- (1.) M. C. Agarwal, J. The appellant Bheem has filed this appeal against the judgment and order dated 15-11-80 passed by the III Additional Sessions Judge, Azamgarh whereby he along with Swaroop was found guilty of an offence under Sec tion 363, IPC and sentenced to undergo rigorous imprisonment for a period of two years.
(2.) I have heard Sri Rajul Bhargava, Advocate, holding brief of Sri Indal Singh, learned counsel for the appellant and the learned A. G. A. and have perused the rec ord. The prosecution story briefly stated was that the prosecutrix Shankari Devi was residing with her brother and mother in Village Selahara Patti, P. S. Atraulia, District Azamgarh. On 30-1-70 when her brother Jhinku Prasad, her mother and her sister etc. were away to the field for har vesting sugarcane crop, the accused Bheem and Swaroop came to her house and she accompanied them alongwith or naments. According to her, the accused Bheem had been telling her that since she was literate, he could get a job for her as a teacher in a school of the Board. She ac companied the two accused for going to Azamgarh and on the way Algu and Chaturghan met them and on an enquiry Bheem told them that she was being taken to Atraulia for medical treatment. Later on they met Balihari and Chaturghan to whom Bheem told that Shankari Devi, prosecutrix, is being taken for getting her a job at Azamgarh. She was taken to the house of Hari Chand Pandehy in Village Burhanpur. She was left there and the two accused went away. They returned in the night and again look her to the village Selaharapatti where she was kept at the house of Swaroop. There Swaroop had sexual intercourse with her against her will. The next day these two persons brought Radhey also and told the said Radhey would look after her. Swaroop and Bheem were alleged to have gone away alongwith her ornaments and silver coins etc. saying that they would settle a job for her. In their absence Radhey arranged for her food etc. and raped her. For 6 and 7 days she remained there. Then one day she was taken to the Court at Azamgarh in Tax. They told her that her brother lodged report against them, She should write whatever they say. They took her to Prem hotel. They threatened her and one Phul-gned had also arrived there. Accused Bheem and Swaroop went away and Phulgned raped her. Phoolgend and Radhey took her to Lawyer where a paper was got written by her against her will. The said document is Ex-Ka. 1 on record in which she had named Algoo, Chaturghan, Sita Ram and Baasraj as the persons who had taken her away. Bheem and Phulgend were alleged to have taken her upto the gate of Kotwali, Azamgarh, directing her to deliver this report there. She was medi cally examined the same evening. She was also forced to prepare an affidavit, which is Ex. Ka. 2 on record and stated that this was got prepared by the accused through a Lawyer and she was threatened to sign it. At the trial the prosecution exam ined Shankari Devi, PW-1, her brother Jhinkoo Prasad, PW-2, Jarnuna Prasad Sharma, Pharmacist in District Hospital, PW-3, Chatrughan PW-4 and Ram Chandra Srivastava, Head Constable PW-5. Learned Sessions Judge had charged Bheem and Swaroop with offences under Sections 366-A, 366 and 367, IPC. Ac cused Radhey was further charged for of fences under Section 368 read with Sec tion 366 or 366-A, IPC. All the three ac cused were further charged with an offence under Section 376 IPC. The learned Ses sions Judge found that Shankari Devi was a consenting girl and she went with ac cused Bheem and Swaroop of her own will. He also held that she was a consent ing party to the sexual intercourse. The learned Sessions Judge, therefore, acquit ted the accused of various offences except Section 363, IPC for which Bheem and Swaroop were found guilty because the girl was a minor of about 16 years of age.
(3.) LEARNED counsel for the appellant mainly attacked the finding of the court below regarding the age of the girl. She was medically examined and the medical report is Ex. Ka-4 on record. The medical officer was not produced as a witness but genuineness of this report was admitted on behalf of the accused. The report states that the age of girl was about 16 years. Both the epicondyle of humer us head of radius and oleciancra process of ulna had united with the shafts. Lower epiphfsis of radius and ulna had not yet united with the shafts. Apart from this there is the state ment of Shankari Devi, who stated that she was about 12 years at the time of inci dent. She was examined on 18-8-80 i. e. more than 10-1/2 years after the occur rence and she could not be a good witness about her own age. Jhinkoo Prasad PW-2 has stated that Shankari Devi was at the time of kidnapping 13 or 14 years of age. He also stated that she was already mar ried as her marriage performed in child hood. Apart from this there is no evidence about the age of the girl. She had read in a school upto class VII and no document had been filed to show that what was her date of birth as recorded in the school pa pers. As held by the Hon'ble Supreme Court in Ram Murti v. State of Haryana, 1970 (2) Crlj 993 in a case like this, the age of the prosecutrix is important. It is well recognised that medical evidence about the age of a person is only an esti mate and there can be a difference of two years either way. This was so recognised in Keshav Prasad v. State of U. P. 1992 U. P. Crl. R. 533; 1993 JIC 113 (All) (LB ). The fact that the girl had already been married and was habitual to sexual inter course, requires that the age of the girl must have been established strictly be clinching evidence. If she was 18 years of age, no offence had been committed be cause as held by the Court below she was a consenting party. This finding has not been challenged on behalf of the State. The medical opinion could not clinch the issue against the accused in a border line case like this.;