D.B. Lal, J.
1. This appeal is brought from the judgment of the Sessions Judge, Solan in a case under Sections 363 and 366 of the I. P. Code, wherein Khyali Ram (24 years) stands charged for these offences and is convicted to five years rigorous imprisonment under each count.
2. The case of the prosecution was that Khyali Ram accused, was a relation of Beli Ram and Sarla. parents of the prosecutrix Ram Pyari said to be about 18 years on the date of the offence. At village Dhundan, both the parties were residing and it is again an admitted case of the parties that Khyali Ram accused used to come and stay at the house of Beli Ram. Accordingly on 28th June, 1972 when the accused Khyali Ram was sleeping at the house of Beli Ram, in the early hours of that morning he eloped with Ram Pyari and both of them travelled on foot and came near Ghu-marwin. Thereafter they came to villages Aur and Bagher. At Bagher, the accused pawned woollen 'pattu' Ex. P-l, which he had brought from the house of Beli Ram, with Ram Parkash shopkeeper for Rs. 5. Thereafter the accused boarded a bus at Ghumarwin and brought the girl to Ladror and thereafter to his own house at Lagmanoo. The usual search of the girl was made by the parents for a couple of days so that the F.I.R. could be instituted only on 14-7-1972 at 1.30 P.M. at P. S. Arki. The informant was Beli Ram the father of the girl. The investigation was taken up by Tilak Ram, A.S.I., and upon information received he recovered Ram Pyari from the house of the accused on 17-7-1972. Thereafter she was medically examined on 21-7-1972 by Dr. Pushpa Rani who opined that the girl's age was about 1(5 to 17 years. The radiological test was undertaken by Dr. M. L. Ahuja on 22-7-1972 and the said test disclosed that she was about 18 years in age. However, the doctor also opined that she could be even more by six months. On these facts and allegations, a case under Sections 363 and 366, I. P. Code, was instituted against Khyali Ram.
3. The defence of the accused was that in fact he was married to Ram Pyari and both of them lived together at the house of Beli Ram. Ram Pyari was more than 18 years on the date of the alleged offence. She herself went with him and both began residing at the house of the parents of the accused. Since Beli Ram was demanding some money from him, he was falsely implicated and this case was brought against him. About the 'pattu' Ex. P-l, the accused stated that it belonged to him and that he did pawn that pattu to Ram Parkash.
4. The prosecution produced in all 15 witnesses of whom the important ones were Ram Pyari (P.W. 13), her parents Beli Ram (P.W. 1) and Sarla (P.W. 10). The two doctors Pushpa Rani (P.W. 7) and M. L. Ahuja (P.W. 6) came to state about the age. One Prem Chand Sharma (P.W. 8) was also produced as he brought the birth register (Ex. PG) which disclosed the date of birth of Ram Pyari as 22-1-1955. Ram Parkash (P.W. 4) stated about the pawning of the 'pattu' Ex. P-l. Tilak Ram, A.S.I. (P.W. 15) was the investigatior officer.
The accused also produced live witnesses of whom Dhani Ram (D.W. 4) and Tulsi Ram (D.W. 5) stated for the marriage of Ram Pyari.
5. The learned Sessions Judge believed the prosecution evidence and convicted Khyali Ram in the manner stated above. He has felt aggrieved of the decision and has preferred the present appeal.
6. Shri S. S. Ahuja, learned Counsel for the appellant, contended in the foremost that the age of Ram Pyari on the date of the alleged offence was decidedly more than 18 years and as such Section 361 of the I.P.C. could not be attracted. In' that connection the learned Counsel referred to the statement of Dr. M. L. Ahuja (P.W. G), the Radiologist, who no doubt stated in cross-examination that the age of Ram Pyari could be between 18 years (3 months and 19 years on the date of her examination. It is abundantly clear that a .scientific test about age as a result of epiphyses of the bones is more trustworthy. If in the opinion of Dr, M. L, Ahuja her age could be 18 years and 6 months on the date of the offence, the learned Counsel Shri Ahuja Is right to contend that Ram Pyari could be held to be more than 18 years on the date she was alleged to be kidnapped by the accused.
