IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.327 of 1995 Date of decision: 5.11.2008 State of Himachal Pradesh Appellant Versus Bhim Dutt Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. Rajesh Mandhotra, Dy. Advocate General. For the respondent: Mr. Malay Kaushal vice Mr. Ramakant Sharma, for the respondent. V.K.Ahuja, J. This is an appeal filed by the appellant against the judgment of the Court of learned Sessions Judge, Sirmour District at Nahan, vide which the respondent was acquitted of the charge framed against him under Section 376 IPC. Briefly stated, the facts of the case are that a report was lodged with the police by one Kirpi Devi that her youngest daughter Kumari S (name not mentioned), aged about 16 years was studying in 5th Class in the year 1991. She stated that in the month of December, 1991, she learnt that her was pregnant and when she enquired, she was informed that respondent, who was a teacher in her School, had forcibly committed rape on her several times. A child was delivered in the month of Falgun and she approached Panchayat, Mahila Mandal and thereafter the report was lodged with the police on 23.10.1992. On this report, a case was Whether the reporters of Local Papers may be allowed to see the Judgment?Yes registered and after investigation, the challan was filed before the learned Judicial Magistrate who committed the case to the learned Sessions Judge who tried the respondent leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record. The first and the foremost point which was considered by the learned trial Court is in regard to the age of the prosecutrix. The oral evidence consists of the statement of PW-1 S who had not stated anything on oath in regard to her age though at the time of examination, her age was mentioned as 16 years which was not given on oath. In cross-examination, she stated that she does not know if she is of the age of 20/21 years meaning thereby that she had not denied this suggestion. PW-2 Kirpi Devi, the mother of the prosecutrix had simply stated that the prosecutrix had delivered a child one year back when she was only 16 years of age. In cross-examination, it was put up to her that what is the age difference in between her children which may be of one year or two to three years. She gave the age of the prosecutrix by approximation. The trial Court referred to this fact and had concluded that the age of the prosecutrix comes to about 19 years. However, we are not inclined to accept this evidence in which the age has been calculated on the basis of a vague statement made by the mother in regard to the difference in age in between her children. Thus, the oral evidence led by the prosecution does not establish the age of the prosecutrix on the date of occurrence. The next part of the evidence consists of the statement of PW-8 Dr. H.K.Pant, who had conducted the ossification test of the prosecutrix and had opined that on the basis of this test, the age could be said to be in between 15 to 19 years. According to law and the accepted legal precedent, two years can be added or deducted on either side and, therefore, the age of the girl can be said to be even 21 years and this evidence is not conclusive to determine the age of the prosecutrix. The next evidence considered by the learned trial Court was the testimony of PW-11 Inder Sen, Secretary, Gram Panchayat who had proved the entry Ex. PK in the Pariwar register vide which the date of birth of the prosecutrix was shown as 27.12.1997. PW- 13 Dev Datt Sharma, a JBT Teacher had proved the certificate Ex.PL issued on the basis of the entry in the register of births and deaths brought by him and he also gave the same date as mentioned in Ex.PK. However, he admitted that this entry was made in the register on the basis of the Certificate issued by the Gram Panchayat, Neri Naun but that register never saw the light of the day. The copy of the entry in the Pariwar register is admissible in evidence in case the basis of such entry i.e. entry from the register of births and deaths and maintained by Panchayat, is proved on record. The entry made in the register of School also cannot be relied upon until and unless the copy of entry made in the register of births and deaths maintained by the Panchayat is proved on record on which basis the entry was made in the School Admission Register. Coming the entry in the Pariwar register. In our view, the same cannot be believed until and unless the copy of the birth and death register maintained by the Panchayat is proved on record on which basis, the entry was made in the Pariwar Register. We find support from the decision of Division Bench of this Court in State of Himachal Pradesh vs. Om Parkash and another Latest HLJ 2005(HP)(DB) 179 in which one of us was one of the members of the Bench which made such observations. It was clearly held therein that the entry in the Pariwar register can be relevant to prove the age of the person recorded therein. The Investigating Officer did not try to procure entry of the date of birth of the prosecutrix from the birth and death register of the Panchayat and accordingly adverse inference was drawn against the prosecution. In the present case also, no steps have been taken by the Investigation to procure a copy of such entry and as such adverse inference has to be drawn against the prosecution. The net result of the above discussion is that the prosecution had failed to prove that the prosecutrix was of 16 years or below 16 years on the date of occurrence. It was rightly concluded by the trial Court that from the depositions, the prosecutrix was a consenting party to the sexual interfercourse and therefore had concluded that the prosecution case cannot be relied upon. We have no reason to disagree with the conclusion arrived at by the learned trial Court. It is unfortunate that a case of the present type in which a teacher had sexually exploited a girl of his school, has to end in an acquittal but merely on presumption, the respondent cannot be held guilty and as such we do not find any reason to hold that the findings of the learned trial Court are perverse calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed accordingly. The bail bonds furnished are discharged. (Deepak Gupta),J. 5th November, 2008. (V.K.Ahuja),J. (sds)