VIJAYAKUMAR vs STATE REP BY
- Court
- Madras High Court
CRL A No. 351 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30-10-2026
PRONOUNCED ON : 05-11-2026
CORAM
THE HON'BLE MR.JUSTICE SUNDER MOHAN
CRL A No. 351 of 2022
CNR: {HCMA010334452022}
1.Vijayakumar
S/o.Palaniswamy, Thathapuram,
Edapadi Taluk, Salem District.
2.Chinnapayan @ Munniyappan
S/o.Srirangar,
Cholakondan, Kaaveripati Agrahagaram, Edapadi
Taluk, Salem District.
..Appellant(s)
Vs
State Rep By
The Inspector of Police,
Edapadi Police Station, Salem District.
Cr.No.110/2018.
..Respondent(s)
Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure, to call for the entire records in connection with
Spl.S.C.No.116 of 2019 (Old Spl.SC.No.72 of 2018) on the file of the
learned Sessions Judge, Special Court for POCSO Cases, Salem and set
aside the Judgment dated 20.10.2020.
For Appellant(s): Mr.M.Rajkumar,
for Mr.T.Muruganantham
For Respondent(s): Ms.Sharada Vivek,
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CRL A No. 351 of 2022
Additional Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed by the accused, challenging
the conviction and sentence imposed upon them vide judgment dated
20.10.2020 in Spl.S.C.No.116 of 2019 (Old Spl.SC.No.72 of 2018)
passed by the learned Sessions Judge, Special Court for POCSO Cases,
Salem. For the sake of convenience, the parties are referred to as per the
ranking before the trial Court.
st
2 (i) It is the case of the prosecution that the 1 accused is aged
about 21 years and had a romantic relationship with the victim girl, aged
about 17 years at the time of occurrence; that on the promise of marriage,
the accused kidnapped the victim on 02.04.2018; that on 03.04.2018, he
nd
married the victim in the presence of the 2 accused; that the victim and
st st
the 1 accused stayed in the house of one Govindaraj; that the 1 accused
committed penetrative sexual assault on the victim; and thus, the accused
committed the offences under Section 5(1) r/w 6 and Section 16 r/w 17 of
the POCSO Act, Sections 363, 366, 366A of the IPC and Sections 9 and
10 of the Prohibition of Child Marriage Act.
(ii) On the complaint [Ex.P1] given by the father of the victim
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CRL A No. 351 of 2022
[PW1], an FIR in Cr.No.110 of 2018, was registered by PW10, for 'girl
missing' on 03.04.2018 at about 1.00 p.m. In the complaint, there is a
st
reference to the fact that the victim was friendly with the 1 accused.
(iii) PW13, the Inspector of Police, commenced the investigation
and secured the victim at a bus stand on 07.05.2018. Thereafter, the
offence was altered to Sections 363, 366, 366A of the IPC r/w Sections
5(l) & 6 of the POCSO Act, 2012. The alteration report was marked as
Ex.P17. The victim was subjected to medical examination. Her statement
under Section 164 of the Cr.P.C. was recorded. After examining all the
witnesses, the investigating officer [PW14] filed the final report on
09.08.2018 against the accused for the offences under Sections 366A of
the IPC, Sections 9 and 10 of the Prohibition of Child Marriage Act and
Sections 5(l), 6 and 16 r/w 17 of the POCSO Act, before the learned
Sessions Judge, Special Court for POCSO Cases, Salem.
(iv) On the appearance of the accused, the provisions of Section
207 Cr.P.C., were complied with, and the case was taken on file by the
learned Sessions Judge, Special Court for POCSO Cases, Salem, as
Spl.S.C.No.116 of 2019 (Old Spl.SC.No.72 of 2018).
