Dave, J. - (1.) THIS is an appeal by the State against the judgement of the learned Sessions Judge, Alwar, dated the 12th November, 1956, acquitting, accused Ibrahim, Alrnoor Sagru of the offences under section 366, 406 and 420 I. P. C.
(2.) THE prosecution story against the accused-respondents was that one Mst. Sayidan (P. W. 1) was married to Jumma, resident of Tonk. In January, 1955, she was staying with her mother Mst. Idi at village Choth-ka Barwara which is in district Sawai Madhopur. Her husband and father-in law came to Choth-ka-Barwara on or about 13th January, 1955 in order to take her away to Tonk. It is said that accused Ibrahim who is resident of village Jalna in Tonk district had also happened to come to Choth-Ka-Barwara and he was staying at the house of his father-in-law named Rasoola. THE story proceeds that on the evening of 16th January, 1955, Mst. Idi asked her daughter Sayidan to approach women of their locality and invite them in order to sing song for entertaining the guests. Mst. Sayidan accordingly went out and she happened to meet accused Ibrahim at Rasoola's house. It was alleged that the accused Ibrahim kidnapped Mst. Sayidan and took her away to Sawai Madhopur railway station. From there, he took her to Ganga-pur, then to Ratlam, Indore and Ahmedabad. From Ahmedabad he took her to Roopbas and there she was given in marriage to one Deena Rangrez in lieu of Rs. 450/ -. THE prosecution further proceeded to say that Deena took away the girl to his village Hald-iana where she lived for about 8 days. Accused Ibrahim then brought that girl from Haldiana to Roopbas where there was some quarrel between Ibrahim and Deena about her. P. W. Bodanlal, who was Upsarpanch of Roopbas was informed by some Chhipas that a Hindu girl seemed to have been abducted. He, therefore, went to the house of P. W. Niwazi where the girl was staying. He took her to police station Alwar and made a report there. THEreafter, the police started investigation and it came to the conclusion that Mst. Sayiden was a minor girl below 18 years of age. It also found that 2 more persons, namely Sagru and Alanoor, had taken part in abducting her from Ahmedabad to Roopbas. THE Police also came to know during the course of investigation that accused Ibrahim had stolen the ornaments which the girl Mst. Sayidan was wearing on her person at the time of occurrence and that he had also committed rape on her at various places during the course of their journey. It was further found that all the three accused had cheated Deena and obtained from a sum of Rs. 450/ -. Ibrahim was therefore chall-aned for offences under sec. 366. 376 & 379 and 420 I. P. C. while Sagru and Alanoor were challaned for offences under sec. 366 and 420 I. P. C. After conducting the preliminary inquiry, the Magistrate First Class, Alwar, committed all the three accused to the court of the learned Sessions Judge, Alwar to stand their trial for offences under sec. 366 and 420 I. P. C. Accused Ibrahim was also committed for offence under sec. 466 I. P. C. It may be pointed out here, that according to the committing Magistrate, accused Ibrahim had committed an offence of criminal breach of trust and not of their in respect of Mst. Sayidan's ornaments and that is why he committed him for an offence under sec. 406 instead of the offence under sec. 376 I. P. C. It may also be mentioned here that accused Ibrahim expressed complete ignorance of the crime alleged against him, in the committing magistrate's court. Accused Alanoor and Sagru stated in that court that both of them were returning home from Ahmedabad. After they had boarded the train, they saw accused Ibrahim sitting with Mst. Sayidan. During the course of conversation Ibrahim accused told them that Mst. Sayidan was his wife's sister and that he was in search of a husband for her. Thereupon, Sagru suggested that his brother-in-law was unmarried and he could arrange her marriage with him. Thereafter, all of them Went to Roopbas and Ibrahim accused approved Deena for Sayis dan's marriage with him. Both of them pleaded that they had no knowledge about the fact that Ibrahim had kidnapped or abducted Mst. Sayidan and that they were therefore quite innocent. They gave the same statements in the trial court also. Accused Ibrahim again pleaded in the trial court that he had no knowledge about Mst. Sayidan's abduction and that the entire prosecution story against him was false and concocted. The prosecution examined 17 witnesses in the trial court and also tendered in evidence the statement of lady doctor S. Gopinath (Ex. P. 6 ). None of the accused produced any evidence in defence. After scrutinizing the evidence of the prosecution witnesses, the learned Sessions Judge came to the conclusion that Mst. Sayidan was not proved to be below 18 years of age at the time of occurrence and therefore it could not be said that she was kidnapped from lawful guardianship It was