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2) was seized by the Investigation Officer (P.W-9).
2.3. After the arrest of the Accused and recording of statement of Accused 1 to 3, he produced the Accused-1 and the victim (P.W-2) before the learned Judicial Magistrate, Dharmapuri with a request to send them to the duty Doctor at Government Medical College Hospital, Dharmapuri for medical examination on the victim (P.W-2) and the Accused No.1. Accordingly, the learned Judicial Magistrate addressed a letter under Ex.P-8 to the duty Doctor at Government Medical College Hospital, Dharmapuri to conduct medical examination regarding potency of the Accused. P.W-6 Dr. Nanthakumar https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) Criminal Appeal No.716 of 2016 examined the Accused No.1 and issued medical certificate under Ex.P-10 to the Accused stating that he is potent to perform sexual intercourse. The learned Judicial Magistrate had also addressed a letter under Ex.P-3 to the duty Doctor at Government Medical College Hospital, Dharmapuri to conduct medical examination on the victim and also to determine her age. Accordingly, Dr. Saritha (P.W-5) examined the victim and issued Ex.P-4 to Ex.P-6. Ex.P-4 is the copy of Accident Register regarding the victim. Ex.P-5 is the medical certificate of the victim. Ex.P-6 is the Radiological Report regarding the age of the victim issued by P.W-5. Ex.P-7 is the report based on the forensic examination of the vaginal swap collected by P.W-5. Ex.P-8 is the letter addressed by the learned Judicial Magistrate to the Dean, Government Medical College Hospital, Dharmapuri, for conduct of medical examination on the Accused regarding potency. Ex.P-9 is the requisition letter addressed by the learned Judicial Magistrate No.I, Dharmapuri to the Director of Forensic Science Laboratory. Ex.P-10 is the medical certificate of the Accused. Ex.P-11 is the signature of P.W-7 Village Administrate Officer found in the confession statement of first Accused. Ex.P-12 is the seizure mahazar. Ex.P-13 is the First Information Report. Ex.P-14 is the rough sketch and Ex.P-15 is the alteration report. P.W-9 Investigation Officer examined P.W-5 Dr.Saritha and P.W-6 Dr.Nanthakumar and recorded their statement. https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) Criminal Appeal No.716 of 2016 He had also recorded the statement of the mahazar witnesses (P.W-3 and P.W-
“AGE - Proof of - Opinion given by Doctor/PW.10 on basis of physical appearance of victim girl and not on basis of medical examination not a conclusive proof of age - Opinion of Radiologist/PW12 on basis of radiological examination that victim girl was aged between 17 and 18 years - PW12, from X-rays taken,opined that there was no fusion of Iliac Crust and she was between 17 and 18 years - Nothing on record to disbelieve evidence of PW12 -Evidence of Radiologist/PW12.” “AGE - Date of Birth - Proof - School Certificate issued by Headmaster of School/PW7 on basis of School records - If, sufficient proof - PW7 during cross-examination admitted that at time of admission of child in School he did not work in School and knows nothing about entry made in School records - Headmaster,who made entry, not examined - Oral evidence of PW7, subsequent Headmaster, therefore, of no use in any manner to prove date of birth in School records as correct date of birth - Of course, under Section 35 entry in public/official records made by a public servant in discharge of official duty is relevant and admissible - However, no presumption provided that such entry represents correct facts
5. By placing reliance on the aforesaid decision, the learned Counsel for the Appellant/Accused No.1 seeks to set aside the judgment of conviction recorded against first Accused by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, in S.C.No. 69 of 2015, dated 09.09.2016.
6. On the other hand, the learned Additional Public Prosecutor submits that through the evidence of the Doctor (P.W-5) under Ex.P-4 to Ex.P- 6, the physical and radiological examination, the age of the victim was given as 16 to 18 years. Therefore, on the date of the alleged occurrence, the victim was not a major and she was a minor girl. Further, the learned Additional Public Prosecutor invited the attention of this Court to the discussion regarding the defence made by the Accused about the age of the victim. The learned Trial Judge, rejected the defence of the Accused and arrived at a proper conclusion based on the materials available before the Trial Court. The learned Additional Public Prosecutor relied on the judgment of the learned Trial Judge, particularly, the discussion regarding the defence of the Accused in para Nos.19 to 31 which reads as under :
10. This Court perused the evidence of the Prosecution Witnesses P.W-1 to P.W-9, the documents under Ex.P-1 to Ex.P-15 and also the judgment of the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri, in S. C. No. 69 of 2015, dated 09.09.2016.
11. On perusal of the evidence of the victim (P.W-2) it is found that on the date of alleged occurrence she was aged 17 years and 9 months. The Birth Certificate of the victim was not marked to prove her age. The proof regarding the age of the minor is not produced through the Headmaster of the School. Ex.P-6 is the Radiological Report. As per the Radiological Report, the victim is aged between 16 and 18. In the absence of School Certificate regarding the proof of age, the Court has to draw adverse inference that there was suppression regarding the age of the victim by the Prosecution. As per the Prosecution case, on the last day of the Higher Secondary School examination, the victim was alleged to have been kidnapped by the first Accused with the https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) Criminal Appeal No.716 of 2016 help of his two friends – Accused-2 and Accused-3 who were later acquitted by the trial Court. The evidence of the victim (P.W-2) that she was taken by the Accused through the space available in the damaged portion of the compound wall in the back side of the School along with his friends, gives a presumption that the victim had accompanied them voluntarily. She was aware that her father was waiting in front of the School which is the only entrance and exit for the School but she had left through the damaged portion in the back side compound wall. That is the evidence available through the victim (P.W-2). Under those circumstances, the suggestion of the defence that she had accompanied the Accused on her own volition and she had given a false complaint on the influence of her father is noteworthy. Even though she had denied the suggestion that she had completed the age of 18 on the alleged date of disappearance/kidnap i.e., 17.03.2010 which is the last date of examination, she had already completed the age of 18. That is why, the School Certificate was not at all marked by the Prosecution. From the records available, it is found that the School Certificate was not marked as document to prove the age of the victim (P.W-2) and no explanation has been offered by the Prosecution. The Prosecution relied on Radiological Report under Ex.P-6, which cannot be a substitute to the School Certificate. It is not the case of the Prosecution that the victim is illiterate. The victim is studying in the School https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/03/2025 09:19:16 pm ) Criminal Appeal No.716 of 2016 and after completing her last Higher Secondary Examination, she, on her own volition, accompanied the Accused 1 to 3. Therefore, there is a presumption that the age of the victim might be plus or minus two years than the one indicated in Ex.P-6 Radiology Report and if that is considered, the victim will be aged between 16 to 18 on the lower side and between 18 and 20 on the higher side.