was going home to pick up a book for school when the accused met the survivor, pulled her into his car, made her smell something and she became unconscious. When she awoke, her private parts were paining. The trial court convicted the accused under sections 363, 366 and 376 of the IPC. The High Court of Madhya Pradesh acquitted the accused of all charges on the grounds that the prosecution was unable to prove that the child was under 16 years. The present Criminal Appeal is against this order.
Decision: Appeal was allowed and accused was directed to serve out the sentence.
The counsel for the State highlighted that the “High Court gave undue importance to the difference of two days in the date of birth of the prosecutrix as per the birth certificate and the certificate of the Middle School Examination 2001, and erroneously held that this difference is sufficient to disbelieve the age of the prosecutrix.” (para 8) while the counsel for the accused pointed out multiple shortcomings of the case.
The Supreme Court focused only on the age of the prosecutrix and not other facts: “the present case involves only one issue for this Court to be considered, which is regarding the determination of the age of the prosecutrix.” (para 10)
Referring to Mahadeo S/o. Kerba Maske v. State of Maharashtra and Anr. MANU/SC/0753/2013 : (2013) 14 SCC 637, the Court relied on the certificates issued by the school in determining the age of the prosecutrix. The Court also looked at the ossification test. Referring to Lakhan Lal v. State of M.P. MANU/MP/0248/2004 : 2004 Cri.L.J. 3962, it was concluded that “in the present case the ossification test is not the sole criteria for determination of the date of birth of the prosecutrix as her certificate of birth and also the certificate of her medical examination had been enclosed.” (para 15). They made the final conclusion that:
“Thus, keeping in view the medical examination reports, the statements of the prosecution witnesses which inspire confidence and the certificates proving the age of the prosecutrix to be below 16 years of age on the date of the incident, we set aside the impugned judgment passed by the High Court and uphold the judgment and order dated 24.04.2006 passed by the IIIrd Additional Sessions Judge, Satna in Special Case No. 123/2003.” (para 16)
Facts: This was an appeal from jail directed against the judgment and order dated 20.06.2018 passed by the learned Sessions Judge, Bongaigaon in Special (B) Case No. 18(BGN)/2017. By the said judgment and order dated 20.06.2018, the accused-appellant had been convicted under Section 4, Protection of Children from Sexual Offences Act, 2012 (the POCSO Act, for short) and he had been sentenced to undergo rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 2,000/-, in default of payment of fine, to undergo rigorous imprisonment for another 2 (two) months. The FIR was allegedly lodged on 07.08.2017.
Decision: On the aspect of age of the victim, the Court reached the finding on age by observing as follows:
“13. From the birth certificate (Mat Ext.-1) and the school certificate (Mat Ext.-2), it has emerged that the date of birth of the victim has been recorded therein as 16.09.2002. The birth certificate (Mat Ext.-1) was issued on 21.09.2002 by the Directorate of Health Services, Government of Assam. The school certificate (Mat Ext.-2) was issued by the Headmaster, Ujjala Primary School, District-Bongaigaon on 31.12.2014. Thus, there is no discrepancy in respect of the date of birth of the victim recorded in the aforementioned 2 (two) certificates. P.W. 6, the doctor had stated on the basis of x-ray for age determination that the age of the victim was above 14 years and below 16 years on the date of the examination, 08.08.2017. On the basis of the above 2 (two) certificates and the determination of age by the doctor, it can safely be held that at the time of the incident on 07.08.2017, the victim was a minor aged less than 18 years.”
Facts: Present appeal had been filed by the original accused, challenging his conviction by learned Special Judge of Special Court under The Protection of Children from Sexual Offences Act, 2012, District Beed for the offence under Section 7 punishable under Section 8 of the POCSO Act in Special (Children Protection) Case No. 14 of 2014 dated 31.08.2016.
Decision: On the aspect of age, the Court came to the conclusion that the prosecutrix was a minor on the date of the incident by observing:
“10. Though the prosecutrix in her FIR itself has stated, that she is educated up to 7th standard it appears, that the Investigating Officer has not taken pains to collect the school record. There was no attempt by the prosecution to produce her birth date on record by any of the modes available. However, when the prosecutrix was referred for medical examination, it appears that ossification test was done in order to determine her age. Prior to that when she had gone to Dr. Gholve’s Hospital for delivery, it appears that her age was told as ’19 years’ and it was also told that she is ‘married’. There is no suggestion to the prosecutrix that before the delivery of the child she had married to somebody else. That means, to that effect, that even on the date of the delivery of the child the prosecutrix was unmarried, is admitted to the accused. In other words, the accused is accepting the fact that the status of the prosecutrix shown as ‘married’ in the record of Gholve Hospital, is not correct. However, the accused intent to rely upon the said incorrect information to the extent of age, that has been told to the Hospital authorities. Cross-examination to Dr. Gholve is also on the same line. He is accepting the fact that hospital record shows, that prosecutrix was aged 19 and she was married about a year prior to the date, on which she was assaulted. However, it is to be noted that he has not relied on any documentary evidence and in fact, would have acted on the basis of whatever was told to him, either by the relatives or by the patient herself. Even if for the sake of argument we accept that the prosecutrix had given her age as ’19’ and her status as ‘married’, yet, the purpose behind that, is required to be considered. The prosecutrix and her family members would have been aware about the fact, that it would bring defame to their family, if it is disclosed that the prosecutrix is unmarried and yet giving the birth to a child. Therefore, for the fear of society the said information might have been given to the Hospital authorities, that she is 19 years of age and was married a year prior to the delivery. Accused cannot take advantage of the said fact. In other words, it can only be said that if she would have been disclosed about the fact, that she was raped and then had become pregnant, it would have been a Medico Legal Case, which it appears that the prosecutrix and her family members tried to avoid. It is also to be noted that even after birth of the child, when prosecutrix was taken home, her mother had called accused and informed him about the birth of the child from him to the prosecutrix and asked him to marry, but accused refused again, at that time. That means, the mother of the prosecutrix was in favour of, that anyhow now the accused should accept the prosecutrix as well as the child and then wanted to avoid police case. The fact appears to have been got disclosed when as per the FIR as well as the testimony of the prosecutrix, that when the accused was so called to accept the child as well as prosecutrix, he not only refused but denied the paternity of the child and he had pressed the nose of the child, as a result of which, the child died, and thereafter the dead body has been disposed of. This Court would refrain itself from observing anything in respect of the alleged murder of the child and disposal of the dead body as it is subject-matter in another case punishable under Section 302, 201 of the Indian Penal Code. It will further be not out of place to mention here, that the present accused has been convicted for committing that offence also and his appeal is pending before this Court. The reference of the fact is taken to connect the disclosure of the sexual act by the accused with the FIR.
