Shanti Devi Shrivastava and Another vs State of Madhya Pradesh

R.P. Gupta, J.

This appeal is directed against Judgment dated 31-5-1991 by 4th Additional Sessions Judge, Bhopal, in Sessions Case No. 62/90 whereby three appellants were convicted for the offences punishable under sections 363 and 366, Indian Penal Code and sentenced to R.I. for 4 years on both counts, each.

The learned Additional Sessions Judge found that these accused/appellants had enticed away a minor girl namely Jyoti who was allegedly between 16 to 18 years at the relevant time i.e. 1-12-1989. These accused Shiv Prasad and Shahti Devi are tenants in the house of parents of the victim Jyoti in Bhopal and they persuaded her to go from her parents house and took her to Nandgarh, Distt. Sidhardh Nagar (U.P.) and persuaded her to stay with the third accused Shyam Narayan, the appellant, who established sexual relations without marriage although there was a promise of marriage given to her. She was recovered from house of one Shri Kishore Shrivastava on 10-1-1990 by the Police. The learned Additional Sessions Judge found her to be minor less than 18 years on the relevant date of her being enticed away.

This appeal can be disposed of on discussion of evidence of age of the girl. The girl has appeared in the Court as P.W. 5, her brother Pradeep Kumar, aged 27 years as P.W. 2 and her mother Smt. Sita Devi as P.W. 3 has appeared in the Court. Besides, one more relevant witness in regard to age is Head Master of Government Middle School, Chandbad, Bhopal. He appeared as P.W. 6 in the Court. The prosecutrix remained admitted there in the school and her progress report has been produced by Head Master regarding Class-I. The progress report pertains to the year 1981-82 wherein the date of birth is shown as 26-9-1973.

One more piece of evidence regarding her age is medical opinion based on X-ray examination of joints to find out fusion of epiphysis. The doctor opined that her age to be between 161/2 to 171/2 years. The opinion report was dated 15-1-1990. She found that head of humorous bone had become fused and lower ends of radius was also fused. The mother of the girl in her evidence says that her other brother had gone to school for admission of the girl and she had given him the girl''s date of birth by approximation, and the brother got recorded the date of birth of the prosecutrix. The Head Master says that he was not working in the school at the time of admission and according to the procedure of the School, any date of birth, which is recorded in the admission-form of the student is accepted at the time of his/her admission. No further enquiries were made. The admission form of the girl/prosecutrix had not been produced. It is not stated which brother went to School to get her admitted. The evidence of the mother is that she has 7 children, eldest of whom is 32 years. But the brother Pradeep P.W. 2 has stated that the age of eldest brother is 34 years and the gap between the children is about 2 years downwards. He narrated that her sister Jyoti is about 4 years junior to him, as there is one more child between him and Jyoti. Pradeep himself has stated his age was between 21 to 22 years on 18-6-1990 when he was examined in Court.

It is thus clear from the perusal of evidence on record that the evidence of age is only by approximation. So far as the school record is concerned, we do not know which brother got it recorded, that brother could hardly have any exact knowledge of the date of birth. Probably, the mother gave that information to him just by approximation. The mother does not know what is the actual date of birth, nor she knows which date she gave to her son to be recorded about admission of the prosecutrix similarly, the opinion of the doctor is based on approximation and is never an exact proof of date of birth. Even the opinion that her age is 161/2 to 171/2 years cannot be counted as the opinion of two definite extreme limits of her age. The possibility of variation always exists considering the climatic conditions, bringing up, heritage and dietary habits of the concerned person as also the genetic background. The medical opinion of the age of the prosecutrix, when the age is on border lines of minority and majority, is by itself, never accepted as proof beyond doubt for convicting the accused persons on proof of minority of the girl.

This is a case where the age is border line. The girl might have been 18 years or might have been 17 years. The mother says that she was born in a hospital in Bhopal. If so, the date of birth of the child must have been recorded in hospital because the hospital authorities always keep its record. She must have told the investigating officer about the birth of the girl in hospital. The Investigating Officer has not disclosed what efforts were made to find her birth from the hospital records. In a city like Bhopal when the birth takes place in a hospital, it is duty of the hospital to convey it to the Municipal Authorities. According to the mother, this girl was born in Central Hospital, Bharat Talkies area, Bhopal. So, best evidence has been withheld. So proper proof of age has not come. So far as the school record is concerned, it is based more on assumption on which we cannot rely. Similarly, the medical opinion, in this case, is insufficient basis to reach conclusion beyond reasonable doubt. The net result of above discussion is that there is no proof beyond doubt about the age of the girl being less than 18 years on 1-12-1984 when she had been enticed away.

It is well established principle of criminal jurisprudence that in order to establish an offence, the prosecution must prove every ingredient of the offence beyond reasonable doubt. In case of abduction of girls, the age being less than 18 years is an important ingredient, which must be proved beyond reasonable doubt. The evidence in the case has remained in the category of assumption and not proof beyond reasonable doubt. The appellants/accused are, therefore, entitled to benefit of doubt on this count alone. I need not discuss any other evidence on merits of this case, as there was no allegation of use of force or fraud in taking away the girl except her being enticed away by simply suggesting that it would be best for her if she went from her parents house. If the girl was major, not minor, at the relevant time, she went of her own will, lead by the representations of some of the accused. There was then no offence. The appellants are entitled to benefit of doubt.

The net result of my discussion above is that the conviction of the appellants under sections 366 and 363, Indian Penal Code cannot be upheld. The same is set aside. The appeal is accepted. The accused are ordered to be set at liberty.

Warrants of release shall be sent to the concerned authorities for the release, at once.