JAIN, J. - (1.) ACCUSED-appellant Amar Chand S/o Prakash Chand has challenged the impugned judgment and order dated 2nd July, 2003, passed by the Additional District & Sessions Judge (Fast Track) Ajmer, in Sessions Case No. 96/02 (19/01) whereby he was convicted and sentenced under Section 376, IPC, to undergo 7 years rigorous imprisonment and a fine of Rs. 10]000/- (Rupees ten thousand); in default of payment of fine, to further undergo additional six months simple imprisonment.
(2.) BRIEFLY stated the facts of the case are that on 23rd October, 2000, PW-1 Kumari Sunita (the prosecutrix) submitted a typed-report (Exhibit P-1) before the Superintendent of Police, Ajmer, wherein it was mentioned that on 20th February i. e. about 7-8 months ago, Amar Chand called her to cook food at his house, where he committed forcible sexual intercourse with her and she conceived. When accused-persons came to know about her pregnancy then they tried for her miscarriage. The accused and his family members offered her Rs. 15]000/- for not making any complaint. They also gave threatening to her and her mother of dire consequences. Accused also got false letters written from her that she wants to commit suicide at her own will. She is about 15 years of age. The other detailed facts were also mentioned in the report. On the basis of the aforesaid report, First Information Report No. 120/2000 was registered at Mahila Police Station, Ajmer, on 24-10-2000 under Section 376/120-B, IPC, against appellant Amar Chand and other persons, namely, Kailash Chand, Prakash Chand, Smt. Maya, Smt. Manju and Smt. Sunita. The prosecutrix was medically examined on 24-10-2000. Her medical report is Exhibit P- 4. An advance pregnancy of about 36 weeks was mentioned. She was admitted in Hospital on 10-11-2000 where she delivered a female child. She was discharged from Hospital on 17-11-2000. Her discharged-ticket is Exhibit P-10. The investigation was made in the case. The accused-persons were arrested. The site-plan was prepared. After completion of investigation, a challan was filed against the accused-persons. The trial court, after hearing the arguments, vide its order dated 27-8-2001, framed charge against appellant and co-accused Kailash for the offence under Section 376 (2) (g) of the I. P. C. , and discharged other accused-persons, namely, Prakash Chand, Smt. Manju, Smt. Maya and Smt. Sunita, from the offence under section 376 and 376/120-B, IPC. The appellant and co-accused Kailash denied the charge and claimed trial. The learned trial court, after hearing both the parties and considering the evidence on the record, vide its impugned order, acquitted the co-accused Kailash from the charge framed against him but convicted and sentenced the accused-appellant, as mentioned above. The learned counsel Shri A. K. Gupta appearing on behalf of the accused-appellant contended that the trial court has already recorded a finding that it was a consented sexual intercourse and the appellant has been convicted in view of finding of trial court that the prosecutrix was 14-1/2-years of age at the time of incident, therefore, he is challenging the finding of trial court only in respect of age of the prosecutrix. He contended that according to the medical-report (Exhibit P-9), the age of prosecutrix was above 16 and below 19 years of age, which was proved by PW-4 Dr. Manohar Vadhwani and PW-5 Dr. Rina Mathur, but the trial court, instead of recording its finding on the basis of medical report (Exhibit P-9), wrongly relied upon other prosecution evidence i. e. Exhibit P-5a Birth Certificate issued by the Nagar Parishad, Exhibit P-6a school transfer-certificate, Exhibit P-7a another school transfer-certificate, Exhibit P-8a T. C. Form and Exhibit P-25 the mark-sheet of secondary class of Sunita issued by the Board of Secondary Education for Rajasthan, Ajmer. He contended that this documentary evidence was not admissible in evidence as the same was not proved according to law. Exhibit P-25 was only a Photostat copy and could not have been read being secondary evidence in view of Section 65 of the Evidence Act. An objection was raised in respect of Exhibit P-5a, Exhibit P-6a, Exhibit P-7a, Exhibit P8a, when they were produced in the court on 25-9-2002 by PW-3 Shiv Dayal, the father of the prosecutrix, as they were not part of charge-sheet and the trial court wrongly rejected their objection and wrongly admitted these documents in evidence and exhibited them, therefore, he contended that in case these certificates are not taken into consideration then there is no evidence in respect of age of the prosecutrix that her date of birth was 1-11-1985 and she was 14-1/2 years of age on the date of the incident, and the only evidence remains for consideration is the medical-report (Exhibit P-9) wherein her age has been described as above 16 years and below 19 years. However, he does not dispute that Exhibit P-25 - mark-sheet issued by Board of Secondary Education, was part of charge-sheet and no such objection was taken when it was admitted and exhibited in the case. He also referred the following cases:- 1. Birad Mal Singhvi V. Anand Purohit - AIR 1988 SC 1796 2. Deelip Singh @ Dilip Kumar v. State of Bihar - (2005) 1 SCC 88 = (RLW 2005 (2) SC 165 ). 3. Dilip & Another v. State of M. P.- JT 2001 (8) SC 390 = (RLW 2002 (2) SC 328 ). 4. Lalta Prasad v. State of Madhya Pradesh - AIR 1979 SC 1276.
(3.) IN Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 1796) the Hon'ble Apex Court, while dealing with a case under the provisions of Representation of the People Act (43 of 1951), observed that the entry contained in the admission-form or in the scholar- register must be shown to have been made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by the parents, the entry would have evidentiary value but if it is given by a stranger or by someone else, who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. In Deelip Singh @ Dilip Kumar Vs. State of Bihar - (2005) 1 SCC 88, the Hon'ble Apex Court observed that - no explanation is forthcoming as to why the investigation officer did not obtain the certificate in the course of investigation and why the certificate was not produced by the father of the girl - apparently the age was given on the basis of the declaration made by the father - if so, the father was the best witness to speak about her age. Their Lordships held that the certificate has no evidentiary value inasmuch as it is not properly proved by a witness who is competent to speak of the relevant facts connected with the issuance and custody of the certificate. In Dilip & Another v. State of M. P. (JT 2001 (8) SC 390, the Hon'ble Apex Court in the facts and circumstances of that case, observed that the age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. ;