JUDGMENT & ORDER : By means of this petition filed under Section 397 read with Section 401 of the Cr.P.C the judgment dated 04.12.2012 delivered in Criminal Appeal No.2(1) of 2011 by the Sessions Judge, South Tripura, Udaipur, as he then was, has been challenged. By the said judgment dated 04.12.2012, the Sessions Judge has affirmed the judgment dated 20.12.2010 delivered in S.T. 39 (ST/U) of 2009 (Annexure-P1 to this petition) by the Assistant Sessions Judge, South Tripura District, Udaipur [now Gomati Judicial District] convicting the petitioner under Section 376(1) of the IPC and sentence him to suffer R.I. for 2(two) years. 2. Prosecution against the petitioner commenced when one Haradhan Datta (P.W-8) lodged a written complaint to the Officer-in-Charge, R.K. Pur Police Station (Exbt.P-1) disclosing that 6(six) months before the petitioner had allured his minor daughter (the name is withheld for protecting the identity of the victim) on saying that he would marry her. On such promise, the petitioner continued to have the physical relation regularly. As a consequence of this said physical relation, the victim (P.W-9) became pregnant at the age of 16 years. On the day of lodging the written complaint i.e. 09.03.2009, the victim was carrying 6(six) months' pregnancy. The victim stated to the informant (P.W-8) that 14 to 15 days before filing of the written complaint the petitioner deceived her by saying that he would marry her and committed rape on 22.02.2007. Having knowledge of such occurrence from the victim, the said written ejahar was filed. Based on the said written ejahar R.K. Pur P.S. Case No.80/2009 dated 09.03.2009 was registered and taken up for investigation. On completion of the investigation the police filed the final police report. On the basis of the outcome of the investigation, the petitioner was charge sheeted under Section 376(1) of the IPC. 3. Since the case was triable by the Sessions Judge, it was committed to him but the Sessions Judge transferred the case for trial to the Court of Assistant Sessions Judge who framed the charge against the petitioner for committing rape of the victim under Section 376(1) of the IPC when the petitioner pleaded innocence and claimed to be tried. In order to substantiate the charge, the prosecution adduced as many as 11 witnesses including the victim and the medical officer who examined her and the petitioner. In order to substantiate the charge, the prosecution adduced as many as 11 witnesses including the victim and the medical officer who examined her and the petitioner. The prosecution introduced documentary evidence (Exbt.1 – Exbt.10) including the medical examination report of the victim etc. After recording the evidence of the prosecution, the petitioner was examined under Section 313 where he reiterated his plea of innocence and denied the allegation of committing rape on the victim on or without promise of marriage. According to him, as transpires from the statement as recorded under Section 313 of the Cr.P.C ,he has been falsely implicated in the case. 4. Mr. Somik Deb, learned counsel appearing for the petitioner has submitted that there is no evidence of “rape” within the meaning of Section 375 of the IPC, it was rather a consensual sex even though the accused has denied that he had any involvement with the victim. For that purpose Mr. Deb, learned counsel has submitted that the victim was of the consenting age for full sexual intercourse is concerned. Mr. Deb, learned counsel has further submitted that the school certificate (Exbt.P-2) as introduced in the evidence by the prosecution cannot be relied for determining the age of the victim in as much as the school certificate is a private document and secondary in nature unless the records i.e. the primary document is searched and secure, based on the secondary evidence no inference cannot be drawn. The content of the secondary evidence can only be appreciated if such document has been proved either comparing with the original or by additional evidence on the basis what the date of birth in the school register was recorded. 5. In this regard, Mr. Deb, learned counsel has submitted that this Court in Nakul Sharma Vs. The State of Tripura [judgment and order dated 02.08.2016] delivered in Crl. A(J) No.29 of 2016 has observed that the proof of age vis a vis a school certificate can be proved following the principles as led down in Alamelu and Another vs. State Represented by Inspector of Police reported in (2011) 2 SCC 285 where the apex court had occasion to observe as under- “38. A(J) No.29 of 2016 has observed that the proof of age vis a vis a school certificate can be proved following the principles as led down in Alamelu and Another vs. State Represented by Inspector of Police reported in (2011) 2 SCC 285 where the apex court had occasion to observe as under- “38. We may now take up the issue of Sekar's conviction under Section 367 IPC, Whilst upholding the conviction of sekar under Section 376 IPC, the High Court has held that the girl would not have voluntarily gone with sekar. It has also been held that she was not a major at the relevant time. In our opinion, both the conclusions recorded by the High Court are contrary to the evidence on record. 