Omkar Dattatraya Dangat v. State of Maharashtra

1) and mother (PW 3) of the child, born on 05.0-9.1998. It bear registration number and the document is exhibited, on being produced by PW 2 who has deposed that it is her birth certifcate. Pertinent to note that this birth certifcate is issued under Section 17 of the Registration of Births and Deaths Act, 1969 and it certify that the information contained therein has been taken from the original record of birth, which is in the register of the Pune Municipal Corporation. The above certifcation is indicative of the fact that there is an entry in the register of Pune Municipal Corporation in respect of a child being born to the persons named in the certifcate and the birth certifcate is issued on the basis of information recorded in the Register which is maintained to record the births in Pune Municipal Corporation. The certifcate bear registration number and the date of registration is certifed as 29.09.1998. This entry is a relevant fact, in the wake of Section 35 of the Indian Evidence Act, 1872 as it amount to a statement made under certain special circumstances. Section 35 of the Indian Evidence Act reads thus:- “35. Relevancy of entry in public record or an electronic record made in performance of duty:- An entry in any public or other offcial book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his offcial duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or [record or an electronic record] is kept, is itself a relevant fact.” 15] The entry in the birth register as recorded by the public authority is admissible evidence by virtue of aforesaid provision and it is a trite position of law that the examination of the person making such entry is not necessary. The Supreme Court in the case of Harpal Singh & Anr. vs. State of Himachal Pradesh, (1981) 1 SCC 560, while dealing with a convict, sentenced to imprisonment on being convicted under Section 376 of the IPC, was confronted about the age of the girl and in Para 3, Justice Fazal Ali (as His Lordship was then) observed as under: “3. In the instant case the prosecution has proved the age of the girl by overwhelming evidence. To begin with, there is the evidence of Dr. Jagdish Rai (PW 14) who is a radiologist and who, after X-ray examination, of the girl found that she was about 15 years of age. This is corroborated by Ex. PF, which is an entry in the admission register maintained at the Government Girls' High School, Samnoli (wherein the girl was a student) and which is proved by the Headmaster. That entry states the date of birth of the girl as October 13, 1957. There is yet another document, viz., Ex. PD, a certifed copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulat Ram on November 11, 1957. Mr. Hardy submitted that in the absence of the examination of the offcer/Chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned offcial in the discharge of his offcial duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence, the conclusion is inescapable that Saroj Kumari was below 16 years of age at the time of the occurrence. Accordingly we agree with judgments of the courts below and see no merit in this appeal which is dismissed.” 16] In a recent decision of the Apex Court of Manoj alias Monu @ Vishal Choudhary vs. State of Haryana and anr. (2022) 6 SSC 187, while considering the plea of juvenility and determination of age of the accused, once again the apex Court propounded upon the material which shall be taken into account for determining the age and as regards Section 35 of the Indian Evidence Act, it is categorically held that Section 35 requires following conditions to be fulflled before a document is held to be admissible thereunder being:- 1] it should be in the nature of the entry in any public or offcial register; 2]it must set a fact in issue or relevant fact; 3] entry must be made either by a public servant in the discharge of his offcial duty or by any person in performance of specifcally enjoying by the law of the country; 4] All persons concerned undisputedly must have access thereto. While dealing with the medical report determining the age of a person, it has been held that it has been never considered by the Courts of law as also by the medical scientists to be conclusive in nature, as after a certain age it is diffcult to determine the exact age of the person concern on the basis of ossifcation test or other tests and expert medical evidence shall not prevail on the occular evidence. In such a circumstances it is held that the opinion is to assist the Court, as if he is not a witness of the fact and evidence given by the Medical Offcer is really of an advisory character and not binding on the witness on fact. 17] In this background the observations of the Apex Court to that effect in Para 23 reads thus: “The statement of the doctor is no more than the opinion, the court has to base its conclusions upon all facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. An x-ray ossifcation test may provide an surer basis for determining the age of an individual than the opinion of a medical expert, but it can be by no means be so infallible and accurate