PARVEEN KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant is aggrieved by the judgment of conviction passed by the learned Sessions Judge, Bilaspur convicting him for offences under Sections 363 and 366 of the Indian Penal Code (hereinafter referred to as the IPC). The prosecution case is that prosecutrix Ruma Devi was residing in the house of her Massi (maternal aunt) at village Dabla. In the year 2001, she was studying in ninth class in Government High School, Morsinghi. PW1 Suresh Kumar, her cousin, who was running a furniture shop at Morsinghi. When he returned from Delhi on 3.9.2001, PW4 Reena Devi (this witness, who was declared hostile) daughter of Devi Chand informed him that accused Parveen Kumar had kidnapped the prosecutrix. PW4 Reena Devi had accompanied them to Ghumarwin. Thereafter they made a search of the prosecutrix at Shimla, Solan and other various places, but could not trace her. Resultantly, on 5th September, 2001 Suresh Kumar PW1 lodged First Information Report at Police Station Ghumarwin that the prosecutrix who was his cousin had been kidnapped by the accused. The prosecution case further proceeds that both the prosecutrix and the accused were recovered from the house of Bua (paternal aunt) of the accused at Khol. They were got medically examined at District Hospital, Bilaspur. The doctor opined that prosecutrix Ruma had not been subjected to any sexual intercourse etc. Case was registered against the accused for offences under Sections 363 and 366 of IPC. The prosecution examined 8 witnesses in support of its case. On the two points formulated by the learned Sessions Judge, as to whether the prosecutrix was kidnapped from the lawful guardianship of Suresh Kumar PW1 and whether the case of the prosecution was proved, the learned Court answered in favour of the prosecution and proceeded to convict the accused.

(2.) The learned Court has placed reliance on Ext.PW7/A, which was the certificate issued by Gram Panchayat, Padiyalag, and proved on record by PW7 Shri Gorakh Ram, the Secretary Gram Pancahyat, stating her date of birth to be 3.8.1987 and therefore, on the day of the incident i.e. 3.9.2001, her age was 14 years and one month. The learned Court holds that since PW7 was not cross examined by the defence Counsel, therefore, in this view of the matter, her date of birth stood proved/established. Adverting to the evidence further, the learned Court proceeds to consider the statement of PW1 Suresh Kumar, cousin/guardian of the prosecutrix, who states that the prosecutrix was 13 years old and was studying in ninth class in Government High School, Morsinghi. The learned Court relied upon the decision of the Supreme Court in Harpal Singh and another v. State of Himachal Pradesh, 1981 AIR(SC) 361 in which it is held that the entry in the birth register is made by the concerned official in discharge of his official duty and certified copy of the entries is admissible in evidence under Section 35 of the Evidence Act. Reliance was placed on Ext.PW8/H, the school leaving certificate, produced by the Investigating Officer PW8 Shri Om Prakash to prove the date of birth of the prosecutrix. The Court then concludes that age of the prosecutrix was 14 years and one month on the date of purported incident. She was minor on that day. The Court then proceeds that the prosecutrix was in the care and custody of PW1 Suresh Kumar in village Dabla where she was studying in ninth class in Government High School, Morsinghi. The accused enticed her from his lawful guardianship and took her to Shimla, Solan, Mandi and Jandutta and then to the house of his paternal aunt at village Khol. According to PW1 Suresh Kumar, since the prosecutrix's father had died when she was young, the prosecutrix, being a poor girl, was brought up by him. The prosecutrix is his Massi's daughter (daughter of his maternal aunt) and she was in his care and custody and he was looking after her considering the penury condition prevailing in her family. Letter Ext. PW2/A was also recovered from the school bag of Ruma Devi.

(3.) Adverting to the statement of PW2 Ruma Devi, the Court noticed that she corroborated the fact that she was staying in the house of her maternal aunt. She says that in the year 2001, she was studying in ninth class in Government High School, Morsinghi. She says that one month prior to the occurrence, the accused had handed over a letter Ext. PW2/A to her and had pressurized her to marry him and if she did not comply with this missive, he would kill 3/4 persons. She states that: