MANGILAL Vs. STATE OF M P

JUDGEMENT

(1.) This is the appeal of the accused Mangilal, who has been convicted and sentenced be the trial Court as under; 363 I.P.C. One years RI. 366 I.P.C. Two years RI. 376 I.P.C. Three years R.I.

(2.) The appellant-accused Mangilal and two others Jagdish and Kashiram had, all, been prosecuted under sections 363 and 366, Indian Penal Code and apart from this, the appellant accused Mangilal had also been prosecuted under section 376, Indian Penal Code, with the prosecution story briefly being as under: Prosecutrix Prembal, an unmarried girl, aged about 13 years, was staying, at the relevant time, with her parents in village Jaitapur Khurd. In the early hours of the night of 12.3.1982, she had gone to Harisinghs house for celebrating Phaguwa; and thereafter, she did not return home on that night and for several days thereafter, till she was brought home by his father, from Police Station on 24.3.1982. The appellant-accused and the two co-accused, were stated to have caught hold of Prembai on her return from Phaguwa, when she was sitting outside, for urine, after gagging her mouth. She was, at first, taken to river side and then was taken, on foot, to Harsud railway Station. From Harsud, the appellant-accused. In the company of Prembai, went by train to Khndwa; while the other two co-culprits Jagdish and Kashiram went away from Harsud railway station after the appellant-accused and Prembai had borded the train. The appellant-accused and Prembai both moved around in the town of Khandwa, stayed for the whole night at the railway station Khandwa; and thereafter, both together came by bus to Rajoor where Prembai was kept at Ramprasads house and where she was subjected to sexual intercourse by the appellant accused. From Rajoor both came together to Village Kotha and stayed at the house of Nanthu Singh Kotwar, where also forcible intercourse was done. The Village Patel, learning of the presence of these two persons, arranged to send them both to Police Station Baldi, from where the prosecutrix Mst. Prem Bais father Mangilal (name of the appellant accused is also Mangilal) brought back his daughter to his home. The appellant-accused and the prosecutrix both, were medically examined with respect to their respective injuries. For determining the age of the prosecutrix, on the strength of appearance and fusion of some of the epiphyses, the prosecutrix was also X-rayed. During investigation, some material was also collected regarding her date of birth from the register of births and deaths, maintained at the Police Station. After due investigation, the appellant-accused and two others, on being put up for trial, abjured the guilt. The trial Court, relying on the entry (Ex. P-16) in the register of births and deaths, duly corroborated by the Radiologists report (Ex. P. 20), further supported by the statements of the prosecutrix father P.W. 2 Mangilal and some other witnesses; held that the prosecutrix date of birth was 26.5.1969; and as such, at the relevant time of the incident, the prosecutrix was not above the age of 14 years. The trial Court further held that the prosecutrix was a willing and consenting party for moving in the company of the appellant-accused and for the sexual intercourse committed with her by the appellant-accused. But, since the prosecutrix was a minor for purposes of all the offences in question, consent and willingness were held to be of no help and accordingly. the appellant accused was convicted and sentenced to the extent as stated at the outset, although the co-culprits Jagdish and Kashiram had been released on probation of good conduct under section 4 of the Probation of Offenders Act in the matter of the commission of the offences under sections 363 and 366, Indian Penal Code because of their limited role in the kidnapping in question. Hence, now, the accused Mangi Lals appeal.

(3.) Shri Dutt, learned counsel for the appellant-accused, while not challenging the trial Courts finding that the prosecutrix had moved in the company of the appellant-accused for about 12 days and was also subjected to sexual intercourse by the appellant-accused, has advanced the solitary argument that the age of the prosecutrix Prembai is not proved to be below 14 years, as held by the trial Court, on the strength of the medical evidence, coupled with the entry in the register of births and deaths. Shri Dutt has urged in this connection that P.W. 14 Dr. Vishnoi had wrongly relied on the particular table applicable to Bengalis as given in Modis Text-book of Medical Jurisprudence and Toxicology (19th Ed.). It is also stated that the medical evidence regarding the age, on the basis of ossification test, is never conclusive, as bas been stated in the said Text-book itself and so also in several decisions of this Court and of the Supreme Court. Entry ill the birth register, which is stated to be relied on by the trial Court, is urged to be inadmissible under section 35 of the Evidence Act, inasmuch as, the person making the entry, had not proved the said entry.