IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.213 of 1994 Reserved on :17.7.2008 Date of decision: 22.7.2008 State of Himachal Pradesh Appellant. Versus Chaman Lal and another Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? Yes . For the appellant: Mr.Ram Murti Bisht, Dy. Advocate General. For the respondent No.1: Mr. R.L.Chaudhary, Advocate. V.K. Ahuja,J. This is an appeal filed by the State of Himachal Pradesh against the judgment of the Court of Sessions Judge, Mandi dated 30.11.1993 vide which the respondent was acquitted of the charge framed against him under Section 363/366 and 376 IPC. Briefly stated, the facts of the case are that on 6.12.1990 at about 3.15 P.M., a report was lodged with the police by one Boharu Ram that his daughter “L” name not mentioned, aged about 15 years, was missing from the house since 6.30 p.m. of the last evening. The complainant searched for his daughter and it was alleged that she might have been kidnapped by Chaman Lal respondent. A case under Section 363/366 was registered and the prosecutrix was recovered from the possession of the respondent on 12.1.1991. Thereafter, the case was also registered under Whether the reporters of Local Papers may be allowed to see the Judgment? Yes Section 376 IPC and after investigation, the challan was filed as against the respondent as well as Shayam Lal, in whose taxi the girl was allegedly kidnapped by Chaman Lal respondent. After investigation, challan was filed before the learned Judicial Magistrate who committed the case to the learned trial Court. The learned trial Court framed the charge as against the respondent under Sections 366,367 IPC while the charge was framed against the co-accused Shayam Lal the driver of the taxi under Section 363 read with Section 114 IPC and Section 366 read with Section 114 IPC. Both the accused persons were tried by the learned trial Court and the co-accused Shayam Lal(since dead) was acquitted at the stage of hearing of arguments under Section 232 Cr PC by the learned trial Court and on conclusion of the trial, the respondent was also acquitted of the charge framed against him as detailed above. We have heard the learned counsel for the parties and have gone through the record of the case. The main point raised by the learned Dy. Advocate General for the state was that there was sufficient evidence on record to show that the prosecutrix was below the age of 16 years and, therefore, the findings of the learned trial Court that the prosecution has failed to prove that the prosecutrix was below the age of 18 years, are not sustainable in the eye of law and these can be termed as perverse calling for an interference by this Court. On appraisal of the record of the case, it is clear that the main evidence as against the respondent in regard to the age of the prosecutrix was the School Leaving Certificate Ex.PD and the certificate issued by the Panchayat in regard to age Ex.PE apart from other oral evidence consisting of the statements of the father, mother and the brother of the prosecutrix, which shall be discussed below. The first part of the evidence consists of the School Leaving Certificate Ex.PD proved by the prosecution from the statement of PW-3 Smt. Sushma Sharma TGT. She has stated that she had issued the certificate as per the record of the School and as per the record of the School, the date of birth entered was 21.4.1975. She admitted in her cross-examination that this entry in the register was based on record of the previous school of Laxmi Devi. There is nothing in her statement to show as to on what basis the entry in regard to date of birth was made in the school record, though her statement suggests that it was on the basis of the record of the previous school where she was admitted firstly. Thus, the statement of this witness does not prove that the date of birth of the prosecutrix was recorded on the basis of some primary evidence i.e. entry from Birth Register maintained by the Panchayat and, therefore, the School Leaving Certificate cannot be said to be sufficient to prove the date of birth of the prosecutrix. Coming to the second part of the evidence i.e. Ex.PE Panchayat certificate which was proved from the statement of PW-4 Joginder Kumar Secretary of the Gram Panchayat. He has stated that certificate Ex.PE is in his hand and signed by him and he has also brought the Pariwar register and the entry in this register is correctly recorded as per the Panchayat record. He admitted that there is a separate register for recording births and deaths in the Gram Panchayat but stated that in the year 1980, there was no such register being maintained by the Gram Panchayat. He stated that he cannot say as to who had got the entry made about the birth of the girl. He also stated that this register pertains to the period from 1.1.1986 to 31.12.1986. According to this certificate, the date of birth of the girl is 21.4.1975. The basis of this certificate was the entries in the Pariwar register whose copies were never brought on record by the prosecution. This is only a certificate issued by the Secretary and the basis of this was the entry in the Pariwar register which was never proved on record. It is also clear that the prosecutrix was born on 21.4.1975 and these entries in the