Point of Law: Ascertainment of Age - “Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well.”

JUDGMENT :

Instant criminal appeal filed under Section 374 of Cr.PC, lays challenge to the judgment dated 15.3.2008, passed by the learned Additional Sessions Judge, Mandi, H.P., in Sessions Trial No. 42 of 2003, titled State of HP v. Pawan Kumar, whereby learned court below while holding the appellant-accused guilty of having committed offence punishable under Section 363 of IPC convicted and sentenced him to undergo rigorous imprisonment for a period of two years and pay fine of Rs. 1000/- and in default of payment of fine, he shall undergo rigorous imprisonment for one month; and under Section 366 IPC, rigorous imprisonment for three years and pay fine of Rs. 2000/- and in default of payment of fine, rigorous imprisonment for one month.

2. Briefly stated facts of the case as emerge from the record are that deceased Anjana, daughter of complainant Mohan Singh PW1, resident of Village Chajwali, Tehsil Sadar, District Mandi, who at that relevant time was studying in school went missing on 26.4.2002. In the evening of 26.4.2002, Smt. Bimla Devi, mother of the deceased Anjana (PW2) after having found that her daughter Anjana is missing from the house rang up her husband Mohan Singh, who had gone to Kullu that their minor daughter was missing from the house. Mohan Singh came from Kullu next morning and alongwith his brother in law went in search of his daughter Anjana. On enquiry, it transpired that accused Pawan Kumar, who happens to be nephew of the complainant Mohan Singh had kidnapped his daughter from the village in a taxi of person namely Jagdish PW11 to Sundernagar and from Sundernagar, he took the deceased Anjana in the taxi of Lekh Ram (PW6) to Shimla. Mohan Singh (PW1) and his brother in law Chint Ram went to Shimla in order to trace out Anjana and the accused, however, they failed to trace out them and as such, lodged report at Police post Shimla.

3. On 29.4.2002, Mohan Singh received information on telephone from his wife that his daughter Anjana has expired at Theog in District Shimla and as such, he went to Theog, where he was told that his daughter had expired and her body has been sent to Shimla for post mortem examination. On enquiry, complainant Mohan Singh came to know that accused had kidnapped his minor daughter to Theog, where they both consumed poison. Unfortunately, Anjana expired at Theog, whereas accused survived and case under Section 309 IPC came to be registered against him at PS Theog. The accused was subjected to trial and ultimately, was sentenced to simple imprisonment for one month by the learned trial court vide impugned judgment dated 15.10.2004.

4. Being aggrieved and dis-satisfied with the aforesaid judgment of conviction and order of sentence passed by the learned trial court, accused preferred an appeal under Section 374 (3) Cr.PC. Learned Additional Sessions Judge Shimla vide order dated 7.4.2005 after having taken note of report of concerned Probation Officer, recommended for grant of benefit of provision of Section-4 of the Probation of Offender’s Act, as a consequence of which, accused came to be released on probation, subject to his furnishing personal bonds with one surety in the like amount with condition that he shall appear before the court, if called to do so within six months from the date of passing of the order.

5. After more than 2 months of the alleged incident of kidnapping, complainant Mohan Singh lodged a complainant at PS Balh, District Mandi, H.P., alleging therein about kidnapping of his minor daughter by the accused with an intention to marry her. On the basis of aforesaid report, FIR Ext.PW1/A came to be lodged against the appellant accused under Section 363 and 336 of the IPC. After completion of investigation, police presented challan in the competent court of law, which after having found prima-facie case against the accused, charged him under Sections 363 and 336 of the IPC, to which he pleaded not guilty and claimed trial.

6. Prosecution with a view to prove its case e