The significance of the victim's consent in the alleged offense is determined by her age, as recorded in official documents such as the School Register.

JUDGMENT :

1. Applicant Anuj is in judicial custody in Case Crime No.219 of 2021, under Sections 363, 366-A, 376 (2) (n) of IPC and 5(1)/6 of Protection of Children from Sexual Offences Act, 2012 (“the Act”), Police Station Bhagwanpur, District Haridwar. He has sought his release on bail.

2. Heard learned counsel for the parties and perused the record.

3. According to the FIR lodged by the mother of the victim, on 10.03.2021, the victim aged about 17 years was enticed by the applicant. After trial, charge-sheet has been submitted and the trial is under way and the witnesses have also been examined.

4. Learned counsel for the applicant would submit that the relationship were consensual; the victim is not a child; in her Aadhar Card, her date of birth is recorded as 07.10.2002 and in the Family Register, the date of birth is recorded as 06.01.2002. The victim has been working in a factory and undoubtedly, the factory employed a person only above 18 years of age. This fact has been admitted by the victim and her mother who had already been examined at trial. The victim has also stated about the Aadhar Card, which is on record. She has not been categorical as to whether her date of birth recorded in the Aadhar Card is correct or not; the mother of the victim was examined as PW2 and she had got the victim admitted in the school.

5. Learned counsel for the applicant would submit that the prosecution is relying on a School Certificate but such School Certificate cannot establish the age of the victim, in view of a judgment of the Hon’ble Supreme Court in the case of Alamelu and another vs. State, (2011) 2 SCC 385, reliance has been made on para 40 of it, in which Hon’ble Supreme Court inter alia observed that “The transfer certificate has been issued by a government school and has been duly signed by the Head Master. Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such document would be of not much evidentiary value to prove the age of the girl in absence of the material on the basis of which the age was recorded.” The Hon’ble Supreme Court had observed “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.”

6. On the other hand, learned State Counsel would submit that in the school record, the date of birth of the victim is recorded as 02.01.2004. The Principal of the School has proved the school record. He has stated that she was admitted in the school by her grandfather. Based on this information, the date of birth of the victim was recorded.

7. The victim in her statement given during investigation has admitted that she was in a relationship with the applicant. She admits that it was a consensual relation. If fact, she has also stated about it but in para 1 of her statement her date of birth, is 02.01.2004. Although, she has stated about her Aadhar Card and also stated she has working in a Factory. Her mother has also stated about the Aadhar Card, which records the date of birth as 07.10.2002.

8. The applicant has been charged under the provisions of the Act. In order to determine the age of the victim, reference is always made to the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015. Section 94 of it give some guidelines. The school record is one of the first document which guides in determining the age of the victim.

9. The trial is already underway. Perhaps the scrutiny of the age of the victim would fall for consideration in the trial. Therefore, the Court restrains to make any deeper scrutiny. To the extent of arguments as made, the Court examines or the material with a caveat that any observation made in this case shall not have any effect in the trial.

10. There are three dates of birth shown in this bail application. But, according to the prosecution, the date of birth of the victim is 02.01.2004. This is what PW1