Pariwar register were made after about 11 years since this register is for the period 1.1.1986 to 31.12.1986. There is nothing on record to show as to on what basis the entries were made in the Pariwar Register . The entries of the Pariwar register were also not proved on record and the certificate issued by the Secretary of Gram Panchayat cannot be said to be sufficient to prove the date of birth of the prosecution. The entries made in Birth & Death register duly maintained by the Panchayat can be proved by producing the original register as well as the entries in the said register and only then it can be considered as a primary evidence in regard to the age. In the Pariwar register, the date of birth is entered approximately but the copies of the Pariwar register were also not proved on record in this case. The certificate issued by the Secretary of the Gram Panchayat is not a primary evidence and does not establish the date of birth of the prosecutrix and on what basis this date of birth entry was recorded and by whom the information was given at the time of making the entries in the Pariwar register which entry never saw the light of the day. Apart from the above, the learned trial Court had also referred to the testimony of PW-6 Boharu Ram father of the prosecutrix, PW-9 Chandi Devi, mother and Sher Singh PW-10, the brother of the prosecutrix in which the age of children of PW-6 Boru Ram has been stated by approximation and accordingly, it was sought to be proved that the prosecutirx was of the age of about 16 years but these statements also do not further substantiate the case of the prosecution since from the statements of these witnesses the learned trial Court had rightly concluded that the age of the prosecutrix appears to be above 18 years as per the testimonies of the father, mother and brother of the prosecutrix. I may refer to the testimony of PW-6 Boharru Ram father of the prosecutrix, who gave the age of his elder daughter as 35 years and after her two sons were born with a difference of two years and then after 2-3 years, the prosecutrix was born. After referring to the difference in ages, the learned trial Court concluded that the minimum age of the prosecutirx comes to 23 years at the time of the recording of her statement on 12.1.1993, and, therefore, she was above the age of 18 years at the time of alleged kidnapping. Similar versions have been given by the mother of the prosecutrix and brother, and therefore, as rightly held by the learned trial Court, this evidence is not sufficient to prove that the prosecutrix was below the age of 18 years at the time of commission of offence. The learned trial Court had rightly disbelieved Exts. PD and PE as well as the oral evidence and had concluded that the prosecution had failed to prove that the girl was below the age of 18 years at the time of the occurrence. The learned trial Court had also referred to the statement of the prosecutrix and had pointed out the infirmities in her statements and had concluded that the prosecution had failed to prove that the girl was not a consenting party to the alleged kidnapping. These findings were not challenged by the learned Deputy Advocate General during the course of hearing in view of the contradictions referred to in the testimony of the prosecutrix as PW-2. I may make a brief reference to the testimony of the prosecutrix and it is clear that the prosecutrix was taken through a busy area in a taxi and had an opportunity to raise an alarm and seek assistance. She had stayed for about 35 days with the accused at a distant place but no attempts were made by her to seek the help of local people if she was kidnapped against her wish. There is a statement of PW-10 Sher Singh, the brother of the prosecutrix, who has clearly stated that the prosecutrix used to meet here and there with the respondent which was objected to by him, but the father of the PW-6 Boharu Ram denied that girl used to the meet the respondent. The respondent is the brother of the sister’s husband of the prosecutrix and, as such, he was known to the family and must be visiting the house of his brother-in-laws’ i.e. the prosecutirx family and the allegations were made that since the relations in between the sister and the prosecutrix and elder brother of the husband were strained, therefore, this false case was made out as against the respondent. It is also in evidence of PW-9 Chandi Devi that while leaving the house, the prosecutrix had taken her Shawl, other clothes including a Koti which clearly shows that she went with full preparation to leave her parent’s house to accompany and stay with the respondent. Thus, the learned trial Court had rightly concluded that by no stretch of imagination it can be said that the girl was not a consenting party to the alleged kidnapping. As per the medical evidence also, the prosecutrix was habitual of sexual intercourse and as such, the learned trial Court had rightly concluded that the prosecution had failed to prove its case beyond any reasonable doubt. In view of the above discussions, we accordingly hold that there is no merit in the appeal filed by the State, which is dismissed accordingly. The bail bonds furnished by the respondent stand discharged. (Deepak Gupta), J. July 22, 2008. (V.K.Ahuja),J. (SDS)