Madhya Pradesh High Court
Narendrasingh Bahalsingh vs State Of Madhya Pradesh on 3 August, 1994
Equivalent citations: 1996(0)MPLJ518
JUDGMENT D.P.S. Chouhan, J.
1. The present is a case of classic features wherein appellant Narendra Singh on having been convicted under Section 376, Indian Penal Code for committing rape on a minor girl, namely, Kuleshari in S. T. No. 80/85 vide judgment and order dated 31-3-1986 passed by the Sessions Judge, Rajnandgaon, wherefor he was sentenced to 3 years' R. I., has approached to this Court in appellate forum praying for setting aside of the conviction as well as sentence.
2. The appellant and the prosecutrix Kuleshari both are residents of the same village Amgaon, P. S.Dongargaon and there is no ascertained place of occurrence as the incident is not a solitary one and as such the time of incident also cannot be described as the alleged offence was of recurring nature. According to the version of the prosecution, it appears, that the prosecutrix was employed by the accused or the family of the accused for the house-hold work as well as for agriculture work in the agriculture fields for about a year before the alleged occurrence. The process of enticement of the prosecutrix started by the appellant by giving gifts and other articles to her, which ultimately resulted in intimacy so much so that the accused got an opportunity for satisfying his last will and he one day in his own field, which was near to the village tank, caught hold of the prosecutrix and she was fell down on the ground for committing sexual intercourse and the same was committed sometime in July, 1984. This was only the starting, but the process of sexual intercourse became a recurring feature with the prosecutrix and it was committed even in his own house by the appellant. The criminal machinery was set in motion when the prosecutrix entered into the advanced stage of pregnancy, which medically could not be aborted. This situation led to the lodging of a report with the Police on 17-6-1985. Nakal Rojnamcha Senha was recorded and was marked as Ex.P-lA-C. On the basis thereof Crime No. 97/85 under Section 376, Indian Penal Code was registered at Police Station Dongargaon, on 29-7-1985 at 11.00 P. M. wherein place and time of occurrence was not mentioned.
3. The prosecution examined as many as 12 witnesses. Prosecutrix was examined as P.W. 1 Dr. Shushma Gupta was examined as P.W. 2 as she found the prosecutrix in full pregnancy. Dr. Arvind Kumar Gupta was examined as P.W. 3 as he examined the accused regarding his capability for committing the offence in question. Rudramani Tiwari was examined as P.W. 4, who is witness to the seizure of School Admission Certificate. Dr. A. K. Gupta, Radiologist, was examined as P.W. 5 as he conducted the X-ray of the prosecutrix for giving opinion about her age. Mehtarram Thakur was examined as P.W. 6 as he was the person who brought the Admission Certificate (Ex. P/10) to the Court. Ganesh Ram Sahu was examined as P.W. 7 as he prepared the site map. Smt. S. V. Peter, a Nurse, was examined as P.W. 8 Sowant Ram, the father of the prosecutrix, was examined as P.W. 9. Inderbati who accompanied the prosecutrix to hospital was examined as P.W. 10. Buddhuram was examined as P.W. 11. N. R. Yadav, Sub-Inspector, was examined as P.W. 12 being an Investigating Officer.
4. Before the trial Court the only question developed for consideration was whether the accused appellant was guilty of charge under Section 376, Indian Penal Code.
5. After considering the evidence on the record and the submissions as advanced by the learned counsel for both the sides, the trial Court recorded finding regarding commission of recurring sexual intercourse with the prosecutrix by the appellant. The trial Court for the guilt of the appellant recorded following finding in paragraph 17 of the judgment:-
"17. In the light of above discussion, the prosecution has established beyond doubt that the accused had sexual intercourse with the prosecutrix in his own field somewhere in July 1984 and thereafter had sexual intercourse with the prosecutrix almost on regular basis. The prosecution has further established beyond doubt that this sexual intercourse with the prosecutrix by the accused had caused pregnancy and that the prosecutrix had no sexual connection with any other person, suggested by the defence. I have already found that the prosecutrix was a minor girl in December, 1984 and was around 15 years of age and thus her consent is of little help to the defence. The prosecution has thus established the charge of rape against the accused. The accused is thus convicted under Section 376, Indian Penal Code."
6. Learned counsel for the appellant did not assail the finding so far as it relates to recurring commission of sexual intercourse by the appellant with the prosecutrix as according to him it was out of relationship of close intimacy which developed during the span of time and was a voluntary act both from the side of the prosecutrix as well as of the appellant.
7. Learned counsel for the appellant submitted that the appellant has been illegally convicted for the offence under Section 376, Indian Penal Code as the act was out of volition of the parties and it was not an act of solitary instance but was a regular and continuous exercise not being identified by date and time.
8. On the basis of the material on the record, it is established that the act was voluntary and out of volition of both the parties, but for fastening the liability of the offence under Section 376, Indian Penal Code, the age of the prosecutrix is a relevant factor, whereon hinges the liability of crime.
9. In this connection, the learned counsel for the appellant submitted that on the record the prosecution has led three categories of evidence; (i) the oral-evidence that of the father of the prosecutrix, (ii) the medical evidence that of Dr. A. K. Gupta (P.W. 5) and Dr. Shushma Gupta (P.W. 2) and (iii) the School Admission Certificate and the trial Court's finding regarding age of the prosecutrix is founded on the said evidence. But according to the learned counsel for the appellant, the finding as recorded by the trial Court is unsustainable in law as the prosecution has miserably failed to establish beyond reasonable doubt the age of prosecutrix so as to fasten on the appellant the liability of crime under Section 376, Indian Penal Code.
10. Learned counsel for the appellant invited the attention of the Court to the statement of P.W. 9 Sawantram and pointed out that Sawantram had not stated anything in his statement so to settle down the age of the prosecutrix. He only stated that the age of the prosecutrix is of 14 years but he in the examination-in-chief also stated that he cannot say as to in which year she was born. He further stated that 3 years' after the birth of Kuleshari, twins children took birth. Learned counsel pointed out that at the time of deposition of Sawantram his age was 35 years and in his statement he has stated that his wife started living with him when he was of 25 years of age and according to the learned counsel naturally Kuleshari, who is the first child, must have taken birth after he was 25 years of age and according to learned counsel if this fact is taken into consideration then the age of Kuleshari would be of 9 years and which fact is completely falsified from the evidence on the record and for this reason, so far as the evidence of Sawantram relating to the age of Kuleshari is concerned, cannot be given by any credence.
11. The above submission is only hypothetical but this much is established from the evidence of P.W. 9 Sawantram that he was not aware of what to say about the date of birth of Kuleshari even the year of birth. In this contest the learned counsel invited the attention of the Court towards the Nakal Rojnamcha Sanha which contains the description of age as 22 years and according to him, the prosecutrix herself has given her age as 22 years on 17-6-1985 and the occurrence as per prosecution is 9 months anterior to 29th July, 1985 and in this whole period of occurrence the age of the prosecutrix in all event is more than 16 years. Thus, according to the learned counsel for the appellant by oral evidence the prosecution has not able to fix with exactitude the age of the prosecutrix so to make the appellant liable for the crime under Section 376, Indian Penal Code.
12. Learned counsel for the appellant invited the attention on the Admission Register (Ex.P./10) wherein the date of birth of the prosecutrix is written as 11-12-1969 and in the column of certification of age the following context is mentioned under the thumb impression of Sawantram, the father of the prosecutrix -
^^eSa izekf.kr djrk gw¡ fd esjs iq=h dqys'ojh ckbZ dh tUefrfFk 14&12&1969 dh gSA pkSng fnlEcj lu~ méhl lkS mUgÙkjA vaxwBk fu- lkaorjke** This certificate was produced by Mehtarram Thakur (P.W. 6). P.W. 6 Mehtarram Thakur has stated that in the end of the aforesaid entry there is thumb impression of father of the prosecutrix Sawantram. He is not the person who recorded the entry but is the person who produced the Admission Register before the Court and filed the true copy of the extract of the Admission Register as Ex. P/10-C. From the cross-examination it appears that there was some interpolation in the original record as originally it was 1968 but that has been interpolated as 1969. He in his cross-examination also stated that when the parents are not able to give the correct date of birth, then the date of birth is written by guess. Learned counsel further submitted that P.W. 9 Sawantram in his cross-examination in para 8 has stated that when Kuleshari was admitted in the school, she was taken to the school by his (Sawantram's) father who got her admitted in the school. This statement shows that it is not the P.W. 9 Sawantram who took the prosecutrix for admission to the school but it was her grandfather who took her to the school for admission. Father of Sawantram was not examined. The Court put the question to the witness as to "whether you accompanied your father while he went for the admission of Kuleshari whereat he replied that he also accompanied, but he also answered to the question put by the Court that it is wrong that when the admission of Kuleshari was got done then he did not tell her age to the teacher". He stated that he told her age to the teacher. This statement is unbelievable as he is the person who even does not know the year of birth of his daughter and as to how he can say the age of Kuleshari at the time of her admission in school. Further the admission register does not contain the signature of the grand-father of the prosecutrix but contains the thumb impression of Sawantram (P.W. 9), the father of the prosecutrix and on this basis, learned counsel for the appellant submitted that admission register is not authenticated document so to be relied on for the purpose of age in connection with the criminal liability of the appellant and further that the prosecution has failed to fix the age of the prosecutrix that she was below 16 years of age at the time of commission of crime.
