STATE OF HIMACHAL PRADESH Vs. JOGINDER SINGH

JUDGEMENT

(1.) THIS is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kullu, dated 28.5.2003, vide which he acquitted respondent No. 1 of the charge framed against him under Sections 363, 366 (A) and 376 I.P.C. and respondent No. 2 of the charge framed against her under Section 363 I.P.C. Briefly stated, the facts of the case are that on 7.4.2002 a telephonic message was received by Bhuntar Police by S. I. Tameshwar that daughter of Smt. Sharda Devi, aged about 12 years was missing. S.I. proceeded to the spot, recorded the statement of Smt. Sharda Devi under Section 154 Cr.P.C., in which it was alleged that one Basakhu Ram had died. In their village, according to rituals in the society, she had sent daughter 'X ' (name not mentioned) to the house of said Basakhu Ram in order to help the family in domestic work on the death in family. Her daughter did not return and when she enquired, she was informed by one Ruhni Devi that they had not seen their daughter. The complainant searched for her daughter and on the evening of 6.4.2002, the complainant was informed by one Shiv Ram, Pradhan, of the area that he had seen the accused persons Krishna Devi and her husband taking her daughter in a bus. The case was registered under Sections 363, 366 and thereafter under Section 376 I.P.C.

(2.) ON completion of the investigation, the challan was filed before the Court of learned Chief Judicial Magistrate, Kullu, who committed the case to the Court of learned Sessions Judge, who tried the respondents as detailed above, leading to their acquittal.

(3.) THE first question which arises for consideration is in regard to the age of the prosecutrix at the time of the offence by the accused persons. The prosecution has examined PW -6 Shiv Ram, Pradhan of Gram Panchayat Talwara, who has stated that on 16.4.2002, Secretary Bhagat Ram of Gram Panchayat had given birth certificate of 'X ' to the police vide Memo Ext. PW6/A, which bears his signatures. The certificate had been prepared by the Secretary. The witness does not state that this was issued by the Secretary after seeing the birth register. He does not state that the birth register was produced in the Court and he compared the same and proved the some according to law. The date of birth mentioned or proved as per this certificate is 25.3.1989, which suggests that the date of birth of the prosecutrix on 7.4.2002 was less than 13 years. PW -7 Bhagat Ram is the Secretary of the Gram Panchayat, who had issued the certificate and proved his signatures. He prepared the certificate from the birth register. He had not made entry in the birth register nor the same was produced. However, this evidence cannot be taken as primary evidence to conclude that the age of the girl was around 13 years when the original birth register was not produced by the witness during the trial of the case and there is no evidence to show that this was based upon the copy of the birth entry attached in Panchayat record, which was required to be produced to prove the age of the prosecutrix.