ISHWAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE learned Additional Sessions judge No. 1, Jodhpur, has convicted both the above named accused appellants under Section 366, IPC and each of the accused has been sentenced to undergo four year's rigorous imprisonment and to pay a fine of Rs. 200/ -, in default of payment of fine, to suffer further one months simple imprisonment. Accused Babulal has preferred a jail appeal whereas Ishwarsingh has preferred a re

(2.) BRIEFLY stated, the prosecution story is that Mst. Galuri, a girl aged about 14 years, resident of Ramdeora, on January 16, 1979, had gone to Pokaran to make some purchases. When she was at the meat shop of Shafi Mohammed PW 11, it is alleged that both the accused persons came to her and took away the said Galuri PW 5 on cycle on the pretext that she was being taken away to village Ramdeora to the house of her father. The accused persons are alleged to have taken her from place to place and they also subjected her to sexual intercourse. It was only on January 24, 1979, when Galuri was staying with the accused appellants in room No. 17 in Panchayati Dharamshala, Sriganganagar that the police suspected the commission of some offence and Galuri was recovered from the possession of both the accused persons. After investigation, a charge sheet was filed and the accused appellants were tried for offence under Section 366 and 376, IPC. On behalf of the prosecution, as many as 15 witnesses were examined including Galuri PW 5 The statements of each of the accused was recorded thereafter under Section 313, Cr. PC and they denied that they took away Galuri from the lawful guardianship of her father. Accused -appellant Ishwarsingh also pleaded that it was a chance that Galuri met him in the market of Pokaranand she prevailed upon him to takeher with him. In short, his plea was that Galuri was not taken or enticeda way by him but she, of her own free will and voluntarily, accompanied him The accused person did not examine any witness in defence.

(3.) THE first contention of the learned advocate for the accused appellant Ishwarsingh is that from the material on record, it is not satisfactorily established that Mst. Galuri was below 18 years on the date of the occurrence It is contended by him that though the medical experts have stated that Galuri was aged about 14 years but there is a margin of three years, this way or that way and, therefore, it cannot be held to have been established that she was aged below 18 years. In support of his submission, he has placed reliance on Shantilal v. State of Rajasthan Cr. L R. (Raj) 1979 P. 514. In this case, it was observed by the learned Judge by reference to Modi's Medical Jurisprudence and Toxicology that the range of error may be up to three years either way but in that case, the opinion was based on the evidence of the epiphyseal union of the iliac crest. It may be stated in the facts and circumstances of this case, even assuming that the range of error may be three years either way, the age of Galuri cannot be said to be 18 years or above on the date of the occurrence. As per the opinion of the medical experts, she was aged about 14 years and, therefore, she could not be aged more than 17 years. Dr. R. Shrimali is Professor of Radiology, Mahatma Gandhi Hospital, Jodhpur. He has stated that he had taken the x -ray of wrist, elbow and pelvis of Mst. Galuri vide x -ray films Ex. 3 to Ex. P. 6. The x -ray report showed that epiphysis at the medial epicondyle of humerum is separate, the epiphysis at lower end of radius and ulna and metacarpal heads are separate, the iliac create piphysis had just appeard. Hence he opined that the girl was aged about 14 years. Looking to the fact that epiphysis of the medial epicondyle of humerum was separate and so was the epiphysis at lower end of radius and ulna and metacarpal heads, it cannot be said that in any case, the age of Galuri was more than 18 on the date of the occurrence. Dr. Jitendra Kumar PW 1 had examined Galuri clinically and he too had stated that she was aged about 14 years. Dr Naharsingh PW 15 was Medical Jurist Mahatma Gandhi Hospital, Jodhpur and he too examined Galuri and stated on the basis of the general findings and ossification of bones that the estimated age of Mst. Galuri was about 14 years. Jetharam PW 7, the father of Galuri had stated that the age of Galuri was about 13 years on the date of occurrence. Surprisingly, he was not put a single question in cross -examination which might have gone a long way in determining the age of Mst. Galuri. Therefore, it has been rightly held by the learned Additional Sessions judge that the age of Galuri was about 14 years on the date of the occurrence, that is, on January 16, 1979 and in any case, she was aged below 18 years.