Tikeshwar Puri Goswami Vs State of Chhattisgarh

1. The appeal arises out of the judgment of conviction and sentence dated 25.11.2003 passed by First Additional Sessions Judge, Mahasamund, Dist- Mahasamund, in Sessions Case No.222/2003, whereby the appellant has been convicted for the offence under Section 363 of IPC and sentenced him for R.I. for 5 years with fine of Rs.500/- and in default of payment of fine further R.I. for six months.

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2. Brief facts of the case are that the prosecutrix (PW-1) was having love affair with the appellant. On 04/04/2003, in the night, the appellant has taken her with him on the pretext of marriage. They visited place to place via Tumgaon, Raipur and Nayapara. He committed rape upon her by giving false promise of marriage and ultimately on 09/05/2003, he left her at village Dongripali and then on 13/05/2003, the report has been lodged by the prosecutrix at Police Station Mahasamund. On the report of the prosecutrix, the FIR (Ex-P/1) was registered against the appellant for the offence

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under Sections 363, 366, 376, 506-B and 323 of IPC. The prosecutrix was sent for her medical examination to Community Health Centre Mahasamund where PW- 5 Dr. Alka Pardal has examined her and gave her report Ex-P/10. During the examination, the doctor has not found any external injuries on her body and opined that the girl is accustomed to sexual intercourse and advised for X-Ray for age determination of the prosecutrix. The prosecutrix underwent the regiological examination and after her X-Ray examination her age was found to be of 17 years. Two slides of vaginal swab were prepared and handed over to the Police. With respect to the age of the prosecutrix, attested true copy of the Kotwari Panji was also seized by the Police in which her date of birth is shown to be of 11/10/1985. Statements of the witnesses have been recorded and after completion of the usual investigation charge-sheet has been filed in the Court of learned Chief Judicial Magistrate, Mahasamund. The case was committed to the Court of learned Sessions Judge, Mahasamund from where the same has been transferred for its trial to the learned Trial Court.

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3. The learned trial Court has framed charges for the offence under Sections 363, 366, 376 (1), 506 Part II and 323 of IPC. The appellant abjured his guilt and claimed trial.

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4. In order to establish the charge against the appellant, the prosecution has examined as many as 11 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence.

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5. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned Trial Court has acquitted the appellant from the charge of Section 366, 376 (1), 506 part II and 323 of IPC, however, he has been convicted for the offence under Section 363 of IPC and sentence as mentioned in Para 1 of this judgment hence this appeal.

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6. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses. The prosecution has failed to produce any legally admissible document with respect to age of prosecutrix that on the date of incident she was below 18 years of age. The rediological report of the prosecutrix shown to be age of 17 years whereas the doctor PW- 5 has admitted that there is possibility of error of margin of 2 years in either side and thus the age of the prosecutrix on the date of incident was comes to 19 years. He would further submit that the Kotwari Panji produced by the prosecution is sought to be proved by PW-4 who is the Kotwar of the village. In the Kotwari Panji the name of the informant is the uncle of the prosecutrix whereas her uncle has been examined as PW-6 who has not stated anything in his deposition that he has informed about the birth of the prosecutrix to the Kotwar and thus, there are lack of cogent evidence to prove the age or date of birth of the proseuctrix and therefore the finding recorded by the learned Trial Court that the proseuctrix was below 18 years of age is perverse. He would also submit that on the same set of evidence the learned Trial Court has acquitted the appellant from the offence of Section 366 and 376 (1) of IPC and therefore,

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considering the error of margin of two years in positive side, the prosecutrix is also considered to be major and the appellant is also entitled for its benefit and he may be acquitted for the alleged offence.

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7. On the other hand, learned counsel for the Respondent opposes and submitted that the prosecution has proved its case beyond reasonable doubt. The learned Trial Court comes to conclusion on the basis of the X-Ray report as well as from the Kotwari Panji that the age of the prosecutrix is below 18 years and thereby she was minor on the date of incident but she has been kidnapped by the appellant and kept away from her lawful guardianship. Therefore, the learned Trial Court has absolutely justified in convicting and sentencing him which needs no interference.

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8. I have heard the learned counsel for the parties and perused the material available on record.

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9. The question in the present case is whether the age of the prosecutrix was below of 18 years and she was being kidnapped by the appellant or not.

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10. PW-5 Dr. Alka Pardal, who has medically examined the prosecutrix has proved the X-Ray report (Ex-P/12) in which the age of the prosecutrix is assessed as 17 years. The PW-5 has stated in her deposition that on 13/05/2003 on being rediologically examined, the prosecutrix’s age was determined as 17 years. She found the age of the prosecutrix is 17 years. In her cross-examination she admitted that there is possibility of error in margin of two years in either side. The opinion of the doctor based on his own experience and condition of fusion of bones. Fusion of bones may vary from person

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to person, their nutrition, atmosphere and habit. Therefore, from the evidence of PW-5 as also from rediological examination of the prosecutrix also in view of error of margin of two years in positive side, it cannot be hold that the prosecutrix was below 18 years of age on the date of incident.

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11. In case of Jaya Mala Vs. Home Secretary, Govt. of Jammu and Kasmir & Anr. Reported in (1982) 2 SCC 538 in Para 9, the Hon’ble Supreme Court has held as under:-

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“9……..However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side…....”

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12. The other evidence which the prosecution relies for determination of the age of the prosecutrix is the Kotwari Register which is sought to be proved by PW-4 who has stated in his deposition that the Police has seized a Kotwari register from him which is Ex-P/9 and its attested true copy is Ex-P/9C in which the date of birth of the prosecutrix is mentioned as 11/10/1985. He has further stated that the birth of the prosecutrix has been intimated by Bal Mukund. In the present case Bal Mukund is PW-6 who is the uncle of the prosecutrix. The PW- 6 has not stated anything in his deposition that he ever informed about the birth of the prosecutrix to the Kotwar nor the father of the prosecutrix PW-2 has stated that his brother has informed the birth of the proseuctrix to the Kotwar or her date of birth was recorded in Kotwari register. Though, the PW-6 Bal Mukund has examined in the case but in absence of his evidence that he has informed about the birth of the prosecutrix to the Kotwar, the evidence of PW-4 cannot be believed that on the information given by the Bal Mukund, the date of birth of the prosecutrix has been

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recorded in the Kotwari Register. The said Kotwari Register has not been supported by the evidence of the informant and therefore only on the basis of said Kotwari Register, the age of the prosecutrix cannot be considered to be below 18 years.

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13. Since, the appellant has been convicted for the offence under Section 363 of IPC and he has been acquitted for other offences. Section 366 of IPC provides punishment for kidnapping and the kidnapping from lawful guardianship is define in Section 361 of IPC which reads as under:-

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“361. Kidnapping from lawful guardianship - Whoever takes or entices any minor under [Sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person or unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.”

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14. In the present case, the prosecution could not brought on record any

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clinching and cogent evidence to show that the prosecutrix was less than 18 years of the age of the date of incident. Since, the prosecutrix is found to be more than 18 years of age, from her evidence, it established that she eloped with the appellant and travelled up to Tumgaon, Raipur and Nayapara by train but she has not made any complaint to any of the passengers who met on the way or even on the train. She has not raised any hue and cry that the appellant is kidnapping her or taking her against her will and concent. She herself had gone with the appellant on her own will. It cannot be said to be her kidnapping.

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15. In the case of S. Varadarajan Vs. State of Madras , AIR 1965 SC 942, the Hon'ble Supreme Court has held that:

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“9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

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It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".

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16. From the evidence of the prosecutrix, PW-1, it appears that she herself had gone with the appellant, stayed with him for a considerable period without any protest or without any objection.

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From the evidence of PW-2, father of the prosecutrix, it also proved that her father had sent her daughter to his sister’s house at Nayapara along with the appellant which also proved the fact that the appellant has not kidnapped her rather she had gone along with the appellant voluntarily and therefore no offence of kidnapping from her lawful guardianship is made out against the appellant.

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17. In the result, the appeal is allowed . The appellant is acquitted from the charge of Section 363 of IPC. The impugned judgment of conviction and sentence is set aside .

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18. The appellant is reported to be on bail, his bail bond shall continue for further period of six months as provided under Section 437-A of the CrPC.

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19. The record of the trial Court be send back along with the copy of this order.

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Sd/- (Ravindra Kumar Agrawal) Judge

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sagrika

Tikeshwar Puri Goswami v. State of Chhattisgarh

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Tikeshwar Puri Goswami v. State of Chhattisgarh

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