Madhya Pradesh High Court
Govind Saini vs The State Of Madhya Pradesh Thr. on 14 August, 2019
Equivalent citations: AIRONLINE 2019 MP 948
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
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SB:- Hon'ble Shri Justice G. S. Ahluwalia
CRA No. 537/2015
Appellant -------------------- Govind Saini
Vs.
Respondent ------------------The State of MP
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Shri Girraj Soni, Counsel for the appellant.
Shri Aditya Singh, Public Prosecutor for the respondent/ State.
JUDGMENT
(Delivered on 14/08/2019) Per G. S. Ahluwalia, J:-
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 24/04/2015, passed by Special Judge & Additional Sessions Jude (SC & ST, Prevention of Atrocities Act), Guna in Special Sessions Trial No.43 of 2014, by which the appellant has been convicted and sentenced as under :
1 Under Sections 363, 7 years RI and fine of Rs.2,000/- in 366 of IPC default, two years RI
2 Under Section 376(2) 10 years R.I. and fine of Rs.1,000/
(i) and (n) of IPC in default, one year RI 3 Under Section 6 of 10 years R.I. and fine of Rs.1,000/ POCSO Act, 2012 in default, one year RI 4 Under Section 506-B of Three months RI and fine of IPC Rs.500/- in default, one month RI All the sentence have been directed to run concurrently. (2) It appears that the appellant was never granted bail during trial as well as during appeal and he is in jail.
2(3) According to the prosecution case, on 23/04/2014 at about 08:00 am, a guminsaan report was lodged by Gajananda Bunkar to the effect that on 22/04/2014 at about 12:00 pm, the prosecutrix and her younger sister Kamla Bai had gone to market for selling tomatoes from where the prosecutrix went away without informing anybody. An enquiry was conducted and the prosecutrix was recovered. The prosecutrix informed that on 22/04/2014 the appellant allured her of performing marriage and took her to his house and committed rape on her. Accordingly, FIR in Crime No. 117/2014 was registered for offence under Sections 363, 366, 376, 506 of IPC and Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The copy of the FIR was sent to JMFC, Raghogarh. During investigation, the school admission register of the prosecutrix and her caste certificate were seized. Her recovery pachnama was prepared. She was handed over to the custody of her father. Spot map was prepared. The mark sheet of the prosecutrix of education session 2011-12 was seized. The prosecutrix was sent for medical examination and her MLC report [MLC report is Ex.P12 (by mistake, it has been marked as Ex.P12, therefore, for the sake of clarity, the MLC report Ex.P12 would be referred as MLC report Ex.12-A)] was obtained. The vaginal slides, swabs and clothes of the prosecutrix were seized vide seizure memo Ex.P13. The appellant was arrested vide arrest memo Ex.P13 (by mistake, it has been marked as Ex.P13, therefore, for the sake of clarity, the arrest memo Ex.P13 would be referred as arrest memo Ex.P13-A). The appellant was sent for medical examination. Requisition is Ex.P8 and his MLC report is Ex.P8A. The underwear, slides etc. of the appellant were seized vide seizure memo Ex.P9. The 3 seized articles were sent to FSL, Gwalior vide memo Ex.P14 and the FSL report is Ex.C1. The statements of the witnesses were recorded and after completing the investigation, the police filed the charge sheet under Sections 363, 366, 376 and 506 of IPC as well as under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under Section 4 of POCSO Act, 2012.
(4) The Trial Court by order dated 12/06/2014 framed the charges under Section 363, 366 of IPC and under Section 6 of the POCSO Act, 2012 or in the alternative under Section 376 (2)(i) and (n) of IPC as well as under Section 506 Part II of IPC. Charges under Sections 3(1)(xii) and 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act were framed.
(5) The appellant adjured his guilt and pleaded not guilty. (6) The prosecution, in order to prove its case, examined Smt. Muni Devi (PW1), Shailendra Sahu (PW2), Prosecutrix (PW3), Kamla (PW4), Gajananda (PW5), Kusum Bai (PW6), Dr. RB Singh Dhakad (PW7), Shankar Lal (PW8), Durga Prasad Jatav (PW9), Abdul Rahoof Khan (PW10), Dr. Sadhna Verma (PW11) and Mubarak Ali (PW12). The appellant did not examine any witness in his defence. (7) The Trial Court by the impugned judgment and sentence acquitted the appellant for offence under Sections 3(1)(xii) and 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and convicted the appellant for offence under Sections 363, 366, 376(2)
(i) and (n), 506-B of IPC as well as under Section 6 of POCSO Act, 2012 and sentenced him accordingly.
