Madras High Court
R.Saravanan vs State Represented By on 13 November, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.11.2014 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN CRIMINAL APPEAL No.265 of 2007 R.Saravanan .. Appellant ..vs.. State represented by Inspector of Police, AWPS Kangeyam, Erode District. .. Respondent Criminal Appeal filed under Section 374 of the Criminal Procedure Code against the judgment dated 14.02.2007 made in S.C.No.44 of 2006 on the file of the Additional District and Sessions Court and Fast Track Court No.3 at Dharapuram. For Appellant : Mr.R.Asokan For respondent : Mr.V.Arul, Government Advocate (Criminal Side) JUDGMENT
The appellant is the accused in S.C.No.44/2006 on the file of the Additional District and Sessions Judge, Dharapuram. The appellant was charge sheeted for an offence under Section 366 IPC and after trial, he was convicted for the offence under Section 363 IPC and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo six months rigorous imprisonment. Aggrieved by the same, this Appeal is filed.
2. The case of the prosecution is that on 19.8.2005 when the victim PW.5 was going near Karmal Matriculation School at Karur road, near Kangeyam, the appellant approached her and told her that he would marry her and by force and against her wish, he took the victim girl to his friend's house at Karungalapalayam, Erode and kept her and on 30.8.2005, the victim girl was rescued by the police on the basis of a complaint given by PW.1 and therefore,the appellant has committed the offence under Section 366 IPC.
3. During trial, the prosecution examined the father of the victim girl as PW.1, mother as PW.2, cousin as PW.3, a friend of the victim as PW.4, Victim as PW.5, the Police Constable who registered FIR, as PW.6, and Doctor as PW.7 and the Investigating Officer as PW.8.
4.The learned Additional District and Sessions Judge held that the prosecution failed to prove the offence punishable under Section 366 IPC against the appellant beyond reasonable doubt but the appellant has committed offence under Section 363 IPC and sentenced him to undergo three years rigorous imprisonment as stated above.
5. It is submitted by the learned counsel for the appellant that the Additional District and Sessions Judge having held that the appellant has not committed the offence punishable under Section 366 IPC, erred in convicting the appellant under Section 363 IPC. He submitted that in order to convict a person under Section 363 IPC, the accused must have kidnapped any person from India or from lawful guardianship and in this case, it is admitted that the victim girl was not kidnapped from India and the victim girl was also not said to have been kidnapped from lawful guardianship, as the age of the victim was not proved to be below 18 years by the prosecution. Therefore, no evidence is made out under Section 363 IPC and therefore, the appellant ought not to have been convicted under Section 363 IPC. He submitted that PW.7 Doctor gave evidence to the effect that the victim girl is aged 17 years approximately and he gave that opinion on the basis of X-Ray taken on the right shoulder, right hand knee, right hand wrist and waist and according to his opinion, the victim girl must be between 17 and 18 years. He also admitted that the age given by him in chief examination is only an approximate and the victim girl may be two years elder or younger and to ascertain the correct age of the person, the growth of denture, height, weight and growth of bones should be taken into consideration and the wisdom tooth will grow only after 18 years and he has not verified whether the wisdom tooth was grown for the victim girl and the correct age of the victim girl cannot be ascertained from the X-Ray and therefore, the learned counsel submitted that having regard to the evidence of Doctor PW.7, it cannot be stated that the victim girl was a minor. He also submitted that the victim girl also admitted that when she was produced before the learned Judicial Magistrate, she gave a statement and PW.8 Investigating Officer also admitted during evidence that the victim girl gave a statement before the learned Judicial Magistrate stating that she was not kidnapped by anybody. The statement given before the Judicial Magistrate was not produced by the prosecution and suppression of that statement and the non-examination of the Judicial Magistrate who sent the victim girl for medical test would also lead to the conclusion that the victim girl must be a major and she went on her own accord and that was the reason for not producing the statement and therefore, the finding of the trial Court regarding convicting the appellant for the offence under Section 363 IPC is liable to be set aside and the Appeal shall be allowed.
6. The learned Government Advocate (Criminal Side) submitted that the trial court rightly appreciated the evidence of PWs.1, 2, 3 and 5 and convicted the appellant for the offence under Section 363 IPC. He submitted that PW.1 and PW.2 are the parents and PW.1 has given a complaint and PW.3 has stated that he saw the appellant taking the victim girl in his car by force and the victim girl has also given evidence that she was pushed into the car by the appellant and therefore, having regard to the evidence of PW.3 and PW.5 and the evidence of Doctor PW.7, the prosecution has proved the case and that the victim girl was a minor and was kidnapped against her wish and therefore, the trial Court has rightly convicted the appellant under Section 363 IPC.
7. From the submissions of the learned counsel for the appellant and the learned Government Advocate (Criminal Side), we will have to see - (i) whether the prosecution has proved that the victim girl PW.5 was a minor at the time of occurrence, and (ii) whether the prosecution has proved the case beyond reasonable doubt.
