Kerala High Court
Maju @ Manu vs State Of Kerala on 11 March, 2020
Equivalent citations: AIRONLINE 2020 KER 226
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941
CRL.A.No.1331 OF 2018
AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE DATED 25-05-2017
PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS COURT(ATROCITIES),
ERNAKULAM IN S.C.NO. 871/16
APPELLANT/ACCUSED NO.1:
MAJU @ MANU
AGED 40,
S/O. VASU, KUZHIKKALAYIL HOUSE,
KULAPPURAM BHAGOM, KADAVOOR VILLAGE,
RESIDING AT VANNAPPURAM VILLAGE, MULLARINGADU KARA,
NEAR VALIYAKALLUMCHAL SRI.BHADRAKALI TEMPLE -
C.NO.3609 OF CENTRAL PRISON, VIYOOR,
THRISSUR DISTRICT, PIN- 680 010.
BY ADV. MANJU ANTONEY
RESPONDENT/PROSECUTION/STATE:
STATE OF KERALA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
KALLOORKADU POLICE STATION. (CRIME NO. 535/2016 OF
POTHANIKAD POLICE STATION) THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, COCHIN - 682 031.
R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN AND CHILDREN AND WELFARE OF W AND C
SRI.K.B.UDAYA KUMAR, SR.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.Appeal No.1331 of 2018
2
C.R.
Criminal Appeal No.1331 of 2018
----------------------------------
JUDGMENT
This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.871 of 2016 on the files of the Additional District and Sessions Judge, Ernakulam. The appellant is the sole accused in the case.
2. The accusation in the case is that the accused who is a priest in the temple near the residence of the victim girl aged 16 years developed an intimacy with the victim girl and by giving her a false promise to marry, the accused took her on 11.07.2016 to various places and had committed penetrative sexual assault on her and thereby committed the offences punishable under Sections 366 and 376(2)(n) of the Indian Penal Code (the IPC) and Section 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).
Crl.Appeal No.1331 of 20183
3. On the accused pleading not guilty of the charges, the prosecution examined 22 witnesses as PW1 to PW22 and proved 25 documents as Exhibits P1 to P25. The prosecution has also caused one of its witnesses to identify the material object, MO1. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence.
4. Among the witnesses examined, PW1 is the victim girl. She has proved Ext.P1 statement given by her before the Magistrate under Section 164 of the Code. PW2 is the father of the victim girl. He has proved Ext.P2 First Information Statement. PW3 is the President of the Temple where the accused was working as priest at the time of occurrence. PW4 is the auto driver to whom the accused had sold his mobile phone at Pazhani. PW4 has proved Ext.P4 slip given by the victim girl to him and also identified MO1 mobile phone. PW5 is the aunt of the accused in whose Crl.Appeal No.1331 of 2018 4 residence the accused had resided with the victim girl for two days. PW7 is the doctor who has examined the victim girl and issued Ext.P6 Medical report. PW8 is the doctor who has examined the accused and issued Ext.P7 Potency Certificate. PW11 is the security personnel attached to Kodungalloor Kurumba Temple, where the accused had stayed with the victim girl for one day. PWs.19, 20 and 21 are the police officers who have investigated the case. PW22 is the Principal of the school where the victim girl was pursuing her studies at the time of occurrence. PW22 has proved Ext.P25 certificate showing the date of birth of the victim.