4(8) Challenging the judgment and sentence passed by the Court below, it is submitted by Counsel for the appellant that in fact, the prosecutrix was major and she was a consenting party and the trial Court has committed an illegality by relying upon the school admission register because the prosecution has failed to prove the basis for recording of date of birth of the prosecutrix in the school admission register. It is further submitted that the appellant is in jail from the date of his arrest i.e. 17/05/2014 and he has already undergone the actual jail sentence of more than five years and, therefore, the sentence already undergone by the appellant is sufficient to meet the ends of justice. (9) Per contra, it is submitted by the counsel for the State that the prosecutrix was minor and her date of birth is 01/08/1998, whereas the incident took place on 22/04/2014. Thus, the prosecutrix was aged about 15 years and 8 months on the date of incident. Thus, she was below 18 years. Whether the prosecutrix was a consenting party or not, is immaterial because she was minor.
(10) Heard the learned Counsel for the parties. (11) It appears that the appellant had claimed himself to be a juvenile and by order dated 11/06/2014, he was declared to be above 18 years. It appears that the said order was challenged by the appellant filing a criminal revision before this Court which was registered as Criminal Revision No.501/2014 and the matter was remanded back to hold an enquiry and thereafter, to adjudicate that whether the appellant is a juvenile or not ? Accordingly, an enquiry was conducted and by order dated 24/11/2014, it was held that the appellant was more than 18 years 5 on the date of incident.
(12) Before considering the fact that whether the prosecutrix was a consenting party or not, this Court is of the considered opinion that it would be appropriate to adjudicate the age of the prosecutrix. (13) Smt. Muni Devi (PW1) has stated that she is working as in-charge Head Master in Government Girls' Primary School, Raghogarh. She had brought the school admission register. On 17/10/2006, the prosecutrix was admitted in Class-I and her name is at Serial No.1135. The prosecutrix was given admission by this witness and school register is in the handwriting of this witness. As per the school register, the date of birth of the prosecutrix is 1/8/1998. She had given the transfer certificate of the prosecutrix on 15/06/2012 after completing 5 th Class Examination. The school admission register is Ex.P1 and its photo copy is Ex.P1C and the transfer certificate bears the signatures of this witness. In cross- examination, this witness has admitted that they keep the record in the school and they also mention the basis on which the date of birth is recorded. She could not disclose that on what basis the date of birth of the prosecutrix was recorded. She further stated that she had given the admission to the prosecutrix and signatures of the parents were not obtained in the school admission register but they were obtained on the admission form. This witness further denied that she had written the date of birth out of imagination.
(14) Shailendra Sahu (PW2) has proved the caste certificate of the prosecutrix.
(15) Prosecutrix (PW3) has stated that the incident took place on 22 nd 6 day. It was about 02:00 in the after noon. She was accompanied by her younger sister Kamla. She went to take polythene. The appellant met with her near a mosque and gave chironji prasad. Then, on the pretext of marriage, he took her to his house and committed rape on her twice. The appellant kept her with him for two days and thereafter, somebody informed the police on telephone. When the appellant came to know that her parents have got the information, then the mother of the appellant allowed her to board a tempo. Thereafter, the prosecutrix came back and informed the incident to her parents. When a question was put to this witness as to what is the meaning of ''Burakam'', then this witness kept quite and again reiterated that ''Burakam" was done. It is further submitted that when she had objected to ''Burakam", then the appellant had extended a threat. The prosecutrix went to the police station along with her parents. Some written work was done by the police. Her recovery memo Ex.P3 was prepared. She further stated that she must be aged about 14 years. She was got medically examined and spot map Ex.P4 was prepared. In cross-examination, she has stated that at about 1:30 in the afternoon, she left the house for selling the tomatoes. Her mother was also accompanying her and after leaving her in the market, her mother went back after half an hour. She further stated that the appellant met with her at the place where she had gone to purchase the polythene. However, she denied that she had given polythene to her sister. The prosecutrix was cross-examined in detail in order to show that she was a consenting party. On the question of age, she admitted that her father had got her horoscope prepared which was kept in the house. However, she expressed that she does not know whether such horoscope 7 was given to the police personel or not. She further denied that no threat was extended by the appellant. She further denied that her age is not 14 or 16 years age. She further denied that she is aged about 19-20 years. (16) Kamla (PW4) is the younger sister of the prosecutrix. She has stated that on 22nd, she had gone along the prosecutrix for selling tomatoes. The prosecutrix left her on the pretext that she is going to purchase the polythene and thereafter, did not return back. The prosecutrix came back after two days. The prosecutrix informed her parents. This witness was told by the prosecutrix that the appellant had taken her to his house and committed rape on her twice. This witness was also cross-examined in detail.
