IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. : 324 of 1996 Date of decision: 4.5.2010 State of H.P. …. Appellant. Vs. Ghan Shyam ... Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1. No. For the appellant-State: Mr. Vivek Singh Thakur, Addl. Advocate General For the respondent: Mr. Adarsh Kumar Vashishta, Advocate. Deepak Gupta, J.(oral) 1. This appeal by the State is directed against the judgement dated 27.6.1995 delivered by the learned Additional Sessions Judge, Shimla, in Sessions Trial No. 31- S/7 of 92 whereby he acquitted the accused of having committed offences punishable under Sections 363 and 366-A of the Indian Penal Code. 2. The prosecution story, in brief, is that on 4.1.1992 the prosecutrix was sent by her mother, PW-2 Laxmi Devi, to fetch milk and other house hold articles from the market in Chhota Shimla. She did not return till evening and thereafter PW-2 started searching for the prosecutrix. Despite her best efforts the prosecutrix could not be found. The prosecutrix came back to her house on 11th January, 1992 alongwith her brother-in-law (son-in-law of PW-2) Rup Ram (PW-3). Then the prosecutrix informed her 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 mother that on 4th January, 1992 when she was in the market she met the accused. The accused told the prosecutrix that he was well known to her family members and that he had a younger brother with whom he could get her married. Thereafter, he first asked her to arrange some money and she arranged Rs.600/-, out of which she borrowed Rs.500/- from one Advocate Shri Verma and Rs.100/- from one Smt. Gita Devi, wife of Executive Engineer Shri Dhaulta. Then she handed over this amount of Rs.600/- to the accused, who then took her to his residence at Vikas Nagar and kept her there for two days. The girl started crying and therefore on 11.1.1992 at about 7.00 p.m the accused dropped the girl behind the H.P. Secretariat, Chhota Shimla. It was also disclosed that the accused works in HPPWD in Winter Field, Shimla. 3. The prosecutrix was examined in Court as PW-1. She stated that on 4th January, 1992 after she met the accused at about 11 - 11.30 a.m she accompanied him to his house. The accused promised to get her married to his brother, who was studying in class 10+2. He also informed her that her parents had also consented to the marriage. According to him, his brother would deposit Rs.60,000/- in her name. She then accompanied the accused to Vikas Nagar, where she stayed for one night. On the next day, she was taken to village Balingi near Suni 3 in a bus where she stayed for three days. Thereafter, the accused took her to Rohru where they stayed for one night. At Rohru, the prosecutrix started crying since she was missing her family members and then the accused brought her to Shimla and dropped her near the house of PW-3. According to the prosecutrix she borrowed Rs.500/- from Dile Ram Verma, who at the relevant time was working in the High Court and was known to her and she also borrowed Rs.100/- from Smt. Vidya Devi Dhaulta. 4. From the prosecution story itself it is evident that it was the prosecutrix who borrowed money from Shri Dile Ram Verma and Smt. Dhaulta. Admittedly, she did not tell them that she had been threatened by the accused. If she could go to them and borrow money, she could have easily told them that the accused is forcibly taking her away. This clearly indicates that she went of her own free Will. The prosecutrix did not complain to Dile Ram Verma and Smt. Dhaulta but she walked with the accused from Chhota Shimla to the High Court, then to Vikas Nagar and then travelled in a bus to Suni. She again travelled in a bus from Suni to Rohru and never raised an alarm or made a complaint. All these facts leave no manner of doubt that the prosecutrix went willingly with the accused. 5. We now come to the crucial aspect of the matter as to the age of the prosecutrix. If she was below 18 years 4 then the accused could still be guilty if he had taken a minor girl out of the custody of her parents. It has come in evidence that the prosecutrix and her parents refused to get her medically examined and therefore, her skeletal age by radiological examination or her dental age could not be assessed. The only record relating to her age has been produced by PW-7 Ramesh Thakur, who is Pradhan of Gram Panchayat Rajhana. According to him in the Pariwar register the age of the prosecutrix is shown as 16.1.1979 and on the basis of this entry he had issued the certificate Ext.PD. It is a well settled law that the primary evidence to prove the age is the births and deaths register. The said primary evidence has not been produced. In fact, no school record of the prosecutrix has been produced to show what was her age entered in the school. The register produced by PW-7 contains a number of interpolation and blank pages, which have been noticed by the trial Court. This witness in response to the Court question admitted that the entry in the register produced by him was based on the entry made in an earlier register, which register has also not been produced. Therefore, this entry is meaningless in deciding the age of the prosecutrix. 6. It is, therefore, apparent that the prosecution has miserably failed to prove that the prosecutrix was below 18 years of age. As such, the learned trial Court was justified 5 in acquitting the accused. We find no reason to interfere with the judgement of the learned trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. (Deepak Gupta) Judge. 4th May, 2010. (Rajiv Sharma) ™ Judge.