Ram Dass and Another vs State

K.K. Chaubey, J.—This appeal has been filed against the judgment and order dated 24-4-1979 of Sri. V.N. Pandey, III Additional Sessions Judge, Etawah by which he convicted the Appellants u/s 376 of the Indian Penal Code and sentenced each of them to undergo three years rigorous imprisonment.

The case of the prosecution as per the first information report lodged by Sarman Lal on 28-12-1976 at 11 A.M. is that his daughter Manka Devi is aged about 13 years. As usual she went to graze goat on 27-12-1976. Appellants Ram Das and Nekse of Mohalla Sati, at about 5 P.M, induced her to go with them. These boys used to visit the house of the first informant. The younger daughter of the first informant saw them going with Kumari Manka Devi and told them that she would make a complaint to her father at which she was given Rs. 6/- to keep quite. One more person saw the girl going with these two boys and on enquiry he was informed that she was being taken to her house. When the girl did not return upto 7 P.M., the first informant searched her. He, however, came to know that the two Appellants had kidnapped his daughter. The first informant came to the house of the Appellants with 2-4 persons but they were not there.

After lodging of the first information report the investigation started. However, the girl herself reached the house of her relative, where she narrated the entire story, which was communicated to her father and thereafter a report was lodged.

Dr. Yashwati Sharma conducted the medical examination of Kumari Manka Devi on 29-12-1976 at 4.25 P.M. and prepared her report as under:

M/I. A black mole on the right side of nose 2 cm. below right eye.

A black mole on the left side of bridge of nose. Secondary Sex character:

Pubic hairs-Scanty (five hairs present)

Axillary hairs-Absent.

Breast-Development started.

Internal Examination:

Hymen torned, 3 tears present on right side (1/2 cm each), 3 tears present on right side (1 cm each). Bloods clots and bleeding present and tenderness also present. Vagina admits 2 fingers tightly. There is no mark of injury anywhere on the body. Vaginal smear sent to Distt. Hospital for Pathological examination. Kumari Manka Devi sent to Distt. Hospital for X-ray.

Conclusion: Probable cause of tear and bleeding and tenderness is due to rape.

A supplementary report was also prepared by Dr. Chandra Prakash, Medical Officer, District Hospital, Etawah:

Epiphyses of medical epicondule shows clinch of demarcation of fusion.

Epiphyses of lateral epicondyle and clecranon have fused. Epiphyses of (sic) also shows line of demarcation of the elbow joint.

Epiphyses at the wrist joint are separate and show non-union. Vaginal smear report Negative for spermatozoa.

Conclusion: Age of Kumari Manka is about fifteen (15) years.

In the Court below the Appellants were charged under Sections 366, 368 and 376 IPC to which they pleaded not guilty.

The prosecution examined Kumari Manka Devi, PW 2, the victim, Sharman, PW 1, who lodged the first information report, Gulab Devi, PW 4, the younger sister of Kumari Manka Devi, Dr. Yashwati Sharma, PW 3, Ram Prakash, PW 5 who is scribe of the first information report and Tej Pal Singh, Investigating Officer.

The two Appellants in their statement before the Court below denied the story of prosecution and claimed that witnesses deposed against them due to enmity and they have been implicated because of enmity. The Appellants did not lead any evidence. The learned Additional Sessions Judge, Etawah came to the finding that the case of the prosecution was made out u/s 376 IPC against the Appellant and accordingly convicted and sentenced them as noted earlier. Aggrieved by that judgment and order, the present appeal has been filed.

I have heard the learned Counsel for the parties and have gone through the record. The only eye witness of the occurrence is the prosecutrix herself. Sharman, PW 1 is the first informant. He has not stated anything regarding the occurrence. His younger daughter Gulab Devi had simply seen the two Appellants and Kumari Manka Devi going towards Jamuna. Kumari Manka Devi, PW 2 has narrated in detail regarding the occurrence. In the examination-in-chief she stated how she was taken away to 22, Khwaja and how rape was committed on her. Even according to medical examination, the girl was subjected to sexual intercourse. Therefore, there is no doubt that Kumari Manka Devi was subjected to sexual intercourse. The question is as to whether she was a consenting party and if so could such consent absolve the Appellants of the offence. Even the learned Additional Sessions Judge has come to the finding that Kumari Manka Devi was a consenting party but he was of the view that she being a girl of about 15 years of age, her consent was immaterial and the offence of rape was found to have been committed by the Appellants. Before looking to the question of the age of Kumari Manka Devi, I may refer some admissions of her cross-examination. She has admitted that Appellant Ram Das did not use force with her. She further admitted that some document was written in Bhind regarding her marriage with Appellant Ram Das and she had no objection to it. In fact, the document was written with her free will. She claimed that she lives with Ram Das Appellant till now on her own free will but did not want to continue to live with him. Yet in reply to another question she admitted that she had gone with two Appellants for taking wood on her own free will and even after that she wanted to live with Appellant Ram Das. These admissions clearly go to show that the girl is a consenting party.

Now the question of her age becomes material. According to Section 375 of the Indian Penal Code consent becomes immaterial when the girl is under sixteen years age. Hence, we have to see if on the date of occurrence Kumari Manka Devi was under sixteen years of age. We have seen the supplementary medical report according to which the age of Kumari Manka Devi was about 15 years on the date of medical examination, that us, 29-12-1976. It is not known on what basis the learned Judge in the Court below has observed that according to medical report age of the girl is ''nut more than 15 years''. There is lot of difference between the phrase ''not more than 15 year and ''about 15 years''. The learned Counsel for the Appellant argued that the supplementary report prepared on the basis of radiological examination gives only the opinion of the doctor regarding the age of the girl and woe years margin of error should be given to either side. In support of this contention, he placed reliance in the case of Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, in which it has been held that one can take judicial notice that the margin of error in age ascertained by the radiological examination is two years on either side. It would, therefore, mean that the opinion of the doctor regarding the age of the girl Kumari Manka Devi being about 15 years, could be taken to be even above 16 years. Consequently, her consent becomes material. As she was a consenting party, no offence of rape can be said to have been committed by the Appellants. They were entitled to acquittal.

The appeal succeeds and is allowed. The judgment and order of the learned Additional Sessions Judge, Etawah recording conviction and awarding sentence to the Appellants are set aside. They are acquitted of the offence for which they have been tried, by the Court below. Both the Appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.

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