W6 HIGH COURT OF CHHATTISGARH. BILASPUR Cr. Aypeal No.95212003 APPELLANT Mukesh Kumar Sf o Baldau Caste Lodhi A ed 21 years Rsgidsnt villaga Barga, RS, Khamhariya, District — Durg {QGJ} Versus RESPONDENT State of Chhattisgarh through’PS. Khamhariya, District — Burg (C.G.). $i‘ Appeaxance: $Ms. NiruEa'ma Bajpai, counsel for the appellant. Shri V.V.S.Murthy, Dy. Advocate Generai forthe State. ORAL JUDGMENT (24.05.2007) SUNIL KUMAR SINK-IA, J. Heaxd. This appeai is directed against the judgment of conviction and order of sentence dated 2.4.2003 passed in S.T.No.128/2002 by the Court of Fifth Additional Sessions Judge, DurgiCG). The said Court held the appeilant guilty of the oEence punishabie under Seciions 363, 366 8t. 376 IPC and sentenced him to undergo R.I. for 3 years under Section 366 IPC and RI. for 7 years and to pay a nne of Rs.500/ ~, in default of payment of tine to further undergo R.I. for 3 months under Section 876 IPC, however, no sepalate punishment was awarded under Section 363 IPC. The case of the prosecution is that the prosecutrix namely— Ku.Lata Sahu (PW-3), aged about 15 years, was residing. With her parents in village Borai. She was student of class 7'111.’ The appellant was a truck driver, who used to come to her village. She came in U contact with the appellant and on 15.12.2001, in the midnight; she took departure from the guardianship of her parents, accompanied ‘ the appellant and went along with him to Raipur in his truck. There i she was kept by the appellant as his wife in a rented hOuse and after x mi'v ’ e“ r- ,Cr.App.No.952/2003 few days, the appellant took her to village Lalpur to the house ofhis maternal uncle, who denied to give them shelter and called the Village Kotwar who took them to Pohce Stanon SaJa 1mm whexe they were brought to Pohce Statton Puigaon By that nme, a nussmg report was lodged 1n the sald Pohce Statlon by the brother ot the prosecutnx which was recorded 1n Roznamcha Sana dated 17.12.2001. Based on such repoxt, after the recovety, the First Information Report EXP/6 1 was registered and the investigation commenced. f The girl was sent . t9; medical examination and was examined by Dr.(Smt.) Shyamli Rai PW—9 ,‘ who PrePared her report i EXP 1 1. She , clinically observed y the age of the prosecutrix as 13— 15 years and referred the matter for radiological examination, which was conducted by Dr. A.K.Sahu (PW—6), who nl‘epared his report EXP/4, according to which. Lata was found to be aged about 15 years. Besides the above, School admission register was seized. As per the entry of the said register, the date of birth of the girl was 14.7.1988, according to which, she would be aged about 13 1/2 years. The girl made allegations that she was subjected to sexual intercourse by the appellant during her long stay with him(for one month and 8 days), therefore, after taking the statements of the mother, father and other witnesses, a charge sheet under Sections 363, 366 and 376 IPC was tiled against the appellant, After completion of the trial, the Sessions Judge convicted and sentenced the appellant as aforementioned. The conviction of the appellant is based upon evidence of age of the prosecutrix. The trial Court recorded a finding that the prosecutrix was aged about 15—15 ‘72 years on the date of incident therefore even on her such conduct the appellant shall be liable £01 punishment under the said sections oi IPC On the point oi age, the evidence of mother and father has been recorded. Kamlabai (PW— 1), who is the mother of-the prosecutn’XJhas stated in para 1 that the age of her daughter was in between 13- 14 years. In the cross-examination, vide para 3, she has stated that she is illiterate and she cannot tell the dates ofbirth ofher children. She deposed that she had told the date ofbirth to the Kotwar at the time kb g; Cr.App.No.952/2003 of birth itself. She has also deposed that the police has not at all recorded her statement in this case. Next evidence is that of father Ramadhan (PWQ). He has also deposed Vide pala 1 that Lata was aged about 14 years. But he has most specmcally deposed Vide pala 5 of his cross-examination that he does not know the date ofbirth of any of his children He admitted that the age of the girl, which he told in the examination iii-chief, was on the basis of speculau‘on‘ Apart from the above evidence, the Head Master (PW—4) has pm‘Qd the copy