Rustam and Meraj vs State of U.P.

Virendra Saran, J.—Rustam and Meraj have filed this appeal against the judgment and order dated 11.7.1986 of Sri I. J. Malhotra, VIth Additional Sessions Judge, Lucknow convicting and sentencing each of the Appellants to one year''s R.I. u/s 363, I.P.C. and to four years'' R. I. u/s 376, I.P.C. and to a fine of Rs. 31,000. In default of payment of fine, the Appellants were ordered to undergo further three years'' R.I.

According to the prosecution case, Km. Kiran and Km. Kumkum were daughters of Ram Charan and Naumi Lal respectively. Ram Charan and Naumi Lal were Central Bank employees and resided in bank quarters situated in Hazratganj, Lucknow. The quarters were situated facing each other. Appellant Rustam was running an optical shop in front of Central Bank, Hazratganj and Meraj was employed as driver in the same Bank. Both the Appellants were on visiting terms at the houses of these two girls and in due course Km. Kiran developed intimacy with Appellant Rustam while Km. Kumkum developed intimacy with Appellant Meraj.

The machinery of law was set in motion with the lodging of a joint F.I.R. by Ram Charan and Naumi Lal in which it was stated that on 26.12.1982 at about 11 O''clock in the night, the two Appellants had enticed away the their daughters named above. It was further stated in the F.I.R. that Appellants were visitors at the houses of the informants. On the lodging of the F.I.R., a case was registered and on 27.12.1982 the police recovered Km. Kiran as well as Km. Kumkum from the house of Appellant Meraj who was also arrested at 3.20 p.m. Both of them were medically examined by P.W. 8 Dr. Madhu Nigam on 26.12.1982 and their medical examination has been summed up by the learned Sessions Judge as under:

P.W. 8 is Doctor Madhu Nigam who medically examined both the girls namely P.W. 1 Km. Kiran and P.W. 2 Km. Kumkum. She prepared the medical reports after examination and found that both the girls were used to inter-course and has hymen old torn and healed up. She further found that their breast were well developed and auxilliary and pubic hair were black and scanty she has not given any opinion about the age of both the girls and referred the matter to the Radiologist for X-ray. Both these girls were examined by Dr. Madhu Nigam P.W. 8 on the next day, i.e., 27.12.1982. She prepared separate medical report and paper A3/19(7) was a medical report of Km. Kumkum and Paper No. A3/23/15 is the medical report of prosecutrix Km. Kiran. However, the prosecution perhaps inadvertently did not get the medical report of Km. Kumkum proved and only medical report of Km. Kiran was proved which is Ex. Ka-13.

Dr. Madhu Nigam had clearly stated that it was not possible to give a definite opinion of rape in view of the prosecutrix being used to sexual intercourse.

After completion of the investigation, a charge-sheet was filed against the Appellants and in due course they were committed to the Court of Session.

At the trial, the Appellants denied their guilt. In support of its case, the prosecution examined P.W. 1 Km. Kiran, P.W. 2 Km. Kumkum, P.W. 3 Ram Charan, father of Km. Kiran, P.W. 4 Naumi Lal, father of Km. Kumkum, P.W. 5 Raj Kumar, P.W. 6 Chhotey Lal, P.W. 7 S. I. Gaush Mohammad, the Investigating Officer of the case, P.W. 8 Lady Doctor Miss Madhu Nigam, who had conducted the medical examination, P.W. 9 Ajai Kumar who had conducted X-ray examination of the two girls for ascertainment of their ages. The defence examined D.W. 1 Raj Kumar. The learned Sessions Judge accepted the prosecution case and convicted and sentenced the Appellants. The Appellants have now come up in appeal to this Court.

I have heard learned Counsel for the Appellants and the learned State counsel and have perused the evidence adduced by the prosecution.

The anchor sheet of the prosecution in the case at hand is the evidence of P.W. 1 Km. Kiran and P.W. 2 Km. Kumkum. Their statements are in the same line and both of them have stated that they were friendly with the Appellants and that they and the Appellants decided to enter into marriage. Km. Kiran was keen to marry Appellant Rustam while Km. Kumkum was eager to marry Meraj. It is further stated by them that at about 3 p.m. both the Appellants talked to them and all of them settled that both the girls, namely, Km. Kiran and Km. Kumkum will elope with the Appellants at night. The witnesses have further stated that at about 11 in the night, the Appellants reached near their houses and called them in low voice. Both these girls stealthily came out of their houses and accompanied the two Appellants. First of all they had a cup of coffee at the shop of one Chhedi. Thereafter they went to the house of Meraj in Mohalla Chandganj on rickshaw and stayed there overnight in one room. There were two cots in the room. Kiran shared one cot with Rustam while Kumkum shared the other bed with Meraj in the same room. The two witnesses have further stated that they were not willing to sleep with the Appellants whereupon they were shown knife and hence they submitted and thereafter Rustam committed rape with Kiran while Meraj committed rape with Kumkum. Both the P.Ws. Kiran and Kumkum have stated that they never had sex prior of their being raped by the respective Appellants and due to rape, blood oozed out of their private parts and their clothes were soiled with blood. They have further stated that the police had taken possession of their clothes. According to these witnesses in the morning of 26.12.1982, Appellant Rustam went away for arranging some conveyance and thereafter at about noontime, the police arrived there and arrested Meraj, Kiran and Kumkum who were sitting and chatting there were also picked up by the police and on the next day, they were handed over to their parents.

