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Madhya Pradesh High Court · body

2007 DIGILAW 1075 (MP)

Ramdayal v. State of M. P.

2007-10-02

A.P.SHRIVASTAVA

body2007
JUDGMENT 1. This appeal is directed against the judgment of conviction and sentence dated 11.7.2000 passed by the 1st Additional Sessions Judge, Ashok Nagar, District Guna (M.P.) in ST No. 253/99 by which the appellant has been convicted under section 376 of IPC and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs. 500/- with default stipulation. He has further been convicted under section 506 (n) of IPC and sentenced to undergo rigorous imprisonment for six months. It is further directed that the substantial part of the sentence shall run concurrently but in default of payment of fine, he will have to undergo separate sentence. 2. The story of the prosecution, in short, is that the appellant and the prosecutrix used to reside in the same locality. On the date of incident, when in the afternoon prosecutrix went to his house for taking milk, he locked the door of the house and committed sexual intercourse with her. After committing the act two to three times, he freed her in the evening and threatened her that if she discloses this incident, he would kill her. Due to fear, the prosecutrix did not tell about the incident to anybody at her home. When after two months, her menses was stopped then the mother of the prosecutrix enquired from her then she informed about the incident. Then the prosecutrix alongwith her mother went to the Police Station Ashok Nagar and lodged the first information report on 9.8.1999 which is Ex. P-3, from where the prosecutrix was sent for medical examination and for confirmation of age. She was advised for ossification test. After completion of the investigation, charge-sheet was filed and the case was committed to the Court of Sessions and after conclusion of trial the appellant was convicted and sentenced as stated in para one of this judgment. 3. Counsel for the appellant submits that this is a case of consent of the prosecutrix and it is not established that at the time of incident, the prosecutrix was below 16 years of age because except medical evidence, no other ocular or documentary evidence was adduced by the prosecution. 4. It is submitted by the counsel for the State that looking to the medical evidence and the secondary sexual character, the age of the prosecutrix is not more than 16 years at the time of incident. 5. 4. It is submitted by the counsel for the State that looking to the medical evidence and the secondary sexual character, the age of the prosecutrix is not more than 16 years at the time of incident. 5. Prosecutrix (PW 3) has stated that she did not know her age and it will be known to her mother. In para 2, she deposed that she went to the house of the appellant for taking milk and the appellant threw her on the ground and committed sexual intercourse with her. He repeated the act for 2 to 4 times. He also threatened her not to disclose about the incident to her mother. When she became pregnant she informed her mother then went to the Police Station Ashok Nagar and lodged the report (Ex. P-3) from where she was sent for medical examination. She denied that she used to go with the appellant but admitted that once she had gone to market with the sister of the appellant and subsequently one photograph with the appellant, which is Ex. D-l, was snapped in the market which was not shown to any member of the family or anybody. 6. Bhoori Bai (PW 4) is the mother of the prosecutrix. She deposed that the prosecutrix informed about the incident and she told that when she had gone for taking milk to the house of the appellant, he committed sexual intercourse with her. Then she went to the police station alongwith the prosecutrix. According to the witness, the age of her daughter is 11 years. In cross examination, para 8, she told that her elder son is 15 years of age and her age is 30 years but she cannot tell the exact date of birth of her daughter (prosecutrix) nor she is able to disclose the year of her birth. 7. Rakesh (P.W. 5) is the brother of the prosecutrix. He disclosed his age as 18 years in the deposition sheet and told that his sister is three years younger to him. 8. Dr. Chhaya Sharma (P.W. 2) examined the prosecutrix on 9.8.1999. The report is Ex. P-2. As per the report, her secondary sexual characters are moderately developed. No external injury was found on her body. Her hymen was ruptured. She was habituated to sexual intercourse and having pregnancy of 6 to 8 weeks. No definite opinion can be given about rape. Dr. Chhaya Sharma (P.W. 2) examined the prosecutrix on 9.8.1999. The report is Ex. P-2. As per the report, her secondary sexual characters are moderately developed. No external injury was found on her body. Her hymen was ruptured. She was habituated to sexual intercourse and having pregnancy of 6 to 8 weeks. No definite opinion can be given about rape. For confirmation of age, she was referred to radiologist. 