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2010 Supreme(HP) 1290
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sanjay Karol, Deepak Gupta, JJ.
State Of Himachal Pradesh — Appellant
Vs.
Bar Chand — Respondent
Decided on : 05-08-2010
The judgment established the importance of proving the age of the prosecutrix and highlighted the specific requirements for proving procurement of a minor girl under Section 366A of the Indian Penal Code.
Headnote:
Indian Penal Code - Acquittal - Sections 363, 366A, 376 - The court discussed the age of the prosecutrix, the admissibility of birth and death register, and the ossification test. It highlighted the requirement for proving procurement of a minor girl under Section 366A and its inapplicability in the present case.
Fact of the Case:
The prosecutrix, a minor girl, was allegedly kidnapped and raped by the accused. The trial court acquitted the accused based on the prosecutrix's age and the nature of the alleged abduction and sexual acts.
Finding of the Court:
The court found that the prosecutrix was above 18 years of age and that the sexual acts were consensual. It also held that the provisions of Section 366A of the Indian Penal Code were wrongly invoked and not applicable in the present case.
Issues: The age of the prosecutrix, admissibility of evidence from birth and death register, and the applicability of Section 366A of the Indian Penal Code were the key issues.
Ratio Decidendi: The court's decision was based on the lack of evidence to prove the prosecutrix's age, the admissibility of the birth and death register, and the misapplication of Section 366A of the Indian Penal Code.
Final Decision: The appeal was dismissed, and the accused was acquitted.
JUDGMENT :
Deepak Gupta, J.
This appeal by the State is directed against the judgment dated 9.9.1999 passed by the learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh in Sessions Trial No. 30 of 1997 whereby he acquitted the accused of having committed offences punishable under Sections 363, 366A and 376 of the Indian Penal Code.
2. On 23.10.1996 Sh. Keshav Ram (PW-1), father of the prosecutrix lodged a complaint at Police Station, Karsog. In this complaint it was alleged that the complainant was employed in the department of the Irrigation and Public Health and was living with his family in village Salogi in Illaqua Chaursi of Tehsil Karsog. Keshav Ram had six daughters and one son. The prosecutrix was his eldest child. Accused Bar Chand worked as a Carpenter. Keshav Ram had engaged him to make some furniture for him. During the period of this employment their relations became friendly and the accused used to visit the house of Keshav Ram off and on.
3. On 22.10.1996 when Keshav Ram came home he found that the prosecutrix was missing. A search was made for her but in vain. It was found that the accused was also missing from the village and therefore the complainant suspected that his daughter had run away with the accused and therefore lodged a complaint with the police. Consequent to the complaint the police swung into action and one month later on 22.11.1996 the prosecutrix was recovered from the company of the accused in village Jaksha. According to the prosecution the prosecutrix who is a minor girl aged 15- years was allured by the accused with false promise of marrying her. It was also alleged that the accused had committed forcible sexual intercourse with the prosecutrix and thus was liable to be punished under law.
4. After completion of the investigation challan was filed against the accused and he was charged with having committed offences of kidnapping, rape and procuration of a minor girl. The learned trial Court after trial by a well reasoned judgment has acquitted the accused. Hence this appeal by the State.
5. The main ground which weighed with the trial Court was that the prosecutrix was more than eighteen years of age and that she was a consenting party and had willingly gone with the accused and had sex with him.
6. The first question which arises for consideration is - what was the age of the prosecutrix? PW-1 father of the prosecutrix stated that the prosecutrix was 15- years of age at the time when she was kidnapped and raped. However from the cross examination of this witness it is apparent that this version cannot be true. He stated that he was aged 39 years and was married at the age of 15 years. This means that he was married 24 years earlier. He then stated that he was married 21 years prior to making of his statement. He also clearly stated that the prosecutrix, who was the eldest child, was born one year after the marriage. The statement of the complainant Sh. Keshav Ram (PW-1) was recorded on 18.8.1998 which would mean that he was married in the year 1977 or even earlier. This would also mean that the prosecutrix was born in the year 1978 and thus in the year 1996 when the occurrence took place she would have been more than 18 years of age.
7. The other document relied by the prosecution is the extract of the birth and death register of Gram Panchayat, Pokhi maintained under the Registration of Births and Deaths Act. This register and its contents are admissible u/s 35 of the Indian Evidence Act. However it must be shown that the Register has been maintained properly and in the ordinary course of business. It was found by the learned trial Court on inspection that the register commenced on 1.4.1981 and all the entries except one were made in ink. The entry not made in ink but in a ball-pen relates to the prosecutrix. As per this entry the prosecutrix was born on 28.1.1981. Sh. Mahesh Chand (PW-4) who produced the register was asked to explain how entry of 28.1.1981 was made in the register whi
