The court ruled that the School Leaving Certificate and Higher Secondary documents are superior for age determination, while the Aadhar card is not conclusive proof of date of birth.

ORDER

The petitioner / appellant is the first accused in Crime No.7 of 2017 and he was charged for the offence u/s.366(A). 376 , 506(i) IPC , Section 5(I) r/w 6 of the Protection of Children from Sexual Offences Act and Section 4 of the Tamil Nadu Protection of Harassment of Women Act , in SC.No.25 of 2017. The trial Court, in conclusion of the trial, found him guilty and convicted and sentenced him. As against the conviction and sentence, the petitioner has preferred Crl.A(MD)No.623 of 2024. Pending the appeal, the petitioner has moved Crl.MP(MD)No.7472 of 2024 seeking suspension of sentence. Considering the fact that it is a case of love affair, this Court, by order dated 28.08.2024, allowed that application.

2.The petitioner has also moved this application to accept additional evidence, namely, birth certificate and Aadhar identity card of the victim girl, to substantiate his case that the victim girl was major at the time of occurrence.

3.Learned Senior Counsel appearing for the petitioner submitted that the age of the victim was above 18 years at the time of occurrence and therefore, the provisions of POCSO Act will not attract at all. However, the trial Court has found the petitioner guilty by considering the date of birth of the victim as 25.09.1999, as per the School Leaving Certificate issued by the School Authorities for age proof. According to him, the actual date of birth of the victim girl is 09.10.1998 and the same has been recorded in her birth certificate. Moreover, in her aadhar identity card, her date of birth is recorded as 25.09.1998. In either case, the victim was a major at the time of occurrence. He further submitted that since the petitioner has been convicted, the victim herself has taken these documents and gave him. Therefore, he prayed for adducing additional evidence of birth certificate and aadhar card of the victim as per Section 391 CrPC.

4.Learned Additional Public Prosecutor appearing for the respondent, by referring to the counter affidavit, contended that the petitioner has not pleaded that he was either prevented from presenting the additional evidence in the trial or the facts that raised this prayer at this stage. Therefore, he raised his preliminary objection with regard to filing this application at this stage.

5.He further submitted that as per the Higher Secondary Marksheet Certificate [Ex.P17], Higher Secondary Transfer Certificate [Ex.P16], the date of birth of the victim girl is 25.09.1999. As per Juvenile Justice (Care and Protection of Children) Rules, the matriculation or equivalent certificate of the concerned person or the certificate issued by the School is the highest rated option. In the absence of these certificates, the birth certificate issued by the Corporation or Municipality will come into play. Here, the prosecution has established its case through the matriculation certificate and through the transfer certificate issued by the School as well.

6.Insofar as the plea to bring on record the aadhar identity card for the purpose of establishing the date of birth is concerned, learned Additional Public Prosecutor, by referring to a catena of decisions, submitted that it is a settled position of law that Aadhar Card is not a conclusive proof of date of birth. Therefore, he prayed for dismissal of this application.

7.This Court considered the rival submissions made on either side and perused the materials placed on record.

8.As per the prosecution, the victim was aged below 18 years at the time of occurrence, whereas, the petitioner claims otherwise. Section 94 of the Juvenile Justice (Care and Protection of Children) Act speaks about the presumption and determination of age and the same is extracted as under:-

“94. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record