Prem Singh vs The State
1970 Latest Caselaw 265 Del

JUDGMENT

S. Rangarajan, J.

(1) The appellant Prem Singh (27) who was employed as a compounder in the Kotli Dispensary Tehsil Sadar, :ind was residing at Chappanu has been convicted by the learned Sessions Judge, Mandi under Section 363, Indian Penal Code. and sentenced to undergo six months rigorous imprisonment, in addition to pay a fine of Rs. 100.00 (in default to undergo further rigorous imprisonment for one month) and under section 376, Indian Penal Code. to undergo two years rigorous imprisonment and to pay a further fine of Rs. 200.00 (in default to undergo rigorous imprisonment for a further period of two months).

(2) The facts are simple. Mst. Hima (P.W. 7) is the daughter of Mst, Achhari (P.W.5) who had formerly married one Bhagat Singh (deceased) but had later married Lachman (P.W.4), who had let out a portion of his house where he had a halwai shop) to the appellant for his residence. He became physically intimate with Public Witness 7. When the appellant )who seems to have been married already) expressed his wish to Public Witness 4 to marry Public Witness 7, Public Witness 4 not only refused but asked the appellant to vacate the house. The appellant thereupon resided in the house of Dagu, wherein the dispensary was situate.

(3) In January 1968, Ramji (P.W.6) heard a rumour that Public Witness 7 had become pregnant from the appellant and informed Public Witness 4, who in turn conveyed it to Public Witness 5. When Public Witness 7 came home from school for lunch, Public Witness 5 told her that Public Witness 4 had come to know about the entire affair, whereupon Public Witness 7 did not take her lunch but left. She did not go back to school but went to the appellant and informed him about this. The appellant told her that she could go to Mandi where he would follow her. Public Witness 7 went back to school and handed over her books to Mst. Gayatri (P.W. 13), her class mate, who in turn handed it over at her house.

(4) On the way to Mandi Public Witness 7 went to Saiglu where the appellant followed her; Public Witness 7 spotted her step-brother, Hari Ram there, became afraid of him and went to the house of Mst. Bhadri. The appellant remained with Public Witness 7 at Saiglu for about an hour. She was seen along with the appellant by Krishan and Jai Dev (P.W.8 and 9 respectively), who were Public Witness D. labourers and resided at Kotli. When they went back to Kotli after the day's work, they told P'.W.4 who was searching for Public Witness 7 about their having seen her at Saiglu Public Witness 4 sent Public Witness S 8, 2(Padm Nabh) and 12(Lalu) to bring back Public Witness 7 since owing to illness he could not go himself. They brought back P.W.7 to Kotli; on the way they saw the appellant, but he slipped away. Meantime Public Witness 13 brought back the books of P'.W.7. Public Witness 4 was later taken to the police station Mandi where the first information report (P.D.) was recorded. The doctor (P.W.I) who examined P.W.7 only clinically, for want of facilities to examine her radiologically, found that she was 26 weeks pregnant and that she about 14-15 years. Even before the trial she had been married to another.

(5) The appellant's defense was one of complete denial; had also gone to the uncharitable extent of suggesting that the parents of Public Witness 7 had been using her commercially.

(6) The crucial question in this case, on the facts held proved by the lower Court against the appellant, is that of Public Witness 7's age. The oral evidence concerning her age is as follows :-P.W.4 stated that he married Public Witness 5 after she became a widow and that Public Witness 7 who was born an year after their marriage was their only child. Even though Public Witness 5 asserted that Public Witness 7 was 14 years at the time of the occurrence but she admitted that she could not say how old she was at the time when she was examined at the trial. She was examined on 7-4-1970. She stated that she married Public Witness 4 eighteen years previously which takes it to 1952, April) and that Public Witness 7 was born one year later. She also added that P'.W.7 was born in the month of Magh, which commences about the middle of January. The date to birth was also sought to be fixed by reference to a lunar eclipse (wrongly stated by Public Witness 4 and even Public Witness 5 at first to be a solar eclipse). The learned Sessions Judge has noticed that there was a lunar eclipse on 29-1-1953 (month of Magh).

(7) The documentary evidence in support of Public Witness 7's age consists of the birth entry (Ex.P.C.) and a certificate by the Head Master of the' school where she studies (Ex.P.E.) In Ex.P.E. the birth is recorded as having taken place on 27-1-1953; Ex.P.C. shows the birth took place on 29-1-1953.

(8) The expert opinion is that of the doctor, but this was, as already noticed, not on the basis of any radiological examination and is. therefore, of a weak character. In the very nature of things it would not be possible to act on the testimony alone unless there is other corroboraton of a reliable nature.

