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2025 DIGILAW 195 (GUJ)

State of Gujarat v. Nazirmiya Sardarmiya Malek

2025-03-04

A.S.SUPEHIA, NISHA M.THAKORE

body2025
JUDGMENT : A.S. SUPEHIA, J. 1. The present appeal filed by the State under Section 378 of the Criminal Procedure Code, 1973 (for short, “the Cr.P.C.”) is directed against the judgment and order of acquittal dated 26.06.1997 passed by the Court of Additional Sessions Judge, Nadiad (hereinafter referred to as “the trial Court”) in Sessions Case No.92 of 1992, acquitting the respondents - accused from the offences punishable under Sections 363, 366 and 376 read with Section 114 of the Indian Penal Code, 1860 (for short, “the IPC”). 2. The case of the prosecution, as per the charge at Exh.6, is that all the three accused had enticed away the daughter of the complainant (PW-4) on 09.08.1991, at 23:00 hours, and thereafter, the accused No.1 had developed physical relationship with her with the help of accused Nos.2 and 3. It is mentioned in the charge that the accused No.1 had taken the victim at various places and hence, committed rape. Thus, the charge under the provisions of Sections 363, 366 and 376 read with Section 114 of the IPC were framed against the accused. The trial Court, after examining the ocular as well as documentary evidence, has acquitted the accused. 3. Learned Additional Public Prosecutor Mr.Utkarsh Sharma, appearing on behalf of the appellant – State, at the outset, has submitted that the acquittal recorded by the trial Court is required to be quashed and set aside as the evidence, which has surfaced on record, has not been appreciated in its true perspective. He has submitted that there is abundant evidence, which would suggest that the accused No.1 had committed rape on the minor daughter of the complainant. 4. Learned Additional Public Prosecutor Mr. Utkarsh Sharma, has referred to the deposition of Dr. Kokilaben Jayantilal Shah (PW-1), who is examined at Exh.11, and has submitted that her evidence would reveal that on the day of incident, the victim was minor and the accused No.1 had developed physical relationship with her. 5. Learned Additional Public Prosecutor Mr.Utkarsh Sharma, has further referred to the deposition of the complainant, who is the father of the victim (PW-4). It is submitted that his deposition also discloses that the accused had enticed away his minor daughter and the accused No.1 had developed physical relationship with her, after she was taken at various places. 5. Learned Additional Public Prosecutor Mr.Utkarsh Sharma, has further referred to the deposition of the complainant, who is the father of the victim (PW-4). It is submitted that his deposition also discloses that the accused had enticed away his minor daughter and the accused No.1 had developed physical relationship with her, after she was taken at various places. It is submitted that the trial Court fell in error, while acquitting the accused by recording that the date of birth, as mentioned in the birth certificate at Exh.33 issued by the Corporation is not proved. 6. Learned Additional Public Prosecutor Mr.Utkarsh Sharma, has also referred to the medical examination papers of the victim as well as the accused and has submitted that the accused was major, at the time of committing the offence. He has referred to the evidence of the PW-3 (victim), who is examined at Exh.19 and has submitted that she has categorically proved the offence against the accused and has deposed that she was enticed away by the accused and was taken to various places. While referring to the evidence of the Investigating OfÏcer, it is submitted that the Investigating OfÏcer (PW-9), who is examined at Exh.29, has strengthen the case of the prosecution by his evidence. Thus, it is urged that the acquittal recorded by the trial Court is required to be reversed. 7. In response, learned advocate Mr. A. S. Timbalia, appearing for the respondents – accused has submitted that the judgment and order of acquittal passed by the trial Court does not require any interference since the same is precisely passed by the trial Court after appreciation of ocular as well as documentary evidence. It is submitted that there is no evidence at all against the accused and the prosecution has miserably failed to prove that the victim was a minor. It is submitted by him that the relationship between the accused No.1 and victim was consensual as both were having love affair. 8. We have heard the learned advocates appearing for the respective parties. We have also examined the evidence, which has surfaced on record and have also perused the findings of the trial Court. 9. The entire case of the prosecution hinges on the age of the victim. 8. We have heard the learned advocates appearing for the respective parties. We have also examined the evidence, which has surfaced on record and have also perused the findings of the trial Court. 9. The entire case of the prosecution hinges on the age of the victim. It is the case of the prosecution that the victim was minor at the relevant point of time, when the incident had occurred as she was enticed away by all the accused and the accused No.1 had developed physical relationship with her. 10. At this stage, we may refer to the deposition of Dr.Kokilaben Jayantilal Shah (PW-1) at Exh.11. She has deposed in her deposition that as per the Rradiology Test Report, the age of the victim would be 17 years + or -2 years. 11. The medical report dated 16.08.1991 of the victim mentions the age of the victim was 19 years, which is given by her. Her medical examination does not reveal any injury on her private parts. 12. The Physical Radiological Examination of the girl, as referred in the said Report, indicates that she is aged about 17 years + 2 years. In order to bring home the charge against the accused, the prosecution has produced the birth certificate of the victim at Exh.33. The said birth certificate was given to the Investigating OfÏcer by the complainant (PW-4), who is examined at Exh.20. In his examination-in-chief, he has stated that the age of the victim was 16 years and she was studying in 10 th Standard, however in the cross-examination, it is elicited that she has never filled up the form of admission of the victim and in fact, it was his father, who had gone to the school and the date and birth recorded therein was given by his father. He has also stated that he has not aware that what date of birth has been recorded in the school record. 