# Sanjay v. State of U.P

- **Citation:** (2020) 12 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-25
- **Case number:** Criminal Appeal No. 466 of 2016
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-v-state-of-u-p-45447
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 363, 366, 376 - Criminal appeal has
been filed against conviction U/s 363, 366, 376
I.P.C.

Determination of age of the victim -
mention in the matriculation certificate - in
absence school first attended by the victim -
absence
of
both
entries
made
by
the
corporation or a municipal authority or a
Panchayat. If none of above - medical
evidences regarding to age of victim. (Para 25)

At the time of occurrence victim was more than
eighteen years and the findings of the Trial
Court that victim was below the sixteen years is
not with accordance with law.
Minor Contradiction in sexual offences: -
prosecution case cannot be disbelieved - non
examination of independent witnesses and
prosecution can succeed only on the testimony
of victim. - (Para 35)

Sole testimony of victim is contradictory to her
statement U/s 164 Cr.P.C. and also to the
medico legal evidence, she was more than
eighteen years at the time of occurrence,
independent witnesses have not supported the
prosecution
story.
The
prosecution
has
produced
manufactured
and
concocted
12 All. Sanjay Vs. State of U.P.
15
evidence. (Para 39)

The impugned Judgment and order passed by the
Trial Court is accordingly set aside. (Para 41)

Appeal allowed. (E-2)

List of Cases cited: -

## Text

_Characters 0–39,900 of 54,984. This is a partial read: ask again with offset=39900 for what follows._

14 INDIAN LAW REPORTS ALLAHABAD SERIES
and at the time of occurrence, the appellant
appeared without any weapon and the
occurrence was caused by him by
bamboo fixed in hut of tea stall of Bachai
(PW-3). In Medico Legal Examination
Report (Ex.Ka.2), only two injuries, were
found on the head of the deceased.
Further in statement under Section 313,
the age of appellant has been recorded by
the learned trial Court on 12.10.2009 as
35 years which shows that the appellant,
at the time of occurrence i.e. in 2001, was
aged about 27 years. In addition to above,
according to learned counsel for the
appellant, he has no criminal history and
there was no previous enmity of appellant
with deceased.

51. Looking into the facts and
circumstances of the case, I am of the view
that the conviction of the appellant-Rais
Shekh for the offence U/s 304-II requires
no
interference
and
is
accordingly
maintained. But in view of the law laid
down by Hon'ble Supreme Court in Saleem
@ Chamaru (supra) and Ramashraya
(supra), the sentence of five years awarded
to the appellant for the said offence is
reduced to a rigorous imprisonment of
three years.

52. The fine imposed by the trial
Court requires no interference.

53. The period of sentence under gone
by the appellant, shall be set off as per the
provision of Section 428 of the Code.

54. Appeal is partly allowed.

55. Let a copy of this judgment along
with lower court record be sent to the
concerned
trial
Court
for
necessary
information and compliance.
----------
(2020)12ILR A14
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.11.2020

BEFORE

THE HON'BLE VIRENDRA KUMAR SRIVASTAVA, J.

Criminal Appeal No. 466 of 2016

Sanjay ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Farhan Alam Osmany, Smriti

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code,1860 -
Sections 363, 366, 376 - Criminal appeal has
been filed against conviction U/s 363, 366, 376
I.P.C.

Determination of age of the victim -
mention in the matriculation certificate - in
absence school first attended by the victim -
absence
of
both
entries
made
by
the
corporation or a municipal authority or a
Panchayat. If none of above - medical
evidences regarding to age of victim. (Para 25)

At the time of occurrence victim was more than
eighteen years and the findings of the Trial
Court that victim was below the sixteen years is
not with accordance with law.
Minor Contradiction in sexual offences: -
prosecution case cannot be disbelieved - non
examination of independent witnesses and
prosecution can succeed only on the testimony
of victim. - (Para 35)

Sole testimony of victim is contradictory to her
statement U/s 164 Cr.P.C. and also to the
medico legal evidence, she was more than
eighteen years at the time of occurrence,
independent witnesses have not supported the
prosecution
story.
The
prosecution
has
produced
manufactured
and
concocted
12 All. Sanjay Vs. State of U.P.
15
evidence. (Para 39)

The impugned Judgment and order passed by the
Trial Court is accordingly set aside. (Para 41)

Appeal allowed. (E-2)

List of Cases cited: -

1. Jarnail Singh Vs St. of Har. (2013) 7 SCC 263

2. Rajak Mohammad Vs St. of H.P. (2018) 3
SCC (Cri.) 753

3. Jaya Mala Vs Home Secretary J & K & ors.
AIR 1982 SC 1297

4. Jarnail Singh (supra) Razak Mohammad
(supra) & Jaya Mala (supra).

5. Santosh Prasad @ Santosh Kumar Vs St. of
Bihar AIR 2020 SC 985

(Delivered by Hon'ble Virendra Kumar Srivastava, J.)

