MANI RAM @ RAMESH Vs. STATE

JUDGEMENT

(1.) MANI Ram alias Ramesh has been convicted of an offence punishable under Section 366 vide judgment dated 4.12.1988 by an Additional Sessions Judge, New Delhi and has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- and in default to further undergo rigorous imprisonment for two years vide order dated December 24, 1988. Appellant, Ramesh has filed this appeal through jail challenging his conviction and sentences.

(2.) ON November 29, 1984, Sat Narain had given a statement which was recorded as Daily Diary No. 5A and which is the basis of the FIR, copy of which is Ex. PW 1/B in which he had mentioned that he was residing with his wife and five children out of whom four are girls and he has been working as a gardener and his wife has been working as a labourer and his eldest daughter namely Sushila aged about 12-13 years used to sometime assist her mother in her work and on November 22, 1984 appellant who was also working as a co-labourer with his wife had on that day at about 2 P.M. came to his house in his absence and in the absence of his wife and had told his mother and his younger brother's wife that Sushila was being called by her mother to assist her in collecting wood sticks and on that pretext he is stated to have taken away Sushila with him. It has been mentioned thereafter that when he came back to his house he was informed about this fact and as Sushila had not returned, he had gone to the appellant's hut but appellant alongwith his wife and children was not found there. It is the case of the prosecution that on November 30 1984, Sushila was recovered from Village Halalpura of District Muraina, Madhya Pradesh from the house of one Faudi Lal and appellant was also apprehended from that house and thereafter statement of the prosecutrix was recorded under Section 164 of the Criminal Procedure Code and she was got medically examined and her petticoat and the underwear of the appellant were taken into possession vide Recovery Memo Ex. PW 2/A, Ex. PW 3/B and Ex. PW 3/C. Vaginal swab was also taken by the doctor who examined the prosecutrix and it was taken into possession by the police vide Memo Ex. PW 7/C. I need not refer to medical examination of the prosecutrix as no charge under Section 376 Indian Penal Code has been framed against the appellant.

(3.) THE prosecution has relied on Ossification Test carried on the prosecutrix and the report given by the Radiologist, copy of which is Ex. PW 9/9 wherein opinion had been given that prosecutrix was below 14 years. Unfortunately, for the prosecution the doctor who had given this opinion was not examined as a witness as he could not be traced out by the prosecution. He was working in All India Institute of Medical Sciences and it is surprising that prosecution should not be able to trace out the whereabouts of the doctor so that in such serious cases the doctor is examined in Court and his opinion is available after it is subjected to cross examination by the defence. It is also a settled law that there is always a margin of two to three years in determining the age of a person on the basis of Ossification test. Only a bare and bald opinion had been given in Ex. PW 9/9 that bony age of the girl is below 14 years. No details have been given on the basis of which said opinion has been formed. So, it would not be safe to base the decision regarding the age of the prosecutrix on such unsatisfactory material proved in the shape of the opinion of the doctor in the Certificate Ex. P.W 9/9. The onus to prove that prosecutrix was less than 18 years of age at the time of the occurrence was heavy on the prosecution. which in the present case, in my opinion, prosecution has failed to discharge beyond reasonable doubt.