IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.A. No.320 of 1995 Date of decision: 04-11-2008. State of H.P. …..Appellant -Versus- Lalan Yadav ….Respondent Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K.Ahuja, Judge. Whether approved for reporting? No For the Appellant: Mr.R.M. Bisht, Dy.A.G. For the Respondent: Mr.Ravinder Thakur, Advocate Deepak Gupta, J.(oral) This appeal is directed against the judgment dated 28.7.1994 passed by learned Sessions Judge, Solan in Sessions Trial No.28-S/7 of 1992 whereby he has acquitted the accused of having commited offences punishable under Sections 363, 366 and 376 IPC. The prosecution story, in brief, is that on the night intervening 12th and 13th October, 1992 when the prosecutrix and her family had slept in the quarter of her father, the accused kidnapped the minor prosecutrix from the lawful guardianship of her parents. According to the prosecution, the accused allured and enticed the prosecutrix by stating that he would provide her better food, clothe and other amenities of life and kidnapped her with the intention to marry her and to have sexual intercourse with her. On the morning of 13th 2 August when the parents of the prosecutrix did not find her in the house the father searched for the prosecutrix in the houses of his relatives in Taksal, Kalka and Delhi. When he did not find her he lodged a report with the police. In the meantime the mother of the prosecutrix informed her husband that the accused had been meeting the prosecutrix and she suspected that the accused may have kidnapped her. Thereafter, the police accompanied by the father of the prosecutrix went to the residence of the accused at Bihar. The accused was not present there but the prosecutrix was recovered from the residence of the accused. After the completion of the evidence, a challan was filed against the accused and the accused was charge sheeted under Sections 363, 366 and 376 IPC. He pleaded not guilty and claimed trial. The learned trial Court has acquitted the accused. Hence, the present appeal. Even according to the prosecutrix she went with the accused of her own accord. Her version is that on the night of the incident the accused came to her house and woke her up. He told her that if she accompanies him he would give her new clothes etc. and therefore, she accompanied him on that night without telling her parents. The accused then took her to Delhi and from Delhi he took her to a village in Bihar and there he committed sexual intercourse with her many times. The main issue which arises for consideration in this case is with regard to the age of the prosecutrix. If she is below 16 years 3 then whether she has consented or not the accused can be punished under Section 376 IPC. In case she is below 18 years then a case under Section 363 read with Section 366 is made out. However, if she is above 18 years there is nothing to show that she was abducted and no case of rape would be made out. To prove the age of the prosecutrix the only documentary evidence produced on record is a document Mark-X. This purports to be a certified copy of the Pariwar register. This certificate contains only three names i.e. the name of the father, mother and the prosecutrix. The names of the siblings do not find mention in this certificate. The year of birth of the father is shown to be 1948, the year of birth of the mother is shown to be 1950 and the date of birth of the prosecutrix is shown to be 22.11.1966. This would make the prosecutrix about 15 ½ years at the time of the incident. However, this certificate has not been proved on record and no reliance can be placed on the same. The prosecution has failed to summon the original pariwar register. Even the person who prepared the said certificate has not been produced. Therefore, no reliance can be placed on this certificate. According to the parents of the prosecutrix and the prosecutrix herself she was only aged about 12 years when the incident took place. It would be pertinent to mention that though the father states that the prosecutrix is only 12 years old, when cross examined in detail he admits that the prosecutrix was born before he joined 4 Railway service and he also admits that he had joined Railway service about 18 years earlier. If the prosecutrix was a small child at that time obviously at the time of the incident she was more than 18 years old. According to the father of the prosecutrix his eldest daughter is aged 23 years. He admits that she is married and has two children out of whom his eldest is 7 years old. He states that his eldest daughter was married when she was 17. Therefore, she could not have been less than 25 years old at the time of the incident. According to the father his next child Radhey Shyam had been married just about six months earlier. Interestingly the statement of the wife PW-4 was recorded on the same date as of her husband and she in cross examination states that her son was married 3 years earlier and has one son who is one year old. Therefore, there is contradiction with regard to the ages of their other children also. The wife admits that between her children there is age gap of one to 2 years. She admits that her eldest daughter Supti is about 28 years old. Radhey Shyam even if he was born 2 years after Supti would be of 26. According to her one son was born thereafter who has died. If the gap of 2 years is taken the age of that son was 24 years. She states that the prosecutrix was born 3 years thereafter. That would make the prosecutrix about 21 years of age. According to the ossification test the age of the prosecutrix is 14 ½ years to 16 ½ years. It is not disputed that the ossification test 5 is not a perfect test. It is well settled law that such age can vary upto two years on either side. The prosecution has miserably failed to prove the age of the prosecutrix. From the evidence of the parents of the prosecutrix it is apparent that she was more than 18 years old when the alleged incident took place. The prosecutrix admits that she went with the accused of her own accord. Her version that she was enticed with new clothes only cannot be believed. The father of the prosecutrix is an employee of the Railways and she was not a small child that she would go only on the allurement of good food and clothes. She first accompanied the accused from Taksal to Parwanoo. From Parwanoo they went to Delhi where they reached next morning. From there they went to Bihar and the prosecutrix remained in the house of the accused without raising any protest till she was recovered by the police a week later. In view of the above discussion, we are totally in agreement with the trial Judge that the prosecutrix went with the accused of her own free will and that neither she was abducted nor subjected to rape. The appeal is totally without merit and is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged. ( Deepak Gupta ),J. November 4, 2008. ( V.K. Ahuja ),J. PV