test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon textbooks or medical jurisprudence and toxicology while determining the age of an accused. In this vast country with various latitudes, heights, environment, vegetationand nutrition, the height and weight cannot be expected to be uniform.” In Manoj (supra), their Lordships construed the Family Register recording the year of birth of the Appellant as relevant, as this register was maintained under the UP Panchayat Raj (Maintenance of Family Register) Rules, 1970 and it provided recording of the data family-wise and particulars of all the persons ordinarily residing in the village pertaining to Gaonsubha. The rules having been framed under Section 110 of the Act, contemplated allotment of one page to each family and any change in the family consequent upon the birth and death was required to be incorporated on such page and the charges to be laid before the next meeting of Grampanchayat. Holding that the rules are statutorily framed in pursuance of the Act and the entries in the Register are required to be made by the Offcials of the Grampanchayat as part of their offcial duty, when the High Court relied upon the Family Register as it was a document prepared in ordinary course of business of Grampanchayat, the Apex Court observed thus:- “35. In Krishna Pal v. State of U.P., the learned Single Judge of the Allahabad High Court held that a family register is a public record in terms of the Evidence Act inasmuch as the same is prepared under the statutory provisions of Section 15(xxiii)(e) of the U.P. Panchayat Raj Act read with Rule 2, Rule 67, Rules 142 to 144 of the U.P. Panchayat Raj Rules,

1947. The family register is prepared under the Uttar Pradesh Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It is to be noted that Form (A) also records the date of death of a family member. There is yet another form, namely, Form (D) which is for registering the date of birth and death. Both these forms. therefore, record the date of death of a person and they are prescribed under the Rules. Needless to say that the Rules are framed by the State Government and the registers prescribed for particular purposes are notifed under the Rules. Reference may be made to Section 110(ii) of the 1947 Act for the said purpose.

36. The Court held as under: (Krishna Pal case19, SCC Online All) "In my opinion, a presumption has to be drawn in respect of the said public document and it cannot be merely disbelieved if the Gram Panchayat Adhikari had not been produced to prove it. The copy of the family register is a public document and a presumption as to its genuineness is accepted under Section 79 of the Indian Evidence Act."

37. In Shiv Patta v. State of U.P., it was held that the family register is maintained in discharge of statutory duties under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. Similarly, date of death is maintained in discharge of statutory duty under the Registration of the Birth and Deaths Act, 1969 and it is a public document within the meaning of Section 74 of the Evidence Act, 1872. The certifed copy of these documents is admissible in evidence under Section 77 of the Evidence Act and carry presumption of correctness under Section 79 of the Act. The High Court held that in the absence of any evidence to prove that it was incorrect, its correctness is liable to be presumed under Section 79 of the Evidence Act, 1872.” 18] The learned counsel for the Appellant has relied upon Madan Mohan Singh & Ors. vs. Rajni Kant and Anr. AIR 2010 SC 4932, in particular observation in Para 13 to the following effect:-

13. In State of Bihar and Ors. vs. Radha Krishna Singh and Ors. AIR 1983 SC 684, this Court dealt with a similar contention and held as under:- “Admissibility of a document is one thing and its probative value quite another-these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight of its probative value may be nil…. Where a report is given by a responsible offcer, which is based on evidence of witnesses and documents and has “a statutory favour in that it is given not merely by an administrative offcer but under the authority of a Statute, its probative value would indeed be very high so as to be entitled to great weight.” The probative value of documents which, however ancient they may be, do not disclose sources of their information or have not achieved suffcient notoriety is precious little.” The above observations are particularly made in respect of a document not covered under Section 35 of the Indian Evidence Act as it refer to a public document i.e. School Register, voter list etc. and though it is held that the entries made in offcial record by an offcial or person authorized in performance of offcial duties are concerned, they may be admissible under Section 35 of the Indian Evidence Act, but the Court has right to examine, but it is further observed as under: “16. So far as the entries made in the offcial record by an offcial or person authorised in performance of offcial duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry In School Register/School Leaving Certifcate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.

