Mohamad Imteaz Khan alias Sannu vs State of Haryana

S. S. Grewal, J.

This appeal is directed against the order of Additional Sessions Judge, Hisar, dated 1.5.1992 were by the present appellant was convicted under Sections 366 and 376 of the Indian Penal Code and under each of these offences he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/. In default of payment of fine he was ordered to undergo further rigorous imprisonment for one year. The substantive sentences of imprisonment were ordered to run concurrently.

In brief facts of the prosecution case are that the present appellant was a tenant in the house of the mother of Sulochana prosecutrix aged about 14 years. On 16.7.1991, the prosecutrix went to attend the school at about 8 A.M. However, she did not return home after the closure of the school, at about 1 P.M. Sunehri mother of the prosecutrix went to the school, where she was informed that her daughter was taken by her brother from the school on the pretext of illness of her mother. Smt. Sunehri Devi searched for her daughter as well as the appellant whom she suspected to have kidnapped her daughter. As mother of the prosecutrix was proceeding to the police station, she met ASI on the way and on the basis of her written application case was registered against the appellant. On 20.7.1991, on receipt of secret information the police was present near Civil Hospital along with Sunehri Devi and Lok Ram maternal uncle of the prosecutrix when they apprehended the appellant and also recovered the prosecutrix. Both of them were got medically examined. After completion of the investigation the appellant was challenged, tried, convicted and sentenced, as stated earlier.

The learned counsel for the parties were heard.

Prosecutrix while appearing as P 13 deposed that at about 10.30 A.M. on 16.7.1991 appellant came and took her from her school situated near Nagori Gate Hisar during the recess, on the pretext that her mother was ill. He took her in a Maruti van to bus stand at Hisar. From there they got a bus and went to Delhi. The appellant was extending threats to her life. From Delhi appellant took her to Saharanpur where she was kept at the house of his aunt for 7/8 days. From Saharanpur prosecutrix was brought by the appellant to Chandigarh. After staying at Chandigarh for about an hour or so prosecutrix was taken back to Hisar in a bus. There the appellant kept the prosecutrix in Gujri Mahal for two days and during this period committed rape on her. Prosecutrix initially stated that the appellant did not commit any rape at Hisar and on clarification by the rape on her in Gujri Mahal, Hisar and at Saharanpur. From the testimony of the prosecutrix herself it is quite evident that during the period the prosecutrix stayed with the appellant, both of them went to several places and travelled by bus and must have passed through crowded places. During the said period the prosecutrix never complained to any individual that she had been kidnapped by the appellant by extending threats to her life. From her evidence, it is quite apparent with the appellant, both of them went to several places and travelled by bus and must have passed through crowded places. During the said period the prosecutrix never complained to any individual that she had been kidnapped by the appellant by extending threats to her life. From her evidence, it is quite apparent that the prosecutrix herself was a consenting party.

Thus in order to determine whether the appellant had kidnapped the prosecutrix or had committed rape on her, the question of age of the prosecutrix assumes great significance. The prosecutrix while appearing as PW 13 has given her age as 14 years. During her crossexamination she had not been able to tell the age of her two elder sisters namely Premlata and Bala. Sunehri Devi mother of the prosecutrix (Sulochana) as 14 years, whereas, that of her elder sisters Premlata and Bala as 19 and 21 years. During her cross examination she admitted that she was married about 25 years back. However, according to her, she does not know the exact dates of birth of her three daughters. According to her all the three daughters were married 10/11 years back on one day, and, their husbands are also real brothers. It is thus, quite apparent that neither the prosecutrix nor her mother Sunehri are in a position to give exact date of birth or the age of the prosecutrix.

PW. 7 Smt. Satesh Sharma, Headmistress, Government Primary School, Hisar, deposed that Sulochana was got admitted in 2nd Class on 3rd October, 1989 by her mother and the date of birth of the prosecutrix therein is recorded as 14th July, 1979. Thus according to the school certificate the age of the prosecutrix was only 12 years at the time when she was allegedly kidnapped. Since the age mentioned in the school certificate is at variance, with the age given by the prosecutrix and her mother during the trial, the same cannot be considered authentic. In the instant case, it seems that the parents of the prosecutrix had given lesser age at the time of her admission. No implicit reliance can be placed on the school certificate of the prosecutrix issued by the school.

In the entry in the register maintained by the Municipal Committee, Hisar, the date of birth of the prosecutrix is mentioned as 3rd of August, 1976, which would indicate that she was about 15 years of age at the time when she is said to have been kidnapped by the appellant. Dr. Himani Gupta, PW 15 who conducted ossification test of the prosecutrix to determine her age has opined that the age of the prosecutrix was 14 or 15 years and according to her there could be variation of one year in the age of the prosecutrix on either side. According to the doctor the distal end of ulna and lower end of femur were not fused and fusion ages whereof is not less than 17 years. It is quite patent that Dr. Himani Gupta has not given correct opinion concerning the age of the prosecutrix. Rather from the evident brought on the record, it seems quite probable that the age of the prosecutrix could be above 17 years. Fusion of bones also depends on dietetic, hereditary, climatic and various other facts. Ossification test is not a surer test and the radiological age may vary on either sides upto to three years as per Dr. Modi''s Medical Jurisprudence and Toxicology, Twentieth Edition, at page 31, wherein it was opined as under :

"In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, and an opinion should be given according to the following table, but it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricites of development. Recent work has shown that the range of error may be upto 3 years."

As no direct evidence concerning the exact age of the prosecutrix with reliance is forthcoming, the age of the prosecutrix can safely be taken as more than 18 years at the time when she was allegedly kidnapped. As already discussed earlier the prosecutrix is a consenting party and in view of the fact that she was above 18 years of age no offence either under Section 366 or under Section 376 of the Indian Penal Code against the appellant has been made out beyond reasonable doubt.

For the foregoing reasons, I hereby accept this appeal, set aside the order of conviction and sentence passed by the trial Court against the appellant and giving him the benefit of doubt I hereby acquit him. Fine, if realised, be refunded to the appellant.