further found by the learned Judge that Mst. Sayidan had eloped with accused Ibrahim willingly and therefore even the offence of abduction was not proved against him. Similarly, about the ornaments, he came to the conclusion that they were sold by accused Ibrahim with Mst. Sayidan's consent in order to purchase other ornaments and a wrist watch and therefore the offence under sec. 406 I. P. C. also was not made out against him. As regards Alanoor and Sagru, he came to the conclusion that they were coming from Ahmedabad to their homes and that there was no evidence to show that they had entered into any conspiracy with Ibrahim. In his opinion, the offence under sec. 366 I. P. C. was not proved against them as well. He therefore acquitted all the three accused. It may be observed at the outset that the case against accused Ibrahim stands on a very different footing than the case against the other two accused Alanoor and Sagru. If the prosecution is able to prove that Mst. Sayidan was abducted by accused Ibrahim, then the Court is required to determine whether Alanoor and Sagru had also participated in that crime, because abduction can be a continuing offence. But if the prosecution simply proves that Mst. Sayidan was kidnapped from lawful guardianship, then no case can be made out against accused Alanoor and Sagru, because kidnapping from lawful guardianship is not a continuing offence. The first point which therefore arises for our determination is whether the prosecution has been able to prove that Mst. Sayidan was abducted from her parent's house. An offence of abduction can be said to have been committed only if the prosecution is able to prove against the alleged offender that he has by force compelled or by deceitful means induced another person to go from any place. We have therefore to see if it is proved against the accused that they compelled Mst. Sayidan by force or they induced her by deceitful means to go from one place to another place. The main evidence on this point is that of P. W. I Mst. Sayidan. . . . . . . . . We do not believe her story of rape, because she was a consenting party, but it can be easily believed that Ibrahim must have had illicit intercourse with her and that his real purpose in taking her away from Choth Ka Barwara was to seduce her by illicit inter coursed. So, if the prosecution is able to prove that Mst. Sayidan was under 18 years of age, there would be little difficulty in convicting him of the offence under sec. 366 I. P. C. The learned Sessions Judge has however held that the girl was not under 18 years of age and therefore the real question which arises before this court for determination is whether the said finding of the trial court is wrong. It may be pointed out here that in Sheo Swarup vs. Emperor (1), it was observed by their Lordships of the Privy Council that in cases of acquittal the following matter should be kept into consideration by the High Court. It was observed that: - - "in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial judge, as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at this trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesess. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice. " This view was endorsed their by Lordships of the Supreme Court in Prandas vs. The State (2 ). We have therefore to give proper weight and consideration to the views of the trial Judge as to the credibility of the witnesses on the question of the age of Mst. Sayidan. Before examining the evidence on this point, it may also be observed that in a case where the girl is a consenting party, the court should scrutinize the evidence about her age very closely. This is necessary because there is usual tendency on the part of women to understate their age in order to show their innocence and chastity and throw the entire blame on the other party. Now, about the question of age, the prosecution has examined P. W. 1 Mst. Sayidan. P. W. 2 Mst. Idi, P. W. 8 Dr. L. N. Gupta and P. W. 12 Ramchandra Ojha. P. W. 12 has stated that he had recorded the statement of Dr. S. Gopinath (Ex. P 9) which has been tendered in evidence by the prosecution. P. W. 1 has stated in the trial court when she was examined on 25. 6. 56 that she was 16 years old at the time. To the same effect is the statement of P. W. Mst. Idi. If both these statements could be believed then Mst. Sayidan should be 14 years old on the date of occurrence i. e. 16. 1. 55. The learned Sessions Judge has remarked that both these witnesses are not reliable because they Stave definitely tried to under-state the age of Mst. Sayindan. He has pointed out that P. W. 2's own brother Ida who had made the first information report about the occurrence on 16. 1. 