Hira Lal vs State of Haryana

S.S. Grewal, J.—This appeal is directed against the order of Sessions Judge, Sirsa dated 3rd of September, 1992, whereby the present appellant was convicted u/s 366 of the Indian Penal Code and vide order dated 7th of September, 1992, the present appellant was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 500/ -. In default of payment of fine he was ordered to undergo further rigorous imprisonment for six months.

In brief facts of the prosecution case as narrated by PW 7 Bhagwanti, are, that on 2-10-1991 at about 10 a.m. she was going for tuition work to the house of Smt. Bimla. As she reached near the school, Hira Lal accused, who lived as tenant in her father''s brother Khiyali Ram''s house met her. The accused asked the prosecutrix to accompany him and also threatened that in case she failed to do so, he would kill her. The accused then brought the prosecutrix on Chautala Sangaria Road. After they had gone ahead of Hanuman temple, Hira Lal accused took her in a nearby cotton field and committed rape on her and threatened that in case she utters a word she would be killed. The prosecutrix was then brought by the accused in a truck to Bathinda Railway Station. From there he took the prosecutrix in a train to Jhakal. On 3-10-1991, at about 3 a.m. the prosecutrix was taken by the accused to Delhi in a train and from there to Raigarh in Madhya Pradesh. According to the prosecutrix throughout this period the accused has threatened her that in case she complained to any body else she would be done to death. The police rescued the prosecutrix from the clutches of the accused on 16-10-1991 at Raigarh both the accused and the prosecutrix were then brought to village Chautala. Both the prosecutrix and the accused were medically examined. After completion of the investigation, Hira Lal accused was challenged, tried, convicted and sentenced by the learned trial court u/s 366 of the Indian Penal Code, as stated earlier.

The learned counsel for the parties were heard.

On behalf of the appellant, it was mainly contended that there is no legal, cogent or reliable evidence on the record to prove the exact age of the prosecutrix and that the learned trial court has gravely erred in placing on her alleged date of birth entered in the school certificate, as well as in the matriculation certificate. .,"..

There is considerable merit in the contention raised by the learned counsel for the appellant. Bhagwanti prosecutrix at the j time of the examination in the trial court on 27-5-1992 gave her age as 17!/2 years whereas her father Manu Ram while appearing as PW 8 gave her age as 16/17 years. Besides, the prosecution has produced school certificate Ex. PG and the admission form wherein her date of birth is mentioned as 8th of September, 1974. According to this evidence the age of prosecutrix was 17 years and 24 days on the day she is alleged to have been kidnapped. Since the age of the prosecutrix is in dispute her own statement cannot be considered as a material evidence for determinating her age. Father of the prosecutrix too had tried to minimise the age of the prosecutrix. According to the School record the prosecutrix was got admitted in the school on 12-9-1980 vide admission form copy where of is Ex. PG. In her matriculation certificate the date of birth of the prosecutrix is also mentioned as 8th of September, 1974. It is pertinent to note that the prosecution in the instant case has not cared to produce the birth entry of the prosecutrix either from the Chowkidara register or from other record maintained in the office of the Civil Surgeon. It is quite patent that the prosecution has failed to produce the best evidence in this case concerning the age of the prosecution. Entry of date of birth in school admission register has very little evidentiary value. Reference in this respect may be made to the authority of the apex Court in Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, wherein it was observed that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive.

Thus it would not be safe to place implicit reliance either on the school certificate or that of matriculation certificate concerning the age of the prosecutrix, in the present case.

Another important aspect of the case is that no ossification test of the prosecutrix was conducted in order to determine her radiological age. Mere opinion of the lady doctor Kusum Lata that the age of the prosecutrix was about 17 years without conducting any ossification test also cannot be relied upon. The prosecution has failed to prove affirmatively beyond reasonable doubt that the age of the prosecutrix was below 18 years at the time she was kidnapped by the accused. In view of this infirmity in the prosecution evidence concerning the age of the prosecutrix, the plea taken by the accused that the age of the prosecutrix was over 18 years seems quite probable.

It is abundantly clear from the evidence on the record that the prosecutrix, who was above 18 years of age, went with Hira Lal accused from place to place and they remained together for about fortnight before she was recovered from Raigarh (Madhya Pradesh). During this interval admittedly the prosecutrix did not complain to any body that she had been abducted by the accused under threats to her life. All the aforesaid circumstances concerning her conduct clearly show, that she was herself a consenting party and in view of the fact that she was above 18 years of age, no case for kidnapping or abduction of the prosecutrix against the accused has been made out beyond reasonable doubt.

For the foregoing reasons, I am of the considered view that the prosecution has failed to bring home charge u/s 366 of the Indian Penal Code against the appellant beyond reasonable doubt and giving him the benefit of doubt I hereby acquit the appellant. The conviction and sentence passed by the trial court are set aside and the appeal is accepted. Fine, if realised, be refunded to the appellant.