IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 228 of 1994 Date of decision: 31.07.2008 State of H.P. ... Appellant Versus Amar Chand … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.M. Bisht, Dy. A.G. with Mr. Rajesh Mandhotra, Dy. A.G. For the respondent: Mr. N.D. Sharma, Advocate. Per V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. against the judgment of the Court of learned Additional Sessions Judge, Solan, Camp at Nalagarh, dated 13.12.1993, vide which the respondent was acquitted of the charge framed against him under Sections 363, 366 and 376 I.P.C. Briefly stated the facts of the case are that on 1.12.1990, a report was lodged with the police by Het Ram, father of the prosecutrix ‘N’ alleging that his daughter is missing from the house since 20.11.1990. He expressed a doubt upon the respondent since his daughter used to visit his neighbourer Nanku’s place to watch movies and other prorgrammes on 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 television and the respondent also used to visit the house of said Nanku on the pretext of watching television programmes. A report about the missing of girl was registered on 1.12.1990 and thereafter, statement of Het Ram, father of the prosecutrix, was recorded under Section 154 Cr.P.C. on 6.12.1990, in which he had alleged that he had been informed by his sister-in-law that the prosecutrix had been seen at a place named Samanu on 30.11.1990. On registration of the case, a police officer visited the village of the respondent in search of the prosecutrix and accused and he learnt that the accused and the prosecutrix had come to the house but the mother of the respondent did not allow them to stay. Thereafter, the respondent left for his sister’s place and the police party proceeded to the said village Chhatroh and they apprehended respondent and prosecutrix coming on foot from the opposite direction. Both of them were taken into custody. The custody of the prosecutrix was entrusted to her father. She was medically examined. Hero ossification test was also conducted to consider her age. After investigation, the challan was filed before the Court and the case was assigned to the learned trial Court after committal. Heard and gone through the record. The first question which arises for consideration is as to the age of the proseuctrix on the day of the occurrence. The prosecution has proved Ext. PD, a copy of the certificate issued by the Secretary of Gram Panchayat which shows that the prosecutrix was born on 31.5.1976 and was of the age of less than 16 years on the day of the occurrence i.e. on 20.11.1990. The said certificate Ext.PD was proved from the statement 3 of PW-5 Het Ram, Secretary of the Gram Panchayat. A perusal of his statement shows that he had brought the Register of Births and Deaths. He further stated that as per entry No. 1 at Page No.1 of the register brought by him, the date of birth of the prosecutrix is 31.5.1976. He stated that he issued certificate of birth on the basis of the aforesaid entry and the said certificate was signed by him. It is surprising that though the Register of Births and Deaths had been brought by him in which it was also alleged that interpolation has been made but the said register was not retained by the trial Court to be seen at the time of conclusion of the case. The said register should have been retained by the learned trial Court or on the request made by the Prosecutor, which is not so in the present case. Apart from the above, it is clear that though this witness has stated that he had prepared certificate Ext.PD on the basis of Births and Deaths Register, but in the cross-examination, he stated that he had not issued the same on the basis of Register of Births and Deaths but on the basis of Pariwar Register, which has not been brought by him today. The entries in the Pariwar Register on the basis of which Ext.PD was issued cannot be said to be primary evidence since the entries in the Pariwar Register are required to be made on the basis of the entries in the Births and Deaths Register. The primary evidence is Births and Deaths Register duly maintained by the Panchayat. Moreover, the extract of the entries of said register is required to be proved in evidence and not the certificate on the basis of entries made in the said register, if any, 4 which never saw the light of the day since it was not retained by the Court or any observation made in regard to that register. From the above discussion, it follows that the prosecution had failed to prove the entries in the Births and Deaths Register maintained by the Panchayat and had rather proved the entries of Pariwar Register which is not a primary evidence and as such, no reliance can be placed upon it. The learned trial Court had rightly not relied upon the certificate Ext. PD issued by PW-5 Het Ram. Moreover, the prosecution had also proved Ext. PG admission and discharge register of the school proved from the testimony of PW-7 Rameshwar Lal, JBT teacher. He admitted that the entries regarding date of birth are made on the register of admission on the basis of the certificate of the Panchayat and the contents of the admission form. However, neither the said admission form was produced nor the copy of the birth entry if enclosed at the time of admission was proved. Therefore, the entries in Ext. PG cannot be said to be primary evidence to consider the date of birth of the prosecutrix. The ossification test was conducted in the case and the opinion of the Radiologist was also taken in regard to the age but due to the reason best known to the prosecution, they have not examined the Radiologist whose statement could have been relevant. Therefore, an adverse inference has to be drawn against the prosecution for not examining the Radiologist to determine the skeletal age on the basis of the x-ray films. The learned trial Court had also referred to the testimony of PW-1 Het Ram, father of prosecutrix, whose statement 5 suggests that the prosecutrix may be of the age above 16 years on the date of the occurrence. The above discussion clearly leads to the inference that the prosecution had failed to proved that on the date the prosecutrix was allegedly kidnapped, she was of the age of less than 16 years. In regard to the charge under Section 376 I.P.C., the girl had remained with the respondent right from 20.11.1990 till 11.12.1990 when she was recovered and there is nothing in her statement to show that she was taken forcibly by the respondent. The learned trial Court had referred to the testimony of the prosecutrix as PW-2 N and had concluded that the prosecutrix was in love with the respondent and there was nothing to show that she was not consenting party to the sexual intercourse in between her and the respondent. In view of the above discussion, it follows that the findings recorded by the learned trial Court holding that the guilt of the respondent has not been established beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court and as such, are liable to be upheld. In view of the above, we accordingly hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondent stands discharged forthwith. ( Deepak Gupta ), Judge ( V.K. Ahuja ) July 31, 2008(BSS) Judge 6 7