Defence Failed To Challenge Genuineness Of Birth Certificate: Sikkim High Court Upholds Trial Court's Determination Of POCSO Victim's Age

Justice Meenakshi Madan Rai was hearing an appeal against the conviction of the appellant by the Specia Trial Court under Section 7 of the POCSO Act for sexual assault on a seventeen-year-old girl.

One of the contentions of the appellant was with respect to the age of the victim. He claimed the victim's age as contained in a photocopy of the birth certificate of the victim and the live birth register had not been proven in accordance with the law.

It was stated that the original birth certificate was not produced before the Trial Court but only a copy of the original was produced. It was added that the Registrar of Births and Deaths (PW-5) produced the photocopy of the original live birth register containing entries of the victim's birth date.

The name of the informant to the entries of the victim was not recorded in the live birth register and the informant was not examined as a prosecution witness, it was submitted.

The Trial Court had observed that the Registrar found that the photocopy of the birth certificate of the victim matched with the entries made in the original live birth register maintained in his office. Even though the birth certificate produced was a copy and the original was not produced, the Trial Court considered the date of birth on the copy to be the age of the victim based on the testimony of PW-5.

The High Court however considered the appreciation of evidence by the Trial Court to be erroneous. It examined Section 65 of the Evidence Act which deals with cases in which secondary evidence relating to documents may be given. It stated that secondary evidence may only be produced when the primary evidence cannot be produced under certain conditions.

It observed “…secondary evidence is permissible in the absence of the original document and after the Court is convinced of the circumstances due to which the document cannot be produced. In other words, sufficient reasons are to be furnished for non-production of the original document. It is only then that secondary evidence can be admitted and proved.” In view of this, the Court examined the photocopy of birth certificate and live birth register produced by prosecution as evidence.

Photocopy of birth certificate not certified true copy

In the present case, the Court noted that the photocopy of the birth certificate (Doc A) was not even certified to be a true copy. Therefore, it could not have been used to compare the entries in it with the entries maintained by the Registrar of Births and Deaths. It observed that “In the instant case “Doc A” is not even certified to be a true copy of the original. The document surely could not have been utilized for the purpose of comparing the entries therein with the entries made in the live birth register Exbt-4, maintained in the office of PW-5.”

It also stated that the contents of the document have to be proved by the party relying on it, failing which it cannot be considered as evidence by the Court. It remarked“…it is settled law that the contents of the document and the signatures thereof are to be proved by the party relying on it and then it is to be marked as an Exhibit. Then and only then can the contents of the document be considered in its entirety as evidence by the Court. The Prosecution failed in its duty to furnish the original document or to give lucid reasons for its non-production.”

Defence did not cross-examine witnesses over genuineness of copy of birth certificate or birth register

The High Court agreed with the finding of the Trial Court with regard to the age of the victim. It arrived at this conclusion as during the cross-examination of the victim's father, the defence did not question him about the truthfulness of the copy of birth certificate.

“The cross-examination therefore merely reaffirms what he has stated in his evidence in chief, while relying on “Doc A”. It did not decimate the veracity of “Doc A” or its contents nor were the provisions of law as per the Evidence Act..,” the Court stated.

The Court noted that the photocopy of the entries made in the original live birth register (Exhibit 4) could be an official record in terms of Section 74 of the Evidence Act and admissible under Section 35.

However, the contents of the copy need to be corroborated by the person on whose information the entries were recorded. The Court referred to the Supreme Court judgment in Madan Mohan Singh and Others vs. Rajni Kant and Another, 2010, where it was held that the proof of entries made in the official record would depend on whose information such entries were recorded and the authenticity of such recording.

The Court noted that PW-5 identified Exhibit 4 as the copy of the birth register containing entries of the victim. The Court observed that even PW-5 was not questioned by the defence during his cross-examination about genuineness of the copy or the non-examination of the informant. It held:

“His cross-examination was merely a reaffirmation that Exbt-4 was the relevant page of the live birth register containing the entries. No questions were put to him in cross-examination regarding the non-examination of the informant of the details…of the said document. Consequently, the finding of the Learned Trial Court on this aspect is also upheld.”

The court thus upheld the finding of the trial court with respect to the age of the victim and agreed with the judgment of the Trial Court in convicting the appellant under the POCSO Act.

Case title: Ganesh Tamang vs. State of Sikkim, Crl. A. No.10 of 2023

Citation: 2024 Live Law (Sik) 7