// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Criminal Appeal No.76/2001 Bajrang Lal S/o Shri Prabhuram ...accused-appellant Versus The State of Rajasthan ...Respondent Date of Judgment :::: April 7, 2006 PRESENT Hon'ble Mr. Justice Narendra Kumar Jain Shri A.K. Gupta with Shri Rinesh Gupta and Shri Ashutosh Bhatia and Shri Ritesh Jain and Shri Harsh Saini for accused-appellant Shri B.S. Chhaba, Public Prosecutor, for the State Shri Sanjay Mehla for complainant By the Court:- This appeal, on behalf of accused-appellant Bajrang Lal Son of Shri Prabhuram, is directed against the judgment and order dated 19.12.2000, passed by the Additional Sessions Judge No.1, Sikar, in Sessions Case No.28/1999, whereby the accused-appellant has been convicted and sentenced as under:- Under Sections Sentence of Imprisonment 363 IPC To three years rigorous imprisonment and fine of Rs.1000/-; in default of payment of fine, to further undergo seven days' simple imprisonment. // 2 // Under Sections Sentence of Imprisonment 366 IPC To three years rigorous imprisonment and fine of Rs.1000/-; in default of payment of fine, to further undergo seven days' simple imprisonment. 376 IPC To ten years rigorous imprisonment and fine of Rs.5000/-; in default of payment of fine, to further undergo one month's simple imprisonment. All the sentences to run concurrently. Exhibit P-6, a written report, was lodged on 16.8.1999 by one Har Lal Jat at Police Station Losal, District Sikar, about the abduction of Manohari, aged about 12 years, by Bajrang Lal S/o Prabhuram and Raju S/o Rameshwar Meena. The Police registered FIR under Sections 363 and 366 IPC. Ms. Manohari was recovered on 16.8.1999 itself. The accused-persons were also arrested. The statement of Ms. Manohari was recorded under Section 161 Cr.P.C. and thereafter Section 376 IPC was also added for investigation. The prosecutrix Ms. Manohari was medically examined. Her statement was also recorded under Section 164, Cr.P.C. After completion of investigation, the police submitted a charge-sheet against accused-persons under Sections 363, 366-A and 376 IPC. The trial court framed charge against accused-persons, who denied the same and claimed to be tried. The prosecution, in support of its case, // 3 // examined 15 witnesses and also produced documentary evidence. In defence DW-1 Bhanwar Lal was examined. After hearing all the parties, the learned trial court acquitted the co-accused Raju S/o Rameshwar from all the charges but convicted and sentenced the accused-appellant as mentioned above. The learned counsel for the accused-appellant contended that the learned trial court, in para no.19 of the impugned judgment, has recorded a finding on the basis of the documents Exhibit P-3 and P-12 that the prosecutrix was accustomed to sexual intercourse and there were old relations in between accused-appellant Bajrang Lal and prosecutrix Manohari, but the accused- appellant has been convicted on the basis of the finding of the trial court that the prosecutrix Manohari was 15 years of age, therefore, her consent was immaterial. He contended that the finding of the learned trial court, in respect of age of the prosecutrix, is illegal and perverse and, as such, the same is liable to be set aside by this court. He referred the statement of PW-1 Manohari, the prosecutrix, PW-4 Chunni Lal, PW-12 Smt. Bhanwari, PW-6 Dr. Ummed Singh Rathore, PW-11 Dr. V.K. Soni and the documents Exhibit P-12, Exhibit P-14A, Exhibit P-15A, Exhibit P-16A, Exhibit P-17 and Exhibit P-18 in this regard. He contended that PW-4 Chunni Lal, the father // 4 // of the prosecutrix, has stated that at the time of occurrence his daughter was 12 years of age and in support of it he produced one school certificate. However, in his cross-examination, he admitted that he does not remember the date of birth of Manohari. He does not know the date of birth of his other daughters also. PW-12 Smt. Bhanwari, the mother of the prosecutrix, although stated the age of the prosecutrix as 12 years, but in her cross-examination, she admitted that she has not kept any horoscope of Manohari and other children. She also admitted that she has stated the age of the prosecutrix as stated by her mother-in- law. PW-6 Dr. Ummed Singh Rathore has proved Exhibit P- 12, the medical certificate in respect of age, wherein he has opined, the age of the prosecutrix Manohari in between 15 to 17 years. PW-11 Dr. V.K. Soni has also stated that the age of the prosecutrix Manohari was in between 15 to 17 years. He contended that the entry in the school certificate and the application form for admission in the school, cannot be believed as correct wherein her date of birth has been mentioned as 31st December, 1985. He contended that as per the opinion of the Doctor the age of the prosecutrix was 15 to 17 years, which can vary upto 3 years and, as such, the age of the prosecutrix ought to have been determined by the trial court as 20 years or at-least more than 18 // 5 // years and in case her age would have been determined as more than 18 years then in view of the specific finding of the trial court that it appears to be a consent case, no offence under any Section of the IPC was made out against the accused-appellant. The learned counsel for the accused-appellant, in support of his contentions, referred the following decisions:- 1. Ganga Ram Vs. State of Rajasthan, 2001 (1) R.C.C. 644. 2. Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796. 3. Narendrasingh Vs. State of Madhya Pradesh, 1996 Cri.L.J. 198. 4. Bishnudas Behera Vs. State of Orissa, 1997 Cri.L.J. 2207 5. Jinish Lal Sha Vs. State of Bihar, AIR 2003 SC 2081. The learned counsel for the State as well as the complainant, both, contended that the learned trial court has rightly recorded the finding in respect of age of the prosecutrix. The finding of the trial court is based on oral and documentary evidence, therefore, no interference is called for in this appeal. I have considered the rival submissions of the parties and minutely scanned the impugned judgment and // 6 // order as well as record of the trial court. The point involved in the present case is whether finding of trial court about age of victim as about 15 years is correct or not? In respect of her age, there are three sets of evidence; one is the oral testimony of her parents PW-4 Chunni Lal and PW-12 Smt. Bhanwari, second set is the medical evidence Exhibit P- 12 and Exhibit P-18, and the third set is her school certificates i.e. Exhibit P-14A, the entry of students admission register, Exhibit P-15A the application form for admission in school, Exhibit P-16A the school- leaving certificate and Exhibit P-17 the original school-leaving certificate. As per the statement of PW-4 Chunni Lal and PW- 12 Smt. Bhanwari, the age of the prosecutrix Manohari, at the time of occurrence, was 12 years. During the course of his examination, PW-4 Chunni Lal also produced the original school-leaving certificate of Manohari issued by school authority, which has been marked as Exhibit P-17. The medical evidence Exhibit P- 12 and Exhibit P-18 are the certificates regarding age examination of the prosecutrix Manohari. Exhibit P-12 has been proved by PW-6 Dr. V.K. Soni, who stated that as per opinion of the Medical Board the age of the prosecutrix was in between 15 to 17 years. Exhibit P-18 is the MLC X-ray report wherein the details of medical // 7 // examination of prosecutrix Manohari for the purpose of age, have been given and her radiological age is mentioned from 15 to 17 years. So far as the school certificates in respect of age of the prosecutrix Manohari is concerned, Exhibit P-14A is the entry in Students Admission Register, wherein her date of birth is mentioned as 31.12.1985; Exhibit P-15A is the application form of prosecutrix Manohari for admission in school, wherein her date of birth is mentioned as 31.12.1985. Exhibit P-16A is the school-leaving certificate of prosecutrix Manohari and therein her date of birth is mentioned as 31.12.1985. Exhibit P-17 is also the school-leaving certificate of prosecutrix Manohari, issued by PW-10 Shivpal Nai, Headmaster, Government Primary School, Pashchimi Dhani, Paiwa, wherein her date of birth is mentioned as 31.12.1985. These four documents are pertaining to School in which the prosecutrix Manohari studied and they have been proved by PW-10 Shivpal Nai, Headmaster, Government Primary School, Pashchimi Dhani, Paiwa, who also brought the originals of admission form, the school- leaving certificate and the Student Admission Register of the school wherein her name appeared at item no.134 at page no.42 and and therein also her date of birth is mentioned as 31.12.1985. Documents Exhibit P-14A to Exhibit P-17 have been proved by PW-10 Shivpal Nai, // 8 // Headmaster, Government Primary School, Pashchimi Dhani, Paiwa, with the originals thereof. In Ganga Ram's case (supra) this Court observed that for determination of age of prosecutrix, the ossification test of bones is helpful. There may be a difference of three years of age if same is arrived at after radiological examination. In that case, this Court in para no.7 observed as under:- “7. ...Of course ossification of bones is helpful but even that is not also very sure test as owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different states of India. There is not a uniform standard for determination of age of the union of epiphysis for the whole of India. Modi says at page No.40 of his book (Medical