5. On an appraisal of the materials on record, the court below found that the prosecution has not established beyond doubt that the accused had sexual intercourse with the victim girl at the premises of the Kodungalloor Kurumba Temple. The court, however, found that the prosecution has established its case that the accused took the victim girl on 11.07.2016 to various places and had sexual intercourse with her at the residence of PW5 and he is, therefore, guilty of the offences punishable under Sections 366 and 376(1) of the IPC and Section 3(a) read with Section 4 of the POCSO Act. The accused was consequently convicted for the Crl.Appeal No.1331 of 2018 5 aforesaid offences and was sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for another term of two months under Section 366 of the IPC. He was also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.25000/- and in default of payment of fine, to undergo rigorous imprisonment for another term of four months under Section 3(a) read with Section 4 of the POCSO Act. In the light of Section 42 of the POCSO Act, no separate sentence was imposed on the accused under Section 376(1) of the IPC. The accused is aggrieved by the conviction and sentence imposed on him.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The learned counsel for the appellant contended that the most vital fact that should have been proved by the prosecution in a case of this nature was the age of the victim and the same has not been proved by the prosecution. It was pointed out that Ext.P25 certificate issued by the Principal of the school where the victim girl was pursuing her studies is not sufficient to Crl.Appeal No.1331 of 2018 6 establish that the victim was a child at the time of occurrence. Placing reliance on various decisions of the Apex Court as also this Court, it was contended by the learned counsel that the prosecution should have caused the production of one of the public documents falling within the scope of Section 35 of the Evidence Act containing the date of birth of the victim and should have examined, in addition, the person on whose statement the entry regarding the date of birth of the victim was entered in that document, in order to conclusively prove the date of birth of the victim. Placing reliance on the Division Bench judgment of this Court in Sasi v. State of Kerala [2019 (3) KLT 561], it was also contended by the learned counsel that Ext.P25 Certificate produced by the prosecution to prove the date of birth of the victim is hit by Section 162 of the Code. It was also contended by the learned counsel that the evidence tendered by the victim girl as PW1 would indicate beyond doubt that it is a case were the victim girl had eloped with the accused and the physical relationship the accused had with the girl was purely consensual. According to the learned counsel, in so far as the age of the victim girl has not been conclusively proved, the findings rendered by the court below that Crl.Appeal No.1331 of 2018 7 the accused is guilty of offences punishable under Sections 366 and 376(1) of the IPC and Section 3(a) read with Section 4 of the POCSO Act, are unsustainable in law.
8. Per contra, the learned Public Prosecutor has submitted that in the light of the provisions contained in the Juvenile Justice (Care and Protection of Children) Act, 2015, Ext.P25 certificate can be accepted by the court as proof of the age of the victim girl. It was pointed out by the learned counsel that Ext.P25 certificate would show that the victim girl was aged only 16 years at the time of occurrence. It was contended by the learned Public Prosecutor that since it is established that the victim girl was aged only 16 years at the time of occurrence, the question as to whether the physical relationship between the accused and the victim girl was consensual is irrelevant and the accused is certainly guilty of the offence punishable under Section 3(a) read with Section 4 of the POCSO Act.
9. The point arising for consideration is whether the prosecution has proved the guilt of the accused punishable under Sections 366 and 376(1) of the IPC and Section 3(a) read with Section 4 of the POCSO Act.
Crl.Appeal No.1331 of 20188
10. As noted, PW1 is the victim girl. She has stated in her evidence that she got acquaintance with the accused who is the priest in the temple nearby her residence. PW1 has stated that in course of time, she fell in love with him. PW1 has stated that though she never wanted to go and reside with the accused without the permission of her parents, the accused compelled her to go with him. PW1 has stated that on account of the compulsion of the accused, on 11.07.2016, she went along with the accused to a place named Natham, from where the accused took her to Pazhani in the State of Tamil Nadu. PW1 has stated that later they went to Bangalore and came back to Kodungalloor. PW1 has stated that the accused had committed sexual intercourse with her in the premises of Kodungalloor Kurumbha Temple. PW1 has stated that thereafter the accused took her to the house of PW5, his aunt. She has stated that the accused had sexual intercourse with her at the residence of PW5 also. PW2, the father of the victim girl has deposed that his daughter was found missing from 11.07.2016, and the matter was informed to the police forthwith and she could be traced out only after about 10 days. PW3, the President of the temple where the accused was working as priest Crl.Appeal No.1331 of 2018 9 has deposed that the accused is a person who is married and having two children. PW4, an auto driver in Pazhani deposed that he found the accused with a girl at Pazhani and he purchased MO1 mobile phone from him. He has also deposed that Ext.P4 slip containing the name and phone number of the accused was one given to him by the girl who was accompanying the accused. PW5, the aunt of the accused has deposed that the accused came to her house with a girl and stayed with her for two days. PW7, the doctor who was examined the victim girl has deposed that the victim girl was brought to her by the police, and on examination, she found the hymen of the victim girl torn and also found on her, evidence of sexual intercourse. PW11 is the security personnel attached to Kodungalloor Kurumbha Temple. He deposed that he found the accused along with a girl on 14.07.2016 in the premises of the said Temple. Though the accused cross examined the aforesaid witnesses, he could not discredit the material evidence tendered by the witnesses. From the oral evidence tendered by the aforesaid witnesses and the documents referred to above, it can be safely concluded that the prosecution has established that the accused has taken the victim girl on 11.07.2016 to various places and had Crl.Appeal No.1331 of 2018 10 sexual intercourse with her at the residence of PW5, the aunt of the accused at Kuninji.