13. The third category of the evidence is the medical evidence and regarding medical evidence he invited the attention of the Court to the statement of Dr. Shushma Gupta (P.W. 2). Dr. Shushma Gupta (P.W. 2) on examination of prosecutrix Kuleshari opined that the age of the girl was in between 14 to 16 years, but at the same time she clearly stated that nothing definite can be said. She advised for X-ray examination for confirming the age. The prosecutrix's X-ray was done by Dr. A. K. Gupta, Radiologist (P.W.5) and he on 4 tests based his opinion regarding the age of the girl but even he could not give the age of the girl so to fix the same below 16 years. The Ossification test for ascertaining the age of the prosecutrix was conducted by Dr. A. K. Gupta (P.W. 5).
14. Learned counsel for the appellant relied on Modi's Medical Jurisprudence and Toxicology, Twenty-first Edition and submitted that so far as the test relating to crest of illium is concerned, the appearance in the females is in 14 years and the fusion in females is in 17 to 19 years. According to Radiologist the ephiphesis of the iliac crest has not been fused with the body of illium and this data is taken by him for opinion that the girl was below 18 years of age as according to him complete fusion occurs at the age of 18 years. Learned counsel for the appellant submitted that the complete fusion as per Medical Jurisprudence in the female completes at the age of 19 years and thus opinion of the doctor that the age was below 18 years could also be said that means the age was little less than 18 years, but it cannot be said to be less than 16 years. The third item is regarding the below joint that complete fusion in female occurs at the age of 16 & V2 years. According to the doctor there was no complete fusion by which it can be said that the age was less than 16 years or it may be exact 16. The next was regarding the elbow joint clecranon and according to the doctor the complete fusion of clecranon process of ulna is indicated which occurs at the age of 15 years. According to Medical Jurisprudence, in this connection learned counsel for the appellant submitted that complete fusion has taken place that means the age is above 15 years, but it cannot be settled either at 16, 17 or 18 years. The fifth item is relating to Distal End of Femur and the opinion of the doctor is that the distal end of the radius has not been fused in this case. According to him, the complete fusion takes place at the age of 18 years. Since the complete fusion has not taken place in this case, the girl appears to be below 18 years. Under the medical jurisprudence the complete fusion takes place at the age of 17 years. The sixth item is regarding proximal end of Fibula and according to the report of the doctor proximal end of fibula has not fused in this case and data indicated that the girl was below 16 years. As per the Medical Jurisprudence the fusion varies from class of persons. In different class of persons, the fusion is between 14 to 16, 16 to 17, 14 to 17 and 18 to 19 and learned counsel on this aspect submitted that this by itself cannot be a factor for relying the age of the prosecutrix as in the Medical Jurisprudence it is stated in connection with the "Ossification of Bones" that in ascertaining the age of young persons radiograms of several main joints of the upper or the lower extremity of one or both sides of the body should be taken, and an opinion should be given according to the following table, but it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even or the same province owing to the eccentricities of development. According to Dr. R. S. Mehta, "from puberty to the consolidation of skeleton, (about 18 years in girls and about 20-21 years in boys), a fairly close estimate within a margin of two years may be made, mainly on the progress of the epiphyseal union (Ossification test)". It is also stated that a recent worker (using a statistical method very different from that used by all earlier workers in the field) has shown that the range of error in ossification test may be upto 3 years if his statistical method is used to complete age. 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 of error of six months on either side.
