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2015 DIGILAW 28 (CHH)

Suresh Kumar Gupta v. State of Madhya Pradesh

2015-01-22

MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT Manindra Mohan Shrivastava, J. 1. This appeal is directed against the impugned judgment of conviction and sentence dated 16/12/99 passed by the Additional Sessions Judge, Bemetara, Durg (CG.) in sessions trial No. 431/96, whereby and whereunder the appellant has been held guilty of commission of offence under Section 363 of Indian Penal Code and sentenced to undergo two years R.I. and fine of Rs. 500/-. In default of payment of fine, further R.I. of two months. 2. The prosecution story as unfolded from the records of the case is that the prosecutrix was missing from 20/07/96 and missing person report was lodged in the Out Post - Devkar on 22/07/96. While search was being made out, prosecutrix reported in the out post stating that when she had gone out in the field to respond to the call of nature, the appellant met her on the way and on the promise to marry her, she was kidnapped and taken to Durg where she was subjected to rape and then again taken to Dhamdha and kept in the house of one Shakun Bai and thereafter, he did not turn up. Next day, she came back to her village and reported the matter to parents. On this information, FIR in Ex. P/13 was registered in the out post Devkar for commission of offence under Section 376, 363, 366 of IPC. The numbered FIR, thereafter, registered in police station -Saajha under Crime No. 78/96 for alleged offence in Ex. P/23. During investigation, wearing apparels of the prosecutrix which included sari, petticoat etc. were seized in Ex. P/1. The prosecutrix was also subjected to medical examination and Dr. Smt. Shyamali Roy (PW5) examined the prosecutrix and gave report in Ex. P/6. The appellant's clothes were also seized and he was also subjected to medical examination. During investigation, the police also collected evidence with regard to the date of birth of the prosecutrix. Seized articles were sent for chemical analysis to Forensic Science Laboratory. The prosecutrix was also subjected to radiological test to find out her age and the report was prepared in Ex. P/23. Upon completion of usual investigation, recording diary statements, charge sheet was filed in the Court of Judicial Magistrate, 1st Class, Durg who in turn, committed the case for trial to the Court of Sessions and the case was received on transfer by the Additional Sessions Judge, Bemetara. 3. P/23. Upon completion of usual investigation, recording diary statements, charge sheet was filed in the Court of Judicial Magistrate, 1st Class, Durg who in turn, committed the case for trial to the Court of Sessions and the case was received on transfer by the Additional Sessions Judge, Bemetara. 3. Learned Trial Court, on the basis of material contained in the charge-sheet, framed charges on 23/07/97 against the appellants. The appellant abjured guilt and was put to trial. 4. Relying upon the evidence led by the prosecution, learned Trial Court held that it was a case of consent and therefore, no case of commission of offence under Section 366 or 376IPC is made out. Recording a finding that the prosecutrix was less than 18 years of age held the appellant guilty of commission of offence under Section 363 IPC and sentenced as described above. 5. Learned counsel for the appellant confined his submission to the aspect of the age of the prosecutrix and contended that the prosecution has failed to prove by unimpeachable and convincing evidence beyond reasonable doubt that the prosecutrix was less than 18 years of age. He submits that the radiological examination and the report of radiologist and the evidence of the doctor clearly states that the prosecutrix is 18 years of age. He submits that though in the school register, the date of birth has been recorded as 18/09/82, in view of the radiological examination, the prosecution case with regard to the prosecutrix being minor and less than 18 years of age becomes doubtful. He submits that once the age of the prosecutrix is held to be 18 years, in view of the finding recorded that the prosecutrix herself had eloped with the appellant having affair with him, the appellant is entitled to be acquitted of the charges of commission of offence under Section 363 IPC. In support of his submission, learned counsel for the appellant relied upon the decision of the Supreme Court in the case of State of Karnataka v. Suresh Babu Puk Raj Porral (1994)1 SCC 468 , and Jinish Lal Sah v. State of Bihar (2003)1 SCC 605 . 6. On the other hand, learned State counsel supports the judgment of conviction and sentence and submitted that the prosecution has proved beyond all reasonable doubt that the girl was less than 18 years of age. 6. On the other hand, learned State counsel supports the judgment of conviction and sentence and submitted that the prosecution has proved beyond all reasonable doubt that the girl was less than 18 years of age. He submits that the learned Trial Court, in order to hold that the prosecutrix was more than 16 years of age but less than 18 years, has relied upon entries made in the school admission register which has been duly proved by the custodian of the records. He submits that the father of the prosecutrix - Champa Lal (PW2), mother - Janki Bai (PW3) and the prosecutrix herself have stated the age of the prosecutrix to be 15 or 16 years only. He further submits that the doctor, who examined the prosecutrix, has also stated the age of the prosecutrix to be 16 years. The age assessed on the basis of radiological report is only approximate. Therefore, the Court below has committed no illegality in recording a finding that the prosecutrix was less than 18 years of age. 7. The sole question arising for consideration of this Court is whether the prosecution has succeeded in proving by leading clinching and convincing evidence with regard to the age of the prosecutrix as less than 18 years of age. 8. Before proceeding to examine the aforesaid issue, it only needs to be mentioned that though there were allegation of commission of offence under Section 366 and 376 IPC, the Court below, upon minute scrutiny of the testimony of the prosecutrix (PW1) has recorded categoric findings that the prosecutrix of her own had eloped with the appellant and there was a consent on her part. On this evidence, the appellant has been acquitted of the charges under Section 366 and 376 of IPC. 9. While Dr. Shyamali Roy (PW5), who examined the prosecutrix, has stated the age of the