Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 625 (ORI)

Pradeep Kumar Parija v. State of Orissa

2008-08-04

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
Judgement DR. B. S. CHAUHAN, C. J. :- This habeas corpus petition has been filed by the petitioner alleging kidnapping of his eldest daughter Manisha Parija by one Ramakanta Sethy opposite party No. 5. It is stated that in spite of lodging of FIR in Tirtol Police Station on 2.7.2008, no effective steps have been taken by the Police to recover his daughter. 2. It is contended by the learned counsel for the petitioner that the victim girl was minor on the date of kidnapping and in spite of the fact that petitioner rendered all assistance, and approached every authority, the Police has not made any attempt to recover her. Therefore, this Court should take serious note of the fact and direct the opposite party, police authorities to produce her before this Court. 3. On the contrary, learned Additional Government Advocate has vehemently opposed the petition contending that the petitioner's daughter was major on the date of alleged kidnapping and the petitioner has not filed any satisfactory document to show that she was a minor. Petitioner's daughter was a student. Thus, copy of the high school certificate could have been filed. There is a material on record to show that she had voluntarily gone with opposite party No.5 with sufficient cash, jewellery etc. So it could not be a case of kidnapping. Petition is liable to be dismissed. 4. We have considered the rival submissions made by the learned counsel for the parties and perused the record. It has been the admitted case of the petitioner that his daughter decamped with cash of Rs.1 lakh and jewellery. Therefore, it is very much doubtful that she had been taken away against her wishes and it seems to be a case of running away from home because of love and affection towards opposite party No. 5. It is also admitted that daughter of the petitioner got married with opposite party No. 5 after running away from home. She had written a letter to the Superintendent of Police, Jagatsinghpur that she was 22 years of age. After leaving her parent's house, she got married with respondent No. 5 and also sent the copy of the marriage certificate issued by AMPHOI, Bhubaneswar. In such a fact situation, the question for consideration is whether at the relevant time, daughter of the petitioner was minor or not. After leaving her parent's house, she got married with respondent No. 5 and also sent the copy of the marriage certificate issued by AMPHOI, Bhubaneswar. In such a fact situation, the question for consideration is whether at the relevant time, daughter of the petitioner was minor or not. In case she was a major and has married to opposite party No. 5 voluntarily, after leaving her parents' house, it cannot be said to be a case of habeas corpus. 5. For the reasons best known to the petitioner no proper pleadings had been taken. Merely making bald statement that she was a minor is not enough. The petitioner is duty bound to adduce best evidence in support of his case. What the petitioner has filed is a copy of horoscope to show that she was a minor. The school register or high school certificate showing the date of birth has not been filed, though it is admitted case of the petitioner that she was a student and had passed +2 course. 6. In Mohd. Ikram Hussain v. The State of U.P. and Ors. AIR 1964 SC 1625 : (1964 (2) Cri LJ 590) it was held by the Apex Court that the age of the girl mentioned in the School Register at the time of admission was a good evidence under Section 35 of the Evidence Act. School Register was found to be admissible on the ground that these entries were made ante litem mortem. 7. In Birad Mai Singhvi v. Anand Purohit, AIR 1988 SC 1796 , the Hon'ble Supreme Court held as under :- "To render a document admissible under S. 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under S. 35 of the Act, but entry regarding to the age of person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 8. Similar view has been reiterated in Raja Janaki Nath Roy and Ors. v. Jyotish Chandra Acharya Chowdhury, AIR 1941 Cal 41; Jagan Nath v. Moti Ram and Ors., AIR 1951 Pun 377; and Sakhi Ram and Ors. v. Presiding Officer, Labour Court, North Bihar, Muzaffarpur and Ors., AIR 1966 Pat 459 . 9. In Ram Murti v. State of Haryana, AIR 1970 SC 1029 (1970 Cri LJ 991) the Hon'ble Apex Court held that un-proved and un-exhibited school certificate cannot be relied on for the purpose of determining the age in view of the provisions of S. 35 of the Evidence Act. 10. In Ravinder Singh Gorkhi v. State of U.P., AIR 2006 SC 2157 : (2006 Cri LJ 2791) the Supreme Court held that School Leaving Certificate cannot be relied upon unless specifically provided for in terms of Section 35 of the Evidence Act. It must be maintained in the ordinary course of business by a public servant in the discharge of his official duty, or by any other person, in performance of a duty, specifically enjoyed by the law of the country. Such register must keep the relevant fact, and all persons concerned must have an access thereto. While deciding the same, reliance had been placed by the Court on its earlier judgments in Updesh Kumar and Ors. v. Prithvi Singh and Ors., (2001) 2 SCC 524 ; ( AIR 2001 SC 703 ) and Ramdeo Chauhan alias Raj Nath v. State of Assam, (2001) 5 SCC 714 : 2001 Cri LJ 2902. 11. In State of Punjab v. Mohinder Singh, AIR 2005 SC 1868 , the Supreme Court held that horoscope is a very weak piece of material to prove age of a person. A very heavy onus lies on the person, who wants to press it into service, to prove its authenticity, it requires to be proved in terms of Section 32 (5) of the Evidence Act by examining the person having special means of knowledge as regards authenticity of date, time etc. A very heavy onus lies on the person, who wants to press it into service, to prove its authenticity, it requires to be proved in terms of Section 32 (5) of the Evidence Act by examining the person having special means of knowledge as regards authenticity of date, time etc. mentioned therein, and in that context, horoscopes have been held to be inadmissible in proof of age. For that purpose, reliance has been placed by the Hon'ble Supreme Court on the judgments in Mt. Biro v. Atma Ram and Ors., AIR 1937 PC 101 and also on the judgment of the Calcutta High Court in Satish Chandra Mukhopadhyaya v. Mohindra Lal Pathak, ILR 97 Cal 849. 12. In view of the above, the legal position emerges that age of the person should be determined taking all pros and cons into consideration. Entries in the School Registers should be considered very carefully after ascertaining as under what circumstances the entries in the School Registers had been made. But horoscope being a very weak evidence, is to be considered only if it is proved before the Court meeting all requirements of the Section 32(5) of the Evidence Act. 13. In the instant case, no reason has been given in the petition why the petitioner has not adduced evidence by filing the high school certificate showing the date of birth of his daughter and why he has filed copy of the horoscope. Petitioner is guilty of with holding the material evidence regarding the age of his daughter. Learned counsel for the petitioner could not give sufficient explanation under what circumstances the horoscope is admissible and how it can be relied upon. It is also not disclosed as on what date the horoscope had been prepared and at whose behest the date of birth has been provided therein. In such a fact situation the horoscope is not worth any relevance. 14. The petition does not disclose correct facts. It is apparent that daughter of the petitioner had voluntarily abandoned her parent's house with huge amount of cash and jewellery and got married with opposite party No. 5 of her free will and she was a major. In such a situation we cannot consider this case to be a case of habeas corpus. 15. The petition lacks merit and is accordingly dismissed. 16. B. N. MAHAPATRA, J. :- I agree. Petition dismissed.