;:;;r^^ .-^'" '^F\ "^ HIGH COURT OF CHHATTISGARH. BILASPUR Sinele Bench: Hon'ble Shri Sunil Kumar Sinha, J T Criminal Aooeal No. 503 ^f 1995 t Motilal Vs. State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT Post for Judgment : ^ I 07/2011 Sd/- Sunil Kumar Sinha Judge ••'^-":"""1';^ ff •r-^^' APPELLANT HIGH COURT OF CHHATTISGARH, BILASPUR Sinele Bench: Hon'ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 503 of 1995 Motilal, aged about 19 years, S/o Munglu Satnami, Village Kekrajhod, P.S. and Tahsil Khairagarh, District Rajnandgaon Versus State of Madhya Pradesh (Now State of Chhattisgarh) RESPONDENT (Criminal Apoeal under Section 374 (21 of The Code of Criminal Procedure, 19731 Appearance: Mr. B.M.K. Bajpai, Advocate for the appellant. Mr. R.R. Sinha, Panel Lawyer for the State. JUDGMENT (O$T .07.2011) (1) This appeal is directed against the judgment dated 13th of March, 1995 passed in Sessions Trial No. 43/94 by the Additional Session Judge, Khairagarh, District Rajnandgaon. By the impugned judgment, the appellant has been convicted u/ss 363 & 376 IPC and sentenced to undergo R.I. for 3 years 8& to pay fine of Rs.500/-, in default S.I. for 3 months; and R.I. for 5 years & to pay fine of Rs.500/-, in default R.I. for 3 months with a further direction to run the sentences concurrently. f '^- Criminal Appeal No. 503 of 1995 @ (2) The facts, briefly stated, are as under:- Prosecutrbc (PW-1) was missing since 17.2.94. A missing report was lodged by her father- Deendayal Sahu (PW-3). On 27.2.94, they came to know that the prosecutrbc was along with the appellant who abducted her and took her to different places. The prosecutrbc was recovered on 27.2.94. On investigation, it revealed that in between this period, she visited various places along with the appellant by traveling in passenger buses and she was subjected to sexual intercourse by the appellant for many times. Charge- sheet was filed against 2 persons i.e. appellant- Motilal and co-accused Harishchandra. Harishchandra was acquitted of the charges framed against him u/ss 376 & 109 IPC, whereas, the appellant was convicted as aforementioned. The learned Session Judge recorded the finding that the prosecutrbc was below 16 years on the date of the incident, and she was abducted and subjected to sexual intercourse by the appellant, therefore, the appellant was liable for punishment. (3) Mr. B.M.K. Bajpai, learned counsel appearing on behalf of the appellant, argued that the finding relating to age of the prosecutrbc is perverse; it was not established that the prosecutrix was a minor on the date of the incident; the conduct of the prosecutrbc would show that she was a consenting party with the appellant; she remained with the appellant for a reasonably long period; therefore, an offence u/s 363 or 376 IPC would not be made out. ?7 Criminal Appeal No. 503 of 1995 (4) On the other hand, Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. (5) I have heard learned counsel for the parties at length and have also perused the records ofthe session case. (6) Firstly, we shall consider the evidence of age of the prosecutrlx. (7) Pusai Bai (PW-2) is the mother of the prosecutrix. She did not depose about the age of the prosecutrix. In the cross- examination, she deposed that she was having 2 sons and 5 daughters alive, and she has lost 4 daughters and 1 son. She could not tell the age of her eldest daughter and denied the suggestion that she was aged about 40 years. In fact, as stated above, she could not tell the age or date of birth of the prosecutrbc. Deendayal (PW-3) is the father of the prosecutrbc. He also did not speak single word regarding the age of the prosecutrix. The prosecutrix was sent for medical examination on 28.2.94. She was examined by Dr.(Smt.) L.D. Jindani (PW-8). She observed her age as 16 years, however, she advised for ossification test for further exainination of the age of the prosecutrix. Ossification test was conducted by Dr. D.R. Jindani (PW-9). On the ossification test, he found that the prosecutrbc was aged about 15 years. However, he veiy specifically mentioned in the test report (Ex.-P/7) that "Error of three years on either side is possible as mentioned in Modi's Criminal Appeal No. 503 of 1995 Jurisprudence". He also deposed the above facts in his examination-in-chief. He further proved the X-ray plates as Ex.- P/8,P/9,P/10&P/11. (8) Apart from the above, the other evidence of age produced by the prosecution is the birth register said to be maintained in police station, Khairagarh. Head Constable- Dwarika Prasad (PW- 10) deposed that annual birth register is kept in the police station. Ex.-P/14 is birth register of the relevant year which contains entry No. 619 relating to birth of the prosecutrbc. According to the said entry the date ofbirth ofthe prosecutrix was 18.4.78. (9) The learned Sessions Judge relied on the entry of the birth register and the report of the ossification test and recorded the finding that the prosecutrbc was below 16 years of age on the date of incident. (10) About the Ossification Test, in the Modi's Jurisprudence (20th Edition), it is stated that too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual case 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 up to 3 years on either side. Criminal Appeal No. 503 of 1995 hua iiQNn»r (11) Dr. D.R. Jindani (PW-9) also mentioned in his report that there may be difference of 3 years on either side in the age determined by him on the basis of ossification test. He further mentioned before the Court that he also relies on Modi's Jurisprudence and in the present case, the age of the prosecutrbc may have been 18 years. (12) No doubt the entries in birth register made in the performance ofofficial duty is admissible in evidence u/s 35 ofthe Indian Evidence Act, 1&72, but it must be proved that it was made by a public servant in the discharge of his official duty or by any other person in performance of a duty especially enjoyed by law of the country in which such book or register is kept. (13) Dwarika Prasad (PW-10) deposed in cross-examination that the information relating to birth is brought by village Kotwar. Kotwar brings the information by writing the same in his diary and on the basis of the diary the entry in the birth register is made in the police station. Diary of the Kotwar or entry of the diary has not been proved. The Kotwar has also not been examined. Neither the person making the entry has not been examined nor it is proved on record that who was the person who made such entry in the register at the relevant time. Therefore, much reliance was not possible on the above entry alone. On appreciation of entire facts on record, I am of the view that the prosecution could not prove this'fact beyond reasonable doubts that the prosecutrbc was a minor on the date of incident. Criminal Aroeal No. 503 of 1995 ^^i^W^P The finding of the Session Judge, in this regard, therefore, cannot be sustained. (14) So far as conduct of the prosecutrbc is concerned, it comes in her own evidence that she visited many places along with the appellant by traveling on the public buses. She resided with the appellant for about 10 days and in this period they stayed in the houses of various relations of the appellant, but no complaint was made by the prosecutrix (PW-1) against the appellant to anybody regarding her abduction or regarding forceful intercourse by the appellant. Considering the above facts and circumstances of the case and the evidence of age and conduct of the prosecutrix, I am of the view that a possibility of the prosecutrbc being a consenting party with the appellant cannot be ruled out in this matter. (15) For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellant u/ss 363 8& 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 vatti