55 at police chowki Barwara had given her age as 17 years on that day. This report Ex. P. 4 has been proved by the statement of P. W. 10 Lilaram Head Constable who had recorded the same. It is true that in this report Mst. Sayidan's age was given as 17 years. It may also be remarked here that in fact Ex. P. 4 was the first information report in this case and it was wrong on the part of the prosecution to treat Ex. P. 1 as the first information report and not to have produced Ex. P. 4 as the first information report. Ex. P. 1 is the report of Bodanlal Upsarpanch at Police Station, Alwar Sadar. This was made on 3. 3. 55 when the girl was produced at the Thana. It is clear that this report which was received after the recovery of the girl could not be the first information report and Ex. P. 4 was in fact the first information report about this occurrence. It is clear from the perusal of Ex. P. 4 that Mst. Sayidan's age was given as 17 years on 16. 1. 55 It was unfortunate that the prosecution did not examine Ida who had made this report and therefore the accused had no chance to cross-examine him. It cannot be believed that Ida over-estimated the age of the girl when he was making a report about the kidnapping of the girl. It is also clear that if the age as given in Ex. P. 4 was correct, then Mst. Sayidan must have been 18 1/2 years old on the day she was examined. Therefore, when Mst. Sayidan and her mother stated that Sayidan was only 16 years of age on the date of her statement, they were definitely under-stating Sayidan's age. The trial court has committed no error in not relying upon their statements under these circumstances. It has been urged by learned Assistant Government Advocate that Mst. Idi was not cross examined by the accused about Sayidan's age and therefore there was no good reason for the trial court for disbelieving her. We have given due consideration to this argument. It is true that Mst. Idi was not cross-examined by the accused about Sayidan's age, but for that reason alone we cannot believe her statement when it is contradicted by P. W. 4 and when it is clear that she has not come out with a honest statement. She has not given the year in which Mst. Sayidan was born and we cannot place implicit reliance on her estimate specially when it is contradicted by the first information report. Now coming to the medical evidence, we again find that the opinions of Dr. S. Gopinath and Dr. L. N. Gupta are not uniform. Dr. S. Gopinath has stated in Ex. P. 6. that when she examined the girl, she found that she had 14 lower teeth and 14 upper teeth and that a space was left for wisdom tooth. She also found that the breasts of the girl were developed and that public and axillary hair were also present. On the basis of the above data, she stated that the girl was above 14 years of age. It may be observed that this statement was very unsatisfactory, because the prosecution was not required to prove that the girl was above 14 years of age, but what it was required to prove was that the girl was under 18 years of age. In other words, the age of 20 or 24 years is also above 14 years of age and therefore the question put to Dr. S. Gopinath does not seem to have been correctly put. She ought to have been asked whether Mst. Sayidan was under 18 years of age and, if so, for what reasons. It may be observed that the evidence of a medical officer is certainly helpful as an opinion of an expert, but in order to enable the court to rely upon such an opinion, it is necessary that such experts should bring their technical and scientific knowledge to bear upon the matter which is referred to them for their opinion. It is not sufficient to give some indications which is referred to them for their opinion. It is not sufficient to give some indications which can be observed even by a layman. In the case of Mahomed Syedol Ariffin Bid Mahomed Ariff vs. Yeah Ooi Gark (3) the docter had given his opinion that the person whom he had examined was of 21 years of age. When the doctor came in evidence he stated that he had formed that opinion by judging teeth appearance and voice of the person whom he had examined. It was observed by their lordships in the above circumstances that "in their Lordships" view such a certificate is worthless. It is in truth not a certificate but only an assertion of opinion. In Emperor vs. Qudrat (4) it was held that "it is true that the doctor is in a better position to form an opinion about the age of a person than a layman, but his statement is no more than an opinion. " In that case also the statement of Civil Surgeon was not relied about the age of a girl since he had not brought any scientific knowledge to bear upon his opinion. The same is the case with the statement of Dr. S. Gopinath. Her mere statement to the effect that girl's hymen was already reputed, or that her breasts were developed and public hair were present cannot help the Court to determine the question whether Mst. Sayidan was definitely under 18 years of age. These signs would be found even in women of much higher age. The only indication which she has given about