HIGH COURT OF CHHATTISGARH BILASPUR Criminal Appeal No. 648 of 1990 Sitaram Vs. I State of Madhya Pradesh (NOW Chhattisgarh) JUDGMENT Postfor H .11.2009 x Sd/- Sunil Kumar Sinha ’ Judge ‘ ma Q: ‘ 1 J} HIGH COURT OF CHHATTISGARH, BILASPUR SB: Hon’ble Shri Sunil Kumar Sinha, J. Criminal Anneal No. 648 of 1990 ‘ \ . (Criminal Appeal under Section 374 of The Code of Criminal ’ Procedure) Appearance: Mr. Nikhil Tiwari, Advocate, on behalf of Ms. Sunita Jain, for the appellant. Mr. Sameer Behar, Panel Lawyer, for the State; JUDGMENT ( u .11.2009) Following judgment of the Court was delivered by Sunil ‘Kumar Sinha, J, i‘ (1) Appellant Sitaram stands convicted u/ss 363 8L 366 IPC and sentenced to undergo Rigorous Imprisonment for 3 years and 5 years respectively with a further direction to run the is%ntences concurrently, by the Addl. Sessions Judge, Manendragarh in Sessions Trial No.16/ 1988 on 02nd July 1990. While convicting the appellant u/ss 363 85 366 IPC he was acquitted of the charges framed u/s 368 IPC and other 3 co—accused persons mg« \.;. \\ ‘ APPELLANT Sitaram, s/o Ramlal K01, aged about 25 years, resident of Mandar Mar Colony, Dharamjaigarh, Distt. Raigarh (M.P. now C.G) Versus RESPONDENT State of Madhya Pradesh (Now Ch'hattisgarh) through Police V ‘ Station Manendragarh, Distt. Surguja, now Korea (C.G) ”,Wm 2 “UK Cr. Appeal. No. 648 of 1990 were acquitted of all the charges framed against them i.e., u/Ss 363/34, 366/34 85 368 of IPC. (2) The facts, briefly stated, are as under : ‘ 0 On 20.5.1984, Prosecutrix Sandhya @ Chameli (P.W.6) was residing in the house of her aunt in Village Khongapani. In the night, she left the house of her aunt stating that she is going to answer the call of nature. Thereafter she did not return. In fact, she went to the house of the appellant and stayed. there for a night. In the morning, she was taken t0 lVIoharpara, Manendragarh. In Manendragarh accused 1 to 3 alongwith the prosecutrix boarded a bus and went to Qharamjaigarh, where they stayed in the house of accused no.4. After staying there for some days, they came back to Manendragrarh and again the prosecutrix was kept in the house of the appellant. On 30.05.1984, Ganpat Ram, father of prosecutrix, lodged the First Information Report (EX.P.2). On 01.06.1984, the prosecutrix was recovered from the house of the appellant and thereafter the charge sheet was filed ‘t The prosecution came with a case that the date of birth of the prosecutrix was 25.06.1971, therefore, she was a minor and the accused persons were liable for punishment under the aforementioned sections of the IPC. The learned Sessions Judge held that" the prosecutrix was a minor on the date of the incident. However, looking to the overt—act attributed, the appellant alone was held liable for conviction. He was convicted as aforementioned and other co— accused persons were acquitted. v‘ (3) 3 Mr. Nikh‘il Tiwarikl‘earned counsel appearing on behalf of the appellant argued that the prosecution could not prove that the prosecutrix was below 18 years of age on the date of incident and her conduct would show that she willingly {é 3 ,L(§ Cr. Appeal. No. 648 'of 1990 accompanied the appellant, therefore, the conviction of the appellant u/s 363 85 366 IPC is bad in law. (4) On the other hand, Mr. Sameer Behar, learneEd Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (5) I have heard learned counsel for the parties at length and have also perused the records of the Sessions Case. u ‘ (6) Tirath Prasad Patel (P.W.1) was the Headmaster of Saraswati Shishu Mandir, Kotma. He has proved the entry of admission register of the school. The date of birth of the prosecutrix has beenientered as 25.06.1971 in the admission register (EXP—l). According to this witness, the prosecutrix had taken admission in Class—VIII in his school and thereafter she had taken her transfer certificate. He admitted in his cross— examination that the prosecutrix was never admitted before him and the date of birth in the admission register has been entered v‘ on the basis of the previous transfer certificate which was brought at the time of admission of the prosecutrix in Class VIII in his institution. ;a (7) The two other documents produced by the prosecution relating to date of birth of the prosecutrix are the mark sheets of Class V and Class VIII (EX. P-6 8a EX.P.5). EX.P.6 is the original mark sheet whereas EX.P.5 is a photocopy of the mark sheet. ,3 Cr. Apgeal. N0. 