SOMGIR ALIAS MANGALPURI KARIBHARTHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant Somagir @ Mangalpuri Haribharthi has been convicted by the learned Sessions Judge Kaira at Nadiad (Shri S. M. Nanavati) of an offence under sec. 363 I.P.C and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 100.00 in default of payment of which to suffer further rigorous imprisonment for one month. The appellant is a young man of 25 years of age. At the relevant time he resided at Tharsa where he was working in a hotel. He is alleged to have kidnapped on 24-1-1965 at about 10 a. m. one Dahi a girl of 13 years daughter of Girdhar Limbabhai from her fathers guardianship. The said Girdhar resided with his wife Rukhi his son Shana his daughter- in-law Jashi and his daughter Dahi the girl abovementioned. Dahi as I have stated is alleged to be of 13 years of age on the relevant date. All the above members of the family except Dahi were employed as labourers in the Mahi Canal Department at Thasra. On 24-1-1965 all of them went to work early in the morning leaving Dahi at home. When they returned at about 10 a. m. Dahi was not at home and a neighbour Katubibi told Girdhar that she had gone to collect wood to village Bahadarpura. Girdhar waited for an hour and finding that she had not returned he went in search of her. During that search he was told by a hawker of the village that he (the hawker) had seen the appellant and Dahi at the Nal. Not finding Dahi there Girdhar filed a complaint before the police station officer at Thasra on the same day. In that complaint which is exhibit 5 he set out the above stated facts and alleged that the appellant had induced his daughter Dahi to leave him In that complaints gave her age as 15 years.

(2.) The medical evidence consists of the testimony of Dr. Patel P.W. 2 and Dr. Acharya P.W. 3. Dr. Acharyas testimony does not throw any light on the prosecution case about age. He examined Dahi on 3-4-65 only for the purposes of ascertaining whether she has had sexual inter- course. His testimony is that he found her vagina dilatable and roomy. He also found that her hymen showed old tears. From this he concluded that she was used to sexual intercourse but he was not in a position to say when that habit had started. Dr. Patel examined Dahi on 2-4-65 with a view to ascertain her age by medical examination. He examined her teeth height weight and considered the development of her breasts and the fact that she had no hair in the public and axillary area and from that he concluded that she was 13 years of age. Dahi had accor- ding to the doctor got 28 teeth. The only material question put to him in the cross-examination was whether he had taken any ossification test and he stated that he had not. He admitted that the ossification test is a surer test than the clinical examination.

(3.) Therefore the medical evidence relating to the age of Dahi is of Dr. Patel who on a clinical examination only has expressed his opinion that Dahi was 13 years of age. It is urged by Mr. Sompura for the appellant that this evidence is not admissible and at any rate not much weight should be attached to this medical opinion regarding the age of the girl in the absence of any reasons given by the doctor in support of his conclusion. He submits that the doctor should have explained what factors or what symptoms or signs regarding the teeth height and the weight of the girl indicated that she was approximately 13 years of age or what should have been the breast development or why the absence of growth of hair in the public and axillary area indicated an age of 13 or when such growth is normally to be expected. He argued that the Court should be placed in possession of adequate data or analysis so as to enable the court to consider the data and the analysis and enable it to determine how far the doctors opinion as regards age deserves to be accepted. There is no doubt some force in this submission. The doctor should have given reasons in support of his conclusion and explained why he came to that conclusion by an examination of teeth height weight etc. He should have placed before the court an analysis of these factors showing what normally is to be expected at the age given by him what is the margin of error permissible and when approximately these factors or any of them would present a different picture so as to make out a reasonable probability that the girls age cannot be far removed from the approximate age given by him. Mr. Sompura is right in urging that it is the duty of the public prosecutor to elicit this information from the doctor if the doctors opinion is to carry weight.