.[LUlfc^ c\v r~ ^ i HIGH COURT OF CHHATTISGARH. BILASPUR Sinfile^ench: Hpn'ble Shri Sunil Kuniar Sinha, J. CnminaIAppealNo. 126 of 1995 Subelal Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT Post for Judgment : ^707/2011 -•»•?_ Sd/- Sunil Kumar Sinha Judge r~<n HIGH COURT OF CHHATTISGARH. BILASPl Single Bench: Hon'ble Shri Sunil Kumar Smha, J. APPELLANT RESPONDENT Criminal Appeal No. 126 of 1995 Subelal son of Ramji Mahara, aged 27 years, agriculturist, Village Tarragondi, Police- Station Kurud, Tehsil: Dhamtari, District Raipur, M.P. (Now Chhattisgarh) yersus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 (21 ofThe Code of Criminal Procedure, 1973) Appearance: Mr. Aditya Tiwari, Advocate for the appellant. Mr. R.R. Sinha, Panel Lawyer for the State. JUDGMENT (08.07.2011) Bli: This appeal is directed against the judgment dated 23rd of December, 1994 passed in Sessions Trial No. 6/94 by the Additional Session Judge, Dhamtari. By the impugned judgment, the appellant has been convicted and sentenced in following raanner with a further direction to run the sentences concurrently:- !i^ "'^p .-• '^;rf Criminal Appeal No. 126 of 1995 Conviction u/s 363 IPC u/s 366 IPC u/s 376 IPC Sentence R.I. for 3 years and fine of Rs.200/-, in default S.I. for 6 months R.I. for 5 years and fine of Rs.500/-, in default R.I. for 1 year R.I. for 7 years and flne of Rs.500/-, in default R.I. for 1 year (2) The facts, briefly stated, are as under:- The appellant and co-accused- Mahesh were trial by the Session Court for the aforesaid offences. The allegations are that on 23.1.92, fhey abducted the prosecutrbc (PW-1), who was a minor. She was taken to various places and was recovered on 28.1.92. In between this period, the appellant committed repeated sexual intercourse against the prosecutrix. The Session Court held that the prosecutrix was a minor below 16 years and the appellant committed forcible sexual intercourse against her, after abducting her from the lawful guardianship of her father, therefore, he was liable for punishment u/ss 363, 366, 376 IPC. The appellant was accordingly punished. However, co-accused- Mahesh, who was prosecuted u/ss 363 8s 366 IPC, was acquitted. (3) Mr. Aditya Tiwari, learned counsel appearing on behalf of the appellant, argued that the finding relating to age is perverse; the prosecution could not establish that the prosecutrus was a minor; the prosecutrix accompanied the appellant on her own and visited many places on bicycle and bus; she never made any complaint; therefore, she was a consenting party with the appellant. ff) Criminal Aopeal No. 126 of 1995 (4) On the other hand, Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. (5) I have heard learned counsel for the parties at length and have also perused the records ofthe session case. (6) The leamed Session Judge has recorded the find of age on the evidence of the prosecutrus (PW-1); the evidence of In-charge Headmaster- Premlal Mishra (PW-10); the clinical observation of Dr.fSmt.) S. Singhal (PW-4); and finding of Dr. S.C. Visnoi (PW-6) who performed the ossification test. (7) Prosecutrfat (PW-1) deposed that she was aged about 18 years on the date of her examination which took place in the month of March 1994. They were 2 brothers and 2 sisters and she was eldest among them. She deposed that at the time of incident, she was a regular student of Class-8th in Middle School Joratarai. (8) Premlal Mishra (PW-10) was the In-charge Headmaster of the School. He produced the admission register (Ex.-P/ 13-C) and attendance register of the School. In the admission register there is entry of the name of the prosecutrix at serial No. 317, according to which, her date of birth is 12.6.1976. He admitted to issue transfer certificate (Ex.-P/15), in which, the date of birth of the prosecutrix has been shown as 12.6.1976. Premlal Mishra (PW- 10) admitted in the cross-examination that the entry in relation to '"s:*,. '''^"" Criminal Aupeal No. 126 of 1995 admission of the prosecutrus in admission register was not made by him. He furfher admitted that while raaking entry in admission register in Class-6th (middle section), they make entiy on the basis of entries in the certiflcate of Class-S'h pass. The admission register (Ex.-P/13-C) would show that the prosecutrix was admitted in the concerned Institution, in Class-6th and the entries were made at serial No. 317. It is thus clear that the above entries in admission register (Ex.