17. For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeccable documents. In case the date of birth depicted in the school register/certifcate stands belied by the unimpeccable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc., the entry in the school register is to be discarded. (Vide: Brij Mohan Singh v. Priya Brat Narain Sinha and Ors., AIR 1965 SC 282; Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796: Vishnu v. State of Maharashtra (2006) 1 SCC 283: (AIR 2006 SC 508: 2005 AIR SCW 6149); and Satpal Singh v. State of Haryana, JT 2010 (7) SC 500): (2010 AIR SCW 495).” 19] The Judgment in the case of Pramod Dattatraya Jadhav vs. The State of Maharashtra (Criminal Appeal No.477/2015) relied upon by the learned counsel arises out of a POCSO case, when the victim was alleged to be taking education in 9th standard and it was the case of the prosecution that on the date of incident, she was about 15 years of age and hence a child. 20] In order to prove the age of the victim, the prosecution relied upon the oral evidence of her father, as well as the evidence of victim herself, who had given her death of birth as 20.10.1999. In addition the prosecution placed on record the birth certifcate issued by the registering authority i.e. Kopargaon Municipal Council, Kopargaon and the certifcate exhibited refected the names of the parents. The argument was advanced on behalf of the accused that the birth certifcate had recorded the name of the father of child as Ganesh, son of Rangnath and name of the mother as Sunita, wife of Ganesh., PW 1 the father Ganpat had candidly stated in his cross-examination that his name is not Ganesh, but his name is Ganpat and the prosecution had not adduced any evidence to show that the victim girl was born at Kopargaon as neither PW 1 nor PW 2 deposed that she was born at Kopargaon. It was argued that the name of the father of the victim child in the birth certifcate is Ganesh and not Ganpat and even Ganpat PW 1 did not speak of the name of his wife. In these circumstances, it is recorded by the learned Judge that it was necessary on part of the prosecution to bring on record the name of the mother of PW 2 so as to demonstrate that the birth certifcate relates to her and it was further held that mere fling of birth certifcate by a person is not of any assistance to the prosecution until and unless and until a link evidence is adduced to demonstrate that such birth certifcate relates to the victim whose age is sought to be proved by the prosecution and identitfy of the person under the birth certifcate must be established by adducing corroborative evidence. There can be no dispute about the proposition laid down that mere birth certifcate cannot be an evidence to prove the age of the particular person unless it is established that the birth certifcate is in respect of a person whose age is in question. 21] In the present case, it is the victim who herself appeared before the Court and produced her own birth certifcate which has recorded the name of PW 1 as her father, and PW 3 as her mother. This birth certifcate was also obtained by the Investigating Offcer from Pune Municipal Corporation and included in the police papers. Since this birth certifcate was produced by PW 2 when she was under oath, the same was exhibited, and hence there was no propriety for proving the same through the Investigating Offcer, who has already deposed that he had obtained copy of the birth certifcate and compiled it in the charges sheet. Admittedly, the birth certifcate stand on a different footing than a school admission register, school leaving certifcate, transfer certifcate or any other document depicting the date of birth of a person whose date of birth is under cloud. The aforesaid documents necessarily are issued by distinct authorities for different purposes. Bonafde certifcate, transfer certifcate, is prepared by taking entries on the basis of some document and in the column of date of birth, when an entry is taken, it must be necessarily be taken by a person on production of the original birth certifcate or the information supplied and expected to be a truthful version of the date of birth. Hence, the date of birth mentioned in the transfer certifcate etc. would have no evidentiary value, unless the person who made the entry of gave the date of birth, is examined. Similar is the case of bonafde certifcate, admission register etc. The age of a person as recorded in the school register or otherwise, may be used for various purposes, namely, for obtaining admission, for obtaining appointment; for contesting election; registration of marriage; or even at times for litigating before civil forum for eg. necessity of being represented in the court of law by a guardian or when a Suit is fled on the ground that the Plaintiff being a minor was not appropriately represented or any transaction made on his behalf was void as minor. In all such cases, the person who has taken an entry in the said document as regards the date of birth would have to depose as he will be necessarily a privy to the basis on which the date of birth is recorded. However, this situation do not apply to a birth register which bear the relevancy in the wake of Section 35 of the Indian Evidence Act. There is no need to adduce any link evidence to demonstrate that the certifcate belong to victim, as she herself produced the certifcate where she is shown to be a daughter born to PW 1 and PW 3, on the given date. I have no diffculty in accepting the case of the prosecution that the girl was minor and the prosecution has established the said circumstance by adducing suffcient evidence. 