Love Affair, Not Statutory Rape: J&K&L High Court Acquits Man After Finding Prosecutrix's Minority Not Proved

The Court noted that the school certificate relied upon by the trial court had no probative value because the teacher who proved it admitted he did not know the basis on which the date of birth was recorded, and the father of the prosecutrix could not remember the date of birth of any of his children.

A Bench of Justice Sanjay Dhar, while observing that “the prosecution has not been able to prove beyond reasonable doubt that the prosecutrix was less than 18 years of age at the time of alleged occurrence,” held that “the learned trial court has grossly erred in relying upon the certificate, EXTPW-7, without realizing that there is no basis for recording of particulars in the said certificate and the same does not inspire confidence.”

The Court was hearing an appeal filed by one Yawar Ahmad Bhagat against the judgment passed by the learned Additional Sessions Judge (Fast Track Court), Kulgam, whereby he was convicted for offence under Section 376 RPC and sentenced to eight years of rigorous imprisonment.

The case arose from a complaint Police Station Yaripora received on December 7, 2018 by PW-1 alleging that his daughter had left home at about 5 PM on the previous day to make purchases from the market and was kidnapped by the appellant. An FIR under Sections 363 and 109 RPC was registered. During investigation, the prosecutrix was recovered from the custody of the appellant at Shirpora Dal. She was subjected to medical checkup, and offence under Section 376 RPC was added.

The prosecution claimed that the prosecutrix was less than 18 years of age, relying on a date of birth certificate issued by Government High School, Kujjar Kulgam showing her date of birth as January 14, 2001. The trial court convicted the appellant under Section 376 RPC but acquitted him under Section 363 RPC, holding that the prosecutrix had accompanied the appellant out of her own free will but was a minor, making her consent immaterial. Aggrieved, the accused appealed before the High Court.

Court's Observations

The Court analyzed the statement of the prosecutrix recorded under Section 164A Cr.P.C. and her testimony before the trial court. In her Section 164A statement, the court noted that the prosecutrix stated that she had called the appellant and asked him to accompany her to Jammu, and when he refused, she threatened to commit suicide, compelling him to come. She stated that she developed physical relations with the appellant out of her own free will. In her cross-examination before the trial court, she admitted that she had compelled the appellant to take her to Jammu by threatening to commit suicide and that she developed physical relations with him out of her own free will.

The Court then examined the evidence regarding the age of the prosecutrix. PW-7 Muzaffar Ahmad Paul, the teacher who proved the school leaving certificate (EXTPW-7), stated in cross-examination that the prosecutrix had taken admission in the school in 9th standard, that he did not know on what basis her date of birth was recorded in the admission register, that there was no record of the Chowkidar or Municipal Committee available with the school, and that he was not posted in the school at the time of her admission.

The Court noted that PW-1 Abdul Aziz Dar (father of the prosecutrix) stated in cross-examination that he did not remember when his marriage had taken place, did not remember the date of birth of his eldest child, his second child, or his third child, and did not even remember the date of birth of the prosecutrix.

Scrutinising the testimony of PW-4 Lali Jan (elder sister of the prosecutrix) the court noted that she had stated that her own date of birth was January 1, 1999, but she had no knowledge about the date of birth of the prosecutrix. The Court also pointed to her admission that for ascertaining whether the prosecutrix is a minor, it is necessary to know her date of birth, but she assumed she was minor because she is younger.

Citing Birad Mal Singhvi v. Anand Purohit (1988) Supp. SCC 604, the Court reiterated that entries regarding date of birth contained in scholar's registers and school certificates have no probative value and cannot be taken as conclusive proof. Referring to Raju Mitra v. State of West Bengal (2007 SCC OnLine Cal. 72), the Court observed that a reasonable person from the school should be examined to show what information was provided at the time of admission and what was recorded, and that the school admission register has evidentiary value but cannot be regarded as conclusive proof.

The Court held that the prosecutrix was not studying in the concerned school from the very beginning but had taken admission in 9th standard, and the basis of recording her date of birth was not known. No document from the school where she initially studied was produced. In these circumstances, the date of birth certificate had no probative value, the Court maintained.

The Court further held that the burden is upon the prosecution to prove that the prosecutrix was minor at the time of the occurrence, like any other ingredient of the offence, beyond reasonable doubt. The prosecution failed to discharge this burden, it said.

Once it was held that the prosecution failed to prove minority, the established fact that the prosecutrix had accompanied the appellant out of her own will and developed physical relations out of her free will meant that it was a case of a love affair between two young persons, not statutory rape.

The High Court thus held that even if it were assumed (though not proved) that the prosecutrix was less than eighteen years of age, considering the closeness of age between the victim and the appellant and the fact that she had accompanied him out of her own accord because of her affection for him, putting the appellant behind the bars would be perversity of justice.

The conviction and sentence were hence set aside, and the appellant, who was in custody, was directed to be released forthwith.

Case Title: Yawar Ahmad Bhagat v. UT of J&K through P/S Yaripora

Citation: 2026 LiveLaw (JKL) 253

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