The admissibility of public documents under the Evidence Act and the sufficiency of explanation for delay in lodging the FIR.

JUDGMENT :

MEENAKSHI MADAN RAI, J.

1. The challenge in this Appeal is to the Judgment dated 30-09-2014 of the Learned Special Judge (Protection of Children from Sexual Offences Act, 2012), South Sikkim, at Namchi, in Sessions Trial (POCSO) Case No.08 of 2013, convicting the Appellant under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act"), read with Section 376(2) of the Indian Penal Code, 1860 (for short “IPC”). The Appellant was sentenced as follows;

“…………………. for having committed offences punishable under Section 6 of the POCSO Act, 2012 read with Section 376(2) of the IPC, 1860 (which provide for like punishments):-

* to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs.50,000/- (Rupees fifty thousand) only. In default to pay the said amount of fine he shall undergo Simple Imprisonment for a further period of six months.”

The imprisonment already undergone was set off.

2. In the first limb of the argument pressed before this Court by Learned Senior Counsel for the Appellant, it was canvassed that P.W.11, the Investigating Officer (for short “I.O.”) seized Exhibit 2, the Birth Certificate, of the victim P.W.9, according to which, her date of birth is reflected as 07-07-1997. Raising a doubt about the authenticity of the date in Exhibit 2, it was submitted that her father, P.W.10, has admitted under cross-examination that Exhibit 2 had been made after she started School, meaning thereby that it was not prepared at her birth. Thus, the victim could well be above 18 years at the time of the alleged offence. Support on this count was drawn from the decision in Alamelu and Another vs. State, Represented by Inspector of Police, AIR 2011 SC 715. The accused therein was tried for an offence under Sections 366 and 376 of the IPC. He disputed the age of the victim, allegedly a minor. The Supreme Court, inter alia, held that the Transfer Certificate issued by the Government School, duly signed by the Headmaster would be admissible in evidence under Section 35 of the Indian Evidence Act, 1872 (for short “Evidence Act”). However, the date of birth mentioned in the Transfer Certificate would have no evidentiary value unless the person who made the entry or who gave the date of birth is examined. Likening the instant case to the above situation, it was contended that as no witnesses were examined in proof of Exhibit 2, the document remained unproved and the victim’s age unestablished. The second limb of the argument was that the delay in the lodging of the FIR, Exhibit 7 is unexplained and its contents remain suspicious as P.W.10 who allegedly lodged Exhibit 7 has testified that he is unaware of its contents. The victim was allegedly missing from 13-08-2013, but the Exhibit 7 was lodged only on 19-08-2017, almost seven days’ after the incident, thereby leading to a reasonable doubt that the parents were aware of the relationship between the victim and the Appellant. The victim for her part has admitted to receiving calls from and giving missed calls to the Appellant. That, the contention of the Prosecution that the victim did not disclose this to her family and that her parents were unaware of such calls, is unbelievable to a prudent man. That, no signs of struggle or protest were detected by the I.O. when the victim was with the Appellant. All the said facts lead to the inevitable conclusion that the Appellant and the victim were in a relationship and she was above sixteen years at the relevant time. That, the Supreme Court in Shyam and Another vs. State of Maharashtra, AIR 1995 SC 2169 observed in a similar case that when the Prosecutrix did not put up a struggle or raise an alarm when being taken away by the accused, she appeared to be a willing party, thus the culpability of the accused was not established and he was acquitted. The Learned Trial Court thus erred in convicting the Appellant, hence, the impugned Judgment and Order on Sentence be set aside.

3. Rebutting