2006 Supreme(SC) 320

2006(3) Supreme 288
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
S.B. Sinha and P.P. Naolekar, JJ.
State of Chhattisgarh—Appellant
versus
Lekhram—Respondent
Criminal Appeal No. 326 of 1999
Decided on 5-4-2006
Counsel for the Parties :
For the Appellant : Dr. Manish Singhvi, Atul Jha, D.K. Sinha, Advocates.
For the Respondent : Mrs. K. Sarada Devi, Advocate.

IMPORTANT POINT
Entry in school register regarding age of prosecutrix is not conclusive but it has evidentiary value.

Headnote:(i) Indian Penal Code, 1860—Sections 366 and 376—Respondent-accused working in house of father of prosecutrix PW1, a married girl, took away prosecutrix—Both were found residing in a house—Evidence adduced by prosecution including entry in school register showing date of birth was to show that on date of occurrence i.e. 25.2.1986 prosecutrix was minor—School record showed her date of birth to be 25.12.1970—Trial Court convicted accused u/s 376 IPC and acquitted him of other charge u/s 366 IPC and sentenced him 3 years imprisonment—High Court set aside conviction—Appeal—School Head Master and Assistant teacher proved entries regarding date of birth of prosecutrix certified by mother of prosecutrix—Nothing in their cross-examination to discredit them—School register was admissible in evidence to prove date of birth of person concerned in terms of Section 35 of Evidence Act—High Court was not right to reject evidence of father of prosecutrix merely because he could not give date of birth of his other children though he gave their year of birth—Evidentiary value of school register was corroborated by oral evidence—High Court committed serious error in passing impugned judgment—Conviction recorded by trial Court was liable to be restored.

       Held : A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act. Such dates of birth are recorded in the school register by the authorities in discharge of their public duty. PW-5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. Father of the prosecutrix also deposed to the said effect. The prosecutrix took admission in the year 1977. She was, therefore, about 6-7 years old at that time. She was admitted in Class I. Even by the village standard, she took admission in the school a bit late. She was married in the year 1985 when she was evidently a minor. She stayed in her in-laws place for some time and after the ‘gauna’ ceremony, she came back. The materials on record as regard the age of the prosecutrix was, therefore, required to be considered on the aforementioned backdrop. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix. Only because PW-3 the father of the prosecutrix could not state about the date of birth of his other children, the same, by itself, would not mean that he had been deposing falsely. We have noticed hereinbefore, that he, in answer to the querries made by the counsel for the parties, categorically stated about the year in which his other children were born. His statement in this behalf appears to be consistent and if the said statements were corroborative of the entries made in the register in the school, there was no reason as to why the High Court should have disbelieved the same. We, therefore, are of the opinion that the High Court committed a serious error in passing the impugned judgment. It cannot, therefore, be sustained. It is set aside accordingly.(Paras 12 to 14)

       (ii) Indian Penal Code, 1860—Section 376—Rape of married girl below 16 years of age—Quantum of sentence—Prosecution could not prove that prosecutrix was enticed away and she lived for some time with respondent in a rented room—Both Courts proceeded on basis that she was a consenting party and occurrence took place in 1986—Accused had remained in custody for one and half year—In peculiar facts and circumstances, sentence of 3 years imprisonment awarded by trial Court reduced to period undergone.

       Held : The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws place. The Respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the Respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the Respondent again may not arise. She lived for some time with the Respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The Respondent preferred an appeal before the High Court in the year 1987. The same remained pending about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one and a half year. In the peculiar facts and circumstances of this case and having regard to the fact that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the Appellant back to prison.(Para 16)