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2001 DIGILAW 485 (MP)

Sukhman v. State of M. P.

2001-07-10

S.K.KULSHRESTHA

body2001
JUDGMENT The app ellant has preferred this appeal against the judgment dated 2.11.1992 of the learned Second Additional Sessions Judge, Chhindwara, in Sessions Trial No. 44/91, by which the appellant has been convicted for offence punishable under section 376 of the Indian Penal Code and sentenced to rigorous imprisonment for 7 years. The appellant was tried with four others for offences punishable under sections 452, 363, 366, alternatively these offences read with section 34, as also for offence under section 376 of the Indian Penal Code. The prosecution story in brief, was that Kamli (PW 10) mother of the prosecutrix Ganeshi (PW 1) had left her husband Adrao and started living with Parmu (PW 2). At the time when she had come to live with Parmu about 10 or 11 years ago, Ganeshi was one year old. It was alleged that the appellant and the acquitted accused entered the house of Parmu on 7.11.1989 at about 8 a.m. and carried away the girl Ganeshi Bai. On resistance being offered by Parmu and his wife Kamli, they were belabored. Parmu went to the Police Station along with Kotwarin PW 4 Samma to make a report at the Police Station but his report was not recorded. However, a written report (Ex. P-l) was sent to the Superintendent of Police, Chhindwara, on 10.11.1989 and on that basis, case was registered at the Police Station Parasiya and investigation was commenced by PW 15 K.S. Grewal, Sub-Inspector. The prosecutrix was recovered on 28.11.1989 and forwarded to the Government Hospital for medical examination where she was examined by Dr. J. Singh (PW 7) who gave her report Ex. P-7. Slides of vaginal swab were prepared and handed over to the Police. The accused was also forwarded for medical examination where he was examined by Dr. Gupta (PW 3) who gave his report Ex. P-4. Slides of semen of accused and the vaginal slides prepared by the Doctors were forwarded to the Forensic Science Laboratory from where report Ex. P-16 was received to the effect that both the slides contained semen and spermatozoa. After completion of investigation, charge sheet was filed. Gupta (PW 3) who gave his report Ex. P-4. Slides of semen of accused and the vaginal slides prepared by the Doctors were forwarded to the Forensic Science Laboratory from where report Ex. P-16 was received to the effect that both the slides contained semen and spermatozoa. After completion of investigation, charge sheet was filed. On trial, the learned Additional Sessions Judge, on finding that there was no taking or enticing by the accused as alleged, of the girl Ganeshi, acquitted all the accused of charges under sections 363, 366 and 452 but on finding that the age of the prosecutrix on the date of the incident was below 16 years and it was proved beyond doubt that the appellant had sexual intercourse with her several times during the period she was with him, convicted the appellant of the charge under section 376 and sentenced him as stated above. Learned counsel for the appellant has raised a singular contention that even if it is assumed that the appellant had sexual intercourse with the prosecutrix Ganeshi as alleged by the prosecution, even as per the findings of the trial Court, it was not without the consent of the prosecutrix and since the prosecutrix was above 16 years of age, no offence was made out against the appellant. The short question, therefore, that arises in the present case is as to whether the prosecutrix was above the age of 16 years as on the date of the incident and the date she was subjected to sexual intercourse by the accused. The prosecutrix did not attend any school, nor any birth certificate based on any entry made in the register of birth or in the Kotwar's book was produced by the prosecution with the result, the evidence of age is confined to the oral testimony of witnesses and the medical evidence, namely, the report Ex. P-7 of Dr. J. Singh (PW 7) and the ossification test and its report by the Radiologist Dr. Dube (PW 11). In determination of the age, the evidence of prosecutrix PW 1 Ganeshi is of no help as she has not spoken a word about it. Her mother PW 10 Kamli has stated that earlier she was married to Adrao and, thereafter, she had started living with Parmu (PW 2). She has merely stated that Ganeshi was 13 years old as on the date of the incident. Her mother PW 10 Kamli has stated that earlier she was married to Adrao and, thereafter, she had started living with Parmu (PW 2). She has merely stated that Ganeshi was 13 years old as on the date of the incident. Parmu (PW 2) has stated that Ganeshi was 3 years old while her mother Kamli had come to live with him some 11 years ago. He has admitted that after deserting her first husband, she had lived initially for about 3 years with her