8. PW.1, father of the victim girl, has not stated the age of the victim girl in evidence. PW.2 mother of the victim girl also did not state that the victim girl was aged 16 or 17 years and she has not given any evidence regarding the age of the victim girl. It is also stated that PW.5 Victim girl was studying XII Standard in the Karmal Higher Secondary school and therefore, the prosecution could have proved the age of the victim girl by producing a copy of the Birth Certificate from that School but no attempt was made by the prosecution to produce the copy of the Birth Certificate of the victim girl to prove that she was below 18 years on the date of occurrence. PW.7 is the Doctor and on seeing X-Ray of right hand wrist, right hand elbow, right shoulder, pelvis, gave an opinion that the victim girl was aged about 17 years and below 18 years. As rightly submitted by the learned counsel for the appellant, in cross-examination, he admitted that the victim girl may be two years elder or younger than the age he has stated in the Certificate Ex.P.2 and on the basis of X-Ray, correct age cannot be stated and only by examining growth of bones and by finding the wisdom tooth, which normally, grows after 18 years, it can be ascertained whether the victim girl was a minor or major and therefore, the trial Court was not right in presuming that the case of the prosecution has been proved that the victim girl was a minor. Therefore, in the absence of any proof that the victim girl was a minor, aged below 18 years, no prosecution can be levelled against the appellant under Section 363 IPC.
9. As per Section 363 IPC, an offence is made out only when a person is kidnapped from India or from lawful guardianship and sofar as kidnapping from India is concerned it is stated in Section 360 IPC. As per Section 360 IPC, whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India and in this case, the victim girl was not kidnapped beyond the limits of India and therefore, it cannot be stated that the victim girl was kidnapped by the appellant from India. The second limb of Section 363 IPC is that when a person is kidnapped from lawful guardianship, he is stated to have committed offence under Section 363 IPC. For that purpose, the prosecution has to prove that the victim girl was aged less than 18 years and as stated supra, the victim girl was not proved to be less than 18 years. Therefore, in the absence of any proof, according to me, it cannot be stated that the victim girl was kidnapped from lawful guardianship.
10. It is seen from the evidence of PW.5 victim girl that she was taken forcibly into a car and in the chief examination, she has not identified any accused but in cross-examination, she has stated that the appellant forcibly dragged her into the car. Admittedly, the victim girl was produced before the Judicial Magistrate and the Judicial Magistrate recorded a statement from her and sent her for medical examination for the purpose of ascertaining her age as well as to find out whether she has undergone any ill treatment or whether she was subjected to sexual abuse. The victim girl PW.5 also admitted during her evidence that she gave a statement before the Judicial Magistrate while she was sent for medical examination. PW.8 Investigating Officer also admitted in evidence that when the victim girl was examined by the Judicial Magistrate, she gave statement stating that nobody had kidnapped her. Unfortunately, the statement given to the Judicial Magistrate was not produced and according to me, if that statement had been produced, that would have proved that the victim girl was a major and was not kidnapped and therefore, it was suppressed.
11. Further, it is seen from Ex.P.3 Accident Register that the victim girl is alleged to have eloped with another person. That statement must have been recorded by PW.7 Doctor only on the basis of the memo given by the Judicial Magistrate.
12. Therefore, the non-production of the statement given by the victim girl PW.5 before the Judicial Magistrate and Ex.P.3 the entries made in the Accident Register by the Doctor would prove that the victim girl was not kidnapped by any person. Further, the evidence of PW.3 cannot also be accepted. According to him, he saw the appellant forcibly taking the victim girl into the car and immediately, he reported the matter to PW.1 and PW.2. Admittedly, the occurrence took place on 19.8.2005 and the complaint was given only on 22.8.2005. If PW.1 was informed about the kidnapping of his daughter by PW.3, nothing prevented PW.1 from giving a police complaint immediately regarding the occurrence but the complaint was given only on 22.8.2005. That would also prove that the evidence of PW.3 cannot also be believed.
13. Therefore, having regarding to the victim girl's age was not proved that she was aged less than 18 years and the suppression of statement given before the Judicial Magistrate by PW.5 victim girl and having regarding to the essential ingredients of Section 363 IPC, I hold that the prosecution has not proved the case beyond reasonable doubt that the appellant has committed the offence under Section 363 IPC and these aspects were not properly appreciated by the trial Court.
14. In the result, the Criminal Appeal is allowed and the impugned judgment of conviction and sentence imposed on the appellant is set aside and the appellant is acquitted of the charge levelled against him. He is set at liberty. The bail bond executed by him shall stand terminated and the fine amount, if any, paid by him shall be refunded to him.
13.11.2014 Index: yes / no Internet: yes / no asvm R.S.RAMANATHAN, J.
(asvm) To
1.The Additional District and Sessions Court and Fast Track Court No.3, Dharapuram.
2.Inspector of Police, AWPS Kangeyam, Erode District.
3.The Public Prosecutor, Madras High Court, Chennai.
Crl. Appeal No.265 of 200713.11.2014