CHATHU Vs. P GOVINDAN KUTTY

JUDGEMENT

(1.) This is a complaints appeal, with special leave obtained from this Court under S.417 (31, Criminal Procedure Code, against an order of acquittal. In C C. No. 233 of 1956 on the file of the Additional First Class Magistrate (Judicial), Kozhikkode, the appellant before this Court launched a prosecution against the respondent herein for kidnapping from his lawful guardianship his daughter, a girl 17 years and 5 months old. The occurrence was alleged to have taken place on the morning of 11-7-1956 at about 8 A. M., but the complaint was filed only on 1-9-1956. On 11-7-1956 itself the appellant informed the Police that his minor daughter who was living with him in his house had disappeared from there and that her whereabouts remained unknown. When information reached him a week or so afterwards that the girl was living with the respondent in his house, a proper complaint was also lodged. The police registered a case against the respondent under S.366, I. P. C., but after investigation submitted a referred charge sheet before the lower court. On receipt of notice from that court about the said police report, the appellant filed the complaint giving rise to this appeal. The lower court eventually acquitted the respondent holding that the prosecution had not proved its case against him beyond reasonable doubt.

(2.) The prosecution case against the respondent was that on the morning of 11-7-1956 he took away the appellants daughter Malukutty alias Madhavikutty, aged 17 years and 5 months, from his (appellants) lawful guardianship. It would appear that at about 7 Oclock in the morning on the said date she left the appellants house ostensibly for the purpose of bathing in a not far distant canal, but she did not return to the house afterwards, The father was not in the house when the girl left. No other inmate of the house was examined to show when she left or for what purpose. The petition of complaint did not allege what action of the respondent brought him within the mischief of S.363 I. P. C., under which section the complaint was filed. Even at the stage of the trial there was no attempt to prove any enticing, but the prosecution depended upon the evidence of PW 3 that the respondent had taken the minor girl out of the lawful guardianship of the father. The real question in the case, therefore, is whether the evidence of PW 3 established the fact that the respondent had taken the girl within the meaning of S.363, Penal Code. The lower court, however, did not apply its mind to this question, but held that the prosecution had not proved that the girl was below 18 years of age at the time of the alleged kidnapping and that therefore the case cannot be sustained.

(3.) Leave was granted under S.417(3) Criminal Procedure Code, as prima facie the conclusion of the Trial Court on the question of the girls age appeared to be open to exception. Brushing aside the evidence furnished by the register of births maintained in the Kozhikode Municipality for February 1939, during which month the girl was alleged to have been born and the evidence furnished by the admission register of the school where the girl had her studies, as also the evidence of the father the lower court acted upon the opinion of the expert evidence of the radiologist who took X-ray picture of the bones and joints of the girl to determine her age. According to the radiologist the girl had completed 19 years of age. We are not at all satisfied that the learned Magistrate was right in preferring the opinion of the radiologist to the positive evidence furnished by the Municipal birth register, the school admission register and the evidence of the girls father, particularly when medico-legal opinion is that owing to the variations in climatic, dietetic hereditary and other factors affecting the people of the different States of India it cannot be reasonably expected to formulate a uniform standard for the determination of the age by the extent of ossification and the union of epiphysis in bones. Modis Medical Jurisprudence (Eleventh Edition) p. 29. However we do not desire to dilate more upon this aspect of the case as in our opinion the order of acquittal has to be sustained for other reasons.