Madhya Pradesh High Court
Akeel S/O Rehman Khan vs State Of M.P. on 29 August, 1997
Equivalent citations: 1998(2)MPLJ199
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. In this appeal from jail the accused-appellant calls in question the propriety of the judgment of conviction and order of Sentence passed by the learned Session Judge, Chhindwara in S.T. No. 106/90 convicting him under Sections 363 and 376 of the Indian Penal Code (hereinafter referred to as 'IPC') and sentencing to undergo R.I. for 7 years on each count with a stipulation that both the sentences would run concurrently.
2. The prosecution story, in brief, is that on 9-1-1990 the accused forcibly kidnapped the prosecutrix, took her to various places and had sexual intercourse with her. A first information report (Ex.P.-1) was lodged on 10-1-1990 by the father of the victim. It was alleged in the F.I.R. that the victim girl was aged about 13 years and she was missing. It was also alleged that some people of the village had seen her being followed by the accused. After the criminal action was set in motion. The investigating agency registered the case under Sections 363, 366 and 376 of Indian Penal Code, and thereafter, the accused was apprehended. Medical examination of the prosecutrix was conducted and on finding that the prosecutrix was aged about 13 to 14 years and there was signs of sexual intercourse, charge-sheet was laid for the aforesaid offences.
The plea of the accused was one of the denial simpliciter.
3. To bring home the charge, the prosecution examined number of witnesses, brought certain documents on record which included the medical reports and school leaving certificate. On behalf of the defence no evidence was adduced.
4. On consideration of the materials on record the learned trial Judge came to hold that the prosecutrix was below 16 years of age and there was ample evidence relating to sexual intercourse and accordingly he found the accused guilty for the offences under Sections 363 and 376, and sentenced him as has been indicated hereinbefore.
5. Mr. P. L. Pandey, learned counsel for the appellant has assailed the impugned judgment on the ground that the learned trial Judge has fallen into grave error while determining the age of the prosecutrix. It is his further submission that there is material on record to establish that the prosecutrix was definitely more than 16 years of age and as she had been a consenting party to the whole transaction the question of convicting the appellant for the offence under Section 376, Indian Penal Code does not arise. He has strenuously urged that the offence under Section 363, Indian Penal Code is also not proved by the prosecution inasmuch as from the report of the doctor (Ex.P-5) it is crystal clear that she was more than 17 years, and therefore, the benefit of doubt should have been given to the appellant.
Mr. P. D. Gupta, learned Government Advocate, controverting the aforesaid submissions has contended that as the learned trial Judge has believed the school leaving certificate (Ex.P-3) and scanned the oral evidence in proper perspective and arrived at proper conclusion that the prosecutrix was below 16 years the said finding cannot be found fault with.
6. To appreciate the rival submission raised at the Bar, I have perused the impugned judgment and closely scrutinised the evidence on record with the assistance of the learned counsel for the parties. The prosecutrix who has been examined as PW 4, has categorically asserted that she had gone with the accused voluntarily and the accused had intercourse with her and there was no compulsion. As there was consent on the part of the prosecutrix it is not necessary to consider whether there has been sexual intercourse or not. However, on a perusal of the materials on record, there is no iota of doubt that the accused had sexual intercourse with the prosecutrix.
For determination of the age of the prosecutrix, the learned trial Judge has placed reliance on the school leaving certificate. He has also taken into consideration the evidence of the Doctor, PW-7 and the radiologist, PW-9 to arrive at the conclusion that she was below 16 years. Mr. Pandey, learned counsel for the appellant has strenuously urged that PW-9, the radiologist in his report (Ex.P-6) has opined that the girl was above 16 but below 17 years of age. He has also contended that from the school admission register it appears that the victim girl was more than 13 years and 9 months. The submission of the learned counsel for the appellant is that once a report has been given by the doctor, emphasis should not have been given on the oral evidence by the Court to arrive at the conclusion that the age of the prosecutrix is below 16 years of age. On a perusal of the evidence of PW-9 it is apparent that he has opined in his report that the victim girl is between 16 to 17 years of age. Ossification lest is one of the tests to find out the age. It is well known that the determination of age by ossification test is neither absolute nor exact. The High Court of Orissa in the cases of Srilatcha Kumari v. State of Orissa, (1993) 6 O.L.R. 661 and Bishnudas v. State of Orissa, (1996) 11 O.L.R. 602 have held that variation of age in the ossification test can be upto 3 years in either way. The High Court of Bombay in the case of Balasaheb v. The State of Maharashtra, 1994 Cri.L.J. 3044, after referring to Modi's Medical Jurisprudence and Toxicology (First Edition) expressed , thus :
"It is observed that the error in the case of age based on ossification test may be three years."
It is also noticed that the learned trial Judge has placed reliance on school leaving certificate. The said document cannot form the basis to determine the age, as the guardians have a tendency to understate the age of their children at the time of admission in the school. This view of mine gains support from the decisions rendered in the cases of Brijmohan Singh v. Priyabrata Sinha, AIR 1965 SC 282, and Bishnudas Behra v. State of Orissa, 1997 Cri.L.J. 2207.
As indicated above, the doctor has already opined that the victim girl was between 16 to 17 years of age. No doubt there can be an error in the periphery of three years. But the benefit of the error has to go in favour of the accused in view of other obtaining circumstances.
7. The learned trial Judge has scrutinised the oral evidence to arrive at the conclusion that the victim girl is below 16 years. Taking into consideration the opinion under Ex.P-6 and the permissible margin, I am of the considered view that the determination with regard to the age of the prosecutrix does not appear to be correct. It can be safely concluded that at the time of occurrence the girl was more than 16 years of age. Once it is determined that the victim is more than 16 years and there was free consent, the question of commission of offence under Section 376 does not arise.
8. Though I have held that the accused is not guilty under Section 376, Indian Penal Code but it cannot be said that the learned trial Judge is incorrect that he is guilty of the offence under Section 363, Indian Penal Code. Appreciating the medical evidence in juxtaposition with the oral and other documentary evidence, it cannot be said that the prosecutrix was more than 18 years of age. There is no clinching material in that regard. The benefit of margin has been given as the testimony of the doctor and the other witnesses also pave the path in that direction but considering the totality of facts and circumstances it is difficult to accept that the victim was more than 18 years of age. Thus, I am of the considered opinion that conviction under Section 363, Indian Penal Code becomes unassailable.
9. Now to the question of sentence. The appellant has already remained in custody for almost two years. He was a young man at the time of occurrence and the prosecutrix was a consenting party. Keeping this factual back ground in view, I am of the considered view that the custodial sentence should be reduced to the period already undergone as that would meet the ends of justice.
10. In the result, the appeal is allowed in part. The appellant shall be set at liberty forthwith if his detention is not required in connection with any other case.