39. We will first take up the issue with regard to the age of the girl. The high Court has based its conclusion on the transfer certificate, Ext.p-16 and the certificate issued by PW 8 Dr. Gunasekaran, Radiologist, Ext. P-4 and Ext. P-5. 40. Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl's date of birth was 15-6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age ( 16 years 1 month and 16 days) on the date of the alleged incident, i.e. 31-7-1993. The transfer certificate has been issued by a Government school and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under section 35 of the Evidence Act, 1872. However, the admissibility of such a 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 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 in examined. 41. We may notice here that PW 1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate ( Ext. P-16). He did not mention her age or date of birth. PW 2 was also examined on 9th August, 1999. 41. We may notice here that PW 1 was examined in the Court on 9-8-1999. In his evidence, he made no reference to the transfer certificate ( Ext. P-16). He did not mention her age or date of birth. PW 2 was also examined on 9th August, 1999. She had also made no reference either to her age or to the transfer certificate, It appears from the record that a petition was filed by the complainant under Section 311 CrPC seeking permission to produce the transfer certicate and to recall PW 2. This petition was allowed. She was actually recalled and her examination was continued on 26-4-2000. The transfer certificate was marked as Ext. P-16 at that stage, i.e. 26-4-2000. The judgment was delivered on 28-4-2000. In her cross-examination, she had merely stated that she had signed on the transfer certificate , Ext. P-16 issued by the school and accordingly her date of birth noticed as 15-6-1977. She also stated that the Headmaster. But the Headmaster has not been examined. Therefore, in our opinion , there was no reliable evidence to vouchsafe for the truth of the facts stated in the transfer certificate. 42. Considering the manner in which the facts recorded in a document may be proved, this Court in Birad Mal Singhvi Vs. Anand Purohit : 1988 Supp SCC 604, observed as follows : ( SCC pp. 618-19, para 14) “14,..... The date of birth mentioned in the Scholars register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined..... Merely because the documents Exts. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of the documents were also proved. Mere proof of the documents Exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.” 43. The same proposition of law is reiterated by this Court in Narbada Devi Gupta vs. Birendra Kumar Jaiswal: (2003) 8SCC 745 where this Court observed as follows : (SCC p.751, para-16) “16,..... The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the' evidence of those persons who can vouchsafe for the truth of the facts in issue'.” 44. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. The father says nothing about the transfer certificate in his evidence. The Headmaster has not been examined at all. Therefore, the entry in this transfer certificate cannot be relied upon to definitely fix the age of the girl.” [Emphasis added] 6. That apart Mr. Deb, learned counsel has submitted that in the appeal the Sessions Judge has passed the judgment mechanically by ignoring the law as decided by the apex court in Alamelu (Supra). 7. The Sessions Judge while dismissing the appeal by the impugned judgment has observed as under- “The 'prosecutrix' being of tender age could not understand the consequence of such sexual intercourse in such age. Therefore extended her consent to such sexual intercourse on subsequent date. 7. The Sessions Judge while dismissing the appeal by the impugned judgment has observed as under- “The 'prosecutrix' being of tender age could not understand the consequence of such sexual intercourse in such age. Therefore extended her consent to such sexual intercourse on subsequent date. Since the 'prosecutrix' obliged the convict-appellant on subsequent dates of sexual intercourse and since the 'prosecutrix' did not bring to the notice of anybody about the fact of the first incident of the sexual intercourse I am inclined to come to the irresistible conclusion that the 'prosecutrix' was all along consenting all though she might have tried to resist the appellant at the time of first incident of sexual intercourse.' In the quest to answer the question whether the victim was below the age of 16 years at the time of first and the last day of sexual intercourse, I shall now discuss the evidence of P.W-8 the father of the 'prosecutrix', P.W.