(17) Gajananda (PW5), is the father of the prosecutrix, who has stated that the prosecutrix is aged about 14 years. Since the prosecutrix did not return back, therefore, guminsaan report Ex.P5 was lodged. This witness had tried to search the prosecutrix at several places, however, she came back after two days. The prosecutrix informed that when she went to market for purchasing polythene, the appellant on the pretext of marriage took her to his house and committed rape on her and a threat was also extended. Accordingly, he took the prosecutrix to the police station where recovery memo Ex.P3 was prepared. The prosecutrix was sent for medical examination. The prosecutrix was handed over to the custody of this witness vide custody memo Ex.P6 and the mark sheet of Class-5 th of the prosecutrix is Ex.P8. In cross-examination, this witness could not disclose that on what date he got married. However, he has stated that at the time of marriage he was still studying. It is further stated that his father had already expired and he was residing with his mother. His 8 marriage was performed in Guna Sameelan. After two years of his marriage, his eldest daughter Krishna Bai was born and two years from thereafter, his son Tarachand was born and two years from thereafter, the prosecutrix was born. All children were born in the house. He further stated that his daughter and wife had gone to market for selling the vegetables and after leaving his daughters in the market, his wife had come back because he was not well. After the prosecutrix came back, he immediately came to the police station. The guminsaan report was not lodged on the same day because they were searching for the prosecutrix and accordingly, the FIR was lodged on the next day. (18) Kusum Bai (PW6) is the mother of the prosecutrix. She has also stated that on 22nd, she had gone to market along with the prosecutrix and another daughter Kamla for selling tomatoes. After leaving the daughters at Sitlamata Temple, she came back. After four-five hours when she went to Sitlamata Temple, then the prosecutrix was not there. On enquiry, her younger daughter Kamla informed that the prosecutrix had gone for purchasing the polythene. The prosecutrix was searched but she was not found and accordingly, the report was lodged. The prosecutrix was aged 15 years. After two days, the prosecutrix came back and informed that on the pretext of marriage, the appellant had taken her and had committed ''Galatkam''. Thereafter, the prosecutrix was taken to the police station where recovery memo Ex.P3 was prepared. The prosecutrix was sent for her medical examination. She was handed over to the custody of her parents vide custody memo Ex.P6. The spot map Ex.P4 was prepared by the police. The caste certificate was seized vide seizure memo Ex.P7. In cross-examination, this witness could not 9 explain that in which year and on what date, the prosecutrix was born. Her elder daughter is Krishna Bai, however, she could not disclose the date of birth of her elder daughter. She has stated that she had gone to school for getting the prosecutrix admitted. As the horoscope of the prosecutrix was not prepared, therefore, the prosecutrix was admitted in the school at the age of 6 years. After completing her studies in Primary School, she was admitted in different schools. She admitted that the date of birth of the prosecutrix was disclosed by imagination and she had merely disclosed the age of the prosecutrix.
(19) Dr.RB Singh Dhakad (PW7) had medically examined the appellant and he was found competent. His semen slides were prepared and underwear was sealed. MLC report is Ex.P8A. In cross-examination, he stated that if any person commits rape with a minor girl, then there is a possibility of sustaining the injury in the penis. (20) Shankar Lal (PW8) had seized the slides as well as clothes of the appellant vide seizure memo Ex.P9.
(21) Durga Prasad Jatav (PW9) had enquired the guminsaan report. On 24/04/2014, the prosecutrix was brought by her parents and accordingly, the recovery memo Ex.P3 was prepared. The statements of the witnesses were recorded and on 24/04/2014 itself FIR in Crime No.117/2014 for offence under Sections 363, 366, 376, 506 of IPC and under Section 3(1)
(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was registered which is Ex.P10. A counter-copy of the FIR was sent to the Court of JMFC, Raghogarh and the acknowledgment receipt is Ex.P11. The prosecutrix was sent for medical examination to Raghogarh 10 Hospital by requisition Ex12. The consent of the prosecutrix and her parents was obtained and after medical examination, she was handed over to her parents vide custody memo Ex.P6 and thereafter, the diary was forwarded to police station AJK, Guna. In cross-examination, this witness has stated that the horoscope of the prosecutrix was not given by her parents.
(22) Abdul Rafooq Khan (PW10) is the scribe of guminsaan report Ex.P5. On 24/04/2014, this witness had seized three sealed packets and one specimen of seal brought by Head Constable Dashrath from the Hospital Raghogarh vide seizure memo Ex.P13.