11. Coming back to the point as regards determination of age is concerned, it is to be noted that PW 5 Dr. Priyanka is the Medical Officer, who had examined the prosecutrix. She has specifically stated that the prosecutrix was referred for determination of age also. X-rays were taken by the Radiologist and the opinion has been given by the Radiologist Dr. Jalindar Limbgaonkar regarding the age. As regards the medical examination regarding rape/sexual assault is concerned, she has recorded that the hymen was torn with old tears and there was no evidence of other injuries. It is obvious that the sexual act had taken place much earlier i.e. about more than one year and thereafter the prosecutrix had delivered the child. Therefore, possibility of any evidence about other injuries was not there at all. Except suggestions, there is nothing in her cross. The prosecution has examined PW 6 Dr. Jalindar Limbgaonkar also, who had given the opinion regarding age of the prosecutrix. He had stated that X-ray plates were referred to her for examination and age determination. The radiological examination of the X-ray plates disclosed that the medical epicondyle on fuse, it was fused at the age of 14 years in case of female. The head of the radius was fused at 14 years in female, lateral epicondyle was fused and it was fused at the age of 12 years in case of female. Piliscrest was appeared and it appears at the age of 14 years in case of female, and therefore, these findings prompted him to take opinion that the age of the patient i.e. prosecutrix was between 12-14 years. In his cross-examination he has stated that he had not brought the X-ray plates. He was unable to tell who was X-ray technician on 21.09.2014. Further, he has stated that as per Modi’s Jurisprudence the distal end of radius appearance and fusion is given as 16 ½ to 18 years. He also says that crest of ilium appearance and fusion in case of female is given as 17 to 19 years. Head of radius fused means age may be 18 years. But then he has denied the suggestion that the opinion given by him in respect of the age of the prosecutrix is wrong. Even after considering those statements from cross-examination of the expert it can be said, that nothing contradictory has been transpired, which was proved, that on the date of the act of sexual intercourse by the accused prosecutrix was more than 18 years of age. The age determination on the basis of ossification test is conclusive in this case, and therefore, the prosecutrix was “child” as defined in POCSO Act.”
Sandeep Chouhan v. State of Madhya Pradesh, MANU/MP/0480/2020 [Madhya Pradesh High Court, Single Judge]
Facts: In this case it was argued that the prosecutrix had admitted that an advice was given for her ossification test but she did not agree for the same. Since the Police was also not sure about the authenticity of the date of birth of the prosecutrix recorded in the school register, therefore, ossification test was advised and since the prosecutrix did not agree for the same, therefore, adverse inference should be drawn.
Decision: The Court interpreting the provisions of Section 94 of the JJ Act, 2015 observed as follows:
“15. Thus from the plain reading of this section it is clear that only when the certificates mentioned in the Clause 1 and 2 of sub-section 2 of section 94 of the Act, 2015 are not available only then the age of the juvenile can be determined by the ossification test or by any other latest medical age determination test, and when the certificates mentioned in Clause 1 and 2 of Section 94 of the Act, 2015 are available then the ossification test is not required and cannot be relied upon. Further more in the year 2018 the prosecutrix was the student of class 10th. If her date of birth is considered as 04/11/2002 it is clear that she was approximately 16 years of age. If a student is admitted in class 1st at the age of 6 years, then it is clear that the student studying in class 10th would be of 16 years of age. Viewed from this angle also this Court does not find any discrepancy in the date of birth of the prosecutrix mentioned in the school register. Accordingly, it is held that the prosecutrix was minor on the date of incident. As a consequence of thereof the consent of the minor is not material.”
Facts: In this case, during investigation, the victim was traced and it was found that the respondent got his son, a JCL, married to the victim, who was living with them as his daughter-in-law in their village. A charge-sheet was filed against respondent No. 1, his wife (respondent No. 2) and one Satender (respondent No. 3) under Sections 363/368/120B/506/34 IPC and Section 17 of POCSO Act. A separate report was filed against the JCL before the J.J.B., Mukherjee Nagar, Delhi. In the present case, along with the charge-sheet, a certificate of the school attended by the victim was also placed on record. As per the school certificate, the victim was less than 12 years of age. During investigation, the Investigating Officer also got the ossification test of the victim conducted and enclosed the report with the charge-sheet. The short question to be decided in the present case was as to whether an ossification test report can be relied upon when a school certificate certifying the age of the victim is already on record.
Decision: In this case, the Court interpreted Section 94 of the JJ Act, 2015 and observed that in terms of the above rule, ossification test report is to be relied upon only if the first two options given under sub-section (i) and subsection (ii) are not available in the present case. The prosecution had placed on record a school certificate of the child victim issued by MCD Pratibha School, Shahdara. The principal of the concerned school was also cited as a witness to prove the age of the victim. In an ‘Age Determination Inquiry’, a medical opinion by an ossification test, is to be relied on only and only if the date of birth certificate from school/matriculation or equivalent certificate from the concerned examination board and birth certificate by corporation/municipal authority/panchayat, are not available (Refer: State of M.P. v. Anoop Singh, Mahadeo S/o. Kerba Maske v. State of Maharashtra, Ashwani Kumar Saxena v. State of M.P. and Parag Bhati v. State of UP). In view of the settled legal position and the fact that no doubt has been raised about the authenticity and reliability of the aforesaid school certificate, the impugned order passed by Addl. Sessions Judge being illegal was set aside.
State of Madhya Pradesh v. Praveen Vashishth, MANU/DE/0366/2020 [Madhya Pradesh High Court, Division Bench]
Facts: This petition seeking leave to appeal had been filed by the State under Section 378(1)/378(3) of the Cr.P.C. against the judgment of acquittal dated 16.9.2019 passed by Special Judge, Protection of Children From Sexual Offences Act, 2012, Ashta, District Sehore in Special S.T. No. 117/2017 whereby the respondent had been acquitted from the charges under Sections 5(f) and 5(i) of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) read with Sections 376 (f), 376 (n) and 506-II of the Indian Penal Code (for short IPC).
Decision: The Court applied the JJ Rules, 2007 and observed that a bare reading of Rule 12 of Rules of 2007 makes it clear that while determining the age, first preference should be given to matriculation or equivalent certificates and thereafter, order of preference would be; the date of birth certificate from the school (other than a play school) first attended; birth certificate given by a corporation or a municipal authority or a panchayat and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.
In the present case, in regard to date of birth, two school certificates of the prosecutrix were available on record; first was Ex. P-9, which was a High School Certificate of the prosecutrix, in which the date of birth of the prosecutrix was mentioned as 6.3.1999. It was apparent from the said document that it was issued on behalf of the Principal of the School but his signatures were not there on the certificate, therefore, it could not be relied upon. The trial Court had rightly held that the said document cannot be considered as an evidence to prove that the date of birth of the prosecutrix is 6.3.1999. Even scholar register of the school had not been produced by the prosecution in this regard. Except the aforesaid document, no other document was available on record to prove the date of birth of the prosecutrix. In the medical examination report (Ex. P-1), the age of the prosecutrix had been mentioned about 18½ years. Dr. Madhavi Rai (PW-1), who conducted the medical examination opined that no exact opinion about commission of rape can be given. The trial Court had relied on a progress card of the prosecutrix (Ex. D-1), which had been produced by the respondent in his defence, in which the date of birth of the prosecutrix has been mentioned as 6.3.1998.
The trial Court relying on the judgments of Apex Court in Viradmal Singhvi vs. Anand Purohit MANU/SC/0052/1988 : AIR 1988 SC 1796 and Amlendra Vs. State MANU/SC/0061/2011 : AIR 2011 SC 715 observed that it is a public document and it has been prepared by a public servant while discharging his official duties, therefore, it is admissible as per Section 35 of the Indian Evidence Act. The prosecutrix herself admitted the progress card (Ex. D-1) in her statement. She also admitted the progress card (Ex. D-2) of the year 2004-05, in which her date of birth was mentioned as 6.3.1998. The mother of the prosecutrix (PW-3) in her cross-examination admitted that the prosecutrix was firstly admitted in Saraswati Gyan Deep Madhyamik Vidyalaya, Mehatwada in Kinder Garten and the date of birth mentioned in the School was correct. If we go through all the aforesaid documents, which are admissible in evidence, the age of the prosecutrix appears to be above 18 years of age, therefore, in the Court’s considered opinion, the trial Court had rightly held that the prosecution has failed to establish that the age of the prosecutrix is below 18 years.
