State of Himachal Pradesh vs Kuldip Chand

V.K. Ahuja, J.—This is an appeal filed by the State of H.P. u/s 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Hamirpur, dated 23.8.2003, vide which he acquitted the respondent 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 18.10.2001 Jai Kishan (PW-8), father of the prosecutrix was away in connection with his work as labourer. The mother of the prosecutrix, namely, Simro Devi had gone outside to bring the rice and the prosecutrix was alone in the house. It was alleged that when PW-9 Simro Devi came back at 2.00 P.M., she found the accused missing from the house. She searched for her and went to the place where her husband was working and they searched for the prosecutrix in the nearby villages. The accused used to visit their house off and on and he was also found missing from the house since 18.10.2001. PW-8 Jai Kishan searched for his daughter and then learnt that the accused had taken the prosecutrix to village Bassa Patti to the house of one Piara Singh and other places and a missing report was lodged with the police on 22.10.2001. The girl was recovered from Ludhiana and was brought to her house and handed over to the father on sapurdarri. The medical examination of the girl was conducted and after investigation, the challan was filed before the Court of learned Chief Judicial Magistrate, Hamirpur, who committed the case to the Court of learned Sessions Judge, who tried the respondent as detailed above, leading to his acquittal.

We have heard the learned counsel for the parties and have gone through the record of the case.

To substantiate its case, the prosecution had examined 17 witnesses. The first question which arises for consideration is as to what was the age of the prosecutrix proved on the day when she was missing from her house.

The prosecution had examined two witnesses to prove this fact. PW-10 Partap Singh, has stated that the prosecutrix was the student of their school and passed Middle Standard Examination in March, 2000. According to the admission register, her date of birth was entered as 18.8.1986. He had not made the original entries in the register and has not stated as to on what basis the date of birth of the prosecutrix was entered as 18.8.1986. He also admitted that the signatures of the parents of the prosecutrix are not on the admission form.

PW-11 Roshan Lal, JBT teacher, has stated that on the request of the police, he prepared attested copies of admission form and birth certificate Ext. PW11/C, which are correct ass per the original. A perusal of Ext. PW11/C shows that it is a photostat copy of the birth entry, which photostat copy had been attested by the Headmaster and the same has been proved by PW-11. This cannot be said to be the original copy since it is a photo copy, which was attested by the Headmaster and, therefore, the date of birth entry in it as 18.8.1986, cannot be held to be the date of birth of the prosecutrix.

Apart from the above, Jai Kishan, father of the prosecutrix has been examined as PW-8, who gave the age of the prosecutrix as 151/2 years. The mother of the prosecutrix PW-9 Simro Devi stated that the prosecutrix was born in the year 1986. She stated that her date of birth was got entered in the Panchayat record and as such, this document was available, but was never produced by the prosecution. The probable age given by the parents of the prosecutrix is not sufficient to prove the date of birth of the prosecutrix. The documentary evidence as discussed above also does not prove the date of birth of the prosecutrix.

The opinion of the Radiologist was also taken in this case, who as PW-1 Dr. P.C. Verma has stated that he had taken the skigram and the age of the girl was 16 to 19. To this, two years can be added or deducted and, therefore, the age can be in between 14 to 21 years. It is also in evidence that there was entry in the Panchayat, which was so proved as PW-11/C and, therefore, it was not difficult for the prosecution to prove the original entry from the birth record, which was never produced.

From the above discussion, it is clear that whatever evidence was led by the prosecution, is not sufficient to prove that the age of the prosecutrix can be held to be below 16 or 18 years. The Court cannot go by presumption and it has to be proved from the evidence for the purpose of the charge u/s 376 I.P.C. that the girl was below the age of 16 and was not capable of giving consent and for the charge under Sections 363 and 366 I.P.C., the age has to be proved above 18, so that the accused can be held liable, which is not so in the present case.

From the perusal of the statement of PW-2 ''X'' prosecutrix, it is clear that she stayed at different places with the accused for few days. The accused was known to her and had been visiting her house oftenly. The evidence shows that she had gone with him and she was subjected to sexual intercourse and there is nothing in her statement that she resisted the same or it was committed against her consent and as such, it can be concluded, as has been held by the learned trial Court that the prosecutrix had gone with the accused out of her own accord and had not been kidnapped and the accused had sexual intercourse with the prosecutrix with her consent and, therefore, the offence under Sections 363, 366 and 376 I.P.C. was not proved. As such, the findings of learned trial Court to that extent cannot be termed as perverse, calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged forthwith.