-P/13-C) were made by concerned person on the basis of certificate of Class-5th passed and not on the basis of any declaration made by father or guardian of the prosecutrbc. The earlier transfer certificate or Class-S*11 passed certificate have not been proved by the prosecution. PW-10 clearly deposed that he did not make the entry in admission register. No declaration form was produced to show as to what was the declaration of the father/guardian at the time of initial admission of the prosecutrix or at any point of time before the School Authorities. (9) In Alamelu and another -Vs- State represented bii Inspector of Police. (20111 2 SCC 385, the Supreme Court held that the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 35 of the Evidence Act 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrK in the absence of the material on the basis of which the age was Criminal Appeal No. 126 of 1995 recorded. The Supreme Court held that the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. In the present case, though PW-10 admitted to issue the transfer certificate (Ex.-P/lS) on the basis of entry in the school register, but the entry in the school register, by which, the prosecutrix was admitted in Class-6th> itselfwas not proved. (10) Ghirdharram Sahu (PW-11- father of the prosecutrix) did not speak single word about making declaration relating to age of the prosecutrbs. Even he has not deposed regarding the age of the prosecutrix on his personal knowledge. Puraien Bai (PW-9 - mother of the prosecutrbs) has also not deposed either about the age of the prosecutrix or that any declaration was made by them before the School Authorities relating to age of the prosecutrfas. Therefore, I am of the view that in such situation much reliance would not have been placed on the entries of the school register or the transfer certificate issued on the basis of such entry, for determining the age of the prosecutrix. (11) Dr. S.C. Visnoi (PW-6) determined the age of the prosecutrbc in between 15 to 16 years on the basis of ossification test performed by him. His report is Ex.-P/9. The X-ray plates are Ex.- P/10, P/ll SE P/12. In Modi's Jurisprudence (20*h Edition), it is stated that too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely Criminal Apoeal No. 126 of 1995 indicates the average and is likely to vary in individual case even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be up to 3 years on either side. In the present case, Dr. Visnoi (PW-6) also admitted in the cross-examination that a difference of 3 years on either side may be there in the age determined on the basis of ossification test. In this nianner, if we add 3 years towards upper side, the age of the prosecutrix would come to 19 years. Besides the above, there is no other evidence of the age of the prosecutrbs. On appreciation of the above evidence, I am of the view that the prosecution could not establish that the prosecutrbi: was a minor and the finding recorded by the Session Judge cannot be sustained. (12) Now we shall examine the conduct of the prosecutrix. The case of the prosecution is that the prosecutrix accompanied the appellant and she went from village Zoratarai to village Bhakara on his bicycle. From Bhakara, they boarded a bus and went to Dhamtari. Further, from. Dhamtari, they went to village Utai to the house of the sister of the appellant by boarding a bus. After staying in the house of the sister of the appellant, they again boarded a mini bus and went to Bhilai (Power House). The appellant took the prosecutrbt to the house of his other sister who was residing in Bhilai. The prosecuta-ix alleges that she was subjected to forcible sexual intercourse by the appellant in the house of his sister. Though the prosecutrbi: visited many places \ Criminal Appeal No. 126 of 1995 with the appellant, but she did not make any complaint and ' accompanied hini in normal manner. This shows that she was not abducted and was not taken by force and she accompanied the appellant on her own will and it was not a case that the appellant committed sexual intercourse without her consent. Considering the evidence of age and conduct of the prosecutrix, I am of the view that the prosecutrix was a consenting party with the appellant and in the above facts and circumstances of the case, fhe offences u/ss 363, 366 & 376 IPC would not be made out against the appellant. (13) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 363, 366 & 376 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge vatti