Bail Appln. No. 2552 of 2019
Facts: The instant case revolved around the margin of error in a bone ossification test.
Decision: The Court observed that in the instant case, as far as the age of the victim was concerned which according to the ossification test had been found to be between 18 to 21 years, the settled principle is that the ossification test is not conclusive of age determination. It is settled that it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. The Supreme Court, in several decisions has taken judicial notice of the fact that the margin of error in age ascertained by radiological examination is two years on either side. Now the question that arises for consideration is as to whether the lower of the age or the higher of the age is to be taken. If benefit of doubt has to go to the accused then one would have to take the higher limit and if benefit of doubt has to go in favour of the victim then the lower of the two limits would have to be taken. It is also settled position of law that benefit of doubt, other things being equal, at all stages goes in favour of the accused.
In the present case, as no document of age was available, the age of the victim has been determined by the ossification test, according to which the same has been found to be between 18 to 21 years. In the instant case, the date of incident was dated 16.03.2016 and the ossification test was done on 10.06.2019 i.e. after 3 years of the date of the incident. As per ossification test, in the instant case, the age of the victim had been found to be between 18 to 21 years. So applying the margin of error principle, of two years on either side, the age could be between 16 to 23 years. Therefore, giving the benefit of doubt of 3 years to the petitioner, the age of the victim was taken as 20 years.
Facts: An application had been filed under Section 482 Cr.P.C. with a prayer to quash the entire proceeding of Case No. 90183 of 2018 (State Vs. Zeenat and others) arising out of Case Crime No. 121 of 2018 under Sections 363, 366, 376 IPC and Sections 3/4 of POCSO Act, Police Station Chandaus, District Aligarh pending before learned Additional Sessions Judge, Court No. 8, District Aligarh pursuant to the charge sheet dated 24.10.2018 as well as to quash the impugned cognizance taking order dated 19.01.2019 passed in the aforesaid case.
One of the arguments taken by the Petitioner was that there as a discrepancy in the age of the prosecutrix recorded in two different places.
Decision: The Court referred to Section 94 of the JJ Act, 2015 and observed one High School certificate in which date of birth of the victim had been recorded as 08.07.2002 which had been found to be genuine by the Investigating Officer after having made thorough investigation and the other High School certificate in which her date of birth had been recorded 10.07.1998 had been found to be not correct. In this regard, though proceeding under Section 340 Cr.P.C. was stated to be pending but that would not mean that the Investigating Officer’s conclusion at this stage can be discarded by this Court in the proceeding under Section 482 Cr.P.C. and Court found that this fact as to which of two certificates is correct has to be adjudged by the Trial Court during trial as that is the subject matter of dispute, which required evidence to be led and the Court could not look into this controversy at this stage. It had to confine to the perusal of the documentary evidence only which was collected during the investigation by the Investigating Agency.
Ashok Dashrath Kaklij v. The State of Maharashtra, MANU/MH/2990/2019 [Bombay High Court, Single Judge]
Facts: In this case, the issue was whether the entries in the General Register of the school on the basis of which the School Leaving Certificate was issued, could be relied upon to determine the age of the prosecutrix when it was not clear who made the entry and the admission form was not available.
Decision: The Court observed that:
“Entries in General Register of the school are made in the regular course of business by the school authority. Official acts are regularly performed is a wise principle adopted by the legislature. The victim female child/PW1 was taking education in the Zilla Parishad school and the entry of her date of birth taken ante litem motam, as such, assumes significance. The date of birth recorded in the school record is recognized for determining age of the child as per the provisions of the Juvenile Justice (Care and Protection of Children) Rules 2007. As such, there is no reason to disbelieve this evidence in respect of date of birth of the victim female child/PW1.”
Crl. Appeal No. 37 of 2018
Facts: In this case, the question was, if therefore, as submitted by the Counsel for the Appellant, the procedure laid down by the Supreme Court had not been followed what was the evidentiary value of the depositions of the father (P.W. 3) and the victim regarding her minority?
Decision: The Court observed that:
“18. As seen earlier there is no documentary evidence of proof of age of the victim although there is evidence that the victim was attending Class VIII in a School. There is oral evidence of the father (P.W. 3) and the victim that the victim is sixteen years old. There is also the bone age estimation report (exhibit-23) which estimates the bone age of the victim to be between 15 to 16.5 years of age. The learned Counsel for the Appellant submits that if the margin of error is two years on either side the age of the victim may cross the border line between a child and adult. Bone age estimation or ossification test is a medical evaluation on the basis of a scientific study of the bone age. It is estimation only. There is a margin of error. However, it cannot be said that in every case there has to be an error.
Ashok Kumar Pariyar vs. State of Sikkim (20.08.2019 – SIHC) : MANU/SI/0055/201920. There is no evidence to suggest that non-production of documentary proof of age was deliberate and intended to mislead the Court for suppress the truth. The Investigating Officer (P.W. 15) clarified that he did not seize the birth certificate of the victim as it was not available. During his cross-examination no suggestion was made that documentary proof of age of victim was suppressed. In view of the aforesaid this Court is of the opinion that the oral testimony of the father (P.W. 3) (who would have the best knowledge about the birth of the victim) and the victim corroborated by the bone age estimation report (exhibit-23) established by Senior Radiologist (P.W. 14) proved that the victim was a child. The learned Special Judge considering the matter before it believed and concluded that the victim was a child. This Court does not find any evidence contrary thereto to hold that the finding was incorrect.”
Facts: In this case, Devdas Mohar (PW-11) had produced the original school admission register and as per the said register, the date of birth of the prosecutrix was 20.6.1998 which was mentioned at Srl. No. 180 dated 7.7.2012, the original register is Ex. P/9 and its photocopy is Ex. P/9C. In cross-examination, this witness had admitted that it is not mentioned in the register that on what basis the date of birth was mentioned. However, clarified that the date of birth was mentioned on the basis of the transfer certificate. Challenging the date of birth mentioned in the school register, it was submitted by the counsel for the appellant that since the prosecution had failed to prove the basis on which the date of birth of prosecutrix was mentioned, therefore, the school record of the prosecutrix cannot be relied upon.
Decision: The Court observed:
“19. Thus it is clear that an entry made in the public record is relevant and thus the date of birth entered in the school admission register Ex. P/9 is relevant and can be relied upon. Even at the time of admission of the child, nobody must have anticipated that such an incident would take place with the child and, therefore, there was no reason for the father to disclose an incorrect date of birth of the child/prosecutrix. Further the date of birth mentioned in the school register is corroborated by the radiological report Ex. P/8, according to which the age of the prosecutrix was above 16 years and below 18 years.
21. From the plain reading of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 it is clear that where certificates as mentioned in Section 94(2)(i) & (ii) are available, then it is not required to consider the ossification test report of the juvenile. In the present case, the school admission register of the prosecutrix is available which is Ex. P/9. Thus this Court is of the considered opinion that the date of birth of the prosecutrix is 20.6.1998 whereas she was kidnapped on 31.1.2014. Thus it is clear that the prosecutrix was less than 16 years of age on the date of incident.”
