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Criminal Appeal No. 370 of 1965, decided on 31st May 1967.
Ss. 363 & 366‑Kidnapping Abduction ‑ Age of girl‑Father of victim girl giving different versions in F. l. R., committing Court, and trial Court‑Both parents not precise about their own ages‑Birth and school entry suspicious, medical evidence and ossification test unconvincing‑Prosecution version of girl being below 16 years, disbelieved in circumstances.
Ghulam Rasul and others v. Crown 2 P C R 225 ; Sk. Harem Ali and others v. Emperor (1946) 47 Cr. L J 325 and Debaprosad Bose v. The King 54 C W N 329 rel.
, S. 366‑Kidnapping‑Abduc tion‑Victim girl once taking stand of having been taken away deceitfully, next stating that she was taken away by force‑Deception story resting on solitary statement of girl without corroboration Girl's own character open to suspicion‑Abductor and abducted both teen‑aged and possibility of love , affair not ruled out Exercise of deceitful means, in circumstances, held, not proved beyond reasonable doubt.
, S. 45‑Expert evidence‑offence of kidnapping‑Age of victim girl‑ Oss1fication test‑Held, not very much advanced in fixation of age of girl‑Penal Code (XLV of 1860), S. 361.
Promode Chandra Bose with B. K. Das for Appellants.
S. S. Huda for the State.
There are two appellants before us, namely, Rajat Kunda alias Ranajit and Sachin Ghosh alias Sachindra Nath Ghosh. The first appellant has been convicted under section 366 of the Pakistan Penal Code and sentenced to rigorous imprisonment for 5 years and the appellant No. 2 Sachin has been convicted under section 366/109 of the Pakistan Penal Code and sentenced to rigorous imprisonment for 2 years by the Assistant Sessions Judge, Bogra.
The circumstances, as alleged, are that P. W. 4 Moslems Khatun alias Komal is a daughter of complainant 3'. W. 1 Dr. Majibar Rahman. She is a minor girl of about 14 years of age and lived with and under the guardianship of her father P. W. 1 in his house at Sibbati area of Bogra town, in November 1964, Moslema Khatun was a student of Bhendari Girls' High School in Bogra town. The School is situated towards the north from the house of the complainant. The road to go to that School is via Kalitala Hat of the town and the school sits in the morning of every Friday. On Friday, the 13th of November 1964 at about 6‑30 a. m. Moslema Khatun went to school from their house at Sibbati. The complainant, father of the girl is a medical practi tioner of the town and also does contract business. At about 2‑30 p.m. he returned home after his work and learned that Moslema Kbatun had not returned home from school. So he went out in search of her in the houses of his neighbour and relations with out any success. In the afternoon he reported the missing of his daughter Moslems Khatun to P. Ws. 12, 16, 11 and others. Subsequently, he also informed P. W. 2 and P. W. 15, Mokbul. From Mokbul became to learn that 5 accused persons, three of whom have been acquitted and are not before us,, had taken away Moslema Khatun to India. P. W. 2 told him that he saw the accused persons to take Moslema Khatun with them. Thereafter, on 16‑11‑64 the complainant lodged the written ejahar, Exh. 1 at Bogra Police Station. In the evening of the 16th November 1964, a baithak was held in the house of Dr. Mathur situated in front of the house of the complainant. In that baithak, the accused Sachin, appellant before us, Bhabesh, Hiren and Panchanan were present. In presence of the persons holding the baithak, these four accused told that they helped the accused Kajat to take away Moslema Khatun to India. Appellant Sachin further told that he escorted Rajat and Moslema Khatun up to Hili border. The accused Bhabesh further told that he gave Rs. 50 to Rajat to meet his expenses on the way.