648 of 1990 These documents were seized by the police during the course of investigation under the Seizure Memo EX.P.4. Though the date of birth of the prosecutrix has been entered as 25.06.1971 in these documents, but the contents of these documents were never proved by the prosecution by calling/ examining any Witness whosoever he may be. (8) It appears that the prosecutrix was also sent for her ; ossifiea‘tion test, but no doctor was examined to prove the (Q a contents of ossification test report. Ganpat Ram, father of prosecutrix, whoilodged the First Information Report (EX.P.2) could not be examined on account of his death on 07.12.1986. The mother of the prosecutrix has also not been examined as a witness in this case. The learned Sessions Judge held that the two mark sheets were the public documents, therefore, there is a presumption of correctness about the entries made in those documents. On the above evidence it was held that the t prosecution established that the prosecutrix was a minor, below 18 years of age, on the date of incident and the appellant had v‘ abducted the prosecutrix in the aforesaid manner, therefore, he was liable for punishment. (9)‘ In Vishnu alias Undrya -Vs- State of Maharashtra £2006) 1 SCC' 283, theRApex Court held that in case of the determination of date of birth of the child, the best evidence is of the father and mother. Normally, the age recorded in the school certificate is considered to be the correct determination sa 5 Cr. Appeal. No. 648 of 1990 of age, provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. It has also been held in many decisions that the entry of date of Pirth in the unproved school certificate is not a conclusive proof of the age. In the present case, neither the father nor the mother of the prosecutrix has been examined to prove her age. Among the mark sheets seized during the course of investigation, one was Photostat copy of the original and no Witness was examined to ‘ a prove the contents of the mark sheets. Even the school teacher, who appeared with the admission register deposed that the entry of date of birth of the prosecutrix was made on the basis of earlier transfer certificate which was produced at the time of admission, that is to say that such entry in the school register EX.P.1 was not made on the basis of any declaration given by the parents of the prosecutrix but it was simply made mechanically on the basis of entry made in the previous transfer certificate. In the facts and circumstances of the case, in my considered view, the prosecution utterly failed to establish that the prosecutrix was below 18 years of age .on the date of incident and the finding recorded by the learned Sessions Judge regarding the age cannot be sustained. (10) So far as conduct of the prosecutrix is concerned, it is the {case of the prosecution itself that the prosecutrix went with the appellant to his house and stayed there in the night. Thereafter in the morning they went to Manendragarh. In Manendragarh the prosecutrix and accused l to 3 boarded a bus and went to wx Dharamjaigarh which is in a different district. In Dharamjaigarh, they stayed in the house of accused no.4 and after staying there for some days, they came back to Manendragarh and the prosecutrix was residing in the house of the appellant in a normal way till she was recovered on 01.06. 1984. Therefore, it is clear that the prosecutrix remained with the appellant for more than 10 days, during which, they Visited many places and travelled in public bus etc., but she did V . not make complaint to anybody else. This conduct of the prosecutgix shovys that she voluntarily accompanied the appellant and sh'e remained with him for a reasonably long period without any complaint and nothing like kidnapping or abduction has occurred. (11) For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 363 85 366 ylPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bond shall stand discharged. a v- sdl— Sun“ Kium“ 5mm ’ J“f”i// / ml O. Rao @ Cr. Appeal. No. 648 of 1990