Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 388 (MP)

Mangal v. State of M. P.

2000-04-10

A.K.MISHRA

body2000
Short Note The present appeal has been filed by the appellant against the order of conviction under section 366, IPC and sentence to undergo four years rigorous imprisonment and to pay fine of Rs. 300/-. In default of payment of fine the appellant was further ordered to undergo three months rigorous imprisonment in addition. Prosecution case in brief is that on 6.5.88 accused Mangal took-away prosecutrix- Basanti from the custody of Ramanuj Kachhi in order to marry her and performed sexual intercourse with her. There was yet another accused Teja who was put to trial. Allegation against him was that of kidnapping a girl. Ramanuj father of Basanti, was an employee of M.P. Electricity Board and his family members used to reside at village Tikar, When Chamelibai, mother of the prosecutrix, went to Rewa for treatment accused Mangal along-with co-accused Teja, taking the advantage of the situation, took-away Basanti Accused Mangal used to work in the house of Ramanuj kachhi as servant. Basanti on being enticed by the accused, took Rs. 700/- cash and certain ornaments. At the relevant time she was aged about 14 years, When father of the prosecutrix came to know that Basanti was missing from the house, he made a search in the house of Mangal. Mangal was also not found in his house Subsequently, Ramanuj came to know that accused Mangal had come to the house of prosecutrix along-with accused Teja and took the prosecutrix away with them. Report of the incident was lodged which is Ex. P-1. Ultimately Ramanuj came to know that accused Mangal and Basanti were working in a stone quarry in the Bora Company near Maiher. This fact was informed by Mangaldeen Patel (PW 10). On 25.5.88 Basanti was recovered from the said quarry where she was working along-with accused Mangal. Prosecutrix was then referred for medical examination. She was examined by Dr. Smt. Soeen (PW 4). She was subsequently subjected to radiological examination. Report of the doctor conducting the radiological test is Ex P-7. Dr. Anand (PW 8) opined that as per the radiological test the prosecutrix was 17-18 years of age. The accused abjured the guilt and contended that he was in the employment of Ramanuj for last 4-5 years. His wages were not paid and when he left the job. Report of the doctor conducting the radiological test is Ex P-7. Dr. Anand (PW 8) opined that as per the radiological test the prosecutrix was 17-18 years of age. The accused abjured the guilt and contended that he was in the employment of Ramanuj for last 4-5 years. His wages were not paid and when he left the job. Ramanuj was having ill-will with him and for that reason he has been falsely implicated in the present case. Learned counsel appearing for the appellant has submitted that as per the medical evidence the prosecutrix was 20 years of age at the relevant time. He placed reliance on the decision of the Supreme Court in the matter of Jayamala v. Home Secretary Government of Jammu Kashmir and others AIR 1982 SC 1297 wherein it has been laid down that the margin of error in age ascertained by radiological examination is two years on either side. Learned counsel for the appellant submitted that in the deposition of Ramanuj and also of the mother of the prosecutrix, it is very clear that they have not been able to state the date or year of the birth of Basanti. They have also not been able to state the date or year of birth 'of son who was taking education in 7th standard. No documentary evidence has been produced in the Court with respect to the age of the prosecutrix. No certificate of birth etc. indicating the age of Basanti has been filed. His further submission is that as per Dr. Anand (PW 8) age of the prosecutrix has been opined to be nearly 20 years. Learned counsel appearing for the State submitted that it is a case where the age of the prosecutrix has been shown between 17 and 18 years. There is nothing to disbelieve the version of the doctor with respect to the age of Basanti. Thus the question of consent does not arise and conviction and sentence passed against the accused/appellant does not call for any interference. The main question for consideration before this Court is that of age of Basanti Bai (PW1). No documentary evidence has been submitted with respect to the date of birth of Basanti. Not even the horoscope of Basanti in support of age has been filed. Furthermore, son of Ramanuj is taking education in Class 7th. The main question for consideration before this Court is that of age of Basanti Bai (PW1). No documentary evidence has been submitted with respect to the date of birth of Basanti. Not even the horoscope of Basanti in support of age has been filed. Furthermore, son of Ramanuj is taking education in Class 7th. His date of birth is also not mentioned by his father Ramanuj on the basis of which age of the prosecutrix could have been ascertained to some extent. Even the document indicating the date or year of birth of son of Ramanuj could have thrown some light with respect to ascertaining the age of Basanti, but it has not been submitted. In the absence of non production of documents in support of age, the Court is bound to consider the age of the prosecutrix to be 19-20 years, as opined by Dr. Anand (PW 8). It is a border-line case. Dr. Anand has clearly stated in paragraph 3 of his deposition that metacarpal bone of the prosecutrix had fused which takes place at the age of 20 years. This witness has tried to state that such description is with respect to the western countries and there may be difference in the fusion at different places. It has come in the evidence that the prosecutrix had gone with the accused by taking money, ornaments etc. and did not raise any hue and cry while being taken by the accused. She had gone out of her own free-will. Further-more, she has reported that she was working in a stone quarry along-with accused Mangal. While she being at Maiher, dis-closed herself to be the wife of Mangal. It has also come in the evidence that Basanti disclosed her name as Gita. Thus Basanti appears to be a consenting party. Since prosecution has failed to produce any document which could show the date of birth of the prosecutrix, below 18 years and as per the decision of the Supreme Court in the case of Jayamala (supra) there could be a difference of two years in either side and as per the medical opinion itself fusion of matacarpal bone had taken place. Thus the benefit of the same has to be given to the accused as the prosecution has totally failed to prove the age of the prosecutrix below 18 years. Appellant deserves to be acquitted and is accordingly acquitted. Thus the benefit of the same has to be given to the accused as the prosecution has totally failed to prove the age of the prosecutrix below 18 years. Appellant deserves to be acquitted and is accordingly acquitted. In the result, appeal is allowed.