(9) Public Witness 4 stated in cross-examination that one year after the death of Bhagat Public Witness 5 married him and he fixed the time of Public Witness 4 joining him as one year after the partition of the country. Public Witness 4 had stated even in chief examination that Public Witness 7 was born one year after his marriage with Public Witness 5; Public Witness 5, however, tried to make up the damaging effect of the above admission by staling that Public Witness -7 was born to her three or four years after the death of Bhagat. If the marriage between P.W.4 and Public Witness 5 took place, according to the admission of the former in the year 1948 (one year after the partition) and Public Witness 7 was born one year thereafter, Public Witness 7 must have been born in the year 1949 (August). When the occurrence took place, therefore. Public Witness 7 must have been over 18 years of age.

(10) It was easy enough for any one to refer to the eclipse, solar or . lunar, after finding out that 29-1-1953 was a day of eclipse

(11) The more important aspect to be considered concerning Public Witness 4's age is the attempted documentary evidence. Regarding P.E., produced by the Head Master (Public Witness .11), it has to be noticed that he only produced the school admission and withdrawal register for middle classes. When Public Witness 11 issued P.E. Public Witness 7 was studying in the 8th class. Public Witness 11 did not know who made the entry in the register concerning Hima, showing her date of birth as 27-1-1953. According to Public Witness 11, it must have been made on the basis of the previous entry in the relevant register of the primary classes, which was previously in a building different from where it is now (in the High School building). The admission records, he thought, should be available in the Primary School. Public Witness 4 stated that he got Public Witness 7 admitted into the primary school and got her age recorded there. Unfortunately no further effort was made to get the concerned admission record from the Primary school in order to establish its connection with Public Witness 7 beyond reasonable doubt. P.E, therefore, is not helpful.

(12) So far as P.C. is concerned only Public Witness -3 (Secretary of the Khadyad Panchayat) was examined; he did not even know who had made those entries. The said register must have been kept in pursuance of the Births. Deaths and Marriages Registration Act of 1886, section 22(2) of which reads as follows :- "UNTILthe entry has been so signed (or the conditions specified in the proviso to sub-section ( 1 ) have been compiled with) the birth or death shall not be deemed to be registered under this Act."

(13) The Register, of which P.C. is an extract, not containing the signature of Public Witness 4, who is said to have given the information, it was not a birth reported under the Act. Hence the same is not even admissible under section 35 of the Evidence Act, 1872 which reads as follows:- "ANentry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty. or by any other person in performance of a duty specially enjoined by the law of the country in which such book. register or record is kept. is itself a relevant fact."

(14) Mr. D. P. Sud made a reference to the Panchayat Registration Act, but on examination it is seen that the said Act came into force only on 17-2-1953 (later than the birth in this case, even if it is 27-1-1953) and hence the said Act is not applicable to the present case.

(15) Even apart from these considerations, the register, from which P.C. is an extract, is seen to contain several alterations in the serial numbers. It is not a printed book and it contains a few pages loosely stitched. These defects need not be pursued further since the necessary connection between the entry of: which P.C. is an extract and the birth of Public Witness 7 has not been properly or satisfactorily established. It is appropriate, concerning Ex. P.C. to notice the decision of the Supreme Court in (Ram Prasad Sharma v. The State of Bihar). In the aforesaid case, Sikri J. speaking for the Court referred to the previous decision of the same Court in. Brij Mohan Singh v. Priya Brat Narain Sinha where the Court had observed as follows :- "THEreason why an entry made by a public servant in a public or other official book. register, or record staling a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty. the probability of its being truly and correctly recorded is high."

(16) Sikri J. observed further as follows :- "NOproof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex.D, the hath chitha, was rightly held by the High Court to be inadmissible."

(17) A decision of the Patna High Court in Sanatan senapati v. Emperor (A.l.R. 1945 Patna 489 ) holding that in the absence of reliable evidence as to who made the entry as to the death of a particular person in hathchittas kept by a chaukidar and in what circumstances, it cannot be said that the conditions laid down in section 35 have been fulfillled and, therefore, the said entry was not admissible in evidence. Some other cases on the subject, to which it is needless to refer again, were also noticed.

(18) In the result the age of Public Witness 7 which is crucial in this case not having been proved beyond reasonable doubt, the appellant is entitled to the benefit of such doubt and is entitled to be acquitted. The conviction and sentences are accordingly set aside and the fines, it paid, will be refunded. His bail bonds would also be cancelled.