K. S. LODHA, J. - (1.) THE facts giving rise to this appeal may briefly be stated here. THE house of the deceased Dhandu Ram is situated in Chak 9 BGO in Murabba No, 170/384. Adjoining his Murabba, is the murabba of Ishwar Singh, the first informant in this case. Dhandhu Ram's grand-daughter Kumari Usha had come to live with him for the last 3-4 months. Dhandhu Ram had a 'dharam-bhai' called Anoop Singh. His son Anek Singh had also been living in the vicinity and Aneksingh's younger brother Ramsingh had come to live with him for the last 5-6 days. THEy originally belonged to Kangra. It is alleged that on the evening of 18. 3. 84, Ram Singh had gone to Dhani of Dhandhu Ram and had drinks with him. In the next morning, when Dhandhu Ram or his grand-daughter Kumari Usha did not come out of the 'dhani' till about 9. 00 AM, Ishwar Singh called them out, but getting no response, he along with Rania Ram, Amar Singh Anek Singh and Manoharlal went to the 'kotha' of Dhandhu Ram. THE door of the 'kotha' was found shut, but not locked. When they opened the doors, they found the dead-body of Dhandhu Ram lying on the floor with injury on the forehead over the right eye-brow and some blood was lying on the ground. Ram Singh and Kumari Usha were also not there. This gave rise to the suspicion that Ram Singh had abducted Kumari Usha in the night after killing Dhandhu Ram. Ishwar Singh lodged the report to this effect at Police Station, Vijaynagar on 19. 3. 84 at 4. 00 PM. THE police registered a case for offence under sec. 363, 366 and 302, I. P. C. and started investigation.
(2.) IT appears that the accused Ram Singh along with Kumari Usha was found in suspicious circumstances at village Chamba on 7. 4. 84 and was arrested under sec. 41/109, I. P. C. The Police head constable Sadiq Khan of Polic Station Vijaynagar obtained the Custody of the accused Ram Singh under the orders of the Chief Judicial Magistrate, Chamba on 11. 4. 84 and arrested him in connection with this case. IT also appears that Sadiq Khan also took Kumari Usha in his possession and handed her over to Aneksingh. The statement of Kumari Usha was recorded and she was also got medically examined to ascertain her age. Ramsingh was also got medically examined. After completing the investigation, the police put up a challan against the accused and he was committed to the court of Addl Sessions Judge, Raisinghnagar. Learned Additional Sessions Judge framed charges under secs. 366, 376 and 302, I. P. C. against accused Ram Singh. He pleaded not guilty and was, therefore, tried. The prosecution examined 10 witnesses. Thereafter the statement of the accused was recorded, who maintained his denial of the prosecution story, but did not produce any evidence in defence. He had, however, admitted that Usha had eloped with him and he had not abducted her. According to him, she was major. The prosecution had also produced 17 documents. After concluding the evidence and hearing the learned Public Prosecutor and the learned counsel for the accused, the learned Additional Sessions Judge, Raisinghnagar found the accused guilty for offence under sec. 366, 376 and 302, I. P. C. He sentenced him to 7 years' rigorous imprisonment and fine of Rs. 500/- under sec. 376, I. P. C. He further sentenced him to seven years' rigorous imprisonment and a fine of Rs. 500/- under sec. 366, I. P. C. and also sentenced him to imprisonment for life and a fine of Rs. 1000/- under sec. 302, I. P. C. by his judgment dated 3. 5. 85. Aggrieved of this, appllant Ram singh come up in this appeal. We have heard learned counsel for the appellant and the learned Public Prosecutor and have gone through the record. It is contended by the learned counsel for the appellant that the learned Additional Sessions Judge was entirely wrong in holding that Kumari Usha was less than 18 years of age and, therefore, even if she was a consenting party to her abduction and rape, her consent would not avail to the appellant and thus holding him guilty under see. 366 and 379, I. P. C. He further contended that even if it is believed that it was the accused, who had caused injuries to deceased Dhandhu, he could not have been convicted under sec. 302, I. P. C, but could have been convicted only under sec. 304, Part II, I. P. C. Learned Public Prosecutor, of course, tried to support the findings of the learned Additional Sessions Judge. We have carefully considered the rival contentions. We find that there is force in the contentions raised by the learned counsel for the appellant. The learned Additional Sessions Judge has accepted the medical evidence with regard to the age of Kumari Usha, but has discarded the statement of Kumari Usha herself, who has stated her age to be 18 years, when she was examined by the court. He also over-looked the facts that the medical evidence itself was not definite about the age of