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CRL A No. 351 of 2022
(v) The trial Court framed seven charges against the accused. The
st nd
1 charge was against both the accused under Section 363 IPC; the 2
st rd
charge was against the 1 accused under Section 366 IPC; the 3 charge
nd th
was against the 2 accused under Section 366A of the IPC; the 4 charge
st
was against the 1 accused under Section 9 of the Prohibition of Child
th nd
Marriage Act, 2006; the 5 charge was against the 2 accused under
th
Section 10 of the Prohibition of Child Marriage Act, 2006; the 6 charge
st
was against the 1 accused under Section 6 of the POCSO Act, 2012; and
th nd
the 7 charge was against the 2 accused under Section 17 of the POCSO
Act, 2012. When questioned, the accused pleaded 'not guilty'.
(vi) To prove its case, the prosecution examined 14 witnesses as
P.W.1 to P.W.14 and marked 19 documents as Ex.P1 to Ex.P19. When
the accused were questioned, u/s.313 Cr.P.C., on the incriminating
circumstances appearing against them, they denied the same. The
accused did not examine any witness or mark any document on their side.
(vii) On appreciation of oral and documentary evidence, the trial
Court found that the accused were guilty of all charges leveled against
them and sentenced them as follows:
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CRL A No. 351 of 2022
Accused
Offence under
Sentence imposed
Section
No.
To undergo RI for three years and to pay a fine of
Rs.5,000/-, in default to undergo SI for three
months.
363 IPC
To undergo RI for five years and to pay a fine of
366 IPC
Rs.10,000/-, in default to undergo SI for six months.
A1
9 of Prohibition of
To undergo RI for one year.
Child Marriage Act
5(l) r/w 6 of
POCSO Act
To undergo RI for ten years and to pay a fine of
Rs.10,000/-, in default to undergo SI for six months.
To undergo RI for three years and to pay a fine of
Rs.5,000/-, in default to undergo SI for three
months.
363 IPC
To undergo RI for five years and to pay a fine of
366A IPC
Rs.10,000/-, in default to undergo SI for six months.
A2
10 of Prohibition of
To undergo RI for one year.
Child Marriage Act
16 r/w 17 of
POCSO Act
To undergo RI for ten years and to pay a fine of
Rs.10,000/-, in default to undergo SI for six months.
The sentences were directed to run concurrently.
Hence, the appeal.
3. (i) The learned counsel for the accused/appellants would submit
that the victim's evidence with regard to forcible sexual intercourse is a
tutored version and is an afterthought; that her earlier version would show
st
that she had voluntarily gone with the 1 accused due to the romantic
relationship, and that the allegation of forcible intercourse therefore
cannot be believed; and that the victim's age has not been established by
the prosecution in the manner known to law.
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CRL A No. 351 of 2022
(ii) The learned counsel relied upon the judgment of this Court in
Crl.A. No. 1090 of 2023 dated 09.10.2026 and prayed for acquittal.
4. The learned Additional Public Prosecutor per contra submitted
that at the time of occurrence, the victim, born on 25.05.2001, was a
minor; that the evidence of the doctor would corroborate the evidence of
the victim that she was subjected to penetrative sexual assault; that even
assuming that there was consent by the victim, the consent is immaterial
as she was a minor; and that the trial Court therefore, is justified in
holding the accused guilty of all the offences charged against them; and
hence, prayed for dismissal of the appeal.
5. As stated above, the prosecution examined 14 witnesses. PW1 is
the father of the victim and the de facto complainant, PW2 is the mother
of the victim. PW3 is the victim. PW4 is a relative of PW1 and would
state about the kidnapping of the victim girl and about the role played by
nd
the 2 accused. PW5 is a witness to the Observation Mahazar [Ex.P3]
and to the confession made by the accused. PW6 is the doctor who had
examined the victim and made entries in the Accident Register [Ex.P6].