13. The Investigating OfÏcer, who is examined (PW-9) at Exh.29, in his cross-examination has admitted that he has not investigated the authenticity of the birth certificate given by the complainant. He has neither examined the grandfather of the victim nor the Corporation authority, which had issued the birth certificate. The trial Court has accordingly recorded the finding in the judgment to the effect that the prosecution has miserably failed to prove the date of birth of the victim. He has neither examined the grandfather of the victim nor the Corporation authority, which had issued the birth certificate. The trial Court has accordingly recorded the finding in the judgment to the effect that the prosecution has miserably failed to prove the date of birth of the victim. 14. At this stage, it would be apposite to refer to the decision of the Supreme Court in the case of Alamelu Vs. State of Madras (represented by Inspector of Police), [2011 (2) SCC 385 ] . The Supreme Court in the said decision has held thus : - “ 38. We will first take up the issue with regard to the age ofthe girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15th June, 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., 31st July, 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 Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. ……… 39. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp) SCC 604 observed as follows:- "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 Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in 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. The same proposition of law is reiterated by this Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, where this Court observed as follows:- "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"." 40. 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 the transfer certificate can not be relied upon to definitely fix the age of the girl. 15. 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 the transfer certificate can not be relied upon to definitely fix the age of the girl. 15. Thus, the Supreme Court, on the issue of proving of date of birth on the transfer certificate, has categorically held that the prosecution has to discharge the burden of proving the said document by examining the Headmaster and the entry recorded in such transfer certificate cannot be relied upon to definitely fix the age of the girl. 16. In the very same judgment, the Supreme Court has considered the decision in the case of Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp) SCC 604 and it is held that 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. 17. We may also refer to the decision of the Division Bench in the case of Narendra Gulabpari Goswami Vs. State of Gujarat, 2019 (3) GLR 2397 , wherein this Court has held thus: - “7.09. At the cost of repetition it is pertinent to note that as per settled legal position 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". The Apex Court has consistently held that the date of birth mentioned in the school leaving certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined. In the present case neither the parents nor the person on whose information the entry was record in the registers of the school has been examined by the prosecution. In the present case neither the parents nor the person on whose information the entry was record in the registers of the school has been examined by the prosecution. Therefore, the admissibility of the School Leaving Certificate would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded and such school leaving certificate would not be admissible in evidence under Section 35 of the Indian Evidence Act.” 18. Thus, after survey of various judgments of the Supreme Court and in light of the provisions of Section 35 of the Evidence Act, the Coordinate Bench has held that as per the settled legal position mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents and 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. It is reiterated by the Coordinate Bench that the date of birth mentioned in the school leaving certificate has no probative value unless either the parents are examined or the person on whose information the entry has been made, is examined. 19. In the present case, neither the authority from the Corporation, which has issued the certificate is examined nor the grandfather of the victim, on whose behalf the date of birth in the school record is examined or anyone from the school has been examined and hence, the prosecution has miserably failed to prove that the victim was minor on the date of the incident. 20. So far as the offence with regard to Section 376 of the IPC is concerned, we may refer to the evidence of the victim (PW-3), who is examined at Exh.19. She has in her evidence before the trial Court has categorically stated that she was having love affair with the accused No.1 and her parents were also knowing about her affair. She has also admitted that her father used to threaten the accused No.1 and also used to assault him due to her affair with him. She has admitted that at the night hours, she had gone with the accused and thereafter, she had visited various places. She has also admitted that her father used to threaten the accused No.1 and also used to assault him due to her affair with him. She has admitted that at the night hours, she had gone with the accused and thereafter, she had visited various places. She has also admitted that she did not inform to anyone, when she and the accused No.1 had gone at various places that she was forcibly taken by the accused. She has also referred that when she went to Ankleshwar, she had stayed at the house of one Habibbhai, who is relative of the accused and there were 2 – 3 members present and she had also taken food, and she stayed there for a night, however she did not inform anyone that she was enticed by the accused No.1. 21. Thus, on an overall appreciation of the evidence of the victim, it is manifest that the victim was having love affair with the accused no.1, and her relationship with the accused was consensual. Since the prosecution has miserably failed to prove that the victim was minor, we are not inclined to reverse the acquittal recorded by the trial Court in wake of non-convincing evidence. 22. In the result, we did not find any infirmity, illegality or perversity committed by the trial Court acquitting the accused for the offence for which they were charged. Hence, the present appeal fails. The same is dismissed accordingly. 23. Record and proceedings shall be transmitted back to the concerned trial Court forthwith.