1. This criminal appeal, under Section
374 (2) of Code of Criminal Procedure,
1973 (hereinafter referred to as ''Code'), has
been preferred by the appellant-Sanjay
(hereinafter referred to as ''appellant),
against the judgment and order dated
29.03.2016, passed by Additional Sessions
Judge/Fast Track Court, Hardoi, in Sessions
Trial No.557/2011, arising out of Case
Crime No.110/2009 under Sections-363,
366, 376 I.P.C., Police Station-Lonar,
District-Hardoi., whereby the appellant has
been convicted and sentenced for offence
under Section 363 I.P.C. four years rigorous
imprisonment and fine of Rs.2000/-, for
offence under Section 366 I.P.C. for six
years rigorous imprisonment and fine of
Rs.3000/- and for offence 376 I.P.C. for
eight years rigorous imprisonment and fine
of Rs.8000/-. It has been further directed
that the appellant has to undergo one month
simple imprisonment in default of payment
of fine for offence under Section 363 I.P.C.,
two months simple imprisonment in default
of payment of fine for offence under
Section 366 I.P.C. and six months simple
imprisonment in default of payment of fine
for offence under Section 376 I.P.C. with
the further direction that the period of
detention already undergone in jail by him
shall be set off in aforesaid sentences and
all the sentences shall run concurrently.

2. The prosecution story, in brief, is that
on 17.02.2009 at about 7:00 p.m., the victim
(P.W.-3), aged about 14 years daughter of
Munnu Lal (P.W.-5), had gone from her house
to ease herself towards the field, outskirt of her
village. She did not return to her house untill
night. Munnu Lal (P.W.-5) tried to search her
throughout whole night and came to know that
some relatives of his neighbour-Ram Chandra
were present in his house to attend the Mundan
ceremony of son of Kallu where one Anil and
the appellant were also present. Sensing some
conspiracy that the victim might be kidnapped
by Anil son of Sukh Sagar, resident of Gheda,
Police Station-Sahabad, District-Hardoi and the
appellant in connivance with Ram Chandra,
Karunesh and Kallu, who were his co-villagers,
Munnu Lal (P.W.-5) lodged First Information
Report (Ext.-Ka-4) at Police Station-Lonar,
District-Hardoi at about 20:45 p.m. on
19.02.2009 against Ram Chandra, Karunesh,
Kallu and the appellant with the allegation that
they might had kidnapped the victim. The
aforesaid information was entered in General
Diary (Ext.-Ka-11) and on the basis whereof
chik report (Ext.-Ka-10) was prepared by S.I.
Virendra Kumar Pandey (P.W.-8) and Case
Crime No.110/2009 under Sections-363, 366 &
376 I.P.C. was registered against the aforesaid
persons including the appellant.

3. Investigation of the case was
entrusted to S.I. Rakesh Kumar Pandey
(P.W.-6),
who
visited
the
place
of
occurrence
and
after
its
inspection,
16 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared site plan (Ext.-Ka-5) and recorded
the statement of the witnesses. During
investigation, he recovered the victim on
31.03.2009 and prepared the recovery
memo (Ext.-Ka-6). The statement of the
victim was also recorded by this witness,
who stating her age as 14-15 years old,
stated that the appellant had kidnapped and
raped her. On the basis of her statement,
offence under Section 376 I.P.C. was added
during investigation. The victim was sent
for
medical
examination
to
District
Hospital, Hardoi where she was examined
by Dr. Rekha Gaur (P.W.-4) on 01.04.2009
with consent of Munnu Lal (P.W.-5).

4. In medico legal examination, it was
found by Dr. Rekha Gaur (P.W.-4) that
secondary sex characteristics of victim was
well developed and no mark of injury was
found on her body. In internal examination,
the the hymen of the victim was found old,
torn and healed. A sample of smear was
taken from vagina of the victim and was
sent for its examination. For determination
of her age, she was referred to X-ray
department for x-ray of victim's right
elbow, right knee and right wrist which was
conducted
by
Dr. R.
K.
Karunesh,
Radiologist, District-Hardoi and x-ray
report (Ext.-ka-3) was prepared. On the
basis of x-ray report as well as vaginal
smear report, a supplementary medico legal
report (Ext.-Ka-2) was prepared by Dr.
Rekha Gaur (P.W.-4) and according to her
the victim, at the time of occurrence, was
aged about 18 years and was habitual to
sexual intercourse. According to her neither
any spermatozoa nor gonococci was found
in victim's vagina and no difinite opinion
regarding rape could be given.

