Orissa High Court
Pravakar Pati vs Ajaya Kumar Das And Anr. on 28 February, 1996
Equivalent citations: 1996(1)ALT(CRI)23, 1996CRILJ2626
ORDER R.K. Dash, J.
1. This revision at the instance of the informant is. against the judgment of the learned Additional Sessions Judge, Rourkela, passed in Criminal Appeal No. 9 of 1993 whereby he set aside the order of conviction and sentence recorded against the accused, opposite party No. 1 herein, under Section 366, IPC.
2. The prosecution case unfurled during trial is that Kumudamanjari Pati, PW 2 aged about 16 years was a student in Ispat College, Rourkela. On 19-5-91 at about 9.30 a.m. she left home informing her mother that she was going to her friend's house to attend a birth day feast. But when she did not return till late night, her father, the informant, lodged a missing report at Sector-7 Police Station and searched for her here and there. At last coming to know that the accused had kidnapped her with intent to compel her to marry him, he lodged F.I.R. Ext. 1 to the police. On receipt of the said report, Investigating Officer, PW 7 registered a case and proceeded with the investigation, in course of which he recovered Kumudamanjari from the house of the accused and deposited with her father. He also seized the identity card, school leaving certificate of Kumudamanjari and the Admission Register of Ispat College, Rourkela, and on completion of investigation, placed charge-sheet against the accused under Section 366, IPC.
3. The accused denied the indictment. His plea was that both he and Kumudamanjari were in love which culminated in their marriage and coming to know of this, Kumudamanjari's parents decided to give her in marriage elsewhere. This ultimately led Kumudamanjari to force him to leave Rourkela. The further plea of the accused was that by the time of the alleged incident Kumudamanjari had become major.
4. In order to bring home the charge to the accused, prosecution examined seven witnesses and the accused in support of his defence plea examined four and the learned trial Court on a scrutiny of the evidence held the accused guilty of the offence under Section 366, IPC and consequently convicted and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for one month.
5. On appeal the learned Additional Sessions Judge reappraised the evidence and came to hold that Kumudamanjari had become major by the time of the incident and having so held, he acquitted the accused and it is against that order of acquittal that the informant has preferred the present revision.
6. Learned counsel for the informant-petitioner challenging the correctness of the findings recorded by the appellate Court strenuously contended that the learned Additional Sessions Judge ought to have relied upon the ocular testimony of PW 1 as also the school leaving certificate (Ext. 10) and accepted the finding of the trial Court that at the time of the incident Kumudamanjari was minor. He further submitted that the evidence of two doctors, PWs 3 and 4, according to whom the girl had become major being opinion evidence as envisaged in Section 45, Evidence Act, over much importance should not have been given to it. The learned counsel for the accused, on the other hand, supporting the appellate Court's finding, urged that the learned Additional Sessions Judge on proper appreciation of the evidence, has arrived at a right conclusion acquitting the accused of the charge and this Court sitting in revision should be slow to disturb the same.
7. The essential ingredients of the offence of 'kidnapping' defined in Section 361, IPC are:
(1) Taking or enticing away minor or a person of unsound mind;
(2) Such minor must be under sixteen years of age, if a male or under eighteen years of age is a female; (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; and (4) Such taking or enticing must be without the consent of such guardian.
Keeping in view the prosecution case and the defence plea, the main question that arises for consideration is whether Kumudamanjari was minor, as urged by the prosecution or she had become major, as claimed by the defence.
8. PW 1 in his chief-examination stated that by the time of the incident his daughter Kumudamanjari was 15 years 3 months and 6 days, her date of birth being 7-6-75. To corroborate his evidence prosecution brought on record the school leaving certificate. Ext. 10, wherein date of birth of Kumudamanjari has been noted as 7-6-75. Learned Additional Sessions Judge did not accept the entry made in the said certificate as correct observing that usually the parents do not disclose the actual date of birth of their children while admitting them in the school. In support of his such conclusion, he relied upon two decisions of the apex Court reported in AIR 1965 SC 282, Brij Mohan Singh v. Priya Brat Narain Sinha; AIR 1970 SC 1020: (1970 Cri LJ 991), Ram Murti v. State of Haryana and a single Bench decision of this Court reported in (1992) 5 OCR 200, Manoranjan alias Manu Prusty v. State. In these decisions it has been authoritatively held that what is stated in the school Admission Register as to the age of a student cannot be treated to be correct since the guardians understate the age of their children than the real one at the time of admission in the school. This being the settled position of law, the prosecution in the present case, ought to have led some more acceptable evidence to prove that Kumudamanjari was minor at the relevant time; in as much as it should have brought in evidence her horoscope which according to PW 1 is very much available in his house. Furthermore, in all fairness the Investigating Officer should have got Kumudamanjari medically examined to ascertain her age.
9. On the other hand, the accused in order to show that Kumudamanjari was more than 18 years of age at the relevant time examined two doctors, DWs 3 and 4, DW 3 is a radiologist. He having conducted X-ray examination, opined that the girl was above 18 years of age. To the same effect is also the evidence of the other doctor, DW4. Learned counsel for the informant-petitioner contended with vehemence that the evidence of DWs 3 and 4 being opinion evidence cannot outweigh the sworn testimony of PW 1 and therefore, the learned appellate Court committed a gross illegality in accepting their evidence as substantive evidence for recording an order of acquittal.
10. There is no dispute about the legal proposition that evidence of an expert is of an advisory character given in the form of an opinion. His evidence cannot be treated as substantive evidence. In practice, Court does not ordinarily base its decision on such evidence unless it is supported by other evidence. It is the duty of the Court to come to a conclusion on a question of fact on consideration of the whole evidence including that of expert. A different situation may, however, arise when there is conflict between the evidence of an expert and other evidence and in that case the benefit must go to the accused. In the case in hand there appears such conflicting evidence as to the age of the victim girl. As stated earlier evidence of P.W. 1 coupled with the school leaving certificate. Ext. 10 would suggest that Kumudamanjari was below 18 years of age, whereas as deposed to by two experts DWs 3 and 4, she was above 18 years of age. It is the settled law that if two views are deducible from the available evidence, the one which supports the defence should be accepted. In the case in hand when there is conflicting evidence as to the age of Kumudamanjari, the learned appellate Court, in my opinion, is perfectly justified in giving benefit thereof to the accused.
11. On a conspectus of the facts, circumstances and the evidence as discussed above, I find no illegality having been committed by the learned Additional Sessions Judge by acquitting the accused of the charge which necessitates interference by this Court in exercise of revisional power.
12. In the result, the revision fails and the same is dismissed.