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She had issued the medical examination report [Ex.P7]. She would state
that the victim informed her that she had sexual intercourse several times
with a known person between 02.04.2018 and 07.05.2018. PW7 is the
st
Headmaster of the school, where the 1 accused studied and had marked
th
the 12 Std. Mark Sheet [Ex.P11], which reflects the date of birth of the
st
1 accused as 08.06.1997. PW8 is the Headmaster of the school where the
victim is stated to have studied and had issued the Bonafide Certificate
[Ex.P12], to prove the date of birth of the victim as 25.05.2001. PW9 is a
nd nd
friend of the 2 accused and would state that the 2 accused brought the
st
1 accused and the victim to his house and they stayed in his house on
02.04.2018. PW10 is the Sub-Inspector of Police, who registered the
FIR [Ex.P13] in Crime No.110 of 2019, for 'Girl Missing'. PW11 is the
st
doctor who examined the 1 accused and issued the Potency Certificate
[Ex.P15]. PW12 would state that both the accused, brought the victim to
his house on 04.04.2018 and he made them to stay in his father's house
for nearly 20 days. PW13 is the Inspector of Police, who commenced the
investigation after registration of the FIR, examined a few witnesses and
also made arrangements for recording the Section 164 Cr.P.C. statement
of the victim. He later handed over the investigation to PW14, the
investigating officer, who on completion of the investigation, filed the
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final report.
st
6. It is the case of the prosecution that the 1 accused, who was
born in the year 1997 and aged about 21 years at the time of occurrence,
had a romantic relationship with the victim, who, according to the
prosecution, was born on 25.05.2001. Even in the complaint, the father of
the victim had admitted the said romantic relationship. The victim has
stated in all her earlier versions made to the doctor and to the Magistrate
st
that she had voluntarily gone with the 1 accused and with the help of the
nd nd
2 accused, she stayed in the house of the relative of 2 accused.
7. The cross-examination of PW3 would reveal that her allegation
of forcible sexual intercourse was an afterthought. It is useful to extract
the relevant portion for better appreciation of her evidence.
“ vjphp tp$aFkhu; vd;id fl;lhag;gLj;jp flj;jp
brd;whu; vd;W nghyp!; tprhuizapy; brhy;ytpy;iy
vd;why; ehd; gjl;lj;jpy; vd;d brhd;ndd; vd;W
epidt[ ,y;iy/ tp$aFkhu; vd;id fl;lhag;gLj;jp
jpUkzk; bra;J bfhz;lhu; vd;W brhy;ytpy;iy/
tp$aFkhu; vd;id fl;lhag;gLj;jp vd;Dld;
clYwt[ bfhz;lhu; vd;W brhy;ytpy;iy/
clYwt[ bfhz;lhu; vd;Wjhd; brhy;ypa[s;nsd;/ 4. 5
Kiw vjphp rPuflt{hpy; itj;J clYwt[ bfhz;lhu; vd;W
jw;bghGJ Kjy; Kiwahf TWfpnwd; vd;why; rhpjhd;/
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CRL A No. 351 of 2022
tp$aFkhu; vd;id miHj;J brd;wnghJ ehd; kWj;jnghJ
kUe;ij Foj;JtpLntd; vd;W brhd;djhf jw;bghGJjhd;
Kjd; Kiwahf Twfpnwd; vd;why; rhpjhd;/ vjphp
tp$aFkhu; j';fj;jpy; vdf;F jhyp fl;odhu; vd;W Kjd;
Kiwahf TWfpnwd; vd;why; rhpjhd;/ rpd;digad;
jhj;jh vd;id fl;lhag;gLj;jp jpUkzk; bra;J itj;jhu;
vd;W Kjd; Kiwahf TWfpnwd; vd;why; rhpjhd;/ ”
8. From the above extract, it would be clear that for the first time in
st
her deposition she had alleged that the 1 accused had forcibly taken her
and had forcible sexual intercourse and her earlier version was different.
That apart, two relatives of the accused, viz., PW9 and PW12, in whose
house the victim stayed, have not stated that the victim complained of any
threat or coercion. Therefore, this Court is of the view that the deposition
of the witnesses insofar as she accuses the accused of using force to
kidnap her and to commit penetrative sexual assault, cannot be believed.
