IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.467 of 1996 Date of decision:01.04.2010 State of H.P. ... Appellant Versus Janam Singh … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr.Vivek Singh Thakur, Addl. Advocate General. For the respondent: Mr.N.K. Thakur, Advocate. ____________________________________________________________ Deepak Gupta, J (Oral). This appeal by the State is directed against the judgment dated 7.3.1996 passed by the learned Sessions Judge, Chamba in Sessions Case No.30 of 1995, whereby he acquitted the accused of having committed offences punishable under Sections 363, 366 and 376 IPC. The prosecution case, in brief, is that the prosecutrix was aged about 13 years on 21.9.1992, the date when occurrence took place. According to the complainant at about 7.30 p.m. the prosecutrix went out of her house to throw the used waste water. When she did not return for 15-20 minutes, her mother PW-5 ( the complainant) got 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 worried. She came out of the house looking for the prosecutrix but could not find her. She thereafter called out the name of the prosecutrix but there was no response. The neighbours came to the spot. The co- villagers as well as the complainant searched the prosecutrix but could not find her. On the next date i.e. 22.9.1992, search was made of the prosecutrix but she was not found. On 22.9.1992 when the complainant returned home after searching for her daughter she was informed by one Narayan Singh of Village Salwan that the prosecutrix had been enticed away by the accused with a view to marry her. Thereafter, the complaint was filed. After the complaint was filed the prosecutrix was recovered from the house of the parents of the accused where she was sitting in the company of Smt.Labdhu, mother of the accused. Thereafter, the prosecutrix was handed over to the complainant on 28.9.1992. The prosecutrix was got medically examined and the medical examination shows that she was habitual to sexual intercourse. In fact, in this report the doctor has opined that the prosecutrix has not indulged in the sexual intercourse for the last one week. Thereafter, the investigation was carried out by the police and the 3 accused was challaned for having committed the offences as aforesaid. The prosecutrix admittedly remained in the company of the accused in his parental house for almost one week. The prosecutrix herself did not support the case of the prosecution. When she was examined in the Court she stated that her age was 21 years and she had married the accused. A child has also been born out of this wedlock. In fact, according to her, her parents had got this marriage solemnized. Thus, it is a clear case of consensual sex. She was declared hostile and in cross examination she stated that her younger sister Amar Dei is about 10-12 years old. However, when cross examined by the defence she stated that her younger sister is 18 to 19 years of age. A Court question was put to her as to why she had given these two separate versions with regard to the age of her younger sister. In answer, she stated that her younger sister may be 14-15 years old. She did not give any reason why she had given three different ages of her younger sister. Despite Court question being put to the prosecutrix and her giving different versions, we are surprised to note that in the final judgment no reference has been made to this very important piece of evidence. 4 The prosecutrix stated that her age is 20-21 years. She also stated that she is living with the accused of her own free will. It is in this context that we now have to examine the other evidence with regard to the age of the prosecutrix. According to the medical evidence of Dr.O.P. Puri, the radiological age of the prosecutrix was between 16 to 18 years. However, it is settled law that Radiological age can vary up to two years on either side. The mother of the prosecutrix Smt.Devki, in the examination-in-chief stated that at the time of the incident the prosecutrix was 13 years and 2 months old and that she was born on 25th of March. In cross examination however she stated that she had not got the date of birth of the prosecutrix recorded in the Panchayat and volunteered that the father of the prosecutrix might have got it done. She goes on to state that she cannot say that the prosecutrix at present is 21-22 years old. The statement of this witness was recorded on 7.3.1996 whereas the incident is of 1992. This would show that this witness is not telling the correct age of her daughter. The prosecution has relied upon the statement of Sh.Harsh Kumar, PW-3 who has proved the copy of the Pariwar register and the date of birth of the prosecutrix 5 Ext.PG according to which the prosecutrix was born in the year 1979. In cross examination he admitted that he could not state that on what basis this date was entered. He also admitted that the birth and death register in the year 1979 was not available with them. The Pariwar register has virtually no evidentiary value to prove the age of a person. The best evidence in this regard is the birth and death register which was not available and has not been produced. Keeping in view the statement of the prosecutrix and her mother as well as the medical evidence it appears to us that the prosecution has miserably failed to prove that the prosecutrix was less than 18 years old at the time of the incident. Therefore, no offence of abduction much less of rape is made out since even according to the prosecutrix she of her own choice voluntarily married the accused. In view of the above discussion, the appeal is dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. April 1, 2010 ( Sanjay Karol ), J. PV