Criminal Appeal No. 1258-SB of 2003 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1258-SB of 2003 Date of decision : 12.8.2008 Jaspal Singh .....Appellant Versus State of Punjab ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. H.S. Giani, Advocate as Amicus Curiae for the appellant. Mr. B.S. Sra, Deputy Advocate General, Punjab. S. D. ANAND, J. The appellant was prosecuted by the police of Police Station, Dhilwan, in case FIR No. 43 dated 19.5.2002 under Sections 363/366/376 IPC on a charge that he kidnapped the prosecutrix on 16.5.2002, by taking her out of the lawful guardianship of her father (first informant) PW-2 Darshan Singh without his consent and for having deflowered her. The appellant was apprehended by the police in the company of the prosecutrix the very following day i.e. 20.5.2002. Learned Trial Judge exonerated the appellant of the charge under Section 376 IPC by noticing the averment made by the prosecutrix in the course of statement (Ex. DA) made by her under Section 164 Cr.P.C.(indicating that she was a consenting party) Though it was not taken to be a valid statement under Section 164 Criminal Appeal No. 1258-SB of 2003 -2- **** Cr.P.C., the learned Trial Judge held that it could well be taken as a previous statement made by the prosecutrix. That finding also drew sustenance from the fact that the prosecutrix had not been proved to be under the age of 16 years and there was evidence to prove that she was a consenting party to the Act. The State has not appealed against the exoneration of the appellant for the offence under Section 376 IPC. Learned State counsel opted to indicate complete agreement with the line of reasoning adopted by the learned trial Court. The plea raised by the learned Amicus Curiae for exoneration of appellant of the charge under Section 363/366 IPC as well is essentially based upon an argument that the prosecution had not been able to prove that prosecutrix was under age in the relevant context. Learned Amicus Curiae criticises the validity of the reliance placed by the learned Trial Judge upon the school leaving certificate in view of the fact that the basis thereof had not been proved at the trial. There is force in the plea on behalf of the appellant. It is common ground that the fate of the prosecution (qua the charge under Sections 363/366 IPC) against the appellant would turn on acceptance or otherwise of the school record which indicates the date of birth of the prosecutrix as 15.3.1985. Concededly, no birth certificate was submitted in the school at the time the prosecutrix entered the school. This fact was Criminal Appeal No. 1258-SB of 2003 -3- **** conceded by first informant/father of the prosecutrix in the witness box. It is also in his statement that birth of the prosecutrix had been entered by the chowkidar of the village in the revenue record. Of course, he tried to wriggle out of the predicament of having to explain the non production of record by averring that the record is not available. His statement in the relevant behalf is not acceptable. It is only the chowkidar, being custodian of the record, who was the best placed to indicate the availability or otherwise of the relevant record. The chowkidar was not examined at the trial. It is not the prosecution plea that the chowkidar was not available for examination at the trial. Even otherwise, the entry made by the chowkidar is transmitted to the concerned Police Station having jurisdiction in the area and also to the office of Civil Surgeon of the District. Assuming, for the sake of arguments, that the record maintained by the chowkidar was not available, a copy of birth record from the above indicated two quarters could very well be proved at the trial. In view of the fact that the father of the prosecutrix conceded that no birth certificate had been presented at the time of admission of the prosecutrix to Government Primary School, Daudpur and also in view of the conceded fact that chowkidar was not examined at the trial, the reliance placed by the learned Trial Judge on the school leaving certificate was misconceived. It is in the statement of father of the prosecutrix that his wife predeceased him. Qua his family, all that he stated was that he has five daughters and three sons. He did not even indicate the exact placement in Criminal Appeal No. 1258-SB of 2003 -4- **** seniority, on point of age, of the prosecutrix. Insofar as the prosecutrix is concerned, she gave her age as 18 years in the course of statement Ex. DA. The prosecution had, thus, not been able to prove that the prosecutrix was less than 18 years of age on the date of impugned occurrence. This fact, when appreciated independently and also in the light of unchallenged finding that the prosecutrix was a consenting party to her elopement is supportive of the finding that the prosecution had not been able to prove the charge against the appellant. In the light of the foregoing discussion, the impugned finding of conviction is found to be unsustainable. The appeal shall stand allowed. The impugned judgment of conviction is set aside. The appellant shall stand acquitted of the charge. August 12, 2008 (S. D. ANAND) Pka JUDGE