On the other hand, there is overwhelming evidence to suggest that she
st
had a romantic relationship with the 1 accused and it is because of
st
mutual love and trust, she had left the house and stayed with the 1
accused. However, if the victim was a minor at the time of occurrence,
consent would be immaterial.
9. The prosecution had examined PW8, the Headmaster of the
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school, where the victim is stated to have studied and marked the
Bonafide Certificate, as Ex.P12, which reads as follows,
“ nryk; khtl;lk;. ,ilg;gho tl;lk;. muR kfspu;
nky;epiyg;gs;sp. ,ilg;ghoapy; 2017?18 k;
fy;tpahz;oy; gd;dpbuz;lhk; tFg;g[ fzpj?caphpay;
gphptpy; nfhfpythzp j-bg/bjhz;ilkhd; vd;w khztp
gapd;whu;/ ,tuJ gpwe;j njjp gs;sp Mtz';fspd;go
25/05/2001 vdr; rhd;wspf;fg;gLfpwJ/ ”
10. Interestingly, the prosecution had marked the Higher Secondary
Course Certificate issued by the Department of Government
st
Examinations, to prove the age of the 1 accused. Having done so, very
strangely, the investigating officer has not chosen to collect any other
document, which would have higher probative value to prove the age of
the victim. The victim, according to the prosecution, was studying in the
th
12 Standard at the time of occurrence. It is not known why the
th
prosecution has not collected the 10 Standard Mark Sheet or the
Matriculation or equivalent certificate, issued by the State Government.
11. Be that as it may. The Bonafide Certificate [Ex.P12] which is
extracted above and the evidence of Headmaster [PW8], who marked the
said Bonafide Certificate, reveal that he had issued the certificate based
on the records maintained at the school. This Bonafide Certificate was
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issued at the instance of the police during the course of the investigation.
In such circumstances, the investigating officer must have necessarily
collected the records on the basis of which the Bonafide Certificate was
issued by PW8. The Bonafide Certificate also does not state as to which
record was verified before such a certificate was issued.
12. In Yuvaprakash v. State, Rep. by Inspector of Police , reported
in 2023 LiveLaw (SC) 538 , the Hon'ble Supreme Court had made a
reference to Section 94 of the Juvenile Justice Act, which lists out the
relevant documents for determining the date of birth of the victim. Para
13 of the said judgment is extracted for better understanding.
“13. It is evident from conjoint reading of the above provisions
that wherever the dispute with respect to the age of a person arises
in the context of her or him being a victim under the POCSO Act ,
the courts have to take recourse to the steps indicated in Section 94
of the JJ Act. The three documents in order of which the Juvenile
Justice Act requires consideration is that the concerned court has to
determine the age by considering the following documents:
“(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
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(iii) and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest
medical age determination test conducted on the orders of the
Committee or the Board”.
Therefore, the learned Additional Public Prosecutor contended that the
date of birth certificate from the school should be considered as a valid
document to prove the age of the victim.
13. It has to be remembered that Section 94 of the Juvenile Justice
was not enacted for determining the date of birth of the victim in POCSO
cases. It is only due to the interpretation of the Hon'ble Supreme Court in
the above-referred case, that the provision of the Juvenile Justice Act was
made applicable for determining the age of the victim in POCSO cases.
The age of the victim in a POCSO case, is the most important
foundational fact that has to be established by the prosecution to invoke
the provisions of the POCSO Act. Thus, the prosecution has to prove the
date of birth of the victim beyond any doubt, whatsoever, especially in a
case where the victim is around 18 years old and the relationship is
consensual.
14. In the regard, it would be useful to refer to the following
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observations of the Hon’ble Supreme Court in Birka Shiva v. The State
of Telangana [in Crl.A.No….of 2025 (Arising out of SLP (Crl.)