Jurisprudence and Toxicology, (supra) (Twenty- first Edition), that from an investigation carried out in certain provinces it has been concluded that the age at which the union of epiphysis takes place in Indians particularly of Bengal, Punjab and South India is about 2 to 3 years in advance of the age incidence in Europeans and that the epiphyseal union occurs in females somewhat earlier than in males. According to Modi at page No.40 of the book (supra) D.R. Kothari working in Marwar region of Rajasthan reported that the fusion // 9 // occurs earlier in girls than in boys. According to Modi the range of error in ossification test may be upto three years. In Birad Mal Singhvi's case (supra) the Hon'ble Supreme Court considered the provisions of Representation of the People Act, 1951 and while considering the documentary evidence relating to date of birth, observed as under:- “15. ...The Courts have consistently held that the date of birth mentioned in the scholar's register of secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined...” In Narendrasingh's case (supra)the Single Bench of the Madhya Pradesh High Court observed as under:- “19. ...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 // 10 // evidence. I am inclined to give marginal benefit to the appellant-accused.” In Bishnudas Behera's case (supra), the Single Bench of the Orissa High Court observed that for the purpose of determination of age of victim the school- admission register cannot be regarded as sole clinching factor. In Jinish Lal Sha's case (supra) the Hon'ble Apex Court, in the facts and circumstances of that particular case and after considering the evidence available on the record, came to a conclusion that victim was above 18 years of age. In Vishnu @ Undrya Vs. State of Maharashtra, 2006 (1) RLW 662, the Hon'ble Supreme Court considered its earlier decision relating to similar question in the case of Madan Gopal Kakkad Vs. Naval Dubey and Another (1992 (3) SCC 204, wherein it was pointed out that a medical witness called in as an expert to assist the court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court // 11 // although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. Their Lordships of the Hon'ble Supreme Court in Vishnu @ Undrya's case (supra) observed that in case of determination of date of birth of the child, the best evidence is of the father and the mother. The Hon'ble Apex Court further observed that normally the age recorded in the school certificate is considered to be the correct determination of age provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. In that case their Lordships of the Hon'ble Supreme Court were considering the case where there were different types of evidence in respect of age of the victim and in the facts and circumstances of that case did not rely upon the age based on ossification test and the school certificates but gave due weightage to the statements of parents, which were corroborated by the date of birth register of the Greater Bombay Municipal Corporation and the register of the Nursing Home where the victim was born. Their Lordships of the Hon'ble Supreme Court observed as under:- “(25). In the case of determination of date of birth of the child, the // 12 // best evidence is of the father and the mother. In the present case, the father and the mother PW-1 and PW-13 categorically stated that PW-4 the prosecutrix was born on 29.11.1964, which is supported by the unimpeachable documents, as referred to above, in all material particulars. There are the statements of facts. If the statements of facts are pitted against the so-called expert opinion of the doctor with regard to the determination of age based on ossification test scientifically conducted, the evidence of facts of the former will prevail over the expert opinion based on the basis of ossification test. Even as per the doctor's opinion in the ossification test for determination of age, the age varies. In the present case, therefore, the ossification test cannot form the basis for determination of the age of the prosecutrix on the face of witness of facts tendered by PW-1 and PW-13, supported by unimpeachable documents. Normally, the age recorded in the school certificate is considered to be the correct determination of age provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. In the present case, as already noted, the parents had admitted to have given an incorrect date of birth of // 13 // their daughter, presumably with a view to make up the age of secure admission in the school. Apart from this, as noticed earlier, the school certificate collected by PW-15 S.I. Bagal was not an authenticated document. No body was produced to prove the date of birth recorded in the school