parents and had, thereafter, come to live with him. The evidence of Samalwati (PW 12) indicates that Ganeshi was 12 years old. As pointed out by the learned counsel for the appellant, the witnesses have not given even the year of birth of the prosecutrix and their assessment of age is based mainly on the event of shifting of the mother of the prosecutrix to the house of Parmu about which also the evidence is discrepant. While Kamli had stated that Ganeshi was one year old when she had shifted to the house of Parmu, the evidence of Parmu (PW 2) shows that after deserting her first husband, she had initially lived with her parents for 3 years and had thereafter come to live with him. The period of 10 to 11 years is also based on approximation. PW 12 Samalwati has admitted in her cross-examination that when Kamli had come to live with her father, her daughter Ganeshi was 4 or 5 years old. Thus, on the basis 1 of the version of the witnesses, the age of prosecutrix could have been anywhere between 12 years to 16 years as on the date of the incident. The oral evidence, thus, does not furnish any sound basis for determination of the age of the prosecutrix. The medical evidence comprises the evidence of PW 7 Dr. 1. Singh and her report Ex. P-7 and the evidence of Dr. Dube (PW 11) and his report (Ex. P-ll). As admitted by Dr. 1. Singh, she had recorded the age of the prosecutrix merely on the basis of the age mentioned in the requisition for her medical examination. This shows that it was not on the basis of her examination of Ganeshi that she had recorded her age as 13 years. Dube (PW 11) and his report (Ex. P-ll). As admitted by Dr. 1. Singh, she had recorded the age of the prosecutrix merely on the basis of the age mentioned in the requisition for her medical examination. This shows that it was not on the basis of her examination of Ganeshi that she had recorded her age as 13 years. Learned Judge has merely relied upon the absence of pubic hair noticed by the Doctor in examination of the prosecutrix in coming to the conclusion that the prosecutrix could not have been more than 14 years old. The Doctor has not given the age of the prosecutrix on this observation and, therefore, it cannot be said that on the basis of the absence of pubic hair the prosecutrix was below 14 years of age. The only evidence left for determination of the age of the prosecutrix, therefore, is the evidence based on ossification test conducted by the Radiologist PW 11 Dr. Dube. Dr. Dube has, on the basis of the Radiological examination, opined that Ganeshi was more than 14 years and less than 15 years of age. He has admitted that the said assessment was subject to variation of 1-1/2 to 2 years on either side and she could, therefore, 'be even 17 years old. Learned counsel for the appellant has referred to the decision of this Court in Narendra Singh v. State of M.P. ( 1996 JLJ 256 ) to the effect that where the witnesses are not in a position to say even the year of birth, it is the medical evidence which should be considered in the absence of other evidence with regard to the date of birth of the prosecutrix. Reference has also been made to a Division Bench decision of this Court in State of M.P. v. Narendra Kumar [(2000(1) MPWN 156 = 2000(2) MPU 399] to the effect that determination on the basis of Radiological examination is merely an approximation and is subject to a margin of 2 years on either side. Reference has also been made to a Division Bench decision of this Court in State of M.P. v. Narendra Kumar [(2000(1) MPWN 156 = 2000(2) MPU 399] to the effect that determination on the basis of Radiological examination is merely an approximation and is subject to a margin of 2 years on either side. In the said decision, reference has also been made to the decision of the Supreme Court in Jaya Mala v. Home Secretary, Government of Jammlland Kashmir and others ( AIR 1982 SC 1297 ) in which the Supreme Court has observed that it is notorious and one can take judicial notice that the margin of error in age ascertained by Radiological examination is 2 years on either side. In the present case, this position is not disputed even by the Radiologist and he has admitted that Ganeshi could have been even 17 years of age as on the date of the Radiological examination. Since the conviction of the accused is based on the ground that he had sexual intercourse with the prosecutrix whose consent was immaterial as she was below 16 years of age, and the evidence of the prosecution as discussed above does not rule out the possibility of the prosecutrix being 17 years old, in any case more than 16 years old, the conviction of the appellant cannot be sustained. Accordingly, this appeal is allowed. The conviction of the appellant and the sentence passed against him by the trial Court are set aside and he is acquitted. The bail bonds of the appellant are discharged.