STATE OF GUJARAT v. SALIM MOHMMED @ SALIM MUSIDSHA@ MEHBOOB SAIYED

CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 27/08/2008 CR.A/53519/1987 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) State of Gujarat, by the present appeal, calls into question the correctness of the judgment and order dated 5.05.1987 passed by the Sessions Judge, Baroda in Sessions Case No. 32 of 1987. By the impugned judgment, the learned Sessions Judge has acquitted the respondent – original accused of the charge of committing offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. Respondent - Salim Mohammed was tried on the allegation that on

12.12.1986 at about 8:00pm he kidnapped or abducted the minor Urmila (PW- 3), daughter of Chandubhai Motibhai (PW-2) from the lawful guardianship of her father with an intention to seduce her to illicit intercourse and took her to Badmar district of Rajasthan and ravished her without her consent and will. After trial, the learned Sessions Judge concluded that the prosecution has failed to prove beyond reasonable doubt that victim girl Urmila was below 16 years of age, that her conduct during the period she was in the company of accused did not convincingly establish employment of any deceitful means or application of force by the accused in her taking her away, and that the possibility of her being a consenting party in the sexual relationship with the accused cannot be completely ruled out. Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State of Gujarat, has argued that the Trial Judge has committed a fundamental error by proceeding on the premise that the girl kidnapped should be under 16 years of age for constituting the offence of kidnapping and acquitting the accused solely on the ground that the prosecution has not conclusively established that Urmila was below 16 years of age. Reading Section 362 of the Code, he has submitted that for a girl the age prescribed is 18 years and the prosecution has clearly established that Urmila was under eighteen years of age at the time of offence. CR.A/53519/1987 JUDGMENT We find considerable force in the submission made by the learned Counsel for the State. In view of the words “under sixteen years of age if a male, or under eighteen years of age if a female” occurring in Section 361, the question of proof of age assumes great importance. As observed by the Supreme Court in the case of Rammurthi vs. State of Haryana (AIR 1970 SC 1029) in case of prosecution under Section 366 the age of the victim girl is a very important factor, particularly so when according to the medical evidence she is found to have been used to sexual intercourse. The prosecution is bound to prove that age of the victim girl was below 18. We, therefore, propose to independently examine the evidence led by the prosecution to ascertain whether victim Urmila was below 18 years of age at the time of incident. On the point of determination of age of Urmila, the prosecution has relied upon evidence of witnesses Chandubhai Motibhai (PW-2), father of victim girl and Dr. Hitendra Chandrakant, (PW-1), doctor who carried out radiological examination of her bones, and a school leaving certificate (Exhibit 12). Complainant Chandubhai has stated that on the date of incident, her daughter was about 15 years of age and was attending school. He has also produced a school leaving certificate which shows date of her birth as

1.07.1991. In his cross examination, Chandubhai has admitted that he himself does not know the year and date of Urmila’s birth. He has also stated that he does not know who had gone to get Urmila admitted in the school. He has also admitted that he has no other document with him regarding the exact birth date of Urmila. The statement of age of a person in the school register, in the absence of evidence to show that on what material the entry in the register was made, has not much evidentiary value. It is a matter of common knowledge that the date of birth given at the timeof admission of a boy or a girl in a school is seldom a correct and authenticated date and, more often than not, the age given is less than the actual age of the child joining the school. Here Chandubhai has admitted that he does not know who got his daughter admitted in school and who furnished details as regards her date of birth which are being reflected in the certificate now tendered in evidence. We CR.A/53519/1987 JUDGMENT are therefore of the opinion that it would be unsafe to base any conclusion on the basis of such certificate. Now coming to the evidence of Dr. Hitendra, he has opined, on the basis of ossification test, the age of Urmila to be between 15 and 16 years of age. Margin of error in age ascertained by radiologist of two years on either side. It is well-known that owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of different States of India uniform standard for determination of age by ossification test cannot be formulated. Also, it is at best an opinion evidence. Medical evidence on age cannot be of mathematical precision and it is all the more risky to convict someone solely on the basis of medical evidence which is likely to vary. Therefore, in absence of any cogent evidence to establish the age of Urmila, we hold that the prosecution has failed to prove that Urmila was under 18 years of age at the time of incident. We have also examined the merits of the allegations against the accused in the backdrop of the evidence led by the prosecution to bring home the charge of offences under Sections 363, 366 and 376 of the Code. A person commits the offence of abduction when he by force compels or by deceitful means induces one to go from one place to another. For abduction, it is not necessary that person abducted should be minor or that he should be removed from the lawful guardianship of anybody. But where the prosecutrix leaves the house of her father out of her own free will, no abduction is committed. So far as offence under Section 366 of the Code is concerned, taking and enticing a minor out of lawful guardianship without such guardian’s consent apart, the prosecution must also prove that the accused induced by deceitful means or compelled by force the victim to go from any place and that such abduction took place with the intent that the victim may be seduced to illicit intercourse. In the present case, the prosecutrix, a grown up girl visited several places in the company of the accused and her conduct mutilates against the use of any force or fraud. She does not raise any alarm when the accused forcibly took her off the road on her way back to her house. Thereafter she walks with the accused from her village Kurali to village Timbarva and boards a bus from CR.A/53519/1987 JUDGMENT Timbarva at about 5:00am for Baroda. According to her, she informs the passengers in the bus about her being forcibly taken away by the accused but no one responds to her cry for help. They reach Baroda at about 7:00am and from the bus-stand board another bus for Ahmedabad. During this trip, she does not beg for help because she is not conscious. At Ahmedabad bus-stand she sees police persons but still does not inform them and the reason given by her is that she was not fully conscious. Then both reach the village of accused and stay at his house for about 8 days. During this period, she does not complain to anyone staying in the neighborhood and admits to have been treated nicely. She further says that on these days, the accused had sexual intercourse with her against her wishes and despite her resistance. Such conduct of the girl raises serious doubt about her credibility. Her unnatural conduct makes her whole story suspicious. It seems that she is not truthful and looking at her evidence it appears that she was a consenting party. Looking to the totality of the circumstances and the evidence on record, we feel that though the learned Sessions Judge has erred in considering the age of girl to be 16 years for the offence of kidnapping, the conclusion arrived at by him is not wrong or perverse. We agree with the findings recorded by the Sessions Judge that the prosecution has failed to prove its case beyond reasonable doubt. The evidence of prosecutrix does not inspire confidence and in absence of any other independent evidence, we are of the considered opinion that the Trial Court was correct in acquitting the accused. No interference is called for in this State appeal and the same is accordingly dismissed. Bail bonds stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd