DAYALU @ DAYARAM Vs. STATE OF M.P.

JUDGEMENT

(1.) THE facts giving rise to this appeal are that in the inter veiling night of dated 16 and 17th May 2003 the prosecutrix Bichubha @ Pukhkhan (PW -3) alongwith her mother, father, brother and sister was sleeping in the courtyard of her house at village Jironi. At about 2 o'clock in the night the Appellant entered in her house and took her away by gaging her mouth and also by inhaling some medicine on the way other accused Kilua @ Kalka Prasad met them. Then she was taken in the house of Chinkha at village Paikheda where she was insisted to wear Sari, Bichua and also put the sign of vermilion. Subsequently to it she was taken to Delhi by Appellant and Chinkha where she was kept in a house and under threat to kill her by knife the Appellant committed rape on her at various occasions. On missing the prosecutrix her father Bhagwan Das (PW -4) lodged the report of missing person, Ex. P/8 on dated 18.5.03 on which the FIR Ex.P/9 was registered at Police Station Jaroni on dated 27.5.03. As alleged the prosecutrix was recovered from the possession of the Appellant. Her medical examination and X -ray test was carried out, according to which she was found 14 years of the age. After arresting the Appellant and other accused the medical examination of the Appellant was also carried out in which he was found fit for performing the intercourse. On completion of the investigation Appellant and said Kalka Prasad and Sena Pal were charge sheeted for the offence under Section 363, 366 and 376 r/w Section 34 of IPC.

(2.) IN order to find out the age of the prosecutrix firstly I went through the deposition of her father Bhagwan Das (PW -4). He categorically deposed that prosecutrix being his daughter she was below 14 years of the age on the date of the incident without supporting this contention with any document. According to him the prosecutrix was never admitted in the school, hence the school certificate could not be filed. He has not stated any date of birth of the prosecutrix. While the brother of the prosecutrix Phoolchand (PW -5) stated that the prosecutrix is younger to him but he could not state the actual age of the prosecutrix or the date of her birth. Although he said that he is 20 years old and one brother is younger to him then one sister Asha younger to such brother and prosecutrix is younger to that Asha but mere on such deposition, the age of the prosecutrix could not be inferred. The prosecutrix Pukhkhan @ Halki Ben (PW -3) stated that her age was 14 to 15 years on the date of deposition but her version is not supported by any documentary evidence either by school certificate or by the birth certificate. The other witness Lakhkhan (PW -6) resident of the same village who went to Delhi for bringing the prosecutrix along with the father of the prosecutrix Bhagwan, has also not deposed the age of the prosecutrix. Under such circumstances more inconstant oral testimonies of these witnesses the actual age of the prosecutrix could not be inferred. Thus, in such circumstances the age of the prosecutrix could be decided in view of the medical evidence available on the record. Dr. Shalu Johari (PW -1) who carried out the medical examination of the prosecutrix and also gave the report after carried out the ossification test. According to her report Ex. P/5 based on x -ray report Ex.P/3 and P/4, the age of the prosecutrix was in between 14 to 17 years. On perusing his entire deposition, it appears that after assessing the variation matrix i.e. the period of either side he has given the aforesaid report. According to his depositions the medial epicondyle of the elbow bone of the prosecutrix was already fused which happens at the age of 14 years of the age, therefore, she was more than 14 years of the age. He further said that epicondyle begins from the age of 14 years and the same is fused in between 17 to 19 years. It was not fused hence the prosecutrix was of the age of between 14 to 17 years. Scientifically and logically this report appears to be correct and the same could be safely relied on for holding the age of prosecutrix but the same have not been properly considered by the trial court and contrary to it the age of prosecutrix was wrongly held below 16 years. Thus, the finding of the trial court is apparently perverse and requires modification. Hence, by setting aside the same, it is held that the prosecutrix was in the age of 17 years. Such view is based on the principle that if two views are possible then out of which favourable to the accused should be adopted. Thus, the upper limit of aforesaid medical opinion was held to be the age of prosecutrix.

(3.) IN the aforesaid circumstances it is held that the alleged intercourse by the Appellant with the prosecutrix was carried out with her consent and in view of the age of the prosecutrix 17 years as held in foregoing paras the Appellant could not be convicted for the offence of rape under Section 376 of IPC. Hence, the trial court has committed an error holding guilty to the Appellant for such offence. Hence such findings of the impugned judgment is hereby set aside and the Appellant is acquitted from the charge of Section 376 of IPC. So far the evidence of kidnapping is concerned, it has been held that the prosecutrix was of the age of 17 years, i.e. below 18 years and she was taken away by the Appellant from the family of her parents from her lawful custody without consent of parents, although with her consent but she being minor, her consent could not be a ground for acquittal of the Appellant for such offence of kidnapping. It was also proved that the Appellant took her away from the lawful guardianship with an intention to compel her to marry with him or in any case to perform the illicit intercourse with her without the consent of her parents. Thus, in view of the age of the prosecutrix the offence of kidnapping under Section 363 and 366 of IPC have bee proved against the Appellant beyond reasonable doubt. Thus, the trial court has not committed any error in holding him guilty for such offence. The findings of the impugned judgment in this regard are hereby affirmed.