Bombay High Court
Vishwas Gopal Jadhav vs State Of Maharashtra on 11 March, 1986
Equivalent citations: 1986(3)BOMCR22
JUDGMENT A.D. Tated, J.
1. The accused preferred this appeal against the judgment and order dated 5th February, 1985 passed by the Sessions Judge, Ratnagiri, in Sessions Case No. 64 of 1984 convicting him of the offences punishable under sections 363 and 366A I.P.C. and sentencing him on each of these two counts to suffer imprisonment for four years.
2. For the decision of this appeal it is not necessary to state all the facts leading to the prosecution of the appellant-accused for the offences punishable under sections 363, 366A, 392, 506 and 376 I.P.C. The facts, shortly stated, are that the accused on 17th May, 1984 took away minor girl Pratibha Pandurang Gamare (P.W. 2) from the lawful custody of her parents. He took her from the house of her parents on the representation that he was taking her to the house of her aunt at Dhamandevi. The accused is the real brother of the aunt of the prosecutrix, and believing that he would take her to the house of her aunt she went with him, but the accused on the way made her to get down the bus at Parshuram Ghat and took her into the jungle and there he raped her. Thereafter he took her at so many places and he was having forcible sexual Intercourse with her all the while till he was arrested on 20th May, 1984. On 20th May, 1984 the father of Pratibha took her to the police-station and at the police station Pratibha lodged the report Ex. 19 against the accused. After necessary investigation the accused was prosecuted for the offences mentioned above. The learned Sessions Judge who tried the accused held that Pratibha had willingly accompanied the accused and the accused had sexual intercourse with her consent. He found that Pratibha was over 16 years and below 18 years of age at the time of the incident. Therefore, according to him, the accused committed the offences punishable under sections 363 and 366A I.P.C. and as such he convicted him for the said offences and imposed the sentences mentioned above.
3. Feeling aggrieved, the accused has preferred this appeal through jail. Mr. P.K. Jadhav, advocate was appointed to conduct this appeal for and on behalf of the appellant-accused.
4. The short point for decision in this case is whether the learned Sessions Judge was right in relying on the sole testimony of Dr. Mrs. Saroj Maruti Maheshgouri (P.W. 3) for determining the age of Pratibha. The other evidence such as the testimony of her mother Janabai (P.W. 4) and the school leaving certificate Ex. 29 has been rejected by the learned Sessions Judge. Pratibha was sent to the Municipal Dispensary at Khed for purposes of determining her age by conducting the ossification test. Dr. Mrs. Maheshgouri conducted the ossification test for determining the age of Pratibha. She states that X-ray photographs were taken on 25th May, 1984. From the X-ray plates of knee joints and elbow joints she found that there was no fusion of epicondyle, and, therefore, according to her, Pratibha was below the age of 18 years on the date of her examination. During the cross-examination she admitted that the ossification test was not a conclusive test and there was a range of three years difference on either side. She also admitted that the fusion of joints varies from individual to individual and region to region. She also states that fusion of elbow joint takes place between the age of 18 to 25 years. According to her, in the present case there was no fusion of the knee joints, which takes place at the age of 17 years. The reading of the evidence of Dr. Mrs. Maheshgouri clearly shows that her opinion regarding the age of the prosecutrix Pratibha is based on that ossification test and the age determined on such basis must be taken with the margin of three years on either side. She has clearly admitted that the fusion, of elbow joints takes place between the age of 18 and 25 years. Therefore, from the non-fusion of elbow joints of Pratibha it could not be held with certainty that she was below 18 years of age.
5. Consequently, I find that the learned Sessions Judge was not right in reaching the finding that Pratibha (P.W. 2) was below 18 years of age at the time of the incident. If the evidence of Dr. Mrs. Maheshgouri (P.W. 3) regarding the age of Pratibha is discarded, there is no other reliable evidence to reach a finding that Pratibha was below 18 years of age on the date the appellant-accused took her with him. Therefore, the conviction of the accused for the offence under section 363 I.P.C. cannot be sustained. Similarly, there was no evidence that the accused had taken Pratibha with him with intent that she might be forced to have sexual intercourse with some other person, and therefore, the provisions of section 366A I.P.C. are not attracted at all.
6. Consequently, I find that the conviction of the appellant-accused for the offences punishable under sections 363 and 366A I.P.C. cannot be the sustained, and, therefore, the appeal is allowed. The conviction of the accused and sentences awarded to him by the learned Sessions Judge for the offences under sections 363 and 366A I.P.C. are set aside. He shall be set at liberty forthwith if not required in any other offence.