Criminal Appeal No. 31 of 2016
Facts: In this case, Santosh Sharma (PW-9) had stated that in the school admission register, the date of birth of the prosecutrix was mentioned as 08.07.1997. It appeared that in school admission register, the date of birth of the prosecutrix was mentioned as 05.01.1997 and not 08.07.1997. School register was Ex. P-11 and the photocopy of the same was Ex. P-11-c. In the cross-examination, this witness conceded that neither admission form nor the horoscope and the birth certificate of the prosecutrix are annexed with the register. This witness expressed his ignorance that whether the guardian of the prosecutrix had disclosed the correct date of birth or not. He further admitted that school admission register Ex. P-11 does not bear the signature of that person who had admitted the prosecutrix in the school. He denied that a false register is maintained. As per the school admission register Ex. P-11, date of birth of the prosecutrix is mentioned as 05.01.1997, whereas the incident has taken place on 17.10.2013. Thus, according to the date of birth mentioned in the school certificate, the prosecutrix was 16 years and 9 months old on the date of incident.
Decision: The Court cited extracts from the following decisions of the Supreme Court: Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, State of Chhattisgarh Vs. Lekhram reported in MANU/SC/8089/2006 : (2006) 5 SCC 736, Murugan VS. State of T.N. reported in MANU/SC/0566/2011 : (2011) 6 SCC 111, Mukarrab v. State of U.P. reported in MANU/SC/1550/2016 : (2017) 2 SCC 210 and observed that “Thus, it is clear that the school register, which is maintained in accordance with law, is admissible in the terms of Section 35 of the Evidence Act. At the time of the admission of the prosecutrix in the school, nobody had anticipated that this incident may take place. Thus, it is clear that the prosecutrix was 16 years and 9 months old on the of date of incident and she was below 18 years of age.”
Facts: In this case, the issue was whether in the facts of the case, the birth certificate of the prosecutrix and the school record could be relied upon for determining the age of the victim.
Decision: The Court disregarded both pieces of evidence and held that the prosecution had failed to prove that the victim was a minor, observing as follows:
“Exh. 95 purports to be certificate dated 20.2.2007 issued by the Municipal Council, Rajura under the provisions of the Births and Deaths Registration Act, 1969. Interestingly, the certificate refers to Births & Deaths Registration Act, 2000. The certificate Exh. 95 records the date of birth of Laxmi Shankar Goradwar who according to the prosecution is the prosecutrix, as 20.9.2001 and the date of registration of birth is 8.10.2001.
Shri Manoj Namdeo Rajgade is examined as Court witness 1. Manoj Rajgade has deposed that he is working as a Peon in the Municipal Council, Rajura and since no clerk is available in the births and deaths registration section, he is in-charge of the said section in view of the order of Chief Executive Officer of the Municipal Council. Manoj Rajgade states that he received summons from the Court seeking production of the register regarding the registration of the birth of the prosecutrix. Manoj Rajgade states that since the date of birth of the prosecutrix was stated as 20.9.2001 in the summons, he searched the entire record of the year 2001 and yet could not locate the entry of the date of birth of the prosecutrix. Manoj then states that he searched the register of births for the year 2000, 2001 and 2002 in order to locate the entry of the registration of birth of the prosecutrix, but in vain. Manoj then states that he visited the house of the victim and inquired with her father whether the date of birth of the prosecutrix is registered with the Municipal Council, Rajura and the response of the father of the prosecutrix was that since she was born at home, her date of birth is not registered at the Municipal Council, Rajura.
7. The other evidence which the prosecution is relying on is the school record which is proved by Court witness 2 – Smt. Manjusha Mahadeo Yerne.
Manjusha Yerne is the in-charge Head Mistress of Dr. Sarvapalli Radhakrishnan Primary School, Rajura since 2011. She has deposed that the name of the prosecutrix is entered at serial 2095 in the admission and leave register of the school for the period 2004 till 2018. Smt. Manjusha states that the prosecutrix was admitted in her school on 20.6.2007 in the 1st standard. Manjusha states that while obtaining admission, the parents of the prosecutrix furnished her birth certificate. It is Smt. Manjusha who has produced the original birth certificate (Exh.95) on the record of the trial Court.
8. The birth certificate Exh. 95 has no evidentiary value whatsoever. In the teeth of the admission of Court witness Manoj that he could not locate the entry of birth of prosecutrix in the record of the year 2000, 2001 and 2002, the birth certificate Exh. 95 must be shut out from consideration. The date of entry is recorded as 8.10.2001 in the birth certificate. However, if I may say so, the learned Sessions Judge has given a convoluted reason to explain the obvious infirmity in the case of the prosecution. The learned Sessions Judge observes that since the prosecutrix was admitted in the 1st standard in 2007, obviously, her parents must have registered her birth in the year 2007 in order to obtain and produce the birth certificate at the school. It is difficult to appreciate the reasoning of the learned Sessions Judge. The learned Sessions Judge has travelled in the domain of the surmises and conjunctures which she ought not to have done. Exh. 95 is the certificate which is produced on record by the Court witness. Manoj Rajgade, who is the employee of Municipal Council, Rajura and is looking after the birth and death registration section, has veritably destroyed the probative value of certificate Exh. 95 by deposing that he could not locate any entry of the registration of birth of prosecutrix in the record pertaining to the year 2000, 2001 and 2002. It is nobody’s case much less the case of the prosecution, that the date of birth of the prosecutrix was registered in the year 2007. The certificate which the prosecution relies on, records the date of registration of birth as 20.9.2001. It is inexplicable as to how and why the learned Sessions Judge ventured to observe that the parents of the prosecutrix are likely to have registered her birth in the year 2007.
The school record has no evidentiary value. The entries taken in the school record are on the basis of the birth certificate Exh. 95 which is found to be of no evidentiary value and therefore, the entry taken in the school record on the basis of the said certificate Exh. 95 would be of little significance.”
Bhagwat Munjabhau Hoge v. The State of Maharashtra and Ors., MANU/MH/1309/2019 [Bombay High Court, Single Judge]
Facts: In this case, the issue was whether in the facts of the case, the age certificate, radiological report and copy of register of extract could be relied upon to prove the age of the prosecutrix.
Decision: The Court observed as follows:
“14. Coming to the evidence of above witnesses the evidence of informant (PW-1) who is father of the victim girl is that the age of the victim girl at the time of incident was 16 years and she was studying in 11th std. in K.K.M. College, Manwat. His said evidence has gone unchallenged in the course of his cross-examination. Therefore, there is no reason to disbelieve his evidence. In the complaint (Exh. 13) lodged by him on 04.12.2013 in the police station also it is stated that age of the victim girl was 16 years. The evidence of victim girl (PW-2) which was recorded on 30.07.2015 is that her age was 18 years. The incident took place on 04.12.2013 and therefore, her age was more than 16 years and less than 18 years on the date of incident. In the cross-examination she denied that at the time of incident her age was 17 years 6 months to 18 years. Thus, nothing was found in favour of the appellant in her cross-examination to reject her evidence about her age.