Kumari Usha inasmuch as Dr. S. L. Kaushik (P. W. 8) had clearly admitted in his cross-examination that the age estimated by him could be variable by 2 years on either side; therefore, if two years were added to the age estimated by the medical evidence which was 16 yers it may come to 18 years. Then the proscution has supressed the most material evidence regarding her age by not producing her school certificate. She admits having read upto VIII Class. Her parents, though living have also not been examined, in this state of affairs it cannot be said for certain that the prosecution has been able to establish beyond doubt that Kumari Usha was less then 18 years of age at the time of this incident. That being so, the further question arises whether she had been abducted and subjected to forcible intercourse without her consent and against her wish? In this respect, some very significant circumstances are available on the record, which would go to show that she was a consenting party and it is a case of elopement and not abduction and rape. From the evidence, it clearly appears that she does not appear to have raised any hue and cry either at the time she is alleged to have been pulled by Ramsingh from the cot of the deceased or when he was trying to forcibly have intercourse with her. Had she raised any alarm at that time, her grandfather Dhandhu Ram would immediately have got up and that may also have attracted the neighbours Aneksingh and Isarsingh etc. , but this was not so. On the other hand, she stated that it was only when the act of intercourse was complete that her grandfather woke. Not only this, she does not appear to have raissed any hue and cry when she was taken away by the accused through the village, otherwise that would also have attracted the naighbours. The matter does not rest here. It also appears that after leaving the house of her grand-father with the accussed she was left alone by the accused in a field about one murabba away from Ramsingh's Dhani, when Ramsingh had gone to his Dhani to have the attache. When Ramsingh came back after taking attache, he held the attache in one hand and a bag in the other and she accompanied him empty-handed first to Kalyankot and than to Suratgarh, but she nevar tried to escape on the way or raised hue or cry. Not only this, at Suratgarh she had gone to see a picture in the cinema hall along with accused and some other ladies. She had ample opportunity to complain to those ladies or other persons, who had come to see the picture, but she does not appear to have done so. The matter does not rest here After leaving Suratgarh she went along with accused to Pathankot, Kihar and Chamba, but at no place of stage, she ever complained against the accused. She along with the accused had been arrested under sec. 41 read with 109 at Chamba, but she does not appear to have complained against the accused even at this stage before the police. Not only this, her statment was recorded before the Magistrate, Chamba, but still she kept silence All that goes to show that she was a willing party to go with the accused and submit herself to sexual intercourse willingly. It cannot, therefore, be said that she was abducted or raped. The finding of the learned Addl. Sessions Judge that her consent was of no avail to the accused is meaningless when it has been shown that the girl Kumari Usha could be more than 18 years of age.
(3.) WE are, therefore clearly of the opinion that the convictions of the appellant under secs. 366 and 376 are not well-founded. That brings us to the question about the nature of the offence with regard to the injuries caused to Dhandhu Ram resulting into has death. The injuries have been described in the post-mortem report, as under :- "1. stab wound triangular in shape 3/4" x 1/3" on the outer side of right eye. Right eye is swollen and (2 ). Bruise with swelling 2-1/2"x1-1/2" Right temporoparietal area. " While describing the nature of injuries after opening the body, under the head 'scalp, skull and vertabrae', it has been stated that there is collection of blood under the right temporalis muscle, vertical fracture of right temporal bone in lower part with no displacement or depression of fragments. Under the head 'membranes', it has been mentioned durameter separated from skull by collection of blood; there is laceration of anterior branch of middle meningeal artary on right side. The cause of death has been described as respiratory failure and shock resulting from compression of the brain as a result of extradural haemmorrhage on the right side of the brain. When examined in court, Dr. Dalveer Singh (P. W. 4) merely stated that he had notod the injuries in the post-mortem report Ex. 9 and then repeated the cause of death. He, however, does not stated that any of these injuries was sufficient in the ordinary course of nature to cause death. ;