9. Dr. R.K. Jain (P.W. 1), radiologist, examined the prosecutrix on 9.8.1999 and took X-ray. The report is Ex. P-1. As per his report, the age of the prosecutrix is above 14 years and below 16 years on the basis of formation of the bones in the body. In cross-examination, he admits that as per the Mody's Medical Jurisprudence, the earlier view was that there would be a margin of three years on either side but now on the basis of new table in 1998 edition, this margin of error was reduced to six months on either side. 10. In this case, regarding the age, except ossification test, no other evidence was adduced by the prosecution and the mother and brother could not be able to tell the date of birth of the prosecutrix. She herself could be able to tell her age. 11. Counsel for the appellant relied on Gurinder Singh v. State of Punjab reported in 1984 (2) Crimes 696 in which it is held that in case of a girl allegedly below 16 years, age determined by ossification test which stated the prosecutrix age between 12 and a half and 15 years, however, no other evidence to establish the prosecutrix age produced. In such cases, it is a settled law that the ossification test is not a sure test and there is alwaysvariation of about 2 to 3 years on either side. Therefore, it cannot be said that the prosecutrix was less than 16 years. 12, He also relied on Makhan S/o Nagjiram v. State of M.P. reported in 2003 (3) MPLJ 115 in which it is held that regarding age of the prosecutrix, no evidence led by prosecution regarding entry of date of birth of prosecutrix in school register. Therefore, it cannot be said that the prosecutrix was less than 16 years. 12, He also relied on Makhan S/o Nagjiram v. State of M.P. reported in 2003 (3) MPLJ 115 in which it is held that regarding age of the prosecutrix, no evidence led by prosecution regarding entry of date of birth of prosecutrix in school register. He further submitted that Division Bench of this Court in case of Munnalal v. State of M.P. reported in 1977 JLJ 731 has he Id that the best evidence for proving the age of the prosecutrix is her mother, father and birth certificate. 13. The judgment of the learned trial Court is perused. In para 5 of its judgment, it has been observed by the trial Court that the prosecutrix (PW 3) has net disclosed her age. Her mother described her age as 11 years on the basis of age difference of her children. In para 6, on the basis of ossification test and secondary sexual character, the Court found that she was above 14 years and below 16 years of age at the time of incident. 14. Regarding age, the principal means which enable one to form a fairly accurate opinion about the age of an individual, especially in earlier years, are teeth, height and weight, ossification of bones and minor signs. Regarding ossification of bones, it is observed by Mody's Medical Jurisprudence that this sign is helpful for determining age until ossification is completed, for skiagraphy has now made it possible to determine even in living persons, the extent of ossification, and the union of epiphyses in bones. Owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different states of India, it cannot be reasonably expected to formulate a uniform standard for the determination of the age of the union of epiphysis for the whole of India. However, from investigations carried out in certain provinces, it has been concluded that the age at which the union of epiphysis takes place in Indians, particularly of persons belonging to Bengal, Punjab and South India, is about two to three years in advance of the age incidence in Europeans, and that the epiphyseal union occurs in females somewhat earlier than in males. 1.5. 1.5. As per Mody's Medical Jurisprudence, the method of estimating' age is to calculate the approximate age after considering (a) physical characteristics, (b) secondary sex characteristics, and (c) ossification tests and after allowing a margin in error of six months on either side, the approximate age can be calculated on the basis of margin of error. 16. In this case, except ossification test, no other corroborative evidence has been produced by the prosecution. In support of the age of the prosecutrix, the mother is an illiterate person and her testimony is based on approximate calculations. The father of the prosecutrix was not examined and no other evidence regarding age has been proved by the prosecution. It is a settled view of the apex Court that in the case of ossification test, there is always a margin of error on either side as the ossification test is not an accurate test to determination age, its results cannot be treated as conclusive proof on the question of age and will need further corroboration. 17. The evidence shows that the incident happened 2 to 3 months prior to lodging the FIR against the appellant. The prosecutrix could not disclose this fact soon after the occurrence to her parents and she kept herself mum. When she became pregnant, this fact was disclosed to her mother after three months of the incident. 18. As per the medical evidence, the upper level of age of the prosecutrix is 16 years which is a very thin margin and if the margin of error is applied then it would be difficult to hold conclusively that on the date of occurrence she was below 16 years. Further, non-disclosure of the incident to her parents soon after the occurrence & photograph with the appellant show the intimacy with the appellant & therefore, the inference is that she was a consenting party. Therefore, the prosecution has failed to establish the guilt against the appellant beyond reasonable doubt. Hence, the conviction and sentence as recorded by the trial Court is set aside. If the amount of fine is realized, it be returned to the appellant. The bail bonds of the appellant shall stand discharged. 19. In the result, this appeal stands allowed.