15. The next is the evidence of Jankiram Morey (PW-3) Headmaster of Smt. Shakuntalabai Kanchanrao Katruwar, Primary School, Manwat. His evidence is that the victim girl was the student of their school. As per the admission and general register, date of birth of the victim girl is 08.07.1987. She took admission in their school in 7th std. She came from Zilla Parishad Primary School, Nagarjawala. He had brought original school leaving certificate issued by Zilla Parishad Primary School Nagarjawala of the victim girl. He has also stated about Exh. 25 school leaving certificate issued by his school after victim girl had passed SCC examination in the March, 2013. In the cross-examination on behalf of the accused he stated that initially admission of the victim girl was in Zilla Parishad School, Nagarjawala and further stated that he does not know what evidence was given by the victim girl about her date of birth at the time of her school admission in the Zilla Parishad Primary School, Nagarjawala. He stated that whatever evidence given in the said school, it may be available in the said school. He has denied that date of birth mentioned in the leaving certificate issued by Zilla Parishad, Manwat is wrong. From the evidence of PW-3, it can be said that his evidence is based on the school leaving certificate of the victim girl issued by Zilla Parishad School, Nagarjawala and the victim girl was admitted in school in 7th std and her initial admission in 1st std was in Zilla Parishad School, Nagarjawala. Therefore, record in the said Zilla Parishad School regarding date of birth of the victim girl was required to be produced and proved by the prosecution. But admittedly, said record is not produced and proved by the prosecution. Therefore, the school record in the form of school leaving certificate (Exh. 25) of the victim girl when she left school of PW-3 after she passed 10th std examination which shows her birth date as 08.07.1997 is not conclusive proof of birth date of the victim girl.
16. The evidence of PW-6 as regards the age of the victim girl is that on 13.12.2013 the victim girl came in the said hospital with police person. She carried radiological test of the victim girl and as per the said test her age was within 15 to 16.5 years and radiological test was conducted and OPD papers were prepared. Said OPD papers are at Exh. 39. In the cross-examination she stated that she sought opinion from Radiologist about the age. Two X-rays were given for determination of age of the victim girl and that she has not brought those x-rays, but she can produce the same. She has denied that by radiological test, no accurate age can be determined. They can give the span of the age. Error of age is already given i.e. between 15 to 16.5 years. In radiological test, for determination of age there may be error of 1 to 2 years. There was no fusion of lower ends of radius and ulna, therefore age is determined below 17 years. If that fusion would have found out, the age would have been 17 or above. Radiologist has given opinion about x-ray examination. She has not brought the same. She has taken entries of x-ray examination from the report of radiologist (Exh. 37). It is not true to say that the person who has taken x-ray should give an opinion about x-ray examination. She has denied that fusion is depend on nutrition and that due to nutrition only, there will not be length of bones. She deposed that they had determined the age on the basis of ossification centres and not on the length of bone. She has denied that the age of the victim girl was 18 and above and further denied that she has shown the age of the victim girl wrongly as 15 to 16.5 years. Thus, nothing is found in favour of the accused in the cross-examination of PW-6. Therefore, there is no reason to disbelieve the evidence of PW-6. The evidence of PW-6 is further corroborated by (Exh. 37) report of the radiologist as it shows that on 13.12.2013 probable radiological age of the victim girl was between 15 to 16.5 years. Even considering the error of one or two years age of the victim girl at the material time of incident was 15 to 16.5 years and as such her age was below 18 years at the time of incident.
17. Next evidence on the age of the victim girl is of Dr. Mehatre (PW-9) who was working as Class-I Radiologist Civil Hospital, Parbhani on 13.12.2013. According to him on the said date X-ray of the victim girl was taken by technician and same was forwarded to him for determination of age. He perused the x-ray and gave his radiological opinion that the age of the victim girl is in between 15 to 16.5 years and accordingly he issued certificate and he recorded findings as per Exh. 65 and extract of original register is at Exh. 66. He stated that the margin is itself included between age 15 to 16.5 years. In the cross-examination he denied that when he recorded findings the age of the victim girl was more than 18 years and that he recorded wrong findings. Thus nothing is found in favour of the appellant in the cross-examination of Dr. Mehatre and thus there is no reason to disbelieve his evidence. His evidence is corroborated by his findings Exh. 65 and extract of register/certificate Exh. 66/1 and Exh. 66/2 entries in the said register. Exh. 65 and Exh. 66/1-66/2 corroborate the evidence of Dr. Mehatre (PW-9) regarding the age of the victim girl on 13.12.2013. Thus, on the basis of evidence of Dr. Mehatre it can be said that including the margin the age of the victim girl at the time of incident was between 15 to 16.5 years and as such it can be said on the basis of his evidence that age of the victim girl at the time of incident was less than 18 years.
18. For all the reasons discussed above on the basis of evidence of PWs-1,2,6,9 and age certificate (Exh. 37), Radiological report (Exh. 65) and copy of register of extract (Exh. 66/2) produced with certificate (Exh. 66/1), I hold that the prosecution has proved that the age of the victim girl at the time of incident was between 15 years to 16.5 years and as such she was below 18 years of the age i.e. child within the meaning of Section 2-d of the POCSO Act.”
Facts: In this case, the issue was whether the date of birth of the prosecutrix as entered in the admission form was sufficient to establish the age of the prosecutrix.
Decision: The Court observed as follows:
“81. A reading of Rule 12(3) of the JJ Rules, read with the judgments in Mahadeo (supra) and Anoop Singh (supra), indicates that the evidence, on the basis of which the age of a child victim of rape, is to be determined is (i) the matriculation or equivalent certificate, if available, (ii) in the absence thereof, the date of birth certificate from the school first attended, and (iii) in the absence thereof, the birth certificate given by a corporation or a municipal authority or a panchayat. If none of these documents are available, it is permissible to rely on medical opinion, which has to be obtained from a duly constituted medical board, entrusted with the duty of declaring the age of the juvenile or child.
82. In the present case, neither is the matriculation certificate of X, nor the date of birth certificate from the school first attended by her, nor is the birth certificate of any corporation, municipal authority, or Panchayat, exhibited, before the Learned ASJ. The only evidence, on which the Learned ASJ has relied, is the date of birth of the petitioner as entered in the admission form, submitted at the time of her admission in the Kendriya Vidyalaya, Vikas Puri. Learned counsel for the appellant is undoubtedly justified in pointing out that a glance at the said admission form (Ex. PW-5/A) itself discloses that the Kendriya Vidyalaya, Vikas Puri was not the school first attended by the appellant, as she had, prior thereto, being studying in the AF Vidya Mandir.
83. In view thereof, none of the categories of evidence contemplated by Clause (a) of Rule 12(3) of the JJ Rules is exhibited, before the Learned ASJ, in the present case, so as to enable a conclusive identification of the age of the prosecutrix X.
84. Even on the MLC of the X, the age of 17 years, as entered, does not appear to be the result of any scientific or legally acceptable examination or test. It needs to be borne in mind that the present case is not one in which the prosecutrix was of an age which would make it apparent that she was below the statutory age of eighteen, stipulated in the POCSO Act. Where the age of the victim is between seventeen and eighteen years of age, invocation of the POCSO Act would be justified only if there is clinching evidence, as contemplated by the Rule 12(3) of the JJ Rules, to the effect that the victim is less than 18 years of age.
85. The Learned ASJ, on this aspect, holds that, in view of the date of birth entered in the admission form of the prosecutrix, read with the evidence of PW-5, there could be no dispute regarding the age of the prosecutrix. This finding, obviously, cannot sustain, in view of the legal position enunciated in Mahadeo (supra) and Anoop Singh (supra), which requires the issue to be examined in the light of Rule 12(3) of the JJ Rules. The Learned ASJ, clearly, has not done so. Examining the issue in the light of Rule 12(3) of the JJ Rules, there is, on the face of it, no conclusive evidence, to indicate that the prosecutrix X was less than eighteen years of age at the time of her alleged sexual assault by the appellant. That being so, the conviction, of the appellant, under the POCSO Act, cannot be said to be justified, on the basis of the material exhibited before the Learned ASJ, and on which he has chosen to place reliance.
