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To ascertain the DOB, first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, DOB certificate from the school first attended shall be considered: High Court of Delhi

Rule 12(3) of the J.J. Rules itself reveals that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, date of birth certificate as per the school first attended other than a play school to be considered in order to ascertain if prosecutrix is a child in terms of Section 2(1)(d) of the POCSO Act. These were stated by High Court of Delhi, consisting Justice Mukta Gupta in the case of Mohd. Afsar vs. State [CRL.A. 274/2020] on 07.01.2022.

The facts of the case are that on 13th May 2013, the prosecutrix went missing and was recovered on 8th June 2013, the prosecutrix was less than 13 years of age at the time of alleged offence and thus, a ‘child’ within the meaning of POCSO Act and therefore, her consent, if any, was of no consequence. As per the MLC, the prosecutrix was found pregnant when she was recovered and her MTP was subsequently done on 1st July 2013. There were sufficient evidence to convict the appellant for the offence for which he has been convicted. By this appeal, the appellant challenged the impugned judgment dated 9th January 2020 whereby he was convicted for offences punishable under Section 376 IPC read with Section 4 of the POCSO Act and the order on sentence dated 15th January 2020 whereby the appellant has been directed to undergo rigorous imprisonment for a period of 10 years and pay a fine of ₹10,000, in default whereof to undergo simple imprisonment for a period of six months.

The learned Counsel for the appellant contended that the findings of the learned trial Court that the prosecutrix was a minor is incorrect and not born out from the record and thus, the consent of the prosecutrix was not immaterial. As per the father of the prosecutrix, he was married in the year 1987 and had nine children. He deposed that his first child was born after about two years of marriage and there was a gap of 2 to 2½ years between each child. Thus, considering the age gap between first child and thereafter, the prosecutrix was born in the year 1993 and as on the date of alleged incident i.e. 13th May 2013, she was approximately 20 years old and hence, major. The learned Trial Court also failed to note that no birth certificate or hospital record or any municipal record was furnished at the time of the admission of the victim in the school and thus, date of birth recorded in the school record cannot be treated as the correct date of birth. It was further contended that the prosecutrix in her statement under Section 164 CrPC admitted that the appellant married her and a Nikaah was performed. Once Nikaah has been performed and Nikaahnama has been prepared, the prosecutrix became the wife of the appellant, therefore, the appellant can’t be convicted for offence punishable under Section 376 IPC in view of the exception to Section 375 IPC. It is submitted that since the prosecutrix was a major and had married the appellant willingly, the conviction under Section 376 IPC and Section 4 of the POCSO Act should be set aside.

The learned Counsel for respondent stated that PW-5 who appeared as the Principal of the school clearly deposed that the prosecutrix was admitted in class 1st on 14th July 2005 and as per the record, the date of birth of the prosecutrix in the school first attended was 10th January 2001. The said proof of age having been proved by the prosecution in accordance with law will hold primacy in terms of Rule 12(3) of the J.J.Rules. Since prosecution proved the date of birth of the prosecutrix as 10th January 2001 and the alleged incident took place on 13th May 2013 when the prosecutrix went missing and was recovered on 8th June 2013, the prosecutrix was less than 13 years of age at the time of alleged offence and thus, a ‘child’ within the meaning of POCSO Act and therefore, her consent, if any, was of no consequence. It is submitted that despite minor contradictions in the testimonies of the prosecutrix and her father, it is not evident that the prosecutrix was more than 18 years of age at the time of alleged incident, hence, there is no error in the impugned judgment of conviction.

The High Court of Delhi held that Rule 12(3) of the J.J.Rules itself reveals that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, to the date of birth certificate from the school first attended other than a play school. PW-5 who appeared with the record of the school stated that the prosecutrix was admitted in her school in Class 1st on 14th July 2005 through an open test and at the time of her admission, her date of birth was mentioned as 10th January 2001. Thus, even if she had attended any play school or a Madarsa at the village, the same was irrelevant, for the reason, the school first attended other than the play school was the one where the prosecutrix was admitted in the 1st standard and her date of birth was mentioned as 10th January 2001. As per the record, prosecutrix further left the school on 1st May 2013 while studying in 8th standard. Thus, she had no matriculation certificate. Therefore, as per the date of birth recorded in the school first attended, the prosecutrix was a child in terms of Section 2(1)(d) of the POCSO Act as she was below the age of 18 years. The prosecutrix was a ‘child’ at the time of alleged incident and she was forcibly taken away from the lawful guardianship of her parents and an offence of sexual intercourse was committed on her repeatedly and forcibly, therefore, the Court did not find any error in the impugned judgment of conviction and order on sentence. Thus, the appeal was dismissed.

Judgment reviewed by Shristi Suman. Read Judgment

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