11. As rightly pointed out by the learned counsel for the appellant, the materials on record would indicate that it is a case where the victim girl had eloped with the accused and the physical relationship the accused had with the victim girl was consensual. In so far as the specific case of the prosecution is that the victim girl was a child aged 16 years at the time of occurrence and the accused is charged under Section 366 of the IPC and Section 5(l) read with Section 6 of the POCSO Act on that premise, in the light of the submissions made by the learned counsel for the appellant, the question arises for consideration is whether the prosecution has proved the age of the victim girl.
12. In Ravinder Singh Gorkhi v. State of U.P., (2006) 5 SCC 584, after referring to the earlier decisions in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604, Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673, Updesh Kumar v. Prithvi Singh (2001) 2 SCC 524, Ramdeo Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC 714, Umesh Chandra v. State of Rajasthan (1982) 2 SCC 202 and Bhoop Ram v. State Crl.Appeal No.1331 of 2018 11 of U.P. (1989) 3 SCC 1, the Apex Court held that determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. It was also held by the Apex Court in the said case that in the absence of any statutory provision dealing with the manner in which the age has to be proved in a proceedings, the age has to be proved by producing any document falling within the scope of Section 35 of the Evidence Act. Paragraphs 21, 23, 38 and 39 of the judgment in the said case read thus:
"21. Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case.
xxxxxxx
23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in the ordinary course of business by a public servant in the discharge of his official duty, or Crl.Appeal No.1331 of 2018 12 by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder: (i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact;
(iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto.
xxxxxxx
38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted.
Crl.Appeal No.1331 of 201813
39. We are, therefore, of the opinion that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstances of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. In this case, the appellant had never been serious in projecting his plea that he on the date of commission of the offence was a minor. He made such statement for the first time while he was examined under Section 313 of the Code of Criminal Procedure."
In Sunil v. State of Haryana (2010) 1 SCC 742, the Apex Court has refused to accept the school leaving certificate of the prosecutrix in a case of rape to prove the age of the prosecutrix, by observing thus:
"25. The prosecution also failed to produce any admission form of the school which would have been primary evidence regarding the age of the prosecutrix. The school leaving certificate produced by the prosecution was also procured on 12-9-1996, six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the session and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. The prosecutrix was admitted in the school by Ashok Kumar, her brother. The said Ashok Kumar was not examined. The alleged school leaving certificate on the basis of which the age was entered in the school was not Crl.Appeal No.1331 of 2018 14 produced."
In Chandran v. State of Kerala 2013 KHC 469, after referring to Ravinder Singh Gorkhi and Sunil as also various other judgments rendered by the Apex Court thereafter, this court summarised the position as regards the proof of date of birth thus:
"28. The principle that could be discerned from the above decisions is that the determination of the age of the victim depends upon the facts and circumstances of each case. The evidence produced by the prosecution will have to be considered in the light of the other circumstances and other items of evidence available in the case and with regard to the authenticity of the document based on which the age is sought to be established by the prosecution. While the extract from the school register is admissible in evidence, there are certain conditions under which it could be conclusively taken as evidence regarding the age of the person concerned. In Law of Evidence by Sir John Woodroffe and Symed Amir Ali, 17th Edition Vol.2 at page 2099 it is stated as follows:
"An entry relating to date of birth made in the school register is relevant and admissible under S.35 of the Evidence Act, but entry regarding the age of a person in a school register is not of much evidentiary value to prove the age of a person in the absence of material on which the age of was recorded. An entry in a school register is not of much evidentiary value, when there is no evidence to show on what materials the entry in the register about the age of the scholar was made. The date of birth mentioned in the scholar's register of a school has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined. Much reliance cannot be Crl.Appeal No.1331 of 2018 15 placed on entries in the school admission registers which are not proved to have been made on the basis of the statement made by a person eg., the father of the boy, who knew the date of his birth. Since the name of the school from which the transfer certificate is obtained itself is absent from the certificate no reliance can be placed on the said certificate for determining the age of the accused."
29. If the extract of the school admission register is produced and it is proved in accordance with law by examining the person who issued the same and also by producing the register and also by examining the person who gave the date of birth when the ward was admitted, then it becomes an item of evidence which can be accepted as a conclusive evidence regarding the date of birth of the person concerned. More authentic is the entry in the register kept by the local authorities with regard to the date of birth and death of any person concerned.