86. At the same time, I find, among the documents which were filed with the charge sheet but were not exhibited during the proceedings before the Learned ASJ, a Secondary School Examination Certificate Roll No. 8171942, of the prosecutrix X, indicating her date of birth as 14th October, 1995, as well as a Certificate, issued by Gaurav Saxena, an Officer in the “AMSE, AF”, certifying that the date of birth of X, as per the service document held by the said unit, was 14th October, 1995. For some inscrutable reason, these documents, which are of primal significance while deciding the applicability, to the present case, of the provisions of the POCSO Act, were neither exhibited nor proved. While it baffles comprehension as to why these documents were never exhibited by the prosecution before the Learned ASJ, the said default cannot be permitted to be used as a windfall in favour of the appellant – if, in fact, he is guilty of commission of the offence contemplated by Section 4 of the POCSO Act. I am of the view that, in the circumstances, the Learned ASJ has to be directed to exhibit the said documents (figuring at pages 305 and 309 of the record of the Learned ASJ) and, thereafter, provide, to the prosecution, a chance to prove the said documents (should they so choose to do), as well as the defence an opportunity to disprove the same. The Learned ASJ would be required to strictly abide by Rule 12(3) of the JJ Rules. It is only thereafter that a decision could be taken, one way or the other, as to whether the prosecutrix X was, or was not, less than 18 years of age on the date of commission of the alleged offence of sexual assault, on her, by the appellant and, consequently, whether the provisions of the POCSO Act would, or would not, apply.”
State (Govt. of NCT of Delhi) v. Shailesh Kumar, MANU/DE/1485/2019 [Delhi High Court, Division Bench]
Facts: In this case, the issue was whether in the facts of the case, the information given at the time of admission and recorded in the admission register with regard to the date of birth, was sufficient to establish the minority of the prosecutrix?
Decision: The Court observed:
“18. It is well settled that an entry of the date of birth made in the school admission register would have evidentiary value only if there is material available based on which the age was so recorded. In the case of Brij Mohan Singh vs. Priya Brat Narain Sinha and Ors. reported as MANU/SC/0189/1964 : AIR 1965 SC 282, the Supreme Court held that an entry of birth recorded in the school register maintained by an illiterate Chowkidar, was not admissible and had no probative value within the meaning of Section 35 of the Indian Evidence Act. For ready reference, Section 35 of the Indian Evidence Act is reproduced below:-
“35. Relevancy of entry in public [record or an electronic record] made in performance of duty. 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 an electronic record] is kept, is itself a relevant fact.”
19. In Birad Mal Singhvi vs. Anand Purohit reported as MANU/SC/0052/1988 : 1988 Supp. SCC 604, where a question arose with regard to eligibility of a candidate participating in an election to the State Legislative Assembly, in the context of attaining the age of 25 years as stipulated, the Supreme Court held as below:-
15……..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 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 the material on which the age was recorded. …”
20. The probative value of the entry regarding the date of birth made in a school register has come up for consideration by the Supreme Court and the High Courts in several other cases and the common view expressed is that no probative value can be attached to such a record unless and until the parents are examined or the person on whose information the entry may have been made, is examined.
21. In Sushil Kumar vs. Rakesh Kumar reported as MANU/SC/0826/2003 : AIR 2004 SC 230, the Supreme Court held thus:-
“34. In the aforementioned backdrop the evidences brought on record are required to be considered. The Admission Register or a Transfer Certificate issued by a Primary School do not satisfy the requirements of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any reasonable person.”
22. In Satpal Singh vs. State of Haryana reported as MANU/SC/0537/2010 : (2010) 8 SCC 714, the Supreme Court held that a document may be admissible under Section 35 of the Indian Evidence Act being a public document if prepared by a government official in exercise of his official duty but whether the entry contained therein has any probative value would still require to be examined in the facts and circumstances of a particular case. Citing several earlier decisions, the Supreme Court held that even if the entry was made in an official record by the official concerned in discharge of his official duty, it may have weight, but would still require corroboration by the person on whose information the entry has been made and whether the entry so made has been exhibited and proved. The Supreme Court summarized the law in the following words:-
“28. Thus, the law on the issue can be summarised that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal case.”
23. In the present case, the father of the victim, PW-5 deposed that he did not know the date of birth of his daughter as he was illiterate, nor was he in a position to state her current age. He stated that he got the victim admitted in the school in class-I in the village and at that time, she was about 3-4 years old. In his cross-examination, PW-5 admitted that he did not have any proof regarding his daughter’s date of birth. It is therefore clear that the father of the victim had not submitted any document to the school at the time of getting his daughter admitted in class-I, on 12.08.2005, to establish her date of birth as 10.01.2000, as recorded by the school. He was candid enough to state that being illiterate, he did not know the date of birth of the victim and that she was between 3-4 years old when she was admitted in class-I.
24. In the absence of any primary material based on which the age of the victim was recorded in the school register, it is not possible to accept her date of birth as 10.01.2000. Moreover, even the teacher from the school in question, who had appeared as PW-3, had stated that he had given a handwritten document to the police on 17.12.2014 (Ex. PW3/C), wherein he had recorded that when a child attains the age of 5+ years, the parents approach the school for their admission. If one goes by the said statement, then the testimony of the victim’s father to the effect that he had got her admitted in class-I when she was about 3-4 years, cannot be accepted, as it is premised on mere guess work.
. . .
27. We are of the opinion that in the absence of any material document based on which the entry of the date of birth of the victim has been made in the school register, mere production of the school register that records inter alia her date of birth as 10.01.2000, would not suffice. The victim was admitted in the school by her father, an illiterate person, who himself admits that he did not have any proof regarding the date of birth of his daughter. The facts mentioned above show that the prosecution has not been able to discharge the burden cast on it to prove that the age of the victim was below 18 years at the time of the alleged commission of offence and that being the only ground taken in this appeal to assail the impugned judgment, we do not find any reason to interfere in the subsequent findings returned by the trial court rejecting the prosecution version that on 25.09.2014, the respondent had kidnapped the victim with the intention to compel her to marry him against her will and he had committed penetrative sexual assault upon her and raped her. Once it is held that the girl was over 18 years of age and competent to give her consent, the question of the respondent raping her does not arise. It is apparent that the girl had eloped with the respondent on her own and was a consenting party to the sexual intercourse. In our view, the decisions cited by the learned APP will not be of any assistance in the peculiar facts and circumstances of the present case.”
Shweta Gulati and Ors. v. The State Govt. of NCT of Delhi, MANU/DE/2812/2018 [Delhi High Court, Single Judge]
Facts: In the instant case, the issue was that in a bone ossification test, whom should the benefit of doubt of margin of error go to?
Decision: The Court observed as follows:
“14. The settled principle is that the ossification test is not conclusive of age determination. It is settled that it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. The Supreme Court, in several decisions, has taken judicial notice of the fact that the margin of error in age ascertained by radiological examination is two years on either side. (Ram Suresh Singh v. Prabhat Singh, MANU/SC/0750/2009 : (2009) 6 SCC 681, Jaya Mala v. Govt. of J&K MANU/SC/0031/1982 : (1982) 2 SCC 538, Jyoti Prakash Rai v. State of Bihar, MANU/SC/7296/2008 : (2008) 15 SCC 223)
15. Now the question that arises for consideration is as to whether the lower of the age or the higher of the age is to be taken. If benefit of doubt has to go to the accused then one would have to take the higher limit and if benefit of doubt has to go in favour of the prosecutrix then the lower of the two limits would have to be taken.
