BRIJ MOHAN Vs. STATE

JUDGEMENT

(1.) These are three appeals by three co-accused of the same case. I shall dispose them of by this single judgment. The prosecution case stated in brief is that Brij Mohan and Hari Ram, two of the three appellants, are the neighbours of Saroj Bala, prosecutrix. In the evening of October 3, 1984 the prosecutrix Saroj Bala had gone to the shop of one Prithvi near her home in Subzi Mandi for shopping. Brij Mohan. appellant. met her there at about 7.30 P.M. and told her that her brother Sunilhad met with an accident and that she 'should accompany him to Hindu Rao Hospital where her brother Sunil was admitted for treatment. The Prosecu trix went with Brij Mohan on foot to Hindu Rao Hospital which is quite near to her house. One jeep was standing outside the Hindu Rao Hospital. Hari Ram. appellant,was sitting in that jeep. The other appellant Rajesh was at the steering wheel of the jeep. Brij Mohan gagged the mouth of the prosecutrix and with the help of Hari Ram he put Saroj Bala in the jeep. She was driven to a factory premises at some distance She was taken to one room in the factory premises by Brij Mohan appellant. The other two appellants. Hari Ram and Rajesh, stayed in the other room. Brij Mohan appellant is then stated to have committed rape on Saroj Bala. Saroj Bala was then told by Brij Mohan and Hari Ram that they had taken her photographs and if she told about the incident to anyone, she would be defamed. All the three appellants then brought Saroj Bala back by the same jeep and left her near her house. Saroj Bala narrated the entire occurrence to her parents. Her father 0m Prakash took Saroj Bala to the police station on the next day where she lodged the FI.R. Ex. Public Witness 1/A As per the prosecution Saroj Bala was born on October 18, 1968 i e. that she was 15 days less than 16 years on the date of occurrence. All the three appellants denied the entire prosecution version. The learned Additional Sessions Judge convicted all the three applicants for the offence punishable under Section 366 Indian Penal Code . Brij Mohan was also convicted for the offence of rape as punishable under Section 376 Indian Penal Code . All the three appellants were sentenced to three years 'R I. for the offence under section 366 I P.C. Brij Mohan was also sentenced to seven years' R.I. under section 376 Indian Penal Code . The two sentences awarded to him were made to run concurrently.

(2.) I have heard Bawa Gurcharan Singh, learned counsel for the appellant Brij Mohan and Mr. O.N. Vohra. learned counsel for Rajesh appellant. None appeared for Hari Ram appellant at the hearing of his appeal. No appearance was also put in on behalf of the State in any of the three appeals.

(3.) The first question that arises for consideration in these appeals is the question as to what was the age of Saroj Bala prosecutrix. PW1, on October 3, 1984, the date of occurrence. The learned Additional Sessions Judge relied on two documents namely, Ex. Public Witness 3/B, a photo copy of the admission form submitted to the Municipal Corporation Primary School, Malka Ganj, Delhi, at the time of joining of the first standard class by Saroj Bala on July 26, 1974, and Ex. Public Witness 3/A. a photo copy of an alleged affidavit of 0m Prakash, father of Saroj Bala, submitted to the school when she was got admitted to that school. In both these documenis the date of birth of Saroj Bala is given as October 18, 1968. The learned Additional Sessions Judge has clearly erred in relying on this evidence of the prosecution and in holding that the prosecutrix was below 16 years of age on the date of occurrence. The first thing to note is that no birth certificate of -Saroj Bala from the Ghaziabad Municipal Committee has been produced on the record where Saroj Bala was stated to have been born. The parents of Saroj Bala have admittedly been living at Delhi and the reason for not furnishing an entry from the birth register of the Delhi Municipal Corporation as given by 0m Prakash, PW4, father of the prosecutrix, is that Saroj Bala was born at his in-laws place at Ghaziabad. He further stated that be had got births of his other children recorded at the Municipal Corporation, Delhi, but as Saroj Bala was born at Ghaziabad, her birth was not got entered by any one at the Ghaziabad Municipality. It is not quite possible to say as to how far Om Parkash was speaking the truth in this regard, namely, that Saroj Bala was born at Ohaziabad and if that be so, that her birth was not get recorded with the Ghaziabad Municipality. However, the fact remains that in the absence of the cogent evidence of an entry from the birth registers, the other evidence of the prosecution had to be scrutinised carefully and strict proof of the age of the prosecutrix was required. As regards the evidence of the prosecution consisting of the date of birth as given by 0m Prakash in the admission form and the alleged affidavit, copies of which are Ex. Public Witness 3/A respectively, so far as this alleged affidavit is concerned, that is not attested by any Magistrate or an Oath Commissioner etc. and as such this document is not an affidavit at all. It may at best amount to a declaratioa of 0m Prakash, Public Witness 4. father of the prosecutrix. That also shows the casual manner in which the school authorities dealt with the question of the admission of Saroj Bala to the school, inasmuch as they did not brother to see that the admission form of Saroj Bala was accompanied by a proper affidavit regarding her date of birth, which it appears must have been required to be furnished at the time of admitting the child to the school. in the absence of the admission form having been accompanied by the affidavit of 0m Prakash and 0m Prakash not having disposed as Public Witness 4 that either of these documents was signed by him or bore his signatures, not much value could be attached to the declaration of 0m Prakash in the so- called affidavit or in the admission form as to the date of birth of Saroj Bala. Next, 0m Prakash in his statement as PW4 stated that he has got five children and Saroj Bala was his third child. Whereas he was able to give the date of birth of his eldest child Mukesh, as May 20, 1964, he was unable to give the date of birth of his second child i.e. son Rajesh Kumar. The fact that he was not able to give the date of birth of his second son thus lends some credence to the contention of the accused that he could not be in a position to give the date of birth of Saroj Bala as well from memory which be so purported to do in his statement as Public Witness . 4 Then the more important thing to note is that the age of Saroj Bala, prosecutrix, as per the said school record is not supported by the evidence of the determination of her bony age as determined radiologically. That evidence is in fact in conflict with her age as per the said school record. In the present case as per the statement of Dr. J.R. Dass, Public Witness . 16, based on the skiagrams of the prosecutrix Saroj Bala as taken by him. Ex. Public Witness 16/B-1 to B-4 and his report Ex. Public Witness 16/A, Saroj Bala, prosecutrix, had completed 16 years of age, but had not completed 18 years of age.