30. Normally, the law accepts the entries in school records are proof of age, but the extract of the school admission register of the school where the ward was first admitted should be produced and proved. It is very seldom that the Court accepts the extract of the school admission register where the ward had studied subsequently and the entries in that register is based on the entries in the transfer certificate issued from the school. In such circumstances, as could be seen from the decisions cited above, on facts it can be seen that there were other items of evidence to prove the date of birth of the victim. That would either be the oral evidence furnished by the person who gave information about the date of birth or the parents of the victim or through medical evidence in support of the age of the victim concerned."
Crl.Appeal No.1331 of 201816 It is on the aforesaid principles that the learned counsel for the appellant submitted that the date of birth of the victim has not been conclusively proved in the case.
13. In Jarnail Singh v. State of Haryana (2013)7 SCC 263, the Apex Court has distinguished the principle laid down in Sunil holding that even though the rules framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 apply strictly only for determination of the age of a child in conflict with law, the statutory provisions therein can certainly be the basis for determining the age of even a child who is a victim of crime, for there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law and a child who is a victim of a crime. Paragraphs 21, 22 and 23 of the said judgment read thus:
"21. In order to support his contention, that the prosecutrix was not a minor at the time of occurrence, the learned counsel for the appellant placed reliance on the judgment rendered in Sunil v. State of Haryana3. Ordinarily, we would have extracted the observations on which reliance was placed, but for reasons that would emerge from our conclusion, we consider it inappropriate to do so.
22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Crl.Appeal No.1331 of 2018 17 Protection of Children) Rules, 2007 (hereinafter referred to as "the 2007 Rules"). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under:
"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 Crl.Appeal No.1331 of 2018 18 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.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this Rule.
(6) The provisions contained in this Rule shall also apply to those disposed of cases, where the status of Crl.Appeal No.1331 of 2018 19 juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
23. 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 of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other Crl.Appeal No.1331 of 2018 20 material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion." In Mahadeo v. State of Maharashtra (2013)14 SCC 637), a case involving the rape of a minor aged 15 years, in the context of the dispute as regards the age of the victim, the Apex Court has accepted the certificate issued by the school where the prosecutrix has pursued her studies as also her school leaving certificate as proof of her date of birth in the light of the provisions contained in the rules framed under the Juvenile Justice (Care and Protection of Children) Rules, 2007, though the same was a judgment rendered without referring to Jarnail Singh. Paragraphs 12 and 13 of the said judgment read thus:
"12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:
"12. (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, Crl.Appeal No.1331 of 2018 21 by 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;"
Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 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.
13. 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 20-5-1990, and this document was also proved by PW 11. Apart from that 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."
The Juvenile Justice (Care and Protection of Children) Act, 2000 Crl.Appeal No.1331 of 2018 22 has been repealed and the Juvenile Justice (Care and Protection of Children) Act, 2015 has been brought into force in its place. Unlike in the 2000 statute, the 2015 statute contains a direct provision dealing with presumption and determination of age. Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 dealing with the presumption and determination of age, reads thus:
94. Presumption and determination of age.
1. Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section
14 or section 36, as the case may be, without waiting for further confirmation of the age.
2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --
i. the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
Crl.Appeal No.1331 of 201823 ii.the birth certificate given by a corporation or a municipal authority or a panchayat;
iii. and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
3. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
As is seen from the extracted provision, in case of doubt as to whether the person brought before the competent authority under the said statute is a child, the competent authority has to undertake a process of determination of the age of the person by seeking evidence by obtaining the certificates made mention of therein. The first among the certificates made mention of in the said provision is the date of birth certificate from the school. If the date of birth certificate from the school can be relied on for determining the age of the child for the purpose of the Juvenile Justice (Care and Protection of Children) Act, 2015, in the light of the decisions of the Apex Court in Jarnail Singh and Mahadeo, Crl.Appeal No.1331 of 2018 24 according to me, in the absence of evidence to the contrary, such certificates can be accepted as conclusive proof of age of the victim in a criminal proceedings as well. Yet another reason for me to take this view is the declaration made by the Apex Court in Ravinder Singh Gorkhi, that until the age of a person is required to be determined in a manner laid down under a statute, a standard of proof other than one directed to be followed therein shall not be adopted, indicating clearly that if the manner of determination of age is laid down in a statute, the same has to be followed in preference to the procedure laid down therein.
