SANJOK RAI Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The challenge in this Appeal is to the Judgment dated 30-09-2014 of the Learned Special Judge (Protection of Children from Sexual Offences Act, 2012), South Sikkim, at Namchi, in Sessions Trial (POCSO) Case No.08 of 2013, convicting the Appellant under Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), read with Sec. 376(2) of the Indian Penal Code, 1860 (for short "IPC"). The Appellant was sentenced as follows;

(2.) In the first limb of the argument pressed before this Court by Learned Senior Counsel for the Appellant, it was canvassed that P.W.11, the Investigating Officer (for short "I.O.") seized Exhibit 2, the Birth Certificate, of the victim P.W.9, according to which, her date of birth is reflected as 07-07-1997. Raising a doubt about the authenticity of the date in Exhibit 2, it was submitted that her father, P.W.10, has admitted under cross-examination that Exhibit 2 had been made after she started School, meaning thereby that it was not prepared at her birth. Thus, the victim could well be above 18 years at the time of the alleged offence. Support on this count was drawn from the decision in Alamelu and Another Vs. State, Represented by Inspector of Police, AIR 2011 SC 715. The accused therein was tried for an offence under Sections 366 and 376 of the IPC. He disputed the age of the victim, allegedly a minor. The Supreme Court, inter alia, held that the Transfer Certificate issued by the Government School, duly signed by the Headmaster would be admissible in evidence under Sec. 35 of the Indian Evidence Act, 1872 (for short "Evidence Act"). However, the date of birth mentioned in the Transfer Certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. Likening the instant case to the above situation, it was contended that as no witnesses were examined in proof of Exhibit 2, the document remained unproved and the victim's age unestablished. The second limb of the argument was that the delay in the lodging of the FIR, Exhibit 7 is unexplained and its contents remain suspicious as P.W.10 who allegedly lodged Exhibit 7 has testified that he is unaware of its contents. The victim was allegedly missing from 13-08-2013, but the Exhibit 7 was lodged only on 19-08-2017, almost seven days' after the incident, thereby leading to a reasonable doubt that the parents were aware of the relationship between the victim and the Appellant. The victim for her part has admitted to receiving calls from and giving missed calls to the Appellant. That, the contention of the Prosecution that the victim did not disclose this to her family and that her parents were unaware of such calls, is unbelievable to a prudent man. That, no signs of struggle or protest were detected by the I.O. when the victim was with the Appellant. All the said facts lead to the inevitable conclusion that the Appellant and the victim were in a relationship and she was above sixteen years at the relevant time. That, the Supreme Court in Shyam and Another Vs. State of Maharashtra, AIR 1995 SC 2169, observed in a similar case that when the Prosecutrix did not put up a struggle or raise an alarm when being taken away by the accused, she appeared to be a willing party, thus the culpability of the accused was not established and he was acquitted. The Learned Trial Court thus erred in convicting the Appellant, hence, the impugned Judgment and Order on Sentence be set aside.

(3.) Rebutting the arguments, Learned Additional Public Prosecutor urged that there was no reason to doubt the veracity of the Birth Certificate, Exhibit 2, which had been admitted and exhibited before the Learned Trial Court, without any objection from the Appellant. To fortify this submission, reliance was placed on Murugan alias Settu Vs. State of Tamil Nadu, (2011) 6 SCC 111, where the victim was found to be a minor, reliance having been placed on the Birth Certificate given by the Municipality and the Supreme Court having concluded that the date of birth, date of registration, names of parents and their addresses had been correctly mentioned, there was thus no reason to doubt the veracity of the said Certificate. Moreover, the School Certificate had 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. That, in the instant case, Exhibit 2, the Birth Certificate of the victim was issued by the Registrar, Births and Deaths, Health and Family Welfare Department, Namchi, South Sikkim, under Sections 12/17 of the Registration of Birth and Death Act, 1969, which, therefore, was sufficient proof of its authenticity. Relying on Sham Lal alias Kuldip Vs. Sanjeev Kumar and Others, (2009) 12 SCC 454, it was further argued that in the said case one of the documents relied on by the Learned District Judge in coming to the conclusion that the plaintiff was the son of the deceased Balak Ram was Exhibit 2, the School Leaving Certificate. The Apex Court observed that the findings of the Learned District Judge cannot be questioned as no objection was raised by the Appellants when such document was tendered and received in evidence. That, such a document is admissible under Sec. 35 of the Evidence Act, being a public document as defined under Sec. 74 of the Evidence Act thereby requiring no formal proof. Gathering support from Madamanchi Ramappa and Another Vs. Muthaluru Bojjappa, AIR 1963 SC 1633 it was further contended that the Honourable Supreme Court held that when the document in question was a certified copy of a public document, it need not be proved by calling a witness. Pausing here, it would be appropriate to point out that this case would not be relevant to the present facts and circumstances as we are dealing with an original document and not a certified copy of a public document.