KANCHAN DASS Vs. STATE

JUDGEMENT

(1.) This appeal has been brought against judgment dated February 28,1989, by which the appellant has been convicted of offence punishable under Sections 363, 366 & 376 of the Indian Penal Code and against a separate order of even date by which he has been sentenced to undergo rigorous imprisonment for three years and to pay afine of Rs. 500.00 and in case of default, to undergo further rigorous imprisonment for three months on the first count, and rigorous imprisonment for five years and to pay a fine of Rs. l,000.00 and in case of default, to undergo further r.ig,orous Imprisonment for six months on the second count and rigorous imprisonment for ten years and to pay a fine of R 82,000.00 and in case of default, to undergo further rigorous imprisonment for one year on the third count, with the direction that all the sentences would run concurrently. The period spent by the appellant as underttial prisoner was to be adjusted in the said sentences.

(2.) The case of the, prosecution, in brief, is that this appellant, an elderly person, was given access to the house of the prosecutrix by her parents as the appellant pretended to be a hermit The appellant is stated to be enjoying a lot of respect-from the family of the prosecutrix and is alleged to have misused the said respect in seducing the prosecutrix, who was stated to be aged about 15 years at the time of occurrence and having taken her to different places, namely, Hardwar, Bulandshehar, Sultan Puri, Anwar Pur and lastly to a brick kiln in village Mandoli from where the prosecutrix was recovered and the appellant was apprehended.

(3.) The prosecutrix was stated to be missing from her house since 'September 2, 1986, but a report regarding her missing was lodged after four days and later on the prosecutrix's father Sant Singh expresaed the involvement of the appellant in abduction of his daughter and thus, the case was registcred on January 3, 1987. The crucial question which needed decision was with regard to the age .of the prosecutrix. In the report got recorded by Sant Singh as per D.D. No. 9-A dated September 6, 1986 (copy Ex.PW2/DB), the age of the prosecutrix-Bimla was shown as 16 or IT years. The learned Additional Sessions Judge has, however, given a finding that the prosecutrix was aged about 15 years at the time of the occurrence and the said finding is based on the date of birth recorded in the school leaving certificate of Bimla Devi which is Ex. Public Witness 9/A. This certificate shows that one Bimla Devi daughter of Sant Sings had attended the Government Girls Senior Secondary School, Nand Nagri, for the period July 22, 1983 to November 30, 1984 and she studied in class VII. It is pertinent to mention that no residential address or any other address of Bimla Devi or her father has been shown in this certificate Sant Singh appearing as Public Witness 3 stated that he had filled in some admission form on the basis of which her daughter was got admitted in that .particular school but no copy of the said admission form was proved on the record. Even the admission form was not summoned to get it proved from the testimony of Sant Singh. Public Witness No. 9 M.P. Gupta, a teacher from the said school, had appeared in the witness box and proved the signatures of S Chandel appearing on the school leaving certificate and he deposed that he had brought the admission form purported to bear the signatures of Sant Singh Still the admission form was not proved in this case Mr. M.P. Gupta obviously' had no personal knowledge of the matter and thus, he could not possibly preve the signatures of Sant Singh appearing on the said form. It was also not brought out from his statement that as to what was the address of Sant Singh given out in that admission form- By no stretch of reasoning the said school leaving certificate could be connected with the prosecutrix. At any rate, Sant Singh admitted that the prosecutrix was first got admitted in a primary school in Nand Nagri in the 1st Class surprisingly enough no record of that school had been taken into possession by Investigating Officer and proved in the case. So. the Additional Sessions Judge, in my opinion, was not right in placing implicit faith in the said school leaving certificate proved on the record to return a finding that the said school leaving certificate related to the prosecutrix and date of birth given in that certificate was correct.