the age of Mst. Sayidan is that of her teeth, which have been mentioned as 14 in the lower law and 14 in the upper jaw. This indication in itself is again not sufficient to come to the conclusion that the girl was definitely below 18 years of age. Modi in his Medical Jurisprudence (11th Edition) writes at page 28 as below: "the time of eruption of the third molar teeth or wisdom teeth is more uncertain. After the eruption of the second molar teeth the body of the jaw grows posteriorly and the ramus is elongated to make room for the appearance of the third molar teeth. Hence, during the examination of a minor for determining his age, a note should always be made as to whether there was a space in the jaw behind the second molar teeth, if the third molars were absent. These teeth are usually cut between 17 and 25 years of age. " In the present case, it was noted that there was a space for wisdom teeth though it was not further noted if the ramus had elongated to make room for their appearance. It is clear from what has been noted above that the third molars appear at any time between 17 and 25 years of age and in a case like the present one where even a space was found for wisdom teeth to appear, it can be said for certain that the girl must be under 18 years of age. It was unfortunate that the doctor only gave the lower limit of the age of Mst. Sayidan by saying that she was above 14 but she did not indicate the upper limit. Ex. P. 6 therefore can be helpful only for showing that the girl was not below 14 years of age, but it does not show if she was below 18 years of age. Dr. L. N. Gupta (P. W. 8) has stated that in his opinion Mst. Sayidan was about 16 years of age. He has given this opinion on the basis of X ray examination of Mst. Sayidan. According to him, he had arrived at the above opinion on observing epiphysial union of her joints of knees, elbows and hip joints. In his cross-examination he has stated that there can be no change after the union of the knee-joint by further age. He also says that after a joint is united, it remains as such for the rest of the life. The learned Sessions Judge has remarked, and rightly too, that this witness has also given a clear indication of the lower limit of the age of Mst. Sayidan, but his statement is not helpful in determining the upper limit of her age. It is clear from the statement of Dr. L. N. Gupta that he has not applied his mind to see as to which joints were not united and on whose basis is could be said definitely that she must be under 18 years of age. Modi in his book, referred above, has given a table (at pages 32-35) in which he has shown the appearance and fusion of some of the epiphyses at a particular age period, tor instance, he has pointed out that the fusion of crest of illium in females comes about between the age of 17 to 19 and in males between 19 to 20 years of age. P. W. 8 ought to have seen whether this or similar fusions were not made and then he could say for certain that Mst. Sayidan must be below 18 years of age. Unfortunately, his examination also only proves that the girl was not below 16 but it does not prove that she was below eighteen. His evidence is thus not very helpful and we do not feel justified in setting aside the finding of the trial court on the question of the age of Mst. Sayidan. The learned Judge had further chance of seeing Mst. Sayidan and judging the demeanour of the witnesses, who had appeared before him. As noted above, he has disbelieved Mst. Sayidan and Idi, because they tried to understate Mst. Sayidan's age. Once a witness tries to understate the age,it becomes difficult for the court to find out whether that under-statement is by 1 year or 2 years or 3 years. We do not mean to say that Mst. Sayidan must have been above 18 years of age at the time of occurrence. She may be slightly below 18 or she may be above 18. It was for the prosecution to prove beyond doubt that Mst. Sayidan was below 18 years of age and in our opinion it has not been able to discharge that onus satisfactorily. The kind of evidence which has been produced has not enabled us to determine Mst. Sayidan's age with any degree of certainty. Since the prosecution has not been able to prove Mst. Sayidan's age as being below 18 years beyond doubt, there is no justification for allowing the appeal. Before parting with the case, it may be remarked that we cannot also enter into the argument whether a case under sec. 498 I. P. C. is made out against accused Ibrahim, firstly because there is no complaint by Mst. Sayidan's husband as required by sec. 199 Cr. P. C. Infact, her former husband Jumma has not even been examined as a witness and Mst. Sayidan has sated that she has been married to another person after the occurrence. Secondly, there was no charge under sec. 498 I. P. C. against accused Ibrahim. Thus, there is no good ground for allowing the appeal and hence, it is hereby dismissed. . ;