Gulab and Another vs State of M.P.

S.L. Kochar, J.

The appellants have called in question the legality of the judgment and order passed by learned III Addl. Sessions Judge, Dhar in the file of S.T. No. 278/1990, dated 5.3.1994, wherein learned Judge has convicted the appellants U/s 366 of the IPC and sentenced each of them to undergo RI for three years and fine of Rs. 500/- and in default whereof they shall undergo further RI of six months.

Prosecution case in short as putforth before the trial Court is that on 30.3.1990 prosecutrix Sitabai, daughter of Mangilal aged 14years was present in her house situated in village Surajpura. At that time in the evening at 5.00 pm appellants reached there and told her that they were having some sort of work with her and asked her to come with them. She went along with the appellants at their house where co-accused Jagdish was present. Jagdish is the brother-in-law of appellant Gulab. All the three accused persons wrongfully confined the prosecutrix inside the hutment. She raised cry but threatened by the appellants to kill her and in the night co-accused Jagdish committed sexual intercourse with her against her consent and will. Early in the morning at 4 a.m. appellants and co-accused Jagdish took her to village Kond and she was asked by the appellants to live there along with Jagdish as his wife. Appellants returned back and co-accused Jagdish kept her as his wife and ravished her on every day night. On 9.4.1990 appellants reached in village Kond and informed that father of the prosecutrix had lodged the report, thereafter appellants and co-accused Jagdish brought her to Dhar and left her near a temple of Deviji and went back to village Surajpura. Prosecutrix Sitabai reached at the house of her father situated in village Surajpura and informed about the incident. She also disclosed the incident to Babusingh and Roopsingh and thereafter went along with her father and these persons to Police Station and lodged the report (Ex.P5). After registration of the FIR prosecutrix was sent for medical examination to lady Dr. (Smt.) B. Sabharwal (P.W. 1). Her report is Ex.P1 and thereafter for ossification test to Dr. O.P. Goyal (P.W. 2). After necessary investigation, charge sheet was filed by the police.

Appellants abjured their guilt and according to them they were falsely implicated. In alternative they have also pleaded that prosecutrix was a consenting party and went at her own accord with co-accused Jagdish. They have also submitted that in their caste there is a custom of taking away the girl or women by the boy or men. This custom is called as "Bhagoria" and after some days if marriage is settled the proposed husband or his parents are required to pay money to the parents of the girl. In the instant case, there was no settlement between the co-accused Jagdish and parents of the prosecutrix therefore, the report was lodged. Appellants were put on trial and convicted as mentioned herein above.

Having heard the learned counsel for parties and after perusing the entire record, this court is of the opinion that the conviction of the appellants is not sustainable because prosecution has failed to establish beyond all reasonable doubt that on the date of incident prosecutrix was below 18 years of age. In the instant case, father and mother of the prosecutrix have not been examined by the prosecution. For the purposes of age of the prosecutrix no documentary evidence has been filed. Lady Dr. Smt. Sabharwal (P.W. 1) has simply proved her report (Ex.P1) in Court. This medical expert witness has nowhere deposed in the Court about physical condition/development of the body of the prosecutrix on the basis of which the approximate age could be assessed. According to this witness clinically Sitabai was aged between 16-17 years of age but for this conclusion she has not given any finding. The report proved by her (Ex.P.1) cannot be considered as a substantive piece of evidence. It can at the most be used by this witness for refreshing the memory as per provision U/S. 159 of the Evidence Act. Therefore, evidence of Dr. Sabharwal (P.W. 1) is of no avail for bringing home the age of the prosecutrix.

Dr. O.P. Goyal (P.W. 2), Radiologist has also not given any finding in his statement on the basis of which he came to the conclusion that prosecutrix was below 15 years of age on the date of x-ray examination. He has nowhere stated that what was the condition of fusion of joint of radius and ulna. He has deposed only this much that on x-ray examination he found prosecutrix below 15 years of age. It is well settled principle that the opinion of the expert without finding and reasons is no opinion and same shall not carry any weight in the Court. In cross examination he has accepted that for determination of age on the basis of radiological examination variation of six months to two year can occur and by this method the perfect age cannot be opined. He has also deposed that development of radius and ulna bone is dependent upon diet and other circumstances but in this kind of evidence of radiologist, it would be very difficult to hold that prosecutrix was below 18 years of age on the date of incident. Therefore, finding of the trial Court in this regard is not tenable as mentioned in para three of the impugned judgment.

On going through the statement of the prosecutrix, it appears that she was a consenting party. She remained in the company of the appellants for a long period as well as in the company of co-accused Jagdish and they all moved from one place to another. Prosecutrix remained in the company of co-accused Jagdish in his hut situated in village Kond and in the said hut along with Jagdish his mother was also residing. Hut was consisting only one room. All the three were sleeping in the same room. Adjacent to the hut of the co-accused Jagdish several other houses of the villagers were situated but she did not disclose to anybody about her abduction or kidnapping as well as commission of forcibile sexual intercourse with her by co-accused Jagdish. She has also admitted in para six that she was taken to Sardarpur for recording her statement and she did not disclose regarding her abduction as well as rape by the co-accused Jagdish to the Officer because of fear. This explanation of fear of the prosecurtix is not conceivable. If she was not a consenting party then government office situated in Sardarpur where she was taken for giving statement or execution of document was the best and safest place for her to complain against the appellant and co-accused Jagdish and also to get rid of them but she did not prefer to do so goes to indicate that she was a consenting party. In para nine she has admitted that in her community, boy/men according to his choice take away the girl/women. This system is called "Bhagoria" and thereafter mother, father of the girl, after taking money, allow the marriage of the boy/men and girl/women and if there was no monetary settlement, the girl is called back. It appears that in the instant case also when there was no settlement the prosecutrix went toner parents house and thereafter lodged the report. In para 11 she has admitted that co-accused Jagdish was going out of the house for purchasing eatable items and she was also going in the village for fetching water. She had meeting on the village well with other womens of the village but she did not disclose to any of the women about her abduction and wrongful confinement in the house of Jagdish.

In view of the aforesaid legal and factual discussion, this Court is of the considered view that the prosecution has failed to establish its case beyond all reasonable doubt. Therefore, this appeal of the appellants is allowed. Their conviction and sentence are hereby set aside. Fine amount, if deposited, be returned to them. They are on bail. Their bail bond and surety bond stand discharged.