22] Dealing with the submission of the learned counsel that the victim projected a person to be major and of marriageable age and in fact there was an attempt to perform court marriage, but for some unavoidable reason, they chose not to proceed ahead with it, but instead the relationship was continued on strength of the sacred thread and that is why the Appellant established physical relationship with the victim and she conceived out of it. Though she has given her age as 19 years, it is obvious that it was to avoid any questions being asked when she visited the hospital for the purposes of sonography and in order to enable the termination of pregnancy. The victim was asked to give her name as Mrs. X Omkar Dangat, wife of the Appellant. She has clearly deposed that whenever they went for Sonography, the coupled projected themselves as husband and wife so as to avoid any unnecessary quizzing on the pregnancy. 23] The Protection of Children from Sexual Offences Act (POCSO) was enacted by the Parliament in the year 2012 with an intent to effectively address the evil of sexual exploitation and sexual abuse of children. India, which has largest population of children in the world, has guarded protection of children in its Constitution and has mandated the adoption of the international conventions and in particular UN convention, India being a signatory to it. Taking note of the fact that child sexual abuse was prosecuted under various provisions of the IPC, but since it was found to be not suffcient and suffered from several drawbacks and the provisions did not effectively protect the child due to various lacunas and loopholes ingrained in the Code itself, a need was felt to enact a special enactment which is gender neutral and cover its forms of sexual abuse including, but not limited to sexual harassment, penetrative assault and non penetrative assault. It also contemplated establishment of special Courts for the trial of such offences and matters related to it. 24] The constitution of India specifcally provide for prevention of exploitation of youth, and make it imperative for enactment of laws that would serve best interest and well being of a child by treating, it as of paramount importance at every stage, to ensure physical, emotional, intellectual and social development of a child. The parties to the convention on the ‘Rights of Child’ are required to undertake all appropriate national, bi-lateral and multi-lateral measures to prevent exploitative use of children in prostitution or other unlawful sexual practices. The Government of India acceded to the convention of the rights of a child, adopted by the General Assembly of United Nations, which prescribe set standards to be followed by all state parties in securing the best interest of the child. Article 15 of the Constitution also confer power upon the State to make special provision for children and further Article 39 provide that the shall in particular direct its policy towards securing that the tender age of the children is not abused and their youth and childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. 25] The drastic provisions in the Act which punish the species of offences, with the genus of sexual assault and the offences invite punishment which may extend to a term not less than 20 years but extend to imprisonment for life, meaning imprisonment for reminder of natural life of a person, so that it would act as deterrent and prevent commission of offences in future. 26] The present case is a ft case where the accused deserve to be treated with stern hand, as he manipulated a minor girl, established physical relationship with her and made her pregnant. Taking into account the evidence that has been brought on record by the prosecution, the POCSO Judge has rightly convicted the Appellant and sentenced him to undergo imprisonment for 10 years, though the learned Judge has shown leniency and hence the said Judgment of conviction and imposition of sentence do not warrant any interference. By upholding the Judgment dated 09.07.2019, in Special Sessions Case No.371 of 2015 same, the Appeal is dismissed. In the wake of above, Interim Application No.3110/2023 also stand disposed off. [BHARATI DANGRE, J]