5. After her medical examination, on
15.04.2009, the victim was produced
before the Magistrate, where her statement
under Section 164 of the Code was
recorded.
During
investigation,
the
appellant surrendered before the concerned
Magistrate and after investigation the
charge sheet (Ext.-Ka-7) was filed by P.W.-
6 only against the appellant under Section
363, 366 and 376 I.P.C. before the
concerned
Magistrate,
who
took
the
cognizance of the offence and since the
offence was exclusively triable by the
Court of Sessions, after providing the copy
of relevant police papers as required under
Section 207 of the Code, committed the
case to the Court of Sessions, Hardoi for
trial.

6. The learned trial Court after
hearing the counsel for both the parties
framed charges for the offence under
Sections 363, 366 and 376 I.P.C. against the
appellant from which he denied and
claimed for trial.

7. The prosecution in order to prove
its case, produced Vinod Kumar Dixit
(P.W.-1), Sarvesh (P.W.-2), victim (P.W.-3),
Dr. Rekha Gaur (P.W.-4), Munnu Lal (P.W.-
5) (informant), S.I., Rakesh Kumar Pandey
(P.W.-6), Balram Bajpayee (P.W.-7), S.I.,
Vinod Kumar Pandey (P.W.-8), wherein
Vinod Kumar Dixit and Sarvesh (P.W.-2),
victim (P.W.-3) and Munnu Lal (P.W.-5) are
the witnesses of the facts whereas rest are
formal witnesses.

8. After conclusion of the prosecution
evidence, the appellant was examined
under Section 313 of the Code wherein he
denied the prosecution allegations as well
as statement of witnesses and stated that he
is innocent and has been falsely implicated.
In support of his defence, Karunesh (D.W.-
1) was examined by the appellant.

9. Learned trial Court after hearing
the learned counsel for both the parties and
12 All. Sanjay Vs. State of U.P.
17
considering the material available on
record,
convicted
and
sentenced
the
appellant as above by the impugned
judgment. Aggrieved by the said judgment,
the appellant has preferred this appeal.

10. Heard Ms. Smiriti, learned
counsel for appellant and Sri Ashok Kumar
Singh, learned A.G.A. for the State.

11. Learned counsel for the appellant
has submitted that the appellant is innocent
and has been falsely implicated only on
account of suspicion. Learned counsel
further submitted that independent witness,
Vinod Kumar Dixit (P.W.-1) and Sarvesh
(P.W.-2) have not supported the prosecution
story and have been declared hostile by the
prosecution.
Learned
counsel
further
submitted that Munnu Lal (P.W.-5) is not
an eye-witness and neither the appellant
was arrested nor the victim was recovered
in his presence. Learned counsel further
submitted that the statement of victim is
highly improbable and untrustworthy as her
statement
is
neither
supported
and
corroborated by medical evidence nor by
her statement under Section 164 of Code.
Learned counsel further submitted that the
victim was not recovered from the
possession of the appellant and as per
recovery memo (Ext.-Ka-6), she was
recovered on the information of the
Sarvesh (P.W.-2) but he did not support the
prosecution case. Learned counsel further
submitted that at the time of occurrence, as
per medico legal examination report as well
as per the statement of victim recorded
under Section 164 Cr.P.C., she was aged
about more than 18 years but the trial Court
without any cogent evidence has convicted
the accused-appellant on the ground that
the victim, at the time of occurrence, was
aged about 14 years. Learned counsel
further submitted that the school register,
proved by Balram Bajpayee (P.W.-7), in
order to prove the age of victim, is highly
doubtful and cannot be relied upon.
Learned counsel further submitted that the
trial Court has failed to consider and
appreciate the prosecution evidence in the
light of settled principle of criminal
jurisprudence. The impugned judgment and
order passed by the trial Court is illegal and
unjustified which is liable to be set aside
and appeal be allowed.

