Full Judgment
CRL.MC NO. 2095 OF 2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945 CRL.MC NO. 2095 OF 2023 AGAINST SC 104/2019 OF FAST TRACK SPECIAL COURT, KOTTAYAM PETITIONER: JINSU S AGED 28 YEARS S/O SAJI, JEETHU BHAVAN, KODUVACHOOR P.O.VAIKOM, VECHUR, KOTTAYAM DISTRICT, PIN - 686144 BY ADVS. ANZAR BASHEER P.ANTO THOMAS V.R.ARUN K.S.MURALIKRISHNAN NAIR RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER KADATHURUTHY POLICE STATION, KOTTAYAM DISTRICT., PIN - 686604 BY SMT.M.K.PUSHPALATHA-PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 2095 OF 2023 2
ORDER
Dated this the 24th day of March, 2023. The challenge in this Crl.M.C is to the order dated 2.3.2023 in Crl.M.P.No.119/2023 in S.C.No.104/2019 on the file of the Fast Track Special Court, Kottayam (for short 'the court below').
2. The petitioner is the accused in S.C.No.104/2019. He faces
charges under Sections 506(i), 354A(1)(i), 354(1)(ii), 354(1)(iv) and 376 of IPC and Sections 3 r/w Section 4, 7 r/w Section 8, 11(i) and 11(iv) of the Protection of Children from Sexual Offences Act and Section 67-B of the Information Technology Act. The trial in the Court below is at the fag end.
3. In order to establish the age of the victim, the Secretary of
Ettumanoor Municipality (PW18) produced Ext.X3 birth certificate maintained at the local authority. The prosecution proved the birth certificate (Ext.X3) through PW18. PW1, the mother of the victim was also recalled and examined.
4. The challenge of the petitioner is that PW1 did not identify her
signature in the birth report attached to the birth certificate. Therefore, the CRL.MC NO. 2095 OF 2023 3 petitioner filed Crl.M.P.No.119/2023 for sending the signature of PW1 in Ext.P8, deposition of PW1 and Ext.X3 for expert examination. The Trial court rejected that application.
5. Heard Sri.Anzar Basheer, the learned counsel for the petitioner and the learned Public Prosecutor.
6. The learned counsel for the petitioner submitted that Ext.X3 is a concocted document and the petitioner is at liberty to challenge the genuineness of the same.
7. Ext.X3 is the birth certificate produced by the Registrar of Births
and Deaths of Ettumanoor Municipality. The learned counsel for the petitioner submitted that the petitioner is at liberty to ask the Court to examine its probative value. The learned counsel further submitted that the authenticity of the entries made in Ext.X3 would depend upon the instruction/information which forms the basis of the record.
8. The entry made in the official record by an official or an
authorised person for the purpose of official duty, is admissible under Section 35 of the Evidence Act. The authenticity of the entry may depend CRL.MC NO. 2095 OF 2023 4 upon its source of information regarding the entry. PW18 deposed that he obtained the information regarding the birth certificate from Karithas Hospital, where the victim was born.
9. The entries regarding the birth of the victim were stated to have been entered long back in 2001. When the information contained in the birth report was confronted to the mother of the victim, she feigned
ignorance. It would be natural that a witness would find it difficult to identify her signature or writings when confronted to her after a long lapse of years, that too, prepared at the time immediately after the delivery in the hospital.
10. Entries in official records, which have been made so many years
ago, are presumed to be correct. Statements in public documents are receivable to prove the facts stated on the general ground that they were made by the authorized agents of the public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community. In many cases, indeed, in nearly all cases, after a lapse of years it would be impossible to give evidence that the statements contained in such documents were in fact true, and it is for this
CRL.MC NO. 2095 OF 2023 5 reason that such an exception is made to the rule of hearsay evidence (See Ghulam Rasul Khan v. Secretary of State (AIR 1925 PC 170).
11. Birth registers are maintained by public servants in the discharge
of their official duty, a duty specially enjoined by law. In the generality of cases the entries in those registers furnish the best evidence of the date of birth and can safely be accepted unless they are shown to be wrong. (See Kunhiraman v. Krishna lyer: (1962 KLT 275 (F.B.) =1962 KLJ 289).
12. The learned counsel for the petitioner submitted that to corroborate Ext.X3 birth certificate, the prosecution has also proved Ext.X1
SSLC certificate. The information regarding the entries in Ext.X3 was collected from the birth report which was forwarded from Karithas Hospital. The authenticity of the entries in Ext.X3 and the related documents is to be tested based on the information given from that hospital. Only for the reason that PW1, the mother, could not specifically identify her signature which she put long back, it is not prudent to suspect the authenticity of
Ext.X3 certificate and therefore, the prayer for sending Ext.X3 for examination to the Forensic Science Laboratory is not maintainable. Annexure A4 order does not suffer any irregularity. Therefore, the Crl.M.C CRL.MC NO. 2095 OF 2023 6
stands dismissed. It is made clear that the petitioner is at liberty to raise all his contentions regarding the genuineness and probative value of Ext.X3, during the course of trial.
Sd/- K. BABU JUDGE ab CRL.MC NO. 2095 OF 2023 7 APPENDIX OF CRL.MC 2095/2023 PETITIONER ANNEXURES ANNEXURE A1 COPY OF THE BIRTH REPORT COPY OF THE ORDER DATED 17/01/2023 IN Annexure A2 CRL.M.C.NO. 255/2023 Annexure A3 TRUE COPY OF THE CRL.M.P. NO. 119/2023 DATED 27/02/2023 Annexure A4 CERTIFIED COPY OF THE ORDER DATED S.C.NO. 104/2019 ON THE FILES OF THE FAST TRACK SPECIAL COURT,(POCSO) , KOTTAYAM RESPONDENTS ANNEXURES: NIL