Mere production of School Leaving Certificate cannot be the sole basis for determining the age of the prosecutrix without additional supporting evidence.

JUDGMENT

Amit Bansal, J. (Oral)

CRL.M.(BAIL) 854/2022 (for suspension of sentence)

1. The present application has been filed seeking regular suspension of sentence during the pendency of appeal in FIR No.121/2016 under Sections 363/376D/506 of the Indian Penal Code, 1860 (IPC) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) registered at Police Station Najafgarh.

2. The applicant in the present case was convicted of offence under Section 4 of the POCSO Act vide judgment dated 31st January, 2022. Subsequently, vide order of sentence dated 5th March, 2022, the applicant was sentenced to 9 years simple imprisonment along with a fine of Rs.5,000/-.

3. Counsel for the applicant makes a reference to Section 94 of the Juvenile Justice Act, 2015 (J.J. Act) to submit that the factum of prosecutrix being a minor has not been proved in accordance with the aforesaid section. He also places reliance on the recent judgment of the Supreme Court in P. Yuvaprakash v. State Rep. by Inspector of Police, 2023 SCC OnLine SC 846, in support of his submissions that School Leaving Certificate cannot be the document to determine age of the prosecutrix. Counsel for the applicant further submits that even in respect of the School Leaving Certificate (Exhibit PW-9/D), the prosecution has failed to produce the principal/officer of the School, who had issued the said document, as a witness in the present case.

4. Learned APP appearing on behalf of the State opposes the present application. He submits that all the aforesaid aspects have been dealt with in the impugned judgment.

5. Learned APP further submits that a School Leaving Certificate would constitute a public document under Section 35 of the Indian Evidence Act, 1872 and therefore, the same can be relied upon to determine age of the prosecutrix. Further, no objection with regard to mode of proof of minority of the prosecutrix was also taken at the time of examination of the PW-9, Ms. Pushp Lata, TGT, Government Girls Senior Secondary School No.3, Najafgarh.

6. I have heard the counsels for the parties and perused the record of the case.

7. At this stage, a reference may be made to Section 94(2) of the J.J. Act.

"94 Presumption and determination of age.

(1)....

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order."

8. In the present case, the document relied upon by the prosecution to determine the age of the prosecutrix is a School Leaving Certificate. A reading of the aforesaid provision would show that School Leaving Certificate is not included in the documents prescribed in Section 94(2) of the J.J. Act.

9. As regards the submission on behalf of the prosecution with regard to Section 35 of the Indian Evidence Act, 1872, it has been held in the judgment of the Supreme Court in Alamelu And Anr. v. State Represented by Inspector of Police, (2011) 2 SCC 385, that the date of birth mentioned in the transfer certificate can only be considered if the person who made the entry or the person who gave the date of birth is examined. Relevant observations are set out below:

"40. Undoubtedly, the transfer certificate, Ex.P16 indica