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State Vs Srikant                                                         13 of26


29            Since PW10 Ms Alka Behl was unable to disclose as to how

date of birth 15.9.1994 was recorded in the school records and the IO had not collected relevant record on the basis of which certificate ex. PW10/A was issued by the school authorities, in the interest of justice, court witness from this school was ordered to be summoned to produce all the relevant record showing the age of the prosecutrix at the time of her admission in the school vide order dated 17.7.2010. In pursuance of the order dated 17.7.2010, Court Witness No. 1 Sh Rattan Singh of N P Girls Senior Secondary School, Gole Market, New Delhi appeared in the witness box and testified that he had brought summoned record, i.e. admission record of prosecutrix "X" who was admitted in their school vide Admission No. 1197­R on 15.4.2008 in 9th Class on the basis of her previous school leaving certificate issued by N P Girls Middle School, Gole Market, New Delhi. As per that record, her date of birth was 15.9.1994. He further stated that he had brought the admission register and original school leaving certificate submitted by the student in their school. Photocopy of the school leaving certificate of the previous school was Ex. CW1/A and the entry regarding her admission in the school in the admission register was Ex. CW1/B. 30 This witness was cross­examined neither by the Ld. Addl. PP for the state nor by the Ld. Defence Counsel for the accused. No State Vs Srikant 14 of26 suggestion was put to this witness in the cross­examination that school leaving certificate or the entry regarding the admission of the prosecutrix was fabricated documents and did not depict correct age of the prosecutrix.

32 From the school record proved by the prosecution, it stands established that prosecutrix was below 16 years of age on the day of incident and her date of birth as 15.9.1994 recorded in the school record can't be doubted. The prosecutrix was got admitted in class Ist­ A in N P Girls Middle School way back in 1998 and her date of birth was disclosed as 15.9.1994. An affidavit containing this date of birth as 15.9.1994. was also filed at the time of her admission in the school. There was no change in the date of birth in the school record at any stage till the incident. At the time of leaving the school where the prosecutrix had studied up to middle standard, in the school leaving certificate, date of birth of the prosecutrix was recorded as 15.9.1994. This date of birth was again recorded in the present school where she was studying at the time of incident when she took admission in 9th class. The incident had taken place in the year 2009. The prosecutrix or her parents are not imagined to get false date of birth recorded in State Vs Srikant 16 of26 the school record. They could not anticipate any such tragic incident to happen in future. The entries in the school record of both the schools without any ''addition'' or ''alteration'' inspire confidence. All these records were maintained in due course of official duties by the officials of the school in the performance of their duties and are to be believed. Entries in the admission form, admission register, school leaving certificate and affidavit all showing date of birth of the prosecutrix as 15.9.1994 in the absence of any document to the contrary prove beyond doubt that prosecutrix was below 16 years of age on the day of incident.

33 The accused did not examine any witness or produce on record any document to show if the prosecutrix was major on the day of occurrence or that the documents produced on record by the prosecution were forged and fabricated. The authorities relied upon by the Ld. Defence Counsel for the accused are not applicable to the facts and circumstances of this case.

34 In the case of "Sunil Vs State of Haryana" (supra) there was no primary evidence as to the age of the prosecutrix. Prosecution had failed to get the prosecutrix examined by Dental surgeon or the Radiologist despite the fact of being referred by the doctor who clinically examined her. In the said case, prosecution failed to produce any admission form of the school. The school leaving certificate relied State Vs Srikant 17 of26 upon by the prosecution was alleged to have been procured on 12.9.1996, six days after the incident and three days after the arrest of the accused therein. The school leaving certificate itself was not believed by the Hon'ble Supreme Court for the reasons mentioned in the judgement. In the present case, the prosecution has not only proved the school leaving certificate but the admission records of the prosecution from the very inception.

35 In the case of " Kanchan Dass Vs State" (supra) the school leaving certificate was also doubted. No copy of the admission form was proved on record. Address of the parents of the prosecutrix was also not given. It was admitted by the father of the prosecutrix therein that the prosecutrix had taken admission in Primary School, st Nand Nagri in 1 Class. However, that record was not taken into possession by the IO. For that reasons the school leaving certificate was not believed. Again in this case the facts are quite different in view of the ample record showing the age of the prosecutrix as 15.9.1994. 36 In the case of "Sonu Vs State (NCT) of Delhi" (supra) prosecution therein had relied upon the ossification report. No documentary evidence in the shape of birth certificate, school certificate was adduced during the trial. No other cogent evidence was placed on record by the prosecution to indicate exact age of the proecutrix. It was observed that the age determined through State Vs Srikant 18 of26 radiological examination was not exact and might vary by two years on either side and benefit of this variation must be given to the accused. In the said case age of the prosecutrix was opined between 12 to 14 years in the report of the radiologist. In the present case no such reliance has been placed on the report of the radiologist. The authorities relied upon by the Ld. Defene Counsel for the accused, thus, are not applicable to the facts and circumstances of the present case.