prosecutrix to be approximately 16 years on clinical examination, she herself advised for getting X-Ray done for obtaining radiological report to find out the age of the prosecutrix with more accuracy Dr. S.A. Mandge (PW12) had conducted radiological examination to determine the age of the prosecutrix. Shyamali Roy (PW5), who examined the prosecutrix, has stated the age of the prosecutrix to be approximately 16 years on clinical examination, she herself advised for getting X-Ray done for obtaining radiological report to find out the age of the prosecutrix with more accuracy Dr. S.A. Mandge (PW12) had conducted radiological examination to determine the age of the prosecutrix. He has deposed in his evidence that he had taken X-Ray of left wrist elbow as also pelvic bone and upon X-Ray, he found that there was fusion of Medial and Lateral Epicondyle and Olecrenon and Head of Radius in the elbow joint which occurs at the age of 14 to 15 years. He further deposed that the fusion of radius and ulna bone was apparent, which develops at the age of 17 to 18 years but there was no fusion of pelvic bone which develops between the age of 18 to 19 years. On this assessment based on radiological examination of development of the bone of the prosecutrix, the doctor has emphatically stated that the age of the prosecutrix was 18 years and proved his report in Ex. P/23. In his cross examination, he has reiterated that the age of the prosecutrix was 18 years. 10. Ramkhilawan (PW9), retired Head Master has stated that the admission register was seized from him vide Ex. P/11 but he states that the entries have not been made by him. 11. Jodhan (PW13), Head Master, Government Girls School, Village-Parpodi has stated that in the school register of date of births, the date of birth of the prosecutrix was recorded as 18/09/82 as per the declaration given by her father. In his cross-examination, he has stated that the entries were not made by him and he does not know, who was the Head Master of the school, in the year 1988. He has also stated that there are two entries at serial No. 13 and 14 in the name of Kumari Laxmi. In one place, name of father of Ku. Laxmi at serial No. 13 is stated to be Churamanram and at serial No. 14, father of Ku. Laxmi has been recorded as Champalal Devaar. 12. He has also stated that there are two entries at serial No. 13 and 14 in the name of Kumari Laxmi. In one place, name of father of Ku. Laxmi at serial No. 13 is stated to be Churamanram and at serial No. 14, father of Ku. Laxmi has been recorded as Champalal Devaar. 12. Champalal (PW2)-father of the prosecutrix, has deposed in his evidence that at the time of incident, the age of his daughter was approximately 13 years but in the cross-examination, he states that he does not know on what basis, the age of the prosecutrix was declared as 16 years and recorded as such by the police. This shows that the father of the prosecutrix has been stating about the age of his daughter giving approximate age of his daughter and unable to state the exact date of birth of his daughter. The mother of the prosecutrix, without stating about the date of birth, place of birth, has again stated that the age of the girl was about 15 to 16 years. 13. Thus, the evidence which has been led by the prosecution, which includes oral and documentary evidence in the form of school register and radiological examination report indicate different age of the prosecutrix. 14. In the radiological report based on development of bone and having a scientific basis, the age of the prosecutrix stated to be 18 years. The radiologist (PW12), who had examined the bones who conducted radiological examination of the bone has very categorically and emphatically stated both in his examination-in-chief as well as in cross-examination that the prosecutrix was 18 years of age. As against this, the declaration of age in the school registers is said to be made on the basis of declaration made by the father of the prosecutrix, who in his examination has been stating about the approximate age of the prosecutrix. In his examination, he has stated about 13 years of age whereas the FIR recorded in the police-station that is report records the age as 16 years which he is unable to explain. In the conspectus of aforesaid evidence on record, it can be safely concluded that the prosecution has failed to prove beyond reasonable doubt that on the date of the incident, the prosecutrix was less than 18 years of age. In the conspectus of aforesaid evidence on record, it can be safely concluded that the prosecution has failed to prove beyond reasonable doubt that on the date of the incident, the prosecutrix was less than 18 years of age. In the case of Sureshbabu (1994)1 SCC 468 (supra), the Supreme Court, taking into consideration that the medical evidence based on testimony indicates the age of the prosecutrix to be 18 to 20 years whereas in the school register, the age was shown to be below 16 years, held evidence regarding age was doubtful and not very convincing and benefit was given to the accused. It was held that in such a situation when age is in doubt, question of taking prosecutrix away from the lawful guardianship is not made out particularly when the victim willingly went along with the accused to different places and for many days. In another case of Jinish Lal Sah (2003)1 SCC 605 (supra), it was found that as per the X-Ray photographs, the age of the prosecutrix appears to be 17 years. The girl stated that she was 14 years of age and father stated that she was 19 years of age. Taking into consideration those discrepancies in the age as stated in the radiological examination and in the oral evidence, the Court held that the prosecution failed to establish that the girl was less than 18 years of age on the date of incident and acquitted the accused by giving the benefit of doubt. 15. Therefore, I have to hold that the prosecution has failed to prove with convincing evidence that the prosecutrix was less than 18 years of age on the date, she was allegedly kidnapped by the appellant. It has already been held by the learned Trial Court that there was a consent on the part of the prosecutrix as she had eloped along with the appellant at the midnight and had gone with the appellant at different places and even stated in the Court that she is still willing to live along with the appellant and would prefer to go to his house as his wife. 16. In the result, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charges. As the appellant is in jail, he be set free forthwith. Appeal Allowed.