Thus, the prosecution evidence itself is to the effect that both the girls, namely, Kiran and Kumkum had gone away with the two Appellants of their own will to get married with the Appellants and for that purpose, they accompanied the Appellants to the house of Meraj and stayed in a single room. Of course, their statement is that when the Appellants asked Kiran as well as Kumkum to share bed with them at night, they did not agree to sleep on the same cot with Rustam and Meraj respectively and then a knife was shown to them. The effort of these two witnesses has been to impress the Court that they were very pious souls. However, the medical evidence in this case goes to belie their claim. The doctor who medically examined them did not find any mark of external or internal injury over their persons. On the other hand, both these girls were found to be habituated to sexual intercourse and therefore, the doctor was not even in a position to say whether any rape had been committed with them or not. The medical examination report in this case leaves no room for doubt that both Kiran as well as Kumkum were girls of easy virtue and they had earlier indulged in sex several times and they had falsely stated in Court that it was for the first time that Rustam had sex with Kiran and Meraj had sex with Kumkum. It appears that both the girls were so shameless that they stayed overnight in the same room and had sex with the accused in the same room freely. I am not impressed by their assertion that any knife was shown to them. It appears that in order to purge their guilt or being tutored, they have come out with a case that a knife was shown to them. As a matter of fact, when they were arrested, no weapon of any kind was found in the house or in possession of Appellant Meraj. These girls choose to remain hidden inside the house of Meraj and they admitted that at the time when the police reached the house of Meraj, they were chatting with each other. Their statement that due to rape committed by the accused, there was bleeding from their private parts is also belied by the medical evidence. Not even a scratch was found on their body and no injury was found by the doctor on the private parts of both these girls. The evidence of these girls that their clothes were soaked with blood and were taken into possession by the Investigating Officer is also false. There is not even a whisper in the statement of the Investigating Officer that he ever took any such clothes in his possession. I am of the considered opinion that the story set-up by these witnesses that they were subjected to rape at the point of knife is totally false and further I am of the view that no bleeding had taken place from their private parts. On the other hand, both these girls were habituated to intercourse. For certain, both these girls were bad charactered and there is no truth in their assertion that they were forcibly subjected to rape. Both these girls have admitted that they had themselves decided to go along with the accused to enter into marriage with them. Kiran had agreed to marry Rustam while Kumkum had agreed to marry Meraj. It is admitted case of prosecution that they had gone away with the accused of their own free will. The circumstances further go to show that they were also consenting parties to the act of sexual intercourse, if any, by the Appellants.

The age of consent for the offence of rape is 16 years while for the offence of kidnapping; the age is 18 years. On the point of age, the prosecution solely relies on the X-ray examination of Kiran and Kumkum. The evidence of age furnished by P.W. 9 Dr. Ajai Kumar, who was posted as radiologist in the Balrampur Hospital, Lucknow is based on X-ray examination and fusion of bones. He stated that age of Kumkum was about 16 or 17 years while age of Kiran was about 15 to 16 years. The only basis of his opinion is stage of ossification of bones on one side of the limbs. It may be observed here that ossification of bones is one of the factors for determining age. Determination of age should be made not only on the basis of ossification of bones, but several other factors, such as general appearance, growth of body, and number of teeth, etc. Even radiological examination of one side of the limbs is not enough but X-ray reports of both sides of the limbs should be studied to determine the age which has not been done in the present case. Modi in his Medical Jurisprudence and Toxicology, 9th Edition on page 31 has emphasised:

...in ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken.

(Emphasis supplied)

It may further be pointed out that according to Modi, there is variance of age in different parts of India regarding fusion of bones. On page 34 of his book, Modi has given a table in which it is mentioned that in United Provinces (now Uttar Pradesh) the fusion of the distal ends of Radius and Ulna is to be found at the age of about 18 (18-19).

There is yet another shortcoming in this case. Normally, in cases where the prosecution relies on medical evidence of age, the doctor who had medically examined the concerned girl furnishes her/his opinion on the basis of all other considerations regarding the age of a girl. Though result of X-ray examination regarding ossification of bones has its own importance regarding the age of a girl, but it is not enough.

It is well-settled that there can always be a variation of two to three years in age with the medical opinion. In the case of Jaya Mala v. Home Secretary, Government of Jammu & Kashmir and Ors. 1982 SCC 502, the Supreme Court observed:

... 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...

The case of Jaya Mala (supra) has been relied upon in a number of judicial pronouncement by this Court. In the case of Ram Das and Anr. v. State of U.P. (XXVI) 1989 ACC 354 , Chaubey, J., relying on Jaya Mala''s case (supra) observed:

... 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. Conse-quently, her consent becomes material. As she was a consenting party, no offence of rape can be said to have been committed by the Appellants...

It is also surprising that when P.W. 9 Dr. Ajai Kumar was produced in Court to prove the X-ray examination reports, the two victims, namely, Kiran and Kumkum were not produced in Court so that the doctor may be able to say that these were the two girls who had been sent to him for radiological examination. The doctor has clearly admitted that Kumkum and Kiran were not before him. It is also noteworthy that no opinion about age has been sought from P.W. 8 Dr. Madhu Nigam. After all, Dr. Madhu Nigam had medically examined these two girls and had the occasion to see the general appearance of these two girls. She could have also deposed about the other factors such as number of teeth, general appearance of the girls and development of various organs of their body.

As a result of the discussions made, above, I am of the view that the prosecution has failed to affirmatively prove that Km. Kiran and Km. Kumkum were in fact minors. On the other hand, there is every likelihood that they had attained the age of 18 years and hence the Appellants are entitled to the benefit of doubt on the charge of rape as well as kidnapping.

The appeal is allowed. The conviction and sentence passed against the Appellants are set aside. The Appellants are on bail. Their bail bonds are discharged. Fine, if paid, shall be refunded to the Appellants.