-10 the mother of the 'prosecutrix' along with the evidence of PW-6, Doctor Ranjit kumar Das, PW-3 Bhupal Majumder, an Assistant Teacher of Barabhaiya Madhya Para J.B. School, P.W-2 Narayan Chandra Choudhury, Headmaster Barabhaiya Madhya Para J.B. School.” 8. Mr. Deb, learned counsel has submitted that the Sessions Judge did not have any confusion that it was a consensual sex but latter on considering the age of the victim at about 13 years of age as he inferred from the testimonies of PW-8 and PW10 he affirmed the conviction. In this regard he has observed that for determining age of some person, the best evidence comes from his or her parents. He has placed his reliance for this purpose on Madan Mohan Singh & Ors. Vs. Rajni kant & another reported in 2010 (9) SCC 209 . 9. It has been further observed by the Sessions Judge, having placed reliance on Deelip Singh Vs. State of Bihar reported in (2005) 1 SCC 88 that he cannot accept that a school certificate cannot be admissible as proof age of a person. 10. Mr. Deb, learned counsel has dilated that in order to hold that the school certificate is the valid proof of age even the principles laid down in Jagtar Singh Vs. State of Punjab reported in AIR 1993 SC 2448 , Birad Mal Singhvi Vs. 10. Mr. Deb, learned counsel has dilated that in order to hold that the school certificate is the valid proof of age even the principles laid down in Jagtar Singh Vs. State of Punjab reported in AIR 1993 SC 2448 , Birad Mal Singhvi Vs. Anand Purohit reported in AIR 1988 SC 1796 and Sushil Kumar Vs Rakesh Kumar reported in AIR 2004 SC 230 have been discarded. In Sushil Kumar (Supra) the apex court has observed that if the date of birth as recorded in the register was on the basis of the statement of a responsible person the requirement of Section 35 stands satisfied. 11. Though the Sessions Judge made a scanty reference to Alamelu (Supra) but he refrained from discussing the evidence on the touchstone of the said decision. In Alamelu (Supra) as reproduced, it would appear unambiguously that the date of birth mentioned in the certificate would have no evidentiary value unless the person who made entry or who gave date of birth is examined. Finally, the Sessions judge declined to interfere the judgment of conviction returned by the Assistant Sessions Judge in the appeal under Section 374(3) of the Cr.P.C, as the sentence was of rigorous imprisonment for 2(two) years under Section 376(1) of the IPC. 12. Mr. Deb, learned counsel has taken this Court to the testimonies of PW-8 and PW-10, the parents of the victim to demonstrate what and how they stated in the trial in respect of the age of the victim. PW-8 has categorically stated that the age of his daughter ( the victim ) was 13 years at the time of alleged incident. Mr. Deb, learned counsel has laid emphasis on the cross-examination to the said statement which was made in the examination-in-chief. In the cross-examination, PW-8 has stated that “ I cannot tell the age of my son Ranjit. I cannot tell the date of birth of my son Keshab. He is 17 years of age. Police has not obtained any paper from me relating to delivery of child by my daughter....... “ (the victim; name withheld in the statement) ” 13. PW-10, Smt. Pratima Dutta (mother of the victim) in the examination-in-chief has clearly stated as under:- “Now she is aged about 14 years “ In this regard there was no cross-examination by the defence. 14. Mr. “ (the victim; name withheld in the statement) ” 13. PW-10, Smt. Pratima Dutta (mother of the victim) in the examination-in-chief has clearly stated as under:- “Now she is aged about 14 years “ In this regard there was no cross-examination by the defence. 14. Mr. Deb, learned counsel has submitted that PW-8 or PW-10 did not produce any document in support of the date of birth of the victim. On the contrary, Mr. Deb, learned counsel has submitted that in the medical examination report, the age of the victim has been shown as 16 years. In short, according to Mr. Deb, learned counsel appearing for the petitioner, the victim was more than 16 years of age and she had all capacity to understand the consequence of giving consent and she consented for their intimate relation. Thus the said sexual intercourse cannot be brought within the meaning of rape as provided by Section 375 of the IPC as for sexual intercourse the victim, as it appeared from the records, had consent. Therefore, its warrants in law that the impugned judgment is interfered with and set aside. 