15. In the present case, only ossification test has been done. As such margin could be 3 years on either way. Learned counsel for the appellant submitted that in a case of criminal liability, benefit or margin should always go to the accused persons in such cases, as certainty of the age of the prosecutrix is not there but it is only process of assumption. In the process of assumption, the margin has to be given to the accused so that he may be entitled for benefit of doubt. Learned counsel for the appellant in this connection relied on a decision of the Supreme Court reported in Jaya Male v. Home Secretary, Govt. of J& K, AIR 1982 SC 1297, paragraph 9 of the case is as extracted below :o-
"9. Detenu was arrested and detained on Oct. 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert in Oct. 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed."
This case is of no help to the appellant. The case was in connection with the detenu under the J & K Public Safety Act, 1978.
16. Learned counsel for the appellant also relied on a case of Calcutta High Court in Debaprasad v. The King. AIR (37) 1950 Cal 406. and placed reliance on Paragraphs 7, 8 and 19. In this case, the Court observed that it must, however, be stated that owing to variation in climatic, dietetic hereditary and other factors of the people of different places it is not possible to formulate a uniform standard for determination of age of the Union of epiphyses for the whole of the sub-continent of India and the Court further stated that even in India we have different tables prepared by the authorities in different provinces and even in Bengal there are at least 2 if not 3 different tables giving different results.
17. Learned counsel for the appellant submitted that medical report is only on expert opinion and the expert's opinion if not consistent it is open for the Court not to rely thereon. According to him, in the present case, the medical opinion is inconsistent and it is only process of assessment. He further submitted that in such a situation assessment of age is not sufficient. The accurate assessment of the age is required and it must find corroboration by some other evidence, but in the present case, the corroboration is completely lacking even the father of the prosecutrix is not sure about the year of birth of her daughter Kuleshari. In view of this, learned counsel submitted that it is a case where the appellant is entitled for benefit of doubt regarding her age and he may be exonerated from the liability under Section 376, Indian Penal Code.
18. Learned counsel for the appellant further pointed out that prosecutrix Kuleshari (P.W. 1) was married to one Jagesar and the marriage was performed during the alleged period of offence i.e. subsequent to the incident of rape and prior to the lodging of the F.I.R. and he invited the attention of the Court to provisions of Hindu Marriage Act. Relying on Section 5 of the Hindu Marriage Act, which lays down the conditions of the marriage and one of the conditions contained in sub-clause (iii) is that the age of the bride must be 10 years at the time of marriage and accordingly he submitted that this is the requirement of the law and there cannot be a presumption under the law that law is for disobedience. It is for the prosecution to establish by evidence that law has been disobeyed and according to him the factum of marriage coupled with the report of the prosecutrix wherein she admitted for age as 22 years, established the facts beyond reasonable doubt that the age of the prosecutrix was above 16 years at the time of commission of the alleged offence.
19. Learned State counsel tried to meet the submissions as advanced by the learned counsel for the appellant regarding School Admission Certificate and submitted that certificate by itself is sufficient evidence for establishment of the age. For the reasons as has been discussed above, the School Admission Certificate is not trustworthy for the purpose of age. Learned State counsel also submitted that in regard to the oral evidence the father has given the age of his daughter Kuleshari, the prosecutrix. The statement of the father Sawantram (P.W. 9) on the point is clear that he is not in a position to say even the year of the birth of the lady what to say about the date of birth. The submission has no substance. He also submitted that the medical evidence by itself is sufficient as the margin of 2 years on either way is permissible. In the present case, the Ossification test was performed and the Ossification test has already been discussed above and the latest position is that margin of three years is permissible. However, without entering into the controversy regarding the margin that may be 2 or 3 years, the position is this as to whom the benefit of margin should be given. I think that it is a case of criminal liability and benefit of margin should go in favour of the accused, unless such margin is substantiated and corroborated by some piece of evidence. In the present case there is no substantiation or corroboration by any substantial piece of evidence. I am inclined to give marginal benefit to the appellant-accused.
20. In view of the discussion as made before, I find that the prosecutrix was not under 16 years of age as is the requirement under sixth clause of Section 375, Indian Penal Code, that when the rape is committed with or without consent on a person under 16 years of age.
21. The appeal is accordingly allowed by giving benefit of doubt to the appellant. The conviction and sentence of the appellant as imposed on him by the trial Court is set aside. The appellant is on bail. His bail-bonds shall stand cancelled and the sureties shall stand discharged.