12. Per contra, learned A.G.A.,
vehemently opposing the submission of
learned counsel for the appellant, has
submitted that the prosecution story cannot
be thrown on the ground that independent
witnesses
have
not
supported
the
prosecution case. Learned A.G.A. further
submitted that the victim at the time of
occurrence was 14 years old, she has
corroborated the prosecution story during
trial and there is no contradiction in her
statement. Her statement also cannot be
discarded only on the ground that no
spermatozoa was found during medico
legal examination or she was found as
habitual to sex. Learned A.G.A. further
submitted that as per school register proved
by Balram Bajpayee (P.W.-7), her age was
about 14 years at the time of occurrence.
Learned A.G.A. further submitted that there
is no contradiction between the statement
of prosecution witnesses and prosecution
has succeeded to prove its case beyond
reasonable doubt against the appellant.
Learned A.G.A. further submitted that the
impugned judgment passed by trial Court is
well discussed, well reasoned, and it
requires no interference and the appeal is
liable to be dismissed.

13. I have considered the rival
submissions of both the parties and perused
the record.
18 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Munnu Lal (P.W.-5) (informant) is
not
eye-witness
of
the
occurrence.
Supporting the prosecution case, he has
stated that at the time of occurrence, his
daughter (victim) aged about 14 years, had
gone to ease herself at about 7:00 p.m. and
when she did not return till one and half an
hour, he made a hectic search but she could
not be searched out. He further stated that
on the day of occurrence there was Mundan
Ceremony of son of Kallu of his village.
Stating that the appellant-Sanjay is nephew
of Kallu, he further stated that Anil was
relative of Kallu and Rajewshwar was his
nephew (Bhatija) and at the time of
occurrence, they were present at the house
of Kallu. He further stated that he came to
know that the aforesaid persons managed to
enticed away his daughter (victim). He
further stated that he had gone to police
station to lodge the F.I.R. on the very same
day but police had not lodged it and after
two days of the occurrence, his information
(Ext. Ka-4) was lodged by the police. He
further stated that the victim was recovered
after one and half month of the occurrence
by the police near Sahora culvert and after
recovery,
the
victim
was
medically
examined and her statement was also
recorded by the Magistrate. According to
him, the victim was handed over to him in
compliance of order passed by the
Magistrate. He further stated that the victim
had studied in Class-V at Primary Pathsala,
Vishkula.

15. Munnu Lal (P.W.-5) in his cross
examination admitted that the victim had
gone alone from her house at the time of
occurrence. He further admitted that the
statement of victim was recorded before
Magistrate after 15 days of the recovery
and further stated that he did not know that
his
daughter
had
solemnized
Court
Marriage with the appellant. He further
stated that he did not know as to when he
had given an application for custody of his
daughter.
Admitting
that
after
the
occurrence, his daughter was married with
one Anoop without taking permission from
the Court, he further stated that he did not
know either whereabout of his daughter or
of the said Anoop.

16. Vinod Kumar Dixit (P.W.-1),
produced by the prosecution in order to
prove that the appellant as well as Kallu,
Ram Chandra, Karunesh had enticed away
the victim, had denied the prosecution story
and stated that he did not know as to
whether the appellant and other relatives of
Kallu
were
present
in
the
Mundan
Ceremony of Kallu's son. He further stated
that he did not know whether the victim
was enticed away by the appellant or any
other accused persons namely Anil, Ram
Chandra, Kallu and Karunesh. This witness
was declared hostile by the prosecution and
was cross-examined but nothing had been
come out in his cross-examination to
support the prosecution story.

17. Sarvesh (P.W.-2), uncle of the
victim,
has
also
not
supported
the
prosecution story. He was produced by the
prosecution to prove the fact that victim's
age was 14 years at the time of occurrence,
she was enticed away by the appellant and
he had rung the appellant to return the
victim but this witness did not support the
prosecution story and was declared hostile
by the prosecution. He was cross-examined
at length but in his cross-examination
nothing had been come out to support the
prosecution version.

18. The appellant has been convicted
for the offence under Sections 363, 366,
376 I.P.C. by the trial Court for kidnapping
and rape with victim, who according to
12 All. Sanjay Vs. State of U.P.
19
prosecution, was aged about 14 years at the
time of occurrence.

19. Section 361 I.P.C. defines the
offence of kidnapping. Section 375 defines
offence of rape, Section 363 deals with
punishment of kidnapping from lawful
guardianship,
Section
366
I.P.C.
is
aggravated form of kidnapping and deals
with punishment for offence of kidnapping,
abducting or inducing woman to compel
her marriage and Section 376 I.P.C. deals
with the punishment for the offence of rape.
Sections 361, 363, 366, 375 and 376 I.P.C.
as it was in the year of 2009 are as under :

"361. Kidnapping from lawful
guardianship.--Whoever takes or entices
any minor under sixteen years of age if a
male, or under eighteen years of age if a
female, or any person of unsound mind, out
of the keeping of the lawful guardian of
such minor or person of unsound mind,
without the consent of such guardian, is
said to kidnap such minor or person from
lawful guardianship.