of School Admission Register {EXP/3). He has also admitted in his cross-examination that according to information contained in the admission register, the entry made in that register was ba$sed upon ‘some transfer certihcate, that is to say, that the said entry Was not based upon declaration form produced by the parents of the girl in their institution, as the girl was admitted on 3/7/ 2000 in class 6th and had left their institution on 9.1.2002 While studying in class 7th. Therefore, the actual basis of the entry, so made, was not a declaration, but a presumption can be drawn that it was made on the basis of some earlier transfer certiticate, which may have been produced before the authority of the School, in which, the date of birth of the child may have been entered as 14.7.1988, but those documents have not been produced by the prosecution to substantiate or validate the entry made in this Register and only a copy of the register has been produced, which was proved by the testimony of P‘W—4. Other. evidence is the Ossification Test report (EXP! 4) prepared by Dr.A.K.Sahu (PW-6). According to him, the prosecutn'x was aged about 15 years on 22.1.2002. If we appreciate these evidence to determine the age of the prosecutrix, it would appear that in fact, the mother’and father have not been able to give a correct date of birth. They have simply a, deposed that their daughter was aged about 14 years and in their cross-examination, both have said that they can not tell the date of birth of their daughter and the father has most specifically added that he has deposed the age as 14 years on speculah’on. About the x J J i 1 K \ i Cr.App.No.952/2003 mother, similar situation is there, but she has further added that the Police has not recorded her statement in this case. SJ the net outcome of this evidence would be that they are unable to tell the correct age of their daughter and further the age of their daughter, labout 14 years, was told by them based upon speculations and no finality can be attached on such evidence. About the entries in :School Register, as observed‘above, the basis of such entry has not been brought on record by the prosecution and such entry would not befof much value. I am fortitied in my views by the judgments rendered in‘the matter of Unwsh Chandra Vs. State 0f Rajasthan (AIR 1982 SC 1057) and in the matter of Raunki Saraop Vs. A State (Am 1§70 Puniab and Haryana 450) para 15, that entries in the School Register are not of much value unless there is evidence to show that on what material and at Whose instance, it is based. In this case, the prosecution has been failed to adduce such evidence and much reliance cannot be placed on these entries, About the Ossification Test, in the Modi’s Jurisprudence (20th 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 diit'erent authors as it merely indicates the average and is likeiy to vary in individual case even of the sam province owing to the eccennicities of development. it is inrther stated that recent work has shown that the tame 01" crMi n1 av he 11y x To 3 years on either side. l‘Er. 1%.? Sahn tPW-fi} has also concurred to this cannon given in Merits Jnrisyrudence and has admitted in para 3 that a possibility of difference of 3 years in such determination may he there. Therefore, if we add 3 years on positive side on the age determined by the radioiogist, the age of the prosecuti‘ix may come to 18 years. Therefore, on appreciation of all the evidence referred to above, pertaining to the age, it cannot be held that the prosecution has proved that the proseuctrix was below 16 years of age on the date of incident. However, it comes that she was in between 16-18 years on the basis ofevidence adduced by the prosecution. e sunita CnApp.No.952/2003 \A$ Therefore, looking .to the evidence of age and conduct of the prosecutrix, an oo'ence under Section 376 IPC would not be made out in this case and the appellant deserves to be acquitted of the charges framed under Section 376 IPC. In the result, the appeal is partly allowed. The conviction and sentence awaxded to the appellant under Section 376 IPC is set aside. tie is acquitted of the charge framed under Section 376 IPC. However, his conviction". and sentence awmd'ed under Sections 363 and 366 IPC are maintained. The‘appeal is partly allowed to the extent indicated above ‘ Sdl- Sunil Kumar Sinha Judge 3 9 :