(23) Dr.Sadhna Verma (PW11) had medically examined the prosecutrix. She had stated that the prosecutrix was unmarried and no external injury was found on her body. Her hymen was torn and two fingers were easily admitting. The vaginal slides of pubic hairs, vaginal swab and vaginal smear in sealed cover were prepared and handed over to Head Constable. Since the prosecutrix was wearing clean clothes, therefore, they were not seized. No definite opinion could be given about the sexual intercourse and for determination of her age, she advised for X-ray. The MLC report is Ex.P12-A. In cross-examination, she admitted that the age in MLC report was written as per the information given by the prosecutrix. However, she admitted that specific opinion about the age of the prosecutrix can be given only after X-ray was done. However, she expressed her ignorance as to whether the X-ray of the prosecutrix was done or not. She further admitted that it is possible that the prosecutrix was habitual to intercourse.
11(24) Mubarak Ali (PW12) is the Investigating Officer who had stated that the spot map Ex.P4 was prepared. The statements of the witnesses were recorded. The date of birth certificate was obtained on 04/05/2014 from Govt. Girls' Primary School, Raghogarh. On 07/05/2014 , the father of the prosecutrix had given the photo copy of the caste certificate which was seized vide seizure memo Ex.7. On 12/05/2014, the statement of the prosecutrix under Section 164 of CrPC was got recorded. On 17/05/2014, the appellant was arrested vide arrest memo Ex.P13-A and on the same day, requisition Ex.P8-A was sent for his medical examination. A draft for sending sealed articles to FSL is Ex.P14. In cross-examination, this witness has admitted that he had not interrogated any person residing in the locality.
(25) For proving the age of the prosecutrix, the prosecution has relied upon the school admission register Ex.P1 as well as her mark sheet of Class 5th Ex.P8. In both these documents, the date of birth of the prosecutrix has been mentioned as 1/8/1998. Although there appears some overwriting in the date of birth mentioned in the mark sheet Ex.P8, but there is no overwriting in the school admission register Ex.P1. (26) The Supreme Court in the case of Jarnail Singh Vs State of Haryana reported in (2013) 7 SCC 263 has held as under :-
''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 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 12 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.
(4) If the age of a juvenile or child or the 13 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 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 14 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 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.
24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW, PW 6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW, PW 6 on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4) to prove the age of the prosecutrix VW, PW
6. Satpal (PW 4) was the Head Master of Government High School, Jathlana, where the prosecutrix VW, PW 6 had studied up to Class 3.
Satpal (PW 4) had proved the certificate Ext. PG, as having been made on the basis of the school records indicating that the prosecutrix VW, PW 6 was born on 15-5-1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW, PW 6.
The Supreme Court in the case of State of Chhattisgarh Vs. Lekhram reported in (2006) 5 SCC 736 has held as under : 15
12. A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth.
The father of the prosecutrix also deposed to the said effect.
13. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws' place for some time and after the "gauna" ceremony, she came back. The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the aforementioned backdrop. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix.
14. Only because PW 3 the father of the prosecutrix could not state about the date of birth of his other children, the same, by itself, would not mean that he had been deposing falsely. We have noticed hereinbefore, that he, in answer to the queries made by the counsel for the parties, categorically stated about the year in which his other children were born. His statement in this behalf appears to be consistent and if the said statements were corroborative of the entries made in the register in the school, there was no reason as to why the High Court should have disbelieved the same. We, therefore, are of the opinion that the High Court committed a serious error in passing the impugned judgment. It cannot, therefore, be sustained. It is set aside accordingly.
The Supreme Court in the case of Murugan VS. State of T.N. reported in (2011) 6 SCC 111 has held as under :
24. The documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Evidence Act, 1872. (Vide Umesh Chandra v. State of Rajasthan and State of Bihar v. Radha Krishna Singh.) 16
25. This Court in Madan Mohan Singh v. Rajni Kant considered a large number of judgments including Brij Mohan Singh v. Priya Brat Narain Sinha, Birad Mal Singhvi v. Anand Purohit, Updesh Kumar v. Prithvi Singh, State of Punjab v. Mohinder Singh, Vishnu v. State of Maharashtra and Satpal Singh v. State of Haryana and came to the conclusion that while considering such an issue and documents admissible under Section 35 of the Evidence Act, the court has a right to examine the probative value of the contents of the document. The authenticity of entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such document may also require corroboration in some cases.