7. The prosecution, it appears, essentially relied on Ex. PG, the alleged entry in the birth register, and that entry disclosed the date of birth of Ram Pyari as 22-1-1955. Shri Ahuja the learned Counsel for the appellant pointed out, and rightly so, that this document was not duly proved. The statement of Prem Chand Sharma (P.W. 8) is merely to this effect that he was the clerk in the office of the C.M.O. Hamirpur and that a certain birth register was submitted from Hamirpur Thana for the year 1955. He gave an extract from that register, of Entry No. 50 which related to the birth of Jiwani d/o Beli Ram. However, lie asserted that the name of the mother of the daughter was noted as 'Salan'. It was no doubt, stated by Ram Pyari that her mother was also named as Salan. But the mother herself never stated in her deposition that her second name was Salan. Thus there was a doubt as to whether Sarla was at all named as Salan. That also reflects the veracity of the birth register. Under Section 35 of the Indian, Evidence Act an entry in a birth register would be a relevant fact in a case, but before that relevancy can be availed of it had to be proved that the entry was made by a public servant in the discharge of his official duty. No attempt whatsoever was made by the prosecution to procure some evidence as to the manner in which the birth register was prepared, who prepared it and in what mode it was submitted to the P. S. Hamirpur. Someone from that Police Station could be examined. Thus the evidence was entirely lacking as to whether that register entry was made by a public servant in the discharge of his official duty. Even if it could be assumed that the entry in the register was itself a relevant fact under Section 35 of the Indian Evidence Act, the mode of proof under para 2 of Chap. Ill was not dispensed with. Someone had to prove that entry by primary or secondary evidence. This again was not done, and therefore the learned trial Judge was in the error when he accepted the correctness of that entry.
8. As regards the statements of the parents as well as the statement of Ram Pyari herself regarding age, that could only be a surmise. Similarly the physical examination of Ram Pyari by Dr. Pushpa Rani (P.W. 7) could not be of any assistance, so that as of certainty the age could be assessed to be below 18 years on the date the offence was committed. This being the position, the age of Ram Pyari could even be more than 18 years, and as such the offence of kidnapping under Section 361 of the I.P.C, was not attracted. With that finding, the other offence under Section 366, I.P.C. also falls and no conviction could be recorded for that offence.
9. The conduct of the accused as well as the circumstances attending to the case were also self-revealing. It was admitted by the parents as well as by Ram Pyari, that the accused Khyali Ram used to sleep at the house of Beli Ram and that he used to take food with the family. In other words, a meeting of Ram Pyari with the accused was facilitated by the parents more than once before this incident took place. It was again admitted by these witnesses that there was an offer of marriage and Beli Ram did not agree because, according to him the age of the girl was not matured for marriage. The case of the accused was that in fact he was married to Ram Pyari and they used to live together as husband and wife. It was only later on that Beli Ram started demanding money and that accounted for the setting up of this case against him. The physical examination of the girl indicated that she was used to sexual intercourse, she went and started living with the accused and obviously was recovered from his house. Some evidence was also adduced by the defence to indicate that the marriage of the accused took place with Ram Pyari. All these circumstances decidedly go to indicate that Ram Pyari left her father's protection knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused. In order to attract the offence of kidnapping under Section 361, I.P.C, something more had to be proved than mere joining of the accused with the girl. An active participation by the accused in the formation of the intention of the girl either immediately prior or sometime before she left her father's house, was required to be established. In my opinion, the ratio of the Supreme Court decision in S. Varadarajan v. State of Madras : 1965CriLJ33 is attracted in the instant case. It will be difficult to say that the accused had taken or enticed Ram Pyari and as such the offence under Section 361 was not formulated.
10. The learned Counsel also contended that the F.I.R. was delayed. But for this, the explanation of Sarla was that for 10 or 12 days they were searching out the girl. That explains the period up to 10th July, 1972, although the F.I.R. was instituted on 14th July, 1972. In my opinion, nothing much can be inferred against the prosecution because of this circumstance. At any rate, there were extreme doubts and it could even be held that Ram Pyari was more than 18 years of age on the date the alleged offence was committed. The evidence entirely lacked as to the fact of the accused having taken or enticed away Ram Pyari from the protection of her parents. This being the position, the learned Sessions Judge was in error and he should have given the benefit of a reasonable doubt to Khyali Ram.
11. The appeal is, therefore, allowed and the conviction and sentence under Sections 363 and 366 of the I.P.C. are set aside.
12. The appellant is on bail and his bonds are cancelled.