No.1445 of 2025) dated 16.07.2025] .
7. The prosecution has relied primarily on Ex.P11, the birth
certificate issued by the Zilla Parishad High School, to establish that
the victim was below the age of sixteen years on the date of the alleged
offence, i.e., 4th August 2012. According to Ex.P11, the victim's date
of birth was 3rd November 1996, which, if accepted, would make her
approximately 15 years 9 months old at the relevant time.
8. The evidentiary value of such an entry made in public or
official registers may be admissible in evidence under Section 35 of the
Indian Evidence Act, 1872. However, admissibility is distinct from
probative value. While such documents may be admitted into evidence,
their evidentiary weight depends on proof of their authenticity and the
source of the underlying information. Mere production and marking of
a document as exhibited by the Court does not amount to proof of its
contents. Its execution has to be proved by leading substantive
evidence, that is, by the ‘evidence of those persons who can vouchsafe
for Hereinafter referred to as the ‘ Evidence Act ’ the truth of the facts
in issue’. [See: Narbada Devi Gupta v. Birendra Kumar Jaiswal
( (2003) 8 SCC 745) ] We may refer to a few judicial pronouncements
of this Court in this regard:
8.1. This Court, in Birad Mal Singhvi v. Anand Purohit
( 1988 Supp SCC 604), held that the entries contained in the
school register are relevant and admissible but have no
probative value unless the person who made the entry or
provided the date of birth is examined. It was observed:
“14. … If entry regarding date of birth in the
scholar's register is made on the information given
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by parents or someone having special knowledge of
the fact, the same would have probative value. …
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. The entry contained in the admission
form or the scholar's register must be shown to be
made on the basis of information given by the
parents or a person having special knowledge about
the date of birth of the person concerned. If the
entry in the scholar's register regarding date of
birth is made on the basis of information given by
parents, the entry would have evidentiary value, but
if it is given by a stranger or by someone else who
had no special means of knowledge of the date of
birth, such an entry will have no evidentiary value.
…
15. Section 35 of the Indian Evidence Act lays down
that entry in any public, official book, register,
record stating a fact in issue or relevant fact and
made by a public servant in the discharge of his
official duty specially enjoined by the law of the
country is itself the relevant fact. To render a
document admissible under Section 35 , three
conditions must be satisfied, firstly, entry that is
relied on must be one in a public or other official
book, register or record; secondly, it must be an
entry stating a fact in issue or relevant fact; and
thirdly, it must be made by a public servant in
discharge of his official duty, or any other person in
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performance of a duty specially enjoined by law. An
entry relating to the date of birth made in the school
register is relevant and admissible under Section 35
of the Act, but the entry regarding the age of a
person in a school register is of not much
evidentiary value to prove the age of the person in
the absence of the material on which the age was
recorded. … The courts have consistently held that
the date of birth mentioned in the scholar's register
or secondary school 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…" Emphasis Supplied)
This decision has been consistently followed by this
Court in Pratap Singh v. State of Jharkhand ( (2005) 3 SCC
551); Babloo Pasi v. State of Jharkhand ( (2008) 13 SCC
133); Murugan v. State of T.N. ( (2011) 6 SCC 111); State
of M.P. v. Munna ( (2016) 1 SCC 696); C. Doddanarayana
Reddy v. C. Jayarama Reddy ( (2020) 4 SCC 659); and
Manak Chand v. State of Haryana ( 2023 SCC OnLine SC
1397).
8.2. A coordinate Bench of this Court in State of
Chhattisgarh v. Lekhram ( (2006) 5 SCC 736), through S.B.
Sinha, J., clarified that though entries in school registers
are admissible under Section 35 of the Evidence Act, their
evidentiary value improves only when corroborated by oral
testimony of persons who are aware of its content, such as
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parents or the person who made the entry at the time of
admission. It held as under:
“12. A register maintained in a school is
admissible in evidence to prove date of birth of the
person concerned in terms of Section 35 of the
Evidence Act. Such dates of births are recorded in
the school register by the authorities in discharge of
their public duty. PW 5, who was an Assistant
Teacher in the said school in the year 1977,
categorically stated that the mother of the
prosecutrix disclosed her date of birth. The father of
the prosecutrix also deposed to the said effect.
