POCSO Act | School Leaving Certificate Can’t Be Solely Relied Upon To Prove Date Of Birth Of Victim: Orissa High Court

While elaborating the position of law, the Single Bench of Justice Sangam Kumar Sahoo observed,

“S.L.C. has no independent evidentiary value which can be solely put to use to prove someone’s date of birth. This holds true even more when a student moves out of her original school, takes admission in another school and seeks to record her date of birth in the admission register of the new school on the sole basis of the S.L.C. obtained from the previous school. Any tampering in original date of birth, as recorded in the previous school register, cannot be ruled out in S.L.C.”

The father of the victim lodged the FIR stating therein that the victim was fourteen years of age and was studying in Class-IX. On 27.12.2018, the appellant took the victim to a jungle road and pulled her inside a bush, made her lie on the ground, removed her wearing apparels and committed rape on her.

After investigation, the investigating officer submitted charge-sheet against the appellant under Sections 376(2)(n)/376(3) of the IPC read with Section 6 of the POCSO Act. The trial Court held that the prosecution was successful in proving its case beyond all reasonable doubts against the appellant for commission of offences under Section 376(3) of the I.P.C. and Section 6 of the POCSO Act.

However, the trial Court acquitted the accused for commission of offence under section 376(2)(n) since committing rape repeatedly on the same woman is a necessary ingredient to attract culpability under that provision, which could not be proved by the prosecution against the appellant.

Counsel for the appellant contended that even though the trial Court accepted date of birth of the victim basing upon the entry made in the school admission register, the same was recorded on the basis of the date of birth mentioned in the SLC when the victim took admission in Class-IX.

Thus, she argued that as no SLC has been seized or proved in this case and since the IO has also not tried to ascertain the date of birth of the victim from the school admission register where the victim was earlier prosecuting her studies, it is unsafe to accept the age as mentioned in the school admission register of the High School.

Court’s Observations

After hearing the arguments, the Court went on to examine the evidence available on the question of age of the victim. It noted that her evidence is silent about her date of birth. Further, her father could not state even the approximate age of the victim at the time of occurrence and also, her mother expressed inability to recall the year of birth of the victim.

The headmaster-in-charge of the High School where the victim took admission in Class-IX stated that the age of the victim was recorded in the admission register on the basis of the SLC which she had obtained from her previous school.

The Court further noted that the said SLC was not seized by the I.O. nor proved during the trial. The I.O. also did not visit the previous school where the victim was pursuing her studies to verify the date of birth entry made in the school admission register nor seized any document of her previous school.

Accordingly, the Court deemed it pertinent to clarify the position of law as far as proof of date of birth on the basis of SLC is concerned. It relied upon the decision of the Supreme Court in Birad Mal Singhvi v. Anand Purohit wherein it was held as follows:

“The truth or otherwise of the facts in issue, namely, the date of birth of the candidate mentioned in the documents must be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

In the present case, the victim had taken admission in the said High School while she was pursing her studies in Class-IX. Her date of birth was recorded in the new school admission register only on the basis of the S.L.C. that she had obtained from her previous school. The parents of the victim were also oblivious of the date of birth of their daughter.

“Against this backdrop, it is unclear as to who provided her date of birth while she took admission in her previous school and that to on what basis. Further, the admission register of the previous school of the victim was neither seized nor it is proved as to what was her date of birth recorded in that register. No birth certificate of the victim has been seized. Therefore, having regard the ratio arrived at by the Hon’ble Apex Court in Birad Mal Singhvi (supra), it is quite unsafe to rely on the admission register of the subsequent school or the S.L.C. to determine the accurate age of the victim,” the Court observed.

The Court further cited the decision of the Apex Court in Sunil v. State of Haryana, where the prosecution sought to prove the date of birth of the victim through an SLC but failed to produce the admission register of the previous school. The Court held that it would be unsafe to rely merely upon the SLC as a conclusive proof of the date of birth of the prosecutrix.

Therefore, as the prosecution failed to prove the age of the victim to be under sixteen years at the time of occurrence, the Court was of the view that the ingredients of the offence under Section 376(3) of the IPC were not satisfied which require that the woman must be under sixteen years of age.

Similarly, in absence of concrete proof of the age of the victim, the charge under Section 6 of the POCSO Act could not be sustained. Therefore, the appellant was acquitted of the charge under Section 376(3), IPC and Section 6 of the POCSO, instead he was found guilty under Section 376(1) of the IPC.

Case Title: Duryodhan Majhi @ Durja v. State of Odisha

Case No.: JCRLA No. 09 of 2021

Date of Judgment: July 12, 2023

Counsel for the Appellant: Ms. Minati Behera, Amicus Curiae

Counsel for the State: Mr. Priyabrata Tripathy, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 81