363.
Punishment
for
kidnapping.--Whoever kidnaps any person
from India or from lawful guardianship,
shall be punished with imprisonment of
either description for a term which may
extend to seven years, and shall also be
liable to fine.

366. Kidnapping, abducting or
inducing woman to compel her marriage,
etc.--Whoever kidnaps or abducts any
woman with intent that she may be
compelled, or knowing it to be likely that
she will be compelled, to marry any person
against her will, or in order that she may
be forced or seduced to illicit intercourse,
or knowing it to be likely that she will be
forced or seduced to illicit intercourse,
shall be punished with imprisonment of
either description for a term which may
extend to ten years, and shall also be liable
to fine; and whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall also be punishable as
aforesaid.

375. Rape - A man is said to
commit rape" who except in the case
hereinafter
excepted,
has
sexual
intercourse
with
a
woman
under
circumstances falling under any of the six
following descriptions :

First - Against her will.

Secondly - Without her consent.

Thirdly - With her consent, when
her consent has been obtained by putting
her or any person in whom she is interested
in fear of death or of hurt.

Fourthly - With her consent, when
the man knows that he is not her husband,
and that her consent is given because she
believes that he is another man to whom
she is or believes herself to be lawfully
married.

Fifthly- With her consent, when,
at the time of giving such consent, by
reason
of
unsoundness
of
mind
or
intoxication or the administration by him
personally or through another of any
stupefying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent.

Sixthly - With or without her
consent, when she is under sixteen years
of age.

Exception - Sexual intercourse by
a man with his own wife, the wife not being
under fifteen years of age, is not rape.

Explanation -.................
20 INDIAN LAW REPORTS ALLAHABAD SERIES

376. (1) Whoever, except in the
cases provided for by sub section (2),
commits rape shall be punished with
imprisonment of either description for a
term which shall not be less than seven
years but which may extend to ten years
and shall also the liable to fine unless the
woman raped is his own wife and is not
under twelve years of age, in which case,
he shall be punished with imprisonment of
either description for a term which may
extend to two years or with fine or with
both :

Provided that the Court may, for
adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of less
than seven years.

(2) whoever, ................

20. The victim (P.W.-3), sole starwitness, has stated that it was Fhalgun
month of winter season 2009, when the
occurrence took place. She further stated
that the appellant-Sanjay used to come her
village to meet her maternal kindred
(Nanihal). She further stated that the
appellant by putting cloth in her mouth
forcibly, had taken her away in a jeep to
Village-Jhammapurva and thereafter to
Sitapur. She further stated that she was
beaten
by
the
appellant-Sanjay
to
solemnize
Court
Marriage
with
the
appellant. She further stated that the
appellant-Sanjay had threatened her that if
she did not give statement in his favour, he
would kill her and also forcibly commit
sexual intercourse with her. She further
stated that concerned police had arrested
her and brought her to Police Line and kept
with lady police. She further stated that at
that time the appellant-Sanjay and his
family members were meeting her and had
not permitted her father to meet her. She
further stated that her statement was
recorded by the Magistrate and she had
stated the fact which was happened with
her. She further stated that she had given
the statement before the Magistrate under
the pressure of the appellant because he had
threatened her to give statement in his
favour otherwise he would kill her. She
further stated that she was given in custody
of her father and she had studied upto
Class-V in primary school of her village.
She further stated that she could not tell as
to whether her age, recorded in her school,
was true or false. In cross examination,
admitting that her Court Marriage was
solemnized at Hardoi, she further stated
that this Court Marriage was solemnized
forcibly by the appellant-Sanjay. She
further stated that she had stated before the
Marriage Officer that she was marrying
with the appellant according to her own
free will and also had disclosed her age as
19 years. She further stated that such
statement was given under threat of
appellant-Sanjay. She further stated that
after filing application for Court Marriage,
she was carried to Sitapur where she stayed
10-12 days and during this period the
appellant-Sanjay used to beat her. She
further stated that thereafter she was carried
to appellant's village where she resided 8
days and thereafter she was surrendered at
Sahabad and was taken away by concerned
police. She, in cross-examination, further
admitted that her father had got information
as she was taken into custody and met with
her after 2 days. According to her, her
medical examination was conducted at
District-Hardoi,
at
the
instance
of
concerned police but the Medical Officer
had not enquired her age. She further stated
that she did not know how many days, she
stayed at police line in police custody and
also she did not know the case, pending
against her father at District-Hardoi.
During
cross-examination,
she
further
12 All. Sanjay Vs. State of U.P.
21
admitted that she has been married to one
Ashok Kumar Mishra, resident of DistrictEtah, with the consent of her father. She
disowned her statement given before
Magistrate under Section 164 of the Code
that the appellant was her husband and she
was happily residing with him. Upon query
made by the trial Court, she again stated
that the appellant had carried her away to
village-Jhammapurva where brother in-law
of appellant resided but she did not know
how many females were there. She further
stated that she did not talk there to any
person and had also not disclosed anything
as the appellant had prohibited her. She
further stated that when she was carried to
Sitapur she stayed at the house of
appellant's maternal uncle but she did not
disclose anything to appellant's maternal
uncle and aunt too. She further stated that
at the time of recording her statement
before Magistrate, the appellant was not
with her and she did not know whether the
appellant was arrested by police or not. She
further stated that she had given her
statement before the Magistrate on oath but
she did not disclose any person that she
was being forcibly taken away by the
appellant.