16. It is also settled position of law that benefit of doubt, other things being equal, at all stages goes in favour of the accused. (Triveniben v. State of Gujarat, MANU/SC/0520/1989 : (1989) 1 SCC 678, Maru Ram v. Union of India, MANU/SC/0159/1980 : (1981) 1 SCC 107”
17. In the present case as no document of age was available, the age has been determined by the Child Welfare Committee as 17 years based on the ossification report. The bone ossification test report has estimated the age as 17 to 19 years. So applying the margin of error principle, of two years on either side, the age could be between 15 to 21 years. In the present case even if the margin of error is not taken on the higher side, the upper limit of the age estimated by the ossification test is 19 years.”
Facts: In this case, the issue was whether a school leaving certificate could be relied upon to establish the age of the prosecutrix.
The prosecutrix (PW1) in the present case emphatically stated in her examination-in-chief before the Court that her date of birth was 03.05.2000. On this aspect, she had not been specifically cross-examined on behalf of the defence. In order to prove the said date of birth, a school leaving certificate pertaining to the prosecutrix has been placed on record. This certificate was issued by a school which the prosecutrix had attended. In support of the said school leaving certificate, the prosecution has examined PW7-Headmistress of the said school. The said witness has stated that the date of birth of the prosecutrix was recorded as 03.05.2000 on the basis of the earlier school leaving certificate issued by the school where the prosecutrix had attended primary classes. It was also conceded in cross-examination by the said witness that birth certificate of the prosecutrix or hospital papers were not produced when the date of birth was recorded in the school records.
The prosecution further examined PW11-Headmistress of the primary school attended by the prosecutrix. The said witness did vouch for the fact that the prosecutrix had attended the primary school but, in the cross-examination, it was admitted that the date of birth of the prosecutrix was informed by a relative and further that there was no entry of any birth certificate produced by the relatives of the prosecutrix in the original admission register. It was submitted on behalf of the appellant that the aforesaid nature of evidence placed on record by the prosecution was not sufficient to prove that the date of birth of the prosecutrix was 03.05.2000 and that therefore, there was serious doubt about whether the provisions of POCSO Act applied in the present case at all. It was contended that when PW2-Mother of the prosecutrix had conceded in the cross-examination that she did not handover any gram panchayat document or any other document regarding birth of the prosecutrix to the police, it was further evident that the aforesaid school leaving certificate of the prosecutrix could not be relied upon to hold that her date of birth was 03.05.2000.
Decision: The Court observed as follows:
“16. By referring to the aforesaid rule, the Hon’ble Supreme Court has held that the documents like matriculation or equivalent certificates, date of birth certificate from school first attended and birth certificate issued by Corporation or such Municipal authority can be used for ascertaining the age of the prosecutrix. In the present case, the prosecution has placed on record school leaving certificate, wherein the date of birth of the prosecutrix has been stated to be 03.05.2000. Under the aforesaid rule, the said certificate would certainly be covered as one of the documents for ascertaining the date of birth of the prosecutrix. The prosecution has examined the headmistresses of the primary as well as the subsequent school attended by the prosecutrix and both of them supported the fact that 03.05.2000 was the date of birth of the prosecutrix as per the school records. The learned counsel appearing for the appellant has sought to attack the said evidence on the basis that the two headmistresses, i.e. PW7 and PW11 have conceded to the fact that the date of birth certificate of the prosecutrix issued by a corporation or municipal authority was not on record. But, a perusal of the aforesaid Rule 12(3) of the Juvenile Justice (Care and Protection) Rules, 2007 shows that it is not only the birth certificate issued by a corporation or a municipal authority that can be made the basis for ascertaining the date of birth but, certificates issued by school attended by the prosecutrix can also be used as a basis for determining the date of birth.
17. In the present case, when such a certificate was placed on record and the headmistresses of the schools attended by the prosecutrix were examined by the prosecution, it cannot be said that the prosecution had failed to place on record sufficient evidence and material to prove that the date of birth of the prosecutrix was indeed 03.05.2000. In this regard, the judgment relied upon by the learned counsel appearing on behalf of the appellant, passed by the Hon’ble Supreme Court in the case of Alamelu Versus State (supra), cannot be of much assistance to the appellant because in the aforesaid case before the Supreme Court, although transfer certificate issued by the school was placed on record, headmistress of the school was not examined. It was for this reason that the Hon’ble Supreme Court, held that such a document could not be held to be reliable but, in the present case since two headmistresses were examined as witnesses by the prosecution to prove the aforesaid school leaving certificate, it cannot be said that the said judgment of the Hon’ble Supreme Court would be of any assistance to the appellant. Apart from this, learned A.P.P. for the respondent-State is justified in relying upon judgment of Division Bench of this Court in the case of Kundan Pendor Versus State (Supra), wherein it has been held that when the prosecutrix is not cross-examined on her statement about date of birth, the claim of the prosecutrix has to be accepted. In the present case also, the prosecutrix was not cross-examined on this aspect. Hence, no fault can be found with the findings rendered by the trial Court that the provisions of POCSO Act were applicable in the present case because the prosecutrix was a “child” as defined in Section 2(d) of the said Act.”
Brief Facts: The accused kidnapped and sexually assaulted the survivor multiple times. After the incident, the complainant filed an FIR. The trial court convicted the accused under Section 366 IPC and Section 4 of the POCSO Act. The present appeal was filed by the appellant against the order of conviction.
Decision: The Karnataka Court set aside the conviction and sentence of the accused because the age of the survivor could not be assessed in the evidence. The Court observed the following:
“6. The scrutiny of the material placed on record would reveal that the age of the victim is an important aspect to be decided before considering the question as to whether there was either an offence under Section 4 of the POCSO Act on under Section 366 IPC. So, to attract the provision of Section 3 of the POCSO Act, it is necessary for the prosecution to establish that there was an act of penetration by the appellant and further that the provisions of the POCSO Act is applicable to the victim.
7. The medical evidence has been placed on record by way of Ex. P11. Ex. P6, the report issued on radiology examination reveals that the age of the victim was 16 +/- 1. Ex. P12 medical report would reveal that the age estimation on the basis of radiological examination is in between 18 to 20 years. Anyhow, the prosecution has produced Ex. P17, xerox copy of the SSLC marks card of the victim which reveals the date of birth of the victim as 15.04.1998. As per this certificate, the age of the victim is less than 16 years as on the date of the incident. But, it is well-established principle of law that the xerox copy cannot be accepted as evidence.
That apart, the Investigating Officer-P.W. 18 states in his evidence that he collected the SSLC marks card from one Vijayananda. But, Ex. P17 is not the original document. That apart, it is attested by a person, whose name cannot be made out. The Circle Inspector himself put his signature on Ex. P17 and marked in the evidence of the Investigating officer. Such evidence is not admissible in law. It is necessary for the prosecution to produce the original or attested copy from the competent authority and in the absence of such original document, the xerox copy – Ex. P17 cannot be relied upon. When the medical evidence placed on record reveals the age of the victim was in between 16 to 20 years, it is necessary for the prosecution to fix up the date of her birth and for this purpose, though it relies upon Ex. P17, as the said document itself is not admissible in law, the conclusion of the trial Court as regards the age of the victim cannot be accepted. The medical evidence is the opinion evidence and there is variation as regards the age of the victim and the SSLC marks card is an important document which ought to have been produced and could have been admitted in the evidence. Therefore, I am of the opinion that it is the case where on the basis of the material placed on record, the age of the victim cannot be assessed.”