14. Reverting to the facts, Ext.P25 is a certificate issued by the Principal of the school where the victim girl has pursued her Vocational Higher Secondary Course. In Ext.P25, it is certified that the date of birth of the victim girl is 24.01.2001. Ext.P25 has been proved by the Principal of the school who has issued the same. The Principal of the school who was examined in the proceedings as PW22 has deposed that Ext.P25 certificate has been issued based on the entry as regards the date of birth of the victim girl in the School Admission Register. Going by the said date of birth, the victim girl was aged only fifteen and half years during Crl.Appeal No.1331 of 2018 25 July 2016. The accused has not adduced any evidence to show that the date of birth of the victim girl shown in Ext.P25 is incorrect nor has he discredited PW22 in any manner. In the circumstances, in the light of what is stated in the paragraph 13 above, I have no hesitation to hold that the prosecution has conclusively proved the age of the victim girl.
15. In this context, I must refer to the decision of the Division Bench in Sasi, on which reliance was placed by the learned counsel for the appellant to contend that Ext.P25 certificate is hit by Section 162 of the Code. Of course, there is an observation in the said case that certificates in the nature Ext.P25 would be hit by Section 162 of the Code. But, a reading of the judgment would indicate that the question whether the age of the victim girl involved in the case could be proved by such a certificate was never a question arose for consideration in the case. In fact it was observed by the Division Bench in the judgment itself that the age of the victim girl is not of much relevance in the case. The question is whether the aforesaid observation made by the Division Bench on an issue which was not necessary for the adjudication of the matter before it, would bind this Court. The principle on the point has been succinctly stated in "Salmond on Jurisprudence" (Twelth Edition). The relevant passage reads thus : Crl.Appeal No.1331 of 2018 26
"In the course of his judgment, however, a judge may let fall various observations not precisely relevant to the issue before him. He may for instance illustrate his general reasoning by reference to hypothetical situations and the law which he considers to apply to them. Here of course, since the issue is not one that arises between the parties, full argument by counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision. Or again, having decided the case on one point, the judge may feel it unnecessary to pronounce on the other points raised by the parties, but he may nevertheless want to indicate how he would have decided these points if necessary. Here again we are not given the judge's final decision on a live issue, so that once more it would be unwise to endow it with as much authority as the actual decision. These observations by the way, obiter dicta, are without binding authority, but are nonetheless important: not only do they help to rationalise the law but they serve to suggest solutions to problems not yet decided by the courts ......."
The aforesaid principle has been elaborated by the Apex Court in Arun Kumar Aggarwal v. State of Madhya Pradesh (2014)13 SCC 707. Paragraphs 26, 27, 31, 32, 33 and 34 of the said judgment read thus:
"26. Wharton's Law Lexicon (14th Edn., 1993) defines the term "obiter dictum" as an opinion not necessary to a Judgment; an observation as to the law made by a Judge in the course of a case, but not necessary to its decision, and therefore, of no binding effect; often called as obiter dictum, 'a remark by the way'.Crl.Appeal No.1331 of 2018 27
27. Black's Law Dictionary, (9th Edn., 2009) defines the term "obiter dictum" as:
"Obiter dictum.-A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). - Often shortened to dictum or, less commonly, obiter. ...
'Strictly speaking an "obiter dictum" is a remark made or opinion expressed by a judge, in his decision upon a cause, "by the way"- that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the Judge or court merely by way of illustration, argument, analogy, or suggestion.... In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as "dicta", or "obiter dicta", these two terms being used interchangeably.'"
31. In MCD v. Gurnam Kaur (SCC p. Ill, para 12) and Karnataka SRTC v. Mahadeva Shetty (See Karnataka SRTC v. Mahadeva Shetty.), this Court has observed that:
"12. ... Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority."
32. In State of Haryana v. Ranbir, this Court has discussed the concept of the "obiter dictum" thus: (SCC pp. 171-72, para.13) "13. ... A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The Crl.Appeal No.1331 of 2018 28 distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla . It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. "
33. In Girnar Traders v. State of Maharashtra this Court has held:
(SCC p. 586, para 53) "53. ... Thus, observations of the court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the court, is not of much avail to the respondents."
34. in view of the above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of-the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment."
Crl.Appeal No.1331 of 201829 In the circumstances, according to me, the aforesaid observation in Sasi would not be an impediment for this court to hold that the prosecution has proved the age of the victim girl by Ext.P25 certificate.
For the reasons aforesaid, I do not find any merit in the appeal and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
PV