21. Section 361 read with 363 and
Section 366 as well as Section 375 read
with 376 prescribe the age of victim for
offence of kidnapping as well as rape for
certain cases. For offence of kidnapping, if
a victim was aged below than 18 years and
for offence of rape if a victim was below
than 16 years at the time of occurrence, her
consent would be treated immaterial.
Therefore, it has to be determined whether
the prosecution has succeeded to prove the
victim of age below 16 years or not.

22. Neither Code nor IPC or POCSO
Act
2012
provides
procedure
for
determination of victim's age. Alleged
offence was committed on 17.02.2009.
Rule 12 of the Juvenile Justice (Care and
Protection
of
Children)
Rules,
2007
(hereinafter referred to as the '2007 Rules')
framed under Section 67 of the Juvenile
Justice (Care and Protection of Children)
Act
2000
provides
procedure
for
determination of juvenile's age. This
provision is as under :

"12. Procedure to be followed in
determination of Age.

(1) In every case concerning a
child or a juvenile in conflict with law, the
court or the Board or as the case may be
the Committee referred to in rule 19 of
these rules shall determine the age of such
juvenile or child or a juvenile in conflict
with law within a period of thirty days from
the date of making of the application for
that purpose.

(2) The Court or the Board or as
the case may be the Committee shall decide
the juvenility or otherwise of the juvenile or
the child or as the case may be the juvenile
in conflict with law, prima facie on the
basis of physical appearance or documents,
if available, and send him to the
observation home or in jail.

(3) In every case concerning a
child or juvenile in conflict with law, the
age
determination
inquiry
shall
be
conducted by the court or the Board or, as
the case may be, the Committee by seeking
evidence by obtaining

(a) (i) the matriculation or
equivalent certificates, if available; and in
the absence whereof;

(ii) the date of birth certificate
from the school (other than a play school)
first attended; and in the absence whereof;

(iii) the birth certificate given by
a corporation or a municipal authority or a
panchayat;
22 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) and only in the absence of
either (i), (ii) or (iii) of clause (a) above,
the medical opinion will be sought from a
duly constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot be
done, the Court or the Board or, as the case
may be, the Committee, for the reasons to
be recorded by them, may, if considered
necessary, give benefit to the child or
juvenile by considering his/her age on
lower side within the margin of one year.
and, while passing orders in such case
shall, after taking into consideration such
evidence as may be available, or the
medical opinion, as the case may be, record
a finding in respect of his age and either of
the evidence specified in any of the clauses
(a) (i), (ii), (iii) or in the absence whereof,
clause (b) shall be the conclusive proof of
the age as regards such child or the
juvenile in conflict with law.

(4) If the age of a juvenile or
child or the juvenile in conflict with law is
found to be below 18 years on the date of
offence, on the basis of any of the
conclusive proof specified in sub-rule (3),
the Court or the Board or as the case may
be the Committee shall in writing pass an
order stating the age and declaring the
status of juvenility or otherwise, for the
purpose of the Act and these rules and a
copy of the order shall be given to such
juvenile or the person concerned.

(5) Save and except where,
further inquiry or otherwise is required,
inter alia, in terms of section 7A, section 64
of the Act and these rules, no further
inquiry shall be conducted by the court or
the Board after examining and obtaining
the certificate or any other documentary
proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in
this rule shall also apply to those disposed
of cases, where the status of juvenility has
not been determined in accordance with the
provisions contained in sub-rule (3) and the
Act, requiring dispensation of the sentence
under the Act for passing appropriate order
in the interest of the juvenile in conflict
with law."