Credible school record sufficient for age determination
Brief Facts: The survivor was on her way to school when she encountered the accused who was a tenant of her uncle. She took ‘prasad’ from him, became unconscious and woke up at the accused’s sister’s house. There, she was raped by the accused and recovered by the police after the survivor’s father filed a missing complaint. The accused was convicted under section 366 and 376 of the IPC and sentenced to rigorous imprisonment for 84 months and fine. The present appeal was filed by the appellant against the order of conviction.
Decision: The Delhi High Court disposed the matter. One of the contentions of the accused was that the child was a major at the time of the incident as per her bone ossification and had consented. However, the High Court held that the child was a minor.
“Submission of the learned counsel for the appellant that by giving a margin of two years the prosecutrix was 18 years of age on the date of offence (as per the ossification report) is an argument without merit. Where the school record is available as is so in this case which has clearly evidenced the date of birth of the prosecutrix as 03.02.1982 holding her to be a minor on the date of the offence, the submission of the learned counsel for the appellant that the ossification report which is in his favour should be looked into is an argument bereft of force. Not only is the record from a Government School, it is also authentic and credible. No suspicion can be attached to this record. In this background when the authentic age proof of the victim was on record which was through her date of birth from her school records, there was no question of falling back on the ossification report.” (para 18)
Ashwani Kumar Saxena v. State of Madhya Pradesh, AIR 2013 SC 553 [Supreme Court of India, 2 Judge Bench]
Facts: Many cases have been brought before the Court with claims of juvenility. Therefore, the Court found it “appropriate in this case to examine the nature of inquiry contemplated under Section 7A of the J.J. Act read with Rule 12 of the 2007 Rules, for future guidance and application by the Courts, Boards and the Committees functioning under the J.J. Act and Rules.” (Para 2).
Ashwani and two other were charged under section 302 IPC. The case was pending before the ASJ. The appellant filed an application claiming that he was juvenile and produced his eight standard board examination as proof. The victim’s widow raised objection and an ossification for conducted finding the appellant more than 21 years. The Appellant again placed emphasis on school records but without any relief, approached the High Court.
Decision: The petitioner was declared a juvenile as per the school records and that “the Sessions Judge, however, has made a fishing inquiry to determine the basis on which date of birth was entered in the school register” (para 41).
The Court looked at the Section 7A and section 12, examining ‘inquiring’, ‘investigation’, and ‘trial’.
Para 42: “Legislature and the Rule making authority in their wisdom have in categorical terms explained how to proceed with the age determination inquiry. Further, Rule 12 has also fixed a time limit of thirty days to determine the age of the juvenility from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his / her age on lower side within the margin of one year.”
Para 44: “We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility.”
Facts: The two victims had gone to the accused house with regards to some work when the accused trapped the two girls and raped them. Trial court convicted the accused under section 376 IPC. The High Court looked at doctors’ evidence where the medical test was done; the age was between 14-16 years and it was held that they were more 16 years. Therefore, the accused were acquitted. On the basis of that acquittal, this petition was filed.
Decision: The Judgment of the trial court was restored.
The Trial court had looked at school documents which showed that the age of the both the victims was less than 16 years and therefore the question of consent was irrelevant.
The High Court referred to the X-ray report which indicated that the age of victims were between 14-16 years. “The High Court observed that there was possibility of two years variation and therefore it was to be taken that the victims were more than 16 years of age.” (para 7)
The Supreme Court states that:
“So far as the reasonings of the High Court are concerned they border on absurdity. All types of surmises and conjectures have been arrived at. Strangely, it was observed that PW16 the Head Master’s evidence was to be discarded on the ground that the date of birth may not have been recorded on the basis of any medical certificate or other documentary evidence to show that these two girls were born on the date as mentioned. The High Court’s conclusions in this regard are not only fallacious but contrary to the evidence on record. The High Court recorded a further finding that the two certificates may not relate to the victims though it specifically recorded that there was no such challenge raised by the accused. Additionally, merely because the doctor’s evidence showed that the victims belong to the age group of 14 and 16, to conclude that the two years age has to be added to the upper age limit is without any foundation. There was no basis for coming to such a conclusion.” (para 7)
Eera through Manjula Krippendorf v. State, (Govt. of NCT of Delhi) and Ors., 2017 (15) SCC 13 [Supreme Court of India, 2 Judge Bench]
This judgment held that the POCSO Act refers to a “child” whose physical age was below 18 years, and did not cover persons who may have a mental age below 18 years.
Facts: The pivotal issue that emanated for consideration in these appeals, by special leave, pertained to interpretation of Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (for short, “the POCSO Act”), and the primary argument of the the Appellant was that the definition in Section 2(d) that defines “child” to mean any person below the age of 18 years, should engulf and embrace, in its connotative expanse, the “mental age” of a person or the age determined by the prevalent science pertaining to psychiatry so that a mentally retarded person or an extremely intellectually challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”.
“83. The purpose of POCSO Act is to treat the minors as a class by itself and treat them separately so that no offence is committed against them as regards sexual assault, sexual harassment and sexual abuse. The sanguine purpose is to safeguard the interest and well being of the children at every stage of judicial proceeding. It provides for a child friendly procedure. It categorically makes a distinction between a child and an adult. On a reading of the POCSO Act, it is clear to us that it is gender neutral. In such a situation, to include the perception of mental competence of a victim or mental retardation as a factor will really tantamount to causing violence to the legislation by incorporating a certain words to the definition. By saying “age” would cover “mental age” has the potential to create immense anomalous situations without there being any guidelines or statutory provisions. Needless to say, they are within the sphere of legislature. To elaborate, an addition of the word “mental” by taking recourse to interpretative process does not come within the purposive interpretation as far as the POCSO Act is concerned. I have already stated that individual notion or personal conviction should not be allowed entry to the sphere of interpretation. It has to be gathered from the legislative intention and I have already enumerated how the legislative intention is to be gathered. Respect for the dignity of a person, as submitted, has its own pedestal but that conception cannot be subsumed and integrated into a definition where the provision is clear and unambiguous and does not admit of any other interpretation. If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether there is a consent or not. In certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula. It is difficult to say in absolute terms.
84. In this regard, I may profitably refer to Section 164 Code of Criminal Procedure which deals with recording of confessions and statement. Section 164(5A)(b), which is pertinent, reads as under:
(b) A statement recorded under Clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in Section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.
The purpose of referring to the said provision is to highlight that the Parliament has legislated to safeguard the interest of mentally disabled person.
85. Needless to emphasise that courts sometimes expand or stretch the meaning of a phrase by taking recourse to purposive interpretation. A Judge can have a constructionist approach but there is a limitation to his sense of creativity. In the instant case, I am obliged to state that stretching of the words “age” and “year” would be encroaching upon the legislative function. There is no necessity. In Census Commissioner and Ors. v. R. Krishnamurthy MANU/SC/0999/2014 : (2015) 2 SCC 796, the three-Judge Bench has ruled:
No adjudicator or a Judge can conceive the idea that the sky is the limit or for that matter there is no barrier or fetters in one’s individual perception, for judicial vision should not be allowed to be imprisoned and have the potentiality to cover celestial zones. Be it ingeminated, refrain and restrain are the essential virtues in the arena of adjudication because they guard as sentinel so that virtuousness is constantly sustained. Not for nothing, centuries back Francis Bacon1 had to say thus:
Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue. … Let the Judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne.
In the said case, a passage from Frankfurter, J.2 was reproduced which I think it apt to quote:
For the highest exercise of judicial duty is to subordinate one’s private personal pulls and one’s private views to the law of which we are all guardians-those impersonal convictions that make a society a civilised community, and not the victims of personal rule.”