13. …The materials on record as regards the
age of the prosecutrix were, therefore, required to
be considered in the aforementioned backdrop. It
may be true that an entry in the school register is
not conclusive, but it has evidentiary value. Such
evidentiary value of a school register is
corroborated by oral evidence as the same was
recorded on the basis of the statement of the mother
of the prosecutrix."
8.3. Similarly, this Court in Satpal Singh v. State of
Haryana [ (2010) 8 SCC 714], stated that though a
document may be admissible, but to determine 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. It held as follows:
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“26. In Vishnu v. State of Maharashtra [(2006) 1
SCC 283 : (2006) 1 SCC (Cri) 217] while dealing
with a similar issue, this Court observed that very
often parents furnish incorrect date of birth to the
school authorities to make up the age in order to
secure admission for their children. For
determining the age of the child, the best evidence
is of his/her parents, if it is supported by
unimpeccable documents. In case the date of birth
depicted in the school register/certificate stands
belied by the unimpeccable evidence of reliable
persons and contemporaneous documents like the
date of birth register of the municipal corporation,
government hospital/nursing home, etc., the entry in
the school register is to be discarded.
x x x
28. Thus, the law on the issue can be summarised
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 case.”
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8.4. In Madan Mohan Singh v. Rajni Kant [ (2010) 9 SCC
209], this Court held that the entries made in the official
record may be admissible under Section 35 of the Evidence
Act, but the Court has a right to examine their probative
value. The authenticity of the entries would depend on
whose information such entries stood recorded. It was held
as follows :
“20. So far as the entries made in the official
record by an official or person authorised in
performance of official duties are concerned, they
may be admissible under Section 35 of the Evidence
Act but the Court has a right to examine their
probative value. The authenticity of the entries
would depend on whose information such entries
stood recorded and what was his source of
information. The entries in school register/school
leaving certificate require to be proved in
accordance with law and the standard of proof
required in such cases remained the same as in any
other civil or criminal cases.
21. … For determining the age of a person, the best
evidence is of his/her parents, if it is supported by
unimpeachable documents. In case the date of birth
depicted in the school register/certificate stands
belied by the unimpeachable evidence of reliable
persons and contemporaneous documents like the
date of birth register of the Municipal Corporation,
government hospital/nursing home, etc., the entry in
the school register is to be discarded. …”
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8.5. This Court, in Alamelu v. State [ (2011) 2 SCC 385],
while dealing with a similar factual matrix, held that the
prosecution had failed to prove that the girl was a minor at
the relevant date since the transfer certificate of a
Government School showing age was not duly proved by
witnesses. It observed as under:
“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 the 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 is 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 the girl's age or date of birth. PW 2
was also examined on 9-8-1999. She had also made
no reference either to her age or to the transfer
certificate. It appears from the record that a
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petition was filed by the complainant under Section
311 CrPC seeking permission to produce the
transfer certificate and to recall PW 2. This petition
was allowed. … 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 was noticed as 15-6-
1977. She also stated that the certificate has been
signed by the father as well as 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.” (Emphasis supplied)
9. In the attending facts, we find that the evidentiary value of Ex.P11 is
significantly undermined in the absence of corroborating material. We
say so for the following reasons:
(i) PW-13, who is the Headmaster of Zilla Parishad High School,
Chandanapur, Peddapalli District (erstwhile Karimnagar District),
stated that the victim studied in his school from 2007 to 2013, i.e., 6th
Class to 10th Class and that the Admission Register records her date
of birth as 3rd November 1996. However, in his cross-examination, he
admitted that he had no personal knowledge as to the source or basis
on which the date of birth was recorded therein or if the recorded date
of birth was correct or not. The relevant part of his testimony is
extracted hereunder:
“…In our school there is not clerk to maintain
records. I did not produce any certificate pertaining
to earlier school I, In which P.W.3 studies up to 5th
Class. There must be basis for entering date of birth
of a student in our school such as her earlier school
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record. I do not have personal knowledge as to
what record was produced by parents of P.W. 3 as
basis to enter her date of birth in our school as I
was not Head Master in 2007.