23. Hon'ble Supreme Court in Jarnail
Singh v. State of Haryana (2013) 7 SCC
263, deciding the issue of procedure for
determination of age of victim of rape, was
of the view that the procedure for
determination of juvenile's age as provided
in Rule 12 (supra) may be adopted for
determination of victim's age. The Supreme
Court in Jarnail Singh (supra) has held as
under :

"Even though Rule 12 is strictly
applicable only to determine the age of a
child in conflict with law, we are of the
view that the aforesaid statutory provision
should be the basis for determining age,
even for a child who is a victim of crime.
For, in our view, there is hardly any
difference in so far as the issue of minority
is concerned, between a child in conflict
with law, and a child who is a victim of
crime.
Therefore,
in
our
considered
opinion, it would be just and appropriate to
apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VWPW6. The manner of determining age
conclusively, has been expressed in subrule (3) of Rule 12 extracted above. Under
the aforesaid provision, the age of a child is
ascertained, by adopting the first available
basis, out of a number of options postulated
in Rule 12(3). If, in the scheme of options
under Rule 12(3), an option is expressed in
a preceding clause, it has overriding effect
over an option expressed in a subsequent
clause. The highest rated option available,
would conclusively determine the age of a
minor. In the scheme of Rule 12(3),
12 All. Sanjay Vs. State of U.P.
23
matriculation (or equivalent) certificate of
the concerned child, is the highest rated
option. In case, the said certificate is
available, no other evidence can be relied
upon. Only in the absence of the said
certificate,
Rule
12(3),
envisages
consideration of the date of birth entered,
in the school first attended by the child. In
case such an entry of date of birth is
available, the date of birth depicted therein
is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or
a municipal authority or a panchayat. Yet
again, if such a certificate is available, then
no other material whatsoever is to be taken
into consideration, for determining the age
of the child concerned, as the said
certificate would conclusively determine
the age of the child. It is only in the
absence of any of the aforesaid, that Rule
12(3) postulates the determination of age
of the concerned child, on the basis of
medical opinion."

(Emphasis supplied)

24. In Rajak Mohammad v. State of
Himachal Pradesh 2018 (3) SCC (Cri.)
753 three judges bench of Supreme Court,
in case where school certificate regarding
age of prosecutrix was found unreliable,
considering the medical evidence regarding
her age, has held as under;

"6. On the other hand, we have
on record the evidence of Dr. Neelam
Gupta (P.W.8) a Radiologist working in the
Civil Hospital, Nalagarh who had given an
opinion that the age of the prosecutrix was
between 17 to 18 years.

7. While it is correct that the age
determined on the basis of a radiological
examination
may
not
an
accurate
determination and sufficient margin either
way has to be allowed, yet the totality of
the facts stated above read with the report
of the radiological examination leaves
room for ample doubt with regard to the
correct age of the prosecutrix. The benefit
of the aforesaid doubt, naturally, must go
in favour of the accused."

(emphasis supplied)

25. Thus it is clear that for the
determination of age of victim, primacy
shall be given to Date of Birth (hereinafter
referred
to
as
'DoB')
mention
in
matriculation (or equivalent) certificate, in
absence thereof DoB mention in the school
first attended by the victim shall be taken
into consideration, in absence of both, the
entries made by a corporation or a
municipal
authority
or
a
panchayat
regarding DoB shall be taken into account
and finally if none of the aforesaid
document containing DoB is available,
medical evidence regarding age of victim,
shall be taken into consideration. It is
further clear that neither merely ocular
evidence nor any other document shall be
considered for determination of age.

26. In this case, the trial Court has
held that victim's age was below to 16
years at the time of occurrence by relying
on statement of victim, her father (P.W.-5)
and Balram Bajpayee (P.W.-7), Head
Master of Primary School, while discarding
medical
evidence
produced
by
the
prosecution, the statement of victim under
Section 164 of the Code and also the
statement of Karunesh (D.W.-1).

27. Now the question arises as to
whether the evidence produced before the
trial Court by the prosecution regarding the
24 INDIAN LAW REPORTS ALLAHABAD SERIES
age
of
the
victim
is
reliable
and
trustworthy. Admittedly, neither victim had
studied
upto
matriculation
nor
any
matriculation certificate has been filed by
the prosecution. Munnu Lal (P.W.-5), in his
cross-examination, has stated that victim
was aged about 14 years at the time of
occurrence and also stated that she had
studied upto Class-V in Primary School,
Bilkula. This witness has not stated
anything regarding month and year when
the victim was born. He has not filed any
extract of Kutumb Register (Death and
Birth Register) maintained at the level of
his Village Panchayat/Gaon Sabha. Rakesh
Kumar
Pandey,
Investigating
Officer,
(P.W.-6) has also not stated in his evidence
that as to whether he had made any
investigation regarding the certificate of
victim's age. He only stated that on the
basis of transfer certificate (T.C.) the victim
was aged about 14-15 years. In crossexamination, this witness has also admitted
that the victim had disclosed her age as 1718 years at the time of her recovery.

