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Judgment
Srinivasan, J.—We have passed a detailed order on 30.9.1994. As counsel on both sides represented to us on that day that there was a
likelihood of a settlement between the parties, we passed that order making certain suggestions and also adjourned the matter to enable the parties
to come to an amicable settlement. Now it is reported that the settlement was not possible as the daughter of the Petitioner refused to sign a Deed
of Relinquishment.
The fact that the daughter of the Petitioner has refused to sign the Deed of Relinquishment is wholly irrelevant for the purpose of this case as it is
entirely out sick the scope of the present proceeding. We ventured to refer to the execution of the Release Deed only because the counsel
indicated that there could be a settlement on the lines stated in the said order and a suggestion followed from us. We must point out that all the
parties concerned were present before us on that day and only after ascertaining from the parties, counsel made such representation to us. Now
that there is no settlement, the only course open to us is to dispose of this petition on its merits.
As pointed out by us in the said order, dated 30.9.1994, we have before us two certificates issued by two different schools regarding the age of
the daughter of the Petitioner and a certificate issued by a Police Surgeon who is a Professor of Forensic Medicine, Stanley Medical College.
According to the earliest school certificate, the girl has already attained eighteen years and she is a major. According to the later school certificate,
she is yet to attain majority. As already stated, the Petitioner is not in a position to state the correct date of birth of his daughter. No birth certificate
is made available to us. In the circumstances, the certificate issued by the Police Surgeon assumes importance. It is seen from the certificate that the
said Police Surgeon has carried out both physical and radiological examination on the daughter of the Petitioner. The report attached to the
certificate shows that all the relevant tests have been performed by him. It is seen that the most essential test which is said to be the Ossification
Test has been carried out and the report shows the fusion of the relevant bones. Out of twenty items mentioned in the report, as many as eighteen
have fused and with regard to two items, there is no such entry in the report. For one of them, the normal age of fusion is twenty years. Hence,
naturally, there is no entry. With regard to another of them, for which fusion will take place after twenty years, normally, the entry is ''Not clear''. In
those circumstances, we prefer to rely upon the certificate issued by the Police Surgeon who is a Professor of Forensic Medicine, Stanley Medical
College, particularly as it corroborates the certificate issued by the school to which the girl was admitted in one first instance.
Apart from that the Panchayat Muchalika produced by the first Respondent shows that several villagers have signed the same and the Petitioner
has also signed it. We have already referred to the fact that the Petitioner admitted before us that there was no enmity between him and the
villagers who have signed the said Muchalika. Hence, we are not prepared to accept the version of the Petitioner that he was forced to sign a
blank paper and the Muchalika was filled up by the villagers later. The place in which the signature of the Petitioner is found in the Muchalika also
shows that he did not sign a blank paper and he signed it only after the contents were written. We are of the view that if the girl had not become a
major and if the Petitioner had not expressed his consent for the marriage of his daughter with the first Respondent the Panchayat Muchalika would
not have been brought into existence and so many villagers would not have signed the same. The Petitioner is not able to give any reason whatever
as to why almost all the villagers should turn against him and be party to the document which according to him, is against his will and forced up.
Learned Additional Public Prosecutor has brought to our notice the judgment of the Supreme Court in Sidheswar Ganguly Vs. The State of
West Bengal, When the question of age of one of the victims who was alleged to have been raped arose for consideration, the Supreme Court
stated thus:
Lastly, we do not find anything basically wrong with the direction in the charge to the jury as regards the age of the girl Sudharani and as to the
nature of the evidence to prove her age. The learned Judge pointed out the several items of evidence which had been adduced by the prosecution
bearing on the question of the girl''s age. The only conclusive piece of evidence may be the birth certificate, but, unfortunately, in this country such a
document is not ordinarily available. The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining
all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. The girl''s father was
dead. Her mother apparently has left her to her own fate, and according to the evidence of the police, the mother''s whereabouts were not
traceable. It was sought to be argued that the police officer who himself made the inquiry, should have been examined, otherwise, the result of the
inquiry is a mere hearsay. An inquiry whether made by one or the other police officer, would, almost in every case, be the result of hearsay. The
girl is said to be a displaced person. The difficulty of tracing evidence of the parents of such a person is all the greater. Hence, in all the
circumstances of the case, the learned Sessions Judge has not committed any error in this part of his charge to the jury. On this part of the case, the
learned Judge gave the following concluding directions:
In criminal trial the accused must get the benefit of doubt and there should not be any conviction unless it can be clearly and unequivocally said that
the age of the girl was below 16. But, gentlemen, in this case you have seen the girls, you have heard the evidence of the experts and you should
also take into consideration the various factors found out in cross-examination and in considering all these facts you can arrive at the conclusion
that Sudharani Roy was under 16 years of age on the night of the occurrence on 20th April, 1954, taking into consideration the facts that
ossification test is not a sure guide, even in spite of this, you can come to the conclusion that Sudharani Roy was under 16 years of age on the night
of the occurrence, i.e., on 20th April, 1954. I would tell you, gentlemen, that the question of consent would be immaterial.
