1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. : 414 of 2001 Decided on : 09.03.2011. State of H.P. … Appellant. Versus Balwant Chand … Respondent. Coram: Hon’ble Mr. Justice R. B. Misra, Judge. Hon’ble Mr. Justice V. K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. R.K Sharma, Sr. Addl. AG with Mr. Rajinder Dogra, Addl. A.G. For the Respondent: Mr. Neeraj Sharma, Advocate. ________________________________________________________ R.B. Misra, Judge (oral). Present criminal appeal has come up for consideration after leave to appeal has been granted under Section 378(3) of Code of Criminal Procedure, in reference to judgment dated 1-3-2001, passed by learned Additional Sessions Judge, Shimla, H.P., in Sessions Trial No. 5-S/7 of 1997, thereby acquitting the respondent/accused for offence under Sections 363, 366 and 376 of Indian Penal Code. 2. As per the prosecution story, the victim/prosecutrix, a student of IX class, on 17-9-1994, went to Government High School, Gumma along with Reshma sister-in-law of PW-2 Shri. Dhani Ram. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 She did not come back to home, whereas at about 11 A.M Reshma returned to home. When PW-2 Dhani Ram, the father of prosecutrix/Victim inquired from Reshma, it was revealed that his daughter had gone to school with her and did not come back. Reshma told PW-2 Dhani Ram that prosecutrix/victim left the school before morning prayer. PW-2 Dhani Ram searched the prosecutrix, but she was not traced out. On 18-9-1994 PW-2 reported to the police vide Roznamcha Ex. PW-13/A about missing of victim/prosecutrix. It was revealed during the investigation that victim/prosecutrix had accompanied Balwant Chand (her class-fellow studying in the school) on the pretext of marriage. On search, victim/prosecutrix was recovered from the possession of respondent/accused Balwant Chand. After investigation, accused was charged for the aforesaid offence. 3. In order to prove its case, the prosecution has examined as many as seventeen witnesses, whereas, the respondent/accused, through his statement under Section 313 Cr.P.C., has denied the charges and prosecution case. 4. We have noticed that PW-2 Dhani Ram father of prosecutrix/victim, lodged a complaint EX. PW-2/A is a material witness along with PW-3 (Victim/prosecutrix), PW-9 Dr. Dayal Chand Chauhan, PW-11 Reshma, PW-14 Dr. Asha Negi and PW-16 Keshav Ram, SHO/IO in the present case, whereas, PW-5 Dineshwar Dutt, PW-6 Madan Lal, PW-7 Sukhvinder Singh and PW-8 Dinbandhu have turned hostile as they have not supported the prosecution case and other witnesses are formal witnesses. 3 5. On the basis of material on record, it is not denied that accused did not run away from village Gumma and remained together with the prosecutrix at various places during the period from 17-9- 1994 to 24-9-1994 i.e. till the victim and accused were apprehended by the police at Asmanpur District Ropar and victim/prosecutrix has remained in the company of accused/respondent for such a long time but she being minor (by virtue of her date of birth as 15-11-1980) she cannot be stated to have given her consent for the marriage purpose. 6. As per the testimony of PW-2 Dhani Ram, the date of birth of victim/prosecutrix is 15-11-1980. However PW-2 Dhani Ram, has stated the approximate age of the prosecutrix/victim to be more than 16 years at the time of occurrence. As per the testimony of PW- 2, the date of birth of victim/prosecutrix was recorded in Gram Panchyat, Majhol, however, no record to that effect was taken into possession by the prosecution. 7. PW-16 Keshav Ram, Investigating Officer has also failed to give any reason as to why the entries from the death and birth register maintained by Gram Panchayat in respect of the age of the prosecutrix/victim was not taken into possession. Nothing is indicated as to on whose report the date of birth of prosecutrix was recorded in the school register, as such, the date of birth shown in her school leaving certificate Ex. PW-1/B cannot be relied upon. It can also not be believed that victim/prosecutrix studying in 9th standard was between the age of 13/14 years only. As per certificate Ex. PW-10/A, 4 issued by PW-10 Sushma, accused Balwant Chand was shown to have been born on 9-6-1977 and at the relevant time he was more than 17 years of age. As per opinion Ex. PW-14/A given by Dr. Asha Negi, Radiologist the age of the prosecutrix was between 15-16 ½ years. PW-14 has admitted in her cross-examination that fusion of the epiphysis bones depends upon the diet, climate etc. and as per the Modi, the error of margin on either side, is of three years. 8. In view of testimony of PW-11 Smt. Reshma Devi made in her cross-examination, on 28-9-1994 she was aged about 18 years. She has further stated that prosecutrix/victim was 2-3 years elder to her. Again she stated that she is 2-3 years younger to prosecutrix/victim. At the relevant time PW-11 Reshma was studying in 8th class and was 18 years of age, as such the victim/prosecutrix while studying in 9th standard should be elder to her. 9. As per the version of prosecution, the date of birth of victim/prosecutrix is shown as 15-11-1980 as shown in the School Leaving Certificate Ex. PW-1/B, but the same cannot be taken as definite date of birth for ascertaining the age of prosecutrix/victim as the entry in certificate Ex. PW-1/B cannot be said to be reliable. Neither the prosecution witnesses nor any of the entries in the date and birth register, Pariwar Register have corroborated, such date of birth. Balwant Chand respondent/accused, class fellow of victim/prosecutrix was at the relevant time was more than 17 years of age and Reshma PW-11 studying in same school and relative of 5 proseuctrix/victim was at the relevant time was above 18 years of age. In these circumstances, in absence of any conclusive document/proof of age, the victim/prosecutrix ,more so, in the light of age assessment made by PW-14 Dr. Asha Negi, the victim/prosecutrix cannot stated to be less than 18 years of age at the relevant time. 10. In view of the verdict of Supreme Court in case Alamelu and another Vs. State, (2011) 2 Supreme Court cases 385, the entry in the school register is no evidence unless the person who made the entry and who gave the date of birth certificate was examined. The date of birth as averred in Ex. PW-1/B is also reflected as an entry in the school register but in the mark sheet of victim/prosecutrix the date of birth was entered as 15-11-1980. In view of decision in Jabar Singh Vs. Dinesh and another, 2010(3) SCC 757 as well as in Madan Mohan Singh and others Vs. Rajni Kant and another, (2010)9 SCC 209 in absence of conclusive proof about the age of victim/prosecutrix, we cannot analyse only on the basis of conjectures and surmises that the victim/prosecutrix was below 18 years of age. Subsequently, indisputably, when she spent about 7 good days with the accused without raising any hue and cry and despite getting opportunities did not report to the public or police. In these circumstances, it can be assumed that prosecutrix/victim was not a willing party, had accompanied the accused/respondent on her sweet will and it cannot be believed that the victim had been taken out from the lawful guardianship of her father. In absence of any conclusive proof and evidence it cannot be said that she was taken by the 6 accused on the allurement of marriage and as such the offence under Sections 363 and 366 of IPC is not made out and she cannot be said to have not been sexually assaulted by the respondent/accused without her consent. 11. On the basis of materials available on record and on the basis of prosecution witnesses, learned Sessions Judge has rightly arrived at the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope for interference in the impugned judgment and the criminal appeal, being devoid of any merit, is accordingly dismissed. 12. Bail bonds, furnished by the respondent, are hereby discharged. (R. B. Misra) Judge. (V. K. Sharma) Judge. March 9, 2011 (priti)