certificate. The date of birth recorded in the school certificate as 29.6.1963 is, therefore, belied by the unimpeachable evidence of PW-1 and PW-13 and contemporaneous documents like date of birth register of Greater Bombay Municipal Corporation and the register of the Nursing Home where the prosecutrix was born and proved by Dr. Shashikant Awasare, as noted above.” In view of the above proposition of law in respect of determination of date of birth of the child it is clear that no strait-jacket formula can be laid down for it, but it depends on facts and circumstances of each case. The court is required to scrutinize the the whole of its evidence, oral or documentary, available on the record of a particular case. Sometimes the age based on ossification test is believed and sometimes the age of ward entered in the school record is also believed. So far as the present case is concerned, as mentioned above, there are three types of evidence in // 14 // respect of the age of the prosecutrix Manohari. Her parents have stated her age to be 12 years at the time of occurrence whereas as per the school certificates, which have been proved by the Headmaster of the Government School, the age of the victim approximately comes to 13 years and 7 months on the date of incident, whereas as per the ossification test it comes in between 15 to 17 years. The trial court, after considering the evidence relating to her age, as referred above, determined the age of the prosecutrix Manohari as 15 years on the date of occurrence. I have also considered the statements of the parents of the prosecutrix Manohari, who have stated her age as 12 years but they have also admitted in their cross- examination that they do not remember her exact date of birth. So far as the documents Exhibit P-12 and Exhibit P-18 are concerned, the age of the victim from 15 to 17 years is based on ossification test, which cannot be said to be a conclusive evidence but, in fact, it is an evidence of advisory character as observed by the Hon'ble Supreme Court in Madan Gopal Kakkad Vs. Naval Dubey and Another (1992 (3) SCC 204. In the present case the date of birth entered in the school certificates of the prosecutrix Manohari has been proved by PW-10 Shivpal Nai, the Headmaster of the School where the prosecutrix studied. PW-10 Shivpal // 15 // Nai, the Headmaster, also brought the originals of Exhibit P-14A to Exhibit P-17. If the statements of the parents of the prosecutrix Manohari are read with the documentary evidence Exhibit P-14A to Exhibit P-17 (her school certificates) relating to the age of the prosecutrix, then certainly her age approximately comes in between 12 to 14 years. As per ossification test of the victim, her age comes from 15 to 17 years. This Court in Ganga Ram's case (supra) has observed that of- course the ossification test of bones is helpful but even that is not also very sure test as owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different states of India. There is not a uniform standard for determination of age of the union of epiphysis for the whole of India. According to Modi the range of error in ossification test may be upto three years. In Narendrasingh's case (supra), the Madhya Pradesh High Court has also observed that margin of three years could be on either side. As per Exhibit P-12 and Exhibit P-18 the age of the victim is from 15 to 17 years and it can vary on either side to three years. If 15 years age varies to 12 to 15 years then it is corroborated with the statement of her parents as well as school certificates, therefore, school certificates are more // 16 // reliable. The exact date of birth was not known to the parents as they are illiterate villagers and it is not possible for each and every such person, who resides in interior parts of the country to know and remember the exact date of birth of their kids but approximate years of age stated by them is nearer to the date of birth of victim i.e. 31.12.1985 mentioned in the school certificates proved by PW-10 Shivpal Nai, the Headmaster of the School in which the prosecutrix studied. The learned trial court has not determined the age of the victim taking her date of birth as 31.12.1985 but it determined her age as about 15 years and after considering all the facts and circumstances of the case I do not find any illegality or perversity in the finding of the learned trial court regarding the age of the prosecutrix Manohari whereby her age has been determined as about 15 years and in view of it, the consent of victim becomes immaterial. In the result, I do not find any force in the contention of the learned counsel for the accused- appellant and the appeal is dismissed being devoid of merits. (Narendra Kumar Jain) J. //Jaiman//