15. Mr. S. Sarkar, learned Public prosecutor appearing for the state has submitted that the consent is meaningless in terms of the sixth description as appearing under Section 375 of the IPC if it is proved that the victim was under 16 years of age at the time of occurrence. Mr. Sarkar, learned public prosecutor has tenaciously submitted that the medical evidence stands corroborated by the testimonies of the competent witnesses. It has been well established that there had been intercourse and the victim (P.W-9) has categorically stated in her statement that the petitioner gagged her mouth and raped her and thereafter he had threatened the victim that he would kill her if she had disclosed the same to any one. The petitioner had also assured her of marriage. When she was pregnant, she was brought by her parents to the doctor. She denied in the cross-examination that she on the day of deposing was 19 years of age. Regarding the intercourse with the petitioner, there had been no cross-examination 16. Mr. Sarkar, learned P.P. has placed his submission in respect of the evidentiary value of the school certificate (Exbt.P-2) differently. The school certificate (Exbt.P-2) clearly shows her date of birth as 12.12.1996. Mr. Regarding the intercourse with the petitioner, there had been no cross-examination 16. Mr. Sarkar, learned P.P. has placed his submission in respect of the evidentiary value of the school certificate (Exbt.P-2) differently. The school certificate (Exbt.P-2) clearly shows her date of birth as 12.12.1996. Mr. Sarkar, learned P.P. has proceeded to submit that the Sessions Judge did not place his reliance on the school certificate, he had relied on the testimonies of the parents (PW-8 and PW-10) in respect of the age of the victim. The defence has miserably failed to extend any rebuttal in this regard. 17. In view of the apex court decision in Madan Mohan Singh (supra) such inference cannot questioned. Thus, there remains no impediment to accept the date of birth of the victim as about 13 years on the day of occurrence and therefore, the consent is meaningless. The petitioner has been rightly convicted for committing intercourse which is 'rape' in terms of Section 375 of the IPC. From the evidence of PW-4 Dr. Salil Bindu Chakraborty it appeared clearly that the victim was subjected to sexual intercourse. PW-4 has observed as under:- “I formed opinion that 1) there was no sign of recent sexual violence in any part of her person. 2) There was no mark of injury in any part of her body. 3) Her hymen has old tear and suggestion previous coitus. 4) Her uterus seems to be enlarged 20-30 inch size.” 18. Mr. Sarkar, learned public prosecutor has further submitted that the statement of the investigating officer is of no value and as such what the investigating officer namely Naru Gopal Dey (PW.-7) has stated in the trial is of no relevance on the aspect of age. 19. Mr. Sarkar, learned public prosecutor has fairly brought to the notice of this Court a decision of the apex court in Satpal Singh Vs. the State of Haryana reported in (2010) 8 SCC 714 , where it has been held that- “22. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. the State of Haryana reported in (2010) 8 SCC 714 , where it has been held that- “22. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar, Ram Murti v. State of Haryana , Dayaram v. Dawalatshah, Harpal Singh v. State of H.P , Ravinder Singh Gorkhi v. State of U.P, Babloo Pasi v. State of Jharkhand, Desh Raj v. Bodh Raj and Ram Suresh Singh v. Prabhat Singh. In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. Such entries may be in any public document i.e. school register ,voters list or family register prepared under the rules and regulations, etc, in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd, Ikram Hussian v. State of U.P. and Santenu Mitra v. State of W.B. …................................................................................................................................................................................................................ 28. Thus, the law on the issue can be summarized that the entry made in the official record by an official or person authorised in performance of an official duty is admissible under Section 35 of the Evidence Act but the party may still ask the court/authority to examine its probative value. The authenticity of the entry would depend as to on whose instruction/information such entry stood recorded and what was his source of information. Thus, entry in school register/certificate requires to be proved in accordance with law. Standard of proof for the same remains as in any other civil and criminal cases.” [Emphasis added] 20. Mr. Sarkar, learned public prosecutor has further submitted that there cannot be any reason to doubt the veracity of the school certificate which has been