In our opinion, the learned Sessions Judge placed the evidence pro and con very fairly and fully, and left it to the jury to come to their own
conclusion. According to the medical evidence, Sudharani was between 13 to 14 years of age on the relevant date, whereas the other girl in
respect of whom, the accused was acquitted, was found by the medical test to be between 15 and 16 years. The jury, therefore, took the common
sense point of view and appeared to have come to the conclusion that Narmaya may well have been above 16, and that, therefore, the accused
could not be convicted for rape on her. In respect of the girl Sudharani, they may have come to the conclusion that she was not above 16, and
that, therefore, the prosecution had succeeded in bringing the charge home to the accused. We have read the charge of the learned Judge to the
jury more than once, and, in our opinion, it is a very fair and full charge, erring more on the side of verbosity than of brevity.
Our attention is also drawn to another judgment of the Supreme Court in Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir
and Others, The question was whether the detenu in that case who was detained under the Jammu and Kashmir Public Safety Act (6 of 1978) had
become a major. While referring to the evidence available on record, the Supreme court observed:
But there is a greater infirmity which strike at the root of the order. It is alleged in the petition that detenu was a minor aged about 17 years at the
time of arrest and detention and that it is difficult to even conceive that this school going minor boy would indulge into such activities as to be a
serious threat to the maintenance of public order. In para-7 of the petition, it is alleged that the detenu was not even 17 years of age at the time of
his detention. In the return filed on behalf of the State, the only assertion is that this averment is misconceived and needs no reply. But in para-2 of
the return under the heading, ''Paragraph-wise reply'' it was denied that the detenu was a minor and it was further averred that his age was between
18 and 19 years. In support of this averment reliance was placed upon report as to the age issued by Dr. T.R. Sharma attached to Government
Medical College, Jammu. Dr. Sharma appears to have examined the detenu for ascertaining his age by radiological and orthopedic test on May 3,
1982. The relevant portion of the report reads as under:
Epiphysis around ankle, lencem wrist, elbow and shoulder joints have appeared and completely fused. Epiphysis for iliac crest has appeared and
partially fused. Radiological age is between eighteen and nineteen years.
Detenu was arrested and detained on October 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date
of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even
on normal calculation, if seven months are deducted from the approximate age opined by the expert, in October 1981, detenu was around 17
years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice
that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young
school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic
about the student''s rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be
visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a
little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly
unwarranted and deserved to be quashed.
The above rulings show that the question of age of a particular person has to be decided on the basis of the evidence on record and all the facts
and circumstances of the case. We have already referred to the availability of the said certificate issued by the Police Surgeon which is in accord
with the certificate issued by one school. We have also referred to the Panchayat Muchalika which discloses that the Petitioner agreed for the
marriage of his daughter with the first Respondent.
In view of the facts and circumstances, we are of the opinion that the Petitioner''s allegation that his daughter is a minor and the first Respondent
is keeping her in illegal custody, is not proved. Hence the writ petition has to fail and Habeas Corpus Petition is hereby dismissed. There will be,
however, no order as to costs.
The Petitioner''s daughter Illamalli who was directed by us to be kept in the Government Observation Home for Girls, 153, Purasawakam High
Road, Madras, is hereby set free. She is entitled to go to any place, she chooses.