Appellate courts may allow prosecution additional evidence like post-trial matriculation certificate to corroborate victim age proofs, curing irregularity without prejudice, if essential for just decision despite delay or investigative lapse.

JUDGMENT :

Vivek Singh Thakur, J.

This application has been preferred by respondent-State under Section 348, 432 read with Section 528 of Bharatiya Nagrik Suraksha Sanhita, 2023 (for short ‘BNSS’) (old Sections 311, 391 read with Section 482 of Cr.P.C.) for summoning and re-examining of witness PW-20 victim/prosecutrix and also to summon and examine the Record Keeper/Office Superintendent of Him Academy Public School, Vikasnagar, Hamirpur alongwith record of Roll Number 17102092 of Matriculation Certificate of PW-20 issued in the year 2021.

2. The main appeal is arising out of judgment and order dated 15.6.2021/16.6.2021 passed in Sessions Trial No. 29/2020, titled as State of H.P. Vs. Nadeem, in case FIR No. 17 of 2020, dated 28.5.2020, registered in Women Police Station, Hamirpur, District Hamirpur, H.P., whereby appellant has been convicted for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and under Section 506 of the Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 10,000/- and in default to undergo simple imprisonment for a period of 6 months for commission of offence under Section 6 of POCSO Act and to undergo simple imprisonment for a period of 1 year and to pay fine of Rs. 5,000/- and in case of default, to undergo simple imprisonment for a period of 3 months for commission of offence under IPC.

3. We have heard learned Deputy Advocate General for the applicant/State as well as learned counsel for non-applicant/appellant and have also gone through the material available on record.

4. To prove age of victim, prosecution has examined PW-3 Ashok Kumar, Secretary Gram Panchyat to prove copy of Parivar Register Ex. PW-3/B with endorsement of date of birth of prosecutrix as 10.5.2005, and PW-9 Pawan Kumar, to prove birth certificate of victim Ex. PW-9/A, issued under Section 12/17 of Registration of Births Act, 1969 and Rule 8 /15 of H.P. Registration of Birth and Death Rules, 2003, indicating the date of birth of victim as 10.5.2005.

5. In the aforesaid backdrop this application has been filed with submission that when case was being prepared for final arguments by State counsel, it transpired that prosecution had not proved the date of birth of victim from School record because when occurrence took place, the victim was studying in 10th Class in HIM Academy Public School, Vikasnagar, Hamirpur and she had not passed her Matriculation and thus Matriculation Certificate of the victim was not in existence, and on inquiry from Women Police Station Hamirpur it transpired that victim passed her Matriculation examination in the year 2021 and Matriculation Certificate of the victim had been issued thereafter on 3.8.2021. Further that copy of Matriculation Certificate received now indicates that date of birth of victim has been recorded in the said certificate as 10.5.2005.

6. In has been submitted that State intended to prove age of victim by producing Matriculation Certificate and School record by re- examining PW-20 victim and for examining Record Keeper/Office Superintendent of the concerned School, production of Matriculation Certificate of victim alongwith School record related thereto.

7.