issued by the headmaster and proved by him. Standard of proof for the same remains as in any other civil and criminal cases.” [Emphasis added] 20. Mr. Sarkar, learned public prosecutor has further submitted that there cannot be any reason to doubt the veracity of the school certificate which has been issued by the headmaster and proved by him. In this case, PW-2, Narayan Chandra Chowdhury was the headmaster of Barabhaiya Madhya Para J.B. School where the victim was reading and the school certificate (Exbt.P-2) was issued by him. In Murugan alias Settu Vrs. State of Tamil Nadu reported in (2011) 6 SCC 111 it has been observed as under 23. In Mohd, Ikram Hussain v. State of U.P. this Court had an occasion to examine a similar issue and held as under: ( AIR p.1631, para 16) “16. In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from school registers which showed that on 20-6-1960 she was under 17 years of age. There [was] also the affidavit of the father starting the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Evidence Act and the entries in the school registers were made anti litem motam. As against this the learned Judges apparently held that Kaniz Fatima was over 18 years of age. They relied upon what was said to have mentioned in a report of the doctor who examined Kaniz Fatima... The High Court thus reached the conclusion about the majority without any evidence before it in support of it and in the face of direct evidence against it.” 24. The Documents made ante litem motam can be relied upon safely when such documents are admissible under Section 35 of the Evidence Act. 1872. (Vide Umesh Chandra v. State of Rajasthan and State of Bihar v. Radha Krishna Singh.) 25. The Documents made ante litem motam can be relied upon safely when such documents are admissible under Section 35 of the Evidence Act. 1872. (Vide Umesh Chandra v. State of Rajasthan and State of Bihar v. Radha Krishna Singh.) 25. This Court in Madam Mohan Singh v. Rajni kant considered a large number of judgments including Brij Mohan Singh v. Priya Brat narain Sinha, Birad Mal Singhvi v. Anand Purohit, Updesh Kumar v. Prithivi Singh, State of Punjab v. Mohinder Singh, Vishnu v. State of Maharashtra and Satpal Singh v. State of Haryana and came to the conclusion that while considering such issue and documents admissible under Section 35 of the Evidence Act, the court has a right to examine the probative value of the contents of the document. The authenticity of entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such documents may also require corroboration in some cases.” [Emphasis added] 21. There cannot be any amount of doubt that the document under reference made ante litem motam, meaning before the law suit was started, can be relied safely when such documents are admissible under Section 35 of the Evidence Act. In a series of decision, the apex court has held that the school certificate is admissible under Section 35 of the Evidence Act. But so far the probative value of the document is concerned, it depends on whose information such entry was recorded 22. Mr. Sarkar, learned public prosecutor has taken this Court to the testimonies of the witnesses and contended that no space for reasonable doubt has been left by the prosecution and hence no interference in the finding of conviction is called for. 23. Having scrutinized the records and evidence afresh this Court finds that the school certificate where the date of birth of the victim has been recorded as 12.12.1996 is admissible under Section 35 of the Evidence Act. While PW-2 was examined by the prosecution, he was not confronted in the cross-examination as to the source of such information. 23. Having scrutinized the records and evidence afresh this Court finds that the school certificate where the date of birth of the victim has been recorded as 12.12.1996 is admissible under Section 35 of the Evidence Act. While PW-2 was examined by the prosecution, he was not confronted in the cross-examination as to the source of such information. Be that as it may, this Court finds from the testimonies of PW-8, P.W-9 & PW-10 that the age of the victim was much below 16 years at the time of the occurrence as such consent or no consent for sexual intercourse of the victim, as she was around 13 years of age is immaterial. The intercourse as proved without any ounce of doubt is therefore 'rape' within the meaning of Section 375 of the IPC and hence the petitioner has been rightly convicted under Section 376 (1) of the IPC. 24. Having observed thus, the appeal stands dismissed. The petitioner shall serve out the remaining period of the sentence. 25. Send down the LCRs forthwith. The appellant shall surrender before the Trial Court, the Court of the Assistant Sessions Judge, South Tripura (Now Gomati, Udaipur) within 30 days from today.