I cannot say in which school P.W.3 studied up to
5th Class. In the nominal roll register of our school,
the signature of P.W.3 was obtained. I do not have
personal knowledge whether the said date of birth
of P.W.3 was correct or not and I am giving
evidence only on the basis of record.” (Emphasis
Supplied)
(ii) The prosecution has failed to examine the person who
had made the entry in the Admission Register to ascertain
on what basis such an entry was made. More so, the entry
in respect of the date of birth of the victim in the primary
school register, i.e., 1st Class to 5th Class, has not been
produced and proved before the Courts below to verify the
age as per its records. It is also not possible to ascertain
from the records as to whether the date of birth was
provided by the parents or simply entered at the behest of
another party, without verification, at the time of admission
to Zilla Parishad High School.
(iii) The testimonies of PW-1, PW-2 and PW-3 are also
telling that none of them mentioned the victim's age with
specificity. There is no reference to Ex.P11, and no attempt
was made by the prosecution to adduce corroborative
testimony regarding the victim's date of birth from her
family members.
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Thus, while examining the issue at hand, on the anvil of the principles
elucidated above, it is essential to notice that the prosecution has
failed to toe the line of legal requisites. There is nothing on record to
corroborate the date of birth of the victim as recorded in the birth
certificate (Ex.P11) issued by the school. Therefore, it cannot be relied
upon to definitely determine the age of the victim and held with
certainty that the victim was below sixteen/eighteen years of age.”
15. The above observations are self-explanatory. Let us turn to the
facts of the instant case. The prosecution case is that the victim was
th
studying in 12 Standard. Therefore, admittedly, the victim must have
th
had a 10 matriculation certificate. There is no reason for not collecting
that document to prove the age. Neither of the parents has deposed about
the age of the victim. The Headmaster [PW8] cannot claim personal
knowledge of the date of birth. Unless the record, on the basis of which
this certificate was issued, is collected and produced, the certificate issued
by the Headmaster during the course of the investigation would be of no
avail to the prosecution. The relevant documents that would have higher
probative value have been burked by the investigation. Therefore, the
certificate issued by PW8, even assuming it to be admissible, would have
no probative value in view of the failure of the investigation to collect the
relevant records maintained at the school, which was the basis for
issuance of such a certificate.
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16. Therefore, this Court is of the view that the prosecution has
miserably failed to prove the date of birth of the victim, and
consequently, since this Court had found that the victim's act was
consensual, none of the offences alleged against the accused can be
sustained. Hence, this Court is of the view that the impugned judgment is
liable to be set aside.
17. In the result, this Criminal Appeal is allowed. The conviction
and sentence passed in Spl.S.C.No.116 of 2019 (Old Spl.SC.No.72 of
2018), dated 20.10.2020 on the file of learned Sessions Judge, Special
Court for POCSO Cases, Salem, are set aside. The accused/appellants are
acquitted of all the charges. The fine amount, if any, paid by the
accused/appellants shall be refunded. Bail bond, if any, executed shall
stand discharged.
05-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
ars
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To
1. The Sessions Judge,
Special Court for POCSO Cases, Salem
2. The Inspector of Police,
Edapadi Police Station,
Salem District.
3. The Public Prosecutor,
High Court, Madras,
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CRL A No. 351 of 2022
SUNDER MOHAN, J.
ars
Pre-delivery judgment in
CRL A No. 351 of 2022
05-11-2026
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