IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 14 of 1998 Decided on : March 17, 2010 State of H.P …Appellant Versus Balbir Singh and another …Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Rajender Dogra, Additional Advocate General. For the Respondents : Mr. Karan Singh Kanwar, Advocate for respondent No.1 and Mr. Umesh Kanwar, Advocate for respondent No.2. Surjit Singh, Judge (Oral) State has appealed against the judgment, dated 23.6.1997, of learned Sessions Court, Nahan, whereby respondents, who were charged with and tried for offences, under Sections 363, 366 and 376 IPC, have been acquitted. 2. Prosecution’s case, as per evidence, is like this. Prosecutrix, examined as PW-11, used to live in village Kiyarda, with her parents. In her neighbourhood, there lived a lady by the name of Yashoda. Respondent Balbir Singh, who was employed as a conductor on a truck, used to visit the house of Yashoda as he was related to that lady. He came in contact with the prosecutrix, because her Whether reporters of the local papers may be allowed to see the judgment? …2… parents’ house was in the neighbourhood of Yashoda. He started alluring the prosecutrix that in case she married him; he would provide her with many things. Respondent Harnam Singh, again a relative of Yashoda, also used to visit Yashoda and sometime in the company of respondent Balbir Singh. He too used to prompt the prosecutrix to marry Balbir Singh. 3. On 20.1.1994, when the prosecutrix was all alone at her parents’ place, as her mother had gone to work in some factory and her father had also gone to his work place, respondent Harnam Singh and Yashoda went to prosecutrix and told her that respondent Balbir Singh was waiting her by the roadside. Prosecutrix accompanied by respondent Harnam Singh and said Yashoda went towards roadside. She went with the intention of telling respondent Balbir Singh that she was not interested in marrying him and he should not be approaching her anymore for the purpose. When she reached the roadside, a taxi was already parked there. Respondent Balbir Singh and driver of the taxi were present in the taxi. Respondent Harnam Singh made the prosecutrix to enter the taxi. After she boarded the taxi, it was driven to village Amboya, where respondent Balbir Singh took her to his house. She was kept there upto 24th January, 1994. 4. When prosecutrix went missing, her parents searched for her at their relatives’ places. On getting no …3… clue, mother of the prosecutrix ultimately lodged report with the police on 24th January, 1994, vide statement Ext. PE. On the basis of that statement, case was formally registered. On the very day of the making of aforesaid statement by the mother of the prosecutrix to the police, prosecutrix was recovered from village Amboya, where she was spotted in the company of respondent Balbir Singh by the roadside. Respondent Balbir Singh was arrested. 5. Prosecutrix was got medically examined. PW-1 Dr. Sunita Mangla conducted the medical examination and found that hymen of the prosecutrix was missing and vagina admitted two fingers. Both the respondents were challaned. Case was committed to Sessions Court by the concerned Magistrate. Respondents, on being charged, pleaded not guilty. They were, therefore, put on trial. 6. Prosecution examined 14 witnesses, including the prosecutrix, her mother PW-3 Shakuntla Devi and Dr. Sunita Mangla PW-1, to bring the charge home to the respondents. 7. Respondent Harnam Singh denied his involvement. Other respondent, namely Balbir Singh, pleaded that prosecutrix came to his house on her own and started living with him. He also took the plea that on 20th January, 1994 itself, father of the prosecutrix came to his place to get the prosecutrix back, but she refused to go with him and then father of the prosecutrix, in presence of …4… DW-1 Roshan Lal and DW-3 Rangi Lal, the two respectables of the village, married the prosecutrix to him. 8. Trial Court concluded that the prosecutrix appeared to have left her father’s place on her own to join the society of respondent Balbir Singh and that this was not a case of kidnapping. Consequently, respondents were acquitted. 9. We have heard learned Additional Advocate General for the State as also learned counsel, representing the respondents, and gone through the record. 10. It is submitted by the learned Additional Advocate General that the only question involved in this case is the age of prosecutrix and that in case it is found that she was 18 years of age or more, then no offence is made out, but if she is found to be below 18 years of age, then offence, under Sections 363, 366 IPC is made out. According to him, evidence on record indicates that the prosecutrix was below 18 years of age. He submits that date of birth of the prosecutrix is 7.8.1978, per school certificate Ext. P3, entry in the Panchayat record Ext. P1 and certificate issued by the Panchayat Ext. P2. 11. Ext P1 is an entry in Parivar Register, which was recorded in the year 1992. Entry in Parivar Register cannot be taken to be primary evidence. It is the entry in the register of births and deaths which is primary evidence. Entry in the births and deaths register has not been proved …5… nor has any explanation been offered for not producing the said register and proving the relevant entry therein. Certificate Ext. P2 is based on the entry in Parivar Register, aforesaid. So, this certificate is also of no consequence. School certificate Ext.P3 is also not of much evidentiary value, because source of entry in the said certificate has not been disclosed and proved. 12. Mother of the prosecutrix, namely Shakuntla Devi, who appeared as PW-3, was 40 years of age in the year 1994, when she made statement Ext. PE to the police, under Section 154 Cr. P.C. While in the witness box in the year 1997, she again got her age recorded as 40 years. That means, she had not been disclosing her exact age. She testified that she was 18-19 years of age, when her marriage took place. She further stated that her first daughter was born 2-2½ years, after her marriage and that prosecutrix was born 2 years after the birth of first daughter. Now, if she was 40 years of age, when she lodged report Ext.PE, in the year 1994, that meant her marriage had taken place about 22 years prior to her lodging the said report and, if that is so, age of prosecutrix should be 18 years at the time of lodging the report, because as per her testimony in the Court, prosecutrix was born 4 years after the marriage. 13. Prosecutrix was subjected to ossification test and as per that test, her age in the year 1994, was 18-19 …6… years. Of Course, she was also subjected to some dental test by the Dental Surgeon, namely PW-10 Dr. Dinesh Kapila, who opined her age to be 14-15 years, but when in the witness box, the witness stated that there was margin error of two years in the age opined by him on the basis of dental test. 14. In view of the above stated position, we are of the considered view that the finding recorded by the learned trial Court as to the age of prosecutrix, viz. she was 18 years of age at the time of alleged kidnapping, calls for no interference. Hence, the appeal is dismissed. (Surjit Singh), J. March 17, 2010 (ss) (Rajiv Sharma), J.