26. In the instant case, in the birth certificate issued by the Municipality, the birth was shown to be as on 30-3-1984; registration was made on 5-4-1984;
registration number has also been shown; and names of the parents and their address have correctly been mentioned. Thus, there is no reason to doubt the veracity of the said certificate. More so, the school certificate has been issued by the Headmaster on the basis of the entry made in the school register which corroborates the contents of the certificate of birth issued by the Municipality. Both these entries in the school register as well as in the Municipality came much before the criminal prosecution started and those entries stand fully supported and corroborated by the evidence of Parimala (PW 15), the mother of the prosecutrix. She had been cross-examined at length but nothing could be elicited to doubt her testimony. The defence put a suggestion to her that she was talking about the age of her younger daughter and not of Shankari (PW 4), which she flatly denied. Her deposition remained unshaken and is fully reliable.
The Supreme Court in the case of Mukarrab v. State of U.P. reported in (2017) 2 SCC 210 has held as under :
26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination.
At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
"In ascertaining the age of young persons radiograms of any of the main joints of the 17 upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development."
Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.
27. In a recent judgment, State of M.P. v. Anoop Singh, it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi and Anoop Singh cases, we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.
28. At this juncture, we may usefully refer to an article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan", which reads as under:
"There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification along with epiphyseal fusion.
[Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill Livingstone Edinburgh London Melbourne and New York: 1996; 341-342]; A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children.
[Ref.: Parikh C.K. Parikh's Textbook of Medical Jurisprudence and Toxicology, 5th Edn., Mumbai Medico-Legal Centre Colaba:18
1990; 44-45];
* * * Variations in the appearance of centre of ossification at wrist joint shows influence of race, climate, diet and regional factors. Ossification centres for the distal ends of radius and ulna consistent with present study vide article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan" by Dr Ashutosh Srivastav, Senior Demonstrator and a team of other doctors, Journal of Indian Academy of Forensic Medicine (JIAFM), 2004; 26(4). ISSN 0971- 0973]."
(27) When the prosecutrix was being admitted in Class-I in the Primary School, nobody had imagined that the said incident may take place. Therefore, there was no reason to disclose an incorrect date of birth to falsely implicate the appellant. Smt. Munni Devi (PW1) has specifically stated that the school admission register is Ex.P1C is in her handwriting. Therefore, this Court is of the considered opinion that there is no reason to disbelieve the date of birth of the prosecutrix mentioned in the school admission register and accordingly, it is held that the date of birth of the prosecutrix is 1/8/1998. Since the incident took place on 22/04/2014, therefore, it is clear that the prosecutrix was aged about 15 years and 8 months on the date of incident, i.e. she was below 18 years of age. (28) So far as the submission made by the counsel for the appellant that since the prosecutrix was a consenting party, therefore, no offence is made out is concerned, it is suffice to say that when the prosecutrix is minor below 18 years of age, then her consent becomes immaterial, therefore, it is not necessary to burden this judgment by finding out whether the prosecutrix was a consenting party or not. It is sufficient to hold that since the prosecutrix was below 18 years on the date of 19 incident, therefore, her consent is immaterial and the prosecution has established beyond reasonable doubt that the appellant has committed an offence under Sections, 363,366, 376(2)(i) and (n), 506 Part II of IPC and under Section 6 of POCSO Act, 2012. Although the Trial Court has awarded separate sentence of rigorous imprisonment of ten years for offence under Section 376(2)(i) and (n) of IPC as well as for offence under Section 6 of POCSO Act, 2012, but in the light of Section 71 of IPC, it is held that no separate sentence is required to be awarded for offence under Section 376(2)(i) and (n) of IPC. (29) So far as the question of sentence is concerned, it is submitted by the counsel for the appellant that as the appellant is in jail from the date of his arrest i.e. 17/05/2014 and has already undergone more than five years of actual detention, therefore, the jail sentence undergone by the appellant is sufficient to meet the ends of justice is concerned, it is suffice to mention that the minimum sentence for offence under Section 6 of POCSO Act, 2012 as well as for offence under Section 376(2)(i) and
(n) of IPC is rigorous imprisonment of ten years. In absence of any discretion, the sentence lesser than the minimum sentence cannot be awarded. Accordingly, the sentence awarded by the Trial Court is hereby maintained.
(30) Accordingly, the judgment and sentence dated dated 24/04/2015 passed by Special Judge & Additional Sessions Jude (SC & ST, Prevention of Atrocities Act), Guna in Special Sessions Trial No. 43 of 2014, is hereby affirmed.
(31) The appellant is in jail. He shall undergo the remaining jail 20 sentence.
(32) The appeal fails and is hereby dismissed.
(G.S. Ahluwalia) Judge MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.08.14 17:59:50 +05'30'