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1994 Supreme(P&H) 282
PUNJAB & HARYANA HIGH COURT
S.S.Grewal, J.
Hira Lal
Versus
State Of Haryana
Criminal Appeal No. 368SB of 1992,
Decided On : MARCH 4, 1994
The prosecution has the burden of proving beyond reasonable doubt that the victim of kidnapping was below 18 years old at the time of the alleged offense.
Headnote:
KIDNAPPING - SECTION 366 IPC - AGE OF PROSECUTRIX - BURDEN OF PROOF - EVIDENCE - SCHOOL CERTIFICATE - MATRICULATION CERTIFICATE - MEDICAL OPINION - OSSIFICATION TEST.
Fact of the Case:
The appellant was convicted under Section 366 of the Indian Penal Code for kidnapping a 17-year-old girl. The prosecution's case was that the accused had threatened the girl and taken her to various places, including Delhi and Raigarh in Madhya Pradesh, where he raped her. The accused denied the charges, claiming that the girl was over 18 years old and had gone with him willingly.
Finding of the Court:
The court found that the prosecution had failed to prove beyond reasonable doubt that the girl was below 18 years old at the time of the alleged kidnapping. The court also noted that the girl had not complained to anyone about being abducted during the two weeks she was with the accused, which suggested that she was a consenting party.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that the girl was below 18 years old at the time of the alleged kidnapping. 2. Whether the girl's conduct during the two weeks she was with the accused suggested that she was a consenting party.
Ratio Decidendi: The court held that the prosecution had failed to prove beyond reasonable doubt that the girl was below 18 years old at the time of the alleged kidnapping. The court also held that the girl's conduct during the two weeks she was with the accused suggested that she was a consenting party.
Final Decision: The court acquitted the appellant of the charges under Section 366 of the Indian Penal Code.
1. This appeal is directed against the order of Sessions Judge, Sirsa dated 3rd of September, 1992, whereby the present appellant was convicted under Section 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. 500.00. In default of payment of fine he was ordered to undergo further rigorous imprisonment for six months.
2. 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 fathers brother Khiyali Rams 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 prosecutirix 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 under Section 366 of the Indian Penal Code, as stated earlier.
3. The learned counsel for the parties were heard.
4. 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.
5. There is considerable merit in the contention raised by the learned counsel for the appellant. Bhagwanti prosecutrix at the time of the examination in the trial court on 27-5-1992 gave her age as 17 1/2 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 propsecutrix 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 V/s. Priya Brat Narain Sinha, AIR 1965