28. Balram Bajpayee (P.W.-7), Head
Master of Primary School, Bilkula has filed
the photocopy of scholar register (Ext.-Ka8) and photocopy of second transfer
certificate (T.C.) dated 23.03.2009 (Ext.-
Ka-9) of the victim. The prosecution had
not shown any justification for nonproduction
of
first
original
transfer
certificate (T.C.) of victim as well as
second transfer certificate of victim issued
on 23.03.2009. The photocopy of scholar
register (Ext.-Ka-8) proved by this witness
(P.W.-7), is very fade and illegible. It
contains so many corrections and cutting
that entries made therein are illegible. This
witness, in cross-examination, has also
admitted this fact by stating that there were
some cutting in the entry of Sl. No.1181 to
1184 of the photocopy of scholar register
and date of birth of victim, written in
words, differs from other writing in the
register. This witness also stated that he
could not disclose who had come with
victim for her admission because at that
time he was not posted there. Thus on the
basis of the aforesaid document, which is
not matriculation certificate as well as the
statement of Balram Bajpayee (P.W.-7),
exact age of victim cannot be determined.

29. In addition to above, the victim
(P.W.-3) has also not stated that at the time
of occurrence she was below to 16 years. In
this regard she has only stated that she had
studied upto Class-V in Primary School and
according to entries made in school, she
was minor but she further stated that she
could not state whether the entries were
true or false. Thus, the victim herself was
not sure whether the entries regarding her
age made in scholar register was correct or
not. Further she was recovered by police on
31.03.2009 and she was produced on
01.04.2009 for medico legal examination
before Dr. Rekha Gaur (P.W.-4), who after
medico legal examination has reported that
secondary sex characteristics of victim
(P.W.-3) were fully developed at the time of
examination ; her weight was 43 kg. having
14/14 teeth ; in radiological report her
joints of right elbow, knee, wrist were fused
and on the basis of said examination, the
victim's age was declared at about 18 years
at the time of occurrence. In addition to
above, her (P.W.-3) statement was recorded
before trial Court on 31.10.2013 where she
had disclosed her age as 21 years. The
occurrence was happened in 2009. It means
that again according to this witness, her age
was more than 16 years at the time of
occurrence. Thus, the prosecution has
failed to produce any document as required
by 2007, Rules (supra) and also in view of
law laid down by Supreme Court in Jarnail
12 All. Sanjay Vs. State of U.P.
25
Singh (supra) and Rajak Mohammad
(supra), to prove the age of victim. In
addition to above, the evidence produced
by the prosecution as discussed above has
also been found unreliable.

30. So for as the consideration of
medical opinion regarding the age of victim
at the time of occurrence is concerned, in
view of law laid down by the Supreme
Court in Jarnail Singh (supra) if the
prosecution fails to prove her age by a
document as required in sub rule (i), (ii)
and (iii) of aforesaid Rule 12, medical
evidence shall be relied upon as last option
to determine her age.

31. According to Dr. Rekha Gaur
(P.W.-4) victims' age, at the time of
examination, was at about 18 years. It is
also pertinent to note that opinion regarding
age of any person, based on medical and
radiological evidence can not be treated
accurate and exact. Such determination of
age by medical expert may vary in view of
race, gender, geographical area, nutritional
status and other factors like colour of pubic
and armpit hair, development of sexual
characteristics and other changes in the
body of the victim. Such variation may be
of one or two year of either side.

32. Supreme Court in Jaya Mala v.
Home Secretary J & K and Ors. AIR 1982
SC 1297 has held as under:

"However, it is notorious and one
can take judicial notice that the margin of
error in age ascertained by radiological
examination is two years on either side."

33. Dr. Rekha Gaur (P.W.-4) on the
basis of radiological examination of the
victim (P.W.-3) as well as development of
her sexual characteristics, had found the
age of victim as 18 years. From the perusal
of statement of this witness as well as
medico legal examination report (Ext.-Ka1), it transpires that Munnu Lal (P.W.-5)
was also present at the time of medico legal
examination of the victim and he had given
consent for such examination.