:,::-!"l!aife, .^''fe... f^. '"'^assey' ^ /^1 HIGH COURT OF CHHATTISGARH. BILASPUR (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha. J) Criminal Appeal No. 720 of 1993 Bahorik @ Sant Ram Vs. StateofM.P. (Now State of Chhattisgarh) JUDGMENT Post for Judgment : ^?/09/201 O Sd/- Sunil Kumar Sinha Judge ,£-ft. ;~^ 1:1 1 "\ HIGH COURT OF CHHATTISGARH. BILASPUR (Single Bench: Hon'ble Shri Sunil Kumar Sinha. J) APPELLANT RESPONDENT Criminal Appeal No. 720 of 1993 Bahorik @ Sant Ram S/o Nanku Kewat, aged about 30 years, R/o Budhikhar, P.S. Mastoori, District Bilaspur (M.P.) (Now Chhattisgarh) Versus State of M.P. (Now State of Chhattisgarh) Through P.S. Mastoori, District Bilaspur (Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) Appearance: Mr. Ratindra Mishra, Advocate for the appellant. Mr. Yashwant Singh Thakur, Dy. Advocate General for the State. JUDGMENT (2^.09.2010) Sunil Kumar Sinha. J. (1) This appeal is directed against the judgment dated 17 of July, 1993 passed in Sessions Trial No. 299/91 by the Seventh Additional Sessions Judge, Bilaspur. (2) By the impugned judgment, the appellant has been convicted u/ss 363, 366 & 376 IPC & sentenced to undergo R.l. for 3 years, Criminal Appeal No. 720 of l993 % \ R.l. for 5 years and R.l. for 7 years respectively, with a further direction to run the sentences concurrently. (3) The facts, briefly stated, are as under:- On 5.11.90, the prosecutrix (PW-4), her mother- Gangabai (PW-1) and her father- Naraindas (PW-3) had gone to their field for harvesting the paddy crop. At about 11-12.00 a.m., the prosecutrix returned to the house saying that she wants to take some food. When the parents returned at about 2.00 p.m., they found that the prosecutrix was missing. On a search in the village, it was told by Mannu (PW-2) that the prosecutrix had gone with the appellant on his bicycle. Gangabai then returned to the house and found that two sarees, four blouse & a petticoat, all belonging to the prosecutrix and Rs.300/- kept in the house were also missing. The appellant was also not present in his house. Thereafter a First Information Report (Ex.-P/1) was lodged. After more than 4 months, the prosecutrix was recovered. She was sent for her medical examination on 31.3.91. Her MLC report is Ex.-P/5-A. She was also sent for ossification test. The ossification test report is Ex.-P/11. In the ossification test, she was found in between 14 to 16 years of age. In the clinical observation, the Doctor recorded her age as 20 years. According to the prosecution, the prosecutrix was a minor, aged about 15 years. The prosecutrix narrated that she was kidnapped by the appellant and was taken to Bhopal, Nagpur and Bilaspur, where she was subjected to forcible intercourse by the appellant. (4) The learned Sessions Judge recorded the finding that the prosecutrix was below 16 years of age and theory of consent was not acceptable. Criminal Appeal No. 720 of 1993 (5) Mr. Ratindra Mishra, learned counsel appearing on behalf of the appellant, argued that the learned Sessions Judge erred in law in holding that the prosecutrix was a minor. hle referred to the evidence of father and mother of the prosecutrix. He also referred to the clinical observation about the age contained in the MLC report of the prosecutrix. He further argued that in the ossification test, the prosecutrix was found in between 14 to 16 years of age, and if margin of error of 3 years is added, she would be more than 18 years. He also argued that the conduct of the prosecutrix would show that she was a consenting party with the appellant. (6) On the other hand, Mr. Yashwant Singh Thakur, learned Dy. Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. (7) I have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (8) Admittedly, there is no documentary evidence regarding the aged of the prosecutrix. The prosecution has not produced any certificate like birth certificate, kotwari register or any other kind of documentary evidence regarding her age. The finding in this regard is based on the oral evidence of parents of the prosecutrix. Criminal Appeal No. 720 of 1993 (9) Gangabai (PW-1 - mother of the prosecutrix) deposed in examination-in-chief that the prosecutrix was aged about 15 years. She could not tell the date or year of the birth of the prosecutrix. However in the cross-examination, she admitted that she was married 30-35 years ago. The age of her eldest daughter was 30-35 years and thereafter she gave birth to 3 issues who borne in interval of one year. Naraindas (PW-3 - father of the prosecutrix) also deposed in similar fashion. He deposed that they had 4 issues. In the cross-examination, he also admitted that the age of her eldest daughter was 30-32 years and their remaining daughters borne with a gap of one year each. (10) The learned Sessions Judge held that the parents are rustic villagers, therefore, they are deposing in such manner and on such evidence, it cannot be relied on that the prosecutrix was above 18 years on the date of incident. The Sessions Judge relied on the examination-in-chief of PW-1 and PW-3 in which they deposed that the prosecutrix was aged about 15 years. He also relied on the ossification test report, in which she was found in between 14 to 16 years of age. (11) In appreciation, we find that such approach of the Session Judge was not proper. The Sessions Judge ought to have considered the entire evidence of the witnesses and not the examination-in-ehief only would have been taken into consideration ••^ •^°a 1 '%"», Crimmal Appeal No. 720 of 1993 for recording a particular finding. On appreciation ofthe evidence of parents of the prosecutrix, in the opinion of this Court, it was not established that the prosecutrix was below 18 years of age. (12) In Modi's Medical Jurisprudence (20 Edition), it is stated that too much reliance should not be placed on the table showing the age and year of appearance and fusion of some of the epiphysis as observed by different authorities as it merely indicates the average and is likely to vary in individual cases even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be upto three years on either side. In the present case, in the ossification test, the prosecutrix was found between 14 to 16 years and there is a possibility of margin of 3 years on either side. Therefore if we take the report as it is, it would not to be the conclusive proofto hold that the prosecutrix was below 18 years of age. For the foregoing reasons, the finding of age of the prosecutrix is totally perverse and the same cannot be sustained. The prosecution could not establish that the prosecutrix was below 18 years of age. (13) The prosecutrix (PW-4) deposed that the appellant took her on his bicycle. According to her evidence she was firstly taken to the village of his sister. He kept her in a school in the night. Thereafter they went to Bhopal and Nagpur, where they resided together for about4montt)S,,Tiieprosecutrix,deposedthatshewasthreatened "**t Criminal Aupeal No. 720 of 1993 by the appellant, but, during this period, she did not make any complainant to anybody though she met with many persons. The version of giving threats also appears to be false because the prosecutrix left her house along with her cloths and cash of Rs.300/-. Not only this it also comes in her evidence that when they returned to Bilaspur, they had gone to the District Court and Office of District Magistrate for the purpose of their marriage. According to the prosecutrix some records relating to the marriage were also prepared. The above facts and circumstances would show the conduct of the prosecutrix that she was not abducted and she voluntarily accompanied the appellant and resided with the appellant as his wife for about more that 4 months. (14) For the foregoing reasons, the conviction and sentences awarded to the appellant u/ss 363, 366 & 376 IPC cannot be sustained. vatti (15) In the result the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 363, 366 & 376 IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged. Sd/- Sunil Kumar Sinha Judge