Case Note & Summary
The case arose from a criminal appeal filed by Ashok s/o Ramlakshtra Tiwari against his conviction by the 11th Adhoc Additional Sessions Judge, Nagpur, in Sessions Trial 126/2005 on 17.01.2006. The appellant was convicted under sections 363 and 366 of the Indian Penal Code, 1860, for kidnapping and abduction, and sentenced to rigorous imprisonment, while being acquitted of the offence under section 376 IPC. The prosecution’s case was that the victim, a 9th standard student aged about 14-15 years, went missing on 15.08.2004 from her home in the CRPF Campus, Nagpur. Her father, PW1 Prabhakar Rao, lodged an FIR on 23.08.2004, alleging that the appellant, who conducted tuition classes and was the son of a colleague, had kidnapped her. During investigation, the victim was traced and medically examined; a school leaving certificate and radiological examination report were collected. The defence argued that the prosecution failed to prove the victim’s minority, as the school records were not supported by the testimony of the person who originally recorded the date of birth, and the radiological age of 16 years ± 1 year was inconclusive. The appellant’s counsel relied on the Supreme Court decisions in Alamelu and another v. State (2011) 2 SCC 385, Mahadeo s/o Kerba Maske v. State of Maharashtra (2013) 14 SCC 637, and State of M.P. v. Anoop Singh (2015) 7 SCC 773 to contend that the evidence was inadequate. The High Court, after examining the evidence, focused on the determination of age. It noted that the radiological opinion placed the victim’s age at 16 years ± 1 year, and the school leaving certificate (Ext.48) recorded the date of birth as 01.06.1990, but the principal (PW15) admitted she had not seen the original birth certificate and the entry was based on a transfer certificate from a previous school. Referring to the principles laid down in Alamelu, the court observed that a document under Section 35 of the Evidence Act has no probative value regarding its contents unless the person who gave the information is examined. The radiological evidence, with an inherent margin of error, could not positively establish that the victim was below 18 years on the crucial date. Consequently, the prosecution failed to prove an essential ingredient of the offences under sections 363 and 366 IPC. The High Court held that the appeal must succeed and set aside the conviction and sentence, allowing the appeal.
Headnote
A) Criminal Law - Evidence - Documentary Proof - Indian Evidence Act, 1872, Section 35 - The court, relying on Alamelu v. State (2011) 2 SCC 385, held that a school leaving certificate has no evidentiary value to prove the age of a victim unless the person who entered the date of birth is examined. The admission register extract was based on a transfer certificate from an earlier school, and the principal admitted not seeing the original birth certificate. Held, mere production of the document did not prove its contents, and the entry could not be relied upon to fix the victim's age. (Paras 11-12) B) Criminal Law - Evidence - Medical and Scientific Evidence - Radiological Examination - Indian Penal Code, 1860, Sections 363, 366 - The court noted that the ossification test placed the radiological age at 16 years ± 1 year, meaning the age could be between 15 and 17 years. Following the principle in Jaya Mala v. Govt. of J & K that there is a margin of error of two years in such tests, and the doctor's admission that medical age is approximate, the court held that the radiological evidence could not definitively prove the victim was below 18 on the date of the incident. Held, the prosecution failed to establish minority beyond reasonable doubt, and the conviction was unsustainable. (Paras 10, 12)
Issue of Consideration
Whether the prosecution proved that the victim was a minor (below 18 years) and whether the conviction under sections 363 and 366 IPC was sustainable
Final Decision
The High Court allowed the appeal, setting aside the conviction and sentence under sections 363 and 366 IPC, holding that the prosecution failed to prove the victim's minority beyond reasonable doubt.
Law Points
- proof of age in criminal cases requires reliable evidence
- school leaving certificate not sufficient unless original entry maker examined
- radiological age with margin of error not conclusive for minority
- burden on prosecution to prove age beyond reasonable doubt