Thereafter, the complainant received the letter Exh. 3 written jointly by the accused Rajat and P. W. 4 Komal from Calcutta. The complainant replied to them by a letter. There. after, he got another letter from Calcutta Exh. 3(a) from the appellant Rajat subsequently, the complainant wrote another letter to Moslema informing that Rajat had come to Bogra and had been placed under arrest and advised her to come back home. By that letter the complainant informed that some body would be going to Hili station to escort her to Bogra. Accord ingly, P. W. 9, Nurul Alam, brother of Moslema attended Hili station for several days and at last on 11‑4‑65 he found Moslems Khatun there and brought her back to their house in Bogra town. On her return Moslema stated to her parents that she had friend ship with Rajat's sister Sankari and with her she visited Rajat's house on several occasions. During her visit to that house, Rajat used to speak very highly of Calcutta and used to tell her that he would take her to Calcutta and get her engaged in a cinema company and then they would have much money. She further stated to them that on 13‑11‑64, that is, the date of occurrence when she went to school in the morning she found the accused persons on the road and they told her that she must accompany them to Calcutta. There after, they took her to Bogra railway station where Babesh gave Rs. 50 to Rajat to meet the expenses on the way. Thereafter, she was taken by Rajat to Bamandanga railway station via Bonarpara. The appellant Sachin also accompanied them. The other three accused only saw them of at Bogra railway station. From Bamandanga railway station she was taken to the house of a relation of Rajat in Mirzapur and there they stayed for few hours. There after, they came back to Bamandanga railway station in the evening and from there she was taken to Rangpur by train where they spent the night at the waiting room of Rangpur railway station. By the morning train she was taken to Hili. Appellant Sachin accompanied them up to Hili railway station. The appellant Rajat crossed the Hili border taking her with him. Thereafter he took her to Balurghat, Coochbehar and then to Calcutta. At Calcutta, Rajat hired a room in the house of one Jatadhar at 15, Huge Road, in that room she and Rajat shared the same bed and it is alleged that Rajat forcibly had sexual intercourse with her against her will. Nothing what so ever was done to realise the hopes raised in her mind to become an artist in Calcutta. .One day appellant Rajat left her behind at that house. Thereafter she got her father's second letter informing about the arrest of Rajat at Bogra and advising her to come back home. Thereafter on her repeated request, an old man of that house in which she lived took her up to Hili border where she found her brother P. W. 9 Nurul Alam and came back home with him.
Police investigated the case, seized some letters and other things, examined witnesses and got the girl Moslema Khatun medically examined. Thereafter, on completion of investigation and submission of charge‑sheet against the 5 accused persons including the two appellants, a competent Magistrate held pre liminary enquiry into the case and on being satisfied about the Prima facie case he committed the 5 accused to the Court of Sessions for trial.
On the above allegations, the appellant Rajat was charged under section 363, P. P. C. for kidnapping P. W. 4 Moslema Khatun, a minor girl below 16years of age from the lawful guardi anship of her father and the rest of the accused were charged under section 363/100, P. P. C. Raja was alternatively charged under section 366, P P. C. for abducting P. W. 4 Moslema Kbatun with the intention to have illicit intercourse with her. Appellant Sachin along with other 3 accused stood charged under section 366/109, P. P. C. for abetting the commission of the offence of abducting P. W. 4 Moslema Khatun by the appellant Rajat.
All the accused pleaded not guilty to the charge. They denied that Moslema Khatun was a girl below 16 years of age. On the other hand, they contended that she was about 18 years of age. The case of appellant Rajat was that P. W. 4 Moslema Khatun was very intimate and was in love with him. She used to go to see pictures with him and to picnics with him and used to visit Puja celebration in his company. Moslema Khatun out of her love with Rajat, herself left her father's house and went with Rajat. It was denied on behalf of appellant Rajat that he ever gave any false hope or took her away by any deceitful means from her father's guardianship. The other accused person including appellant Sachin denied to have abetted or in any way helped Rajat in the matter of taking away Moslema Khatun.
Prosecution examined 24 witnesses, defence did not examine any witness although they filed several documentary evidence side by side with the prosecution, particularly on the point of the age of the girl. The trial was held with the aid of four assessors all of whom found the appellants guilty under section 363 and 363/109, P. P. C. respectively. The learned Assistant Session Judge, however, convicted the two appellants as above under section 366, P. P. C. and 366/109, P. P. C. respectively on the basis of his finding that the girl was over 16 years of age and that she was taken deceitfully and acquitted the 3 other accused.
Mr. P. C. Bose, learned Advocate appearing for the two aggrieved appellants, has taken us through the judgment evidence and other records of the case. He has in substance argued that the girl having been found to be over 16 years of age by the learned Assistant Sessions Judge, the only question was a3 to whether she was taken by force or deception. He has urged that no case of force or deception has been made out, particularly by reason of the contradictory stand taken by the girl herself, having regard to the evidence that while she stated in examination‑in chief that she was deceitfully taken, in her cross‑examination she stated that it was by force that she was taken by the appel lant Rajat.
On the other hand Mr. S. S. Hoda, learned Advocate appearing for the state, has urged that the learned judge's finding as to the above age of the girl namely, above 16, was erroneous and that the question of her consent or otherwise was altoge ther immaterial. The crucial question, therefore, is that of the age of the girl.
Section 366, P. P. C. applies where a woman is taken by force or deceitful means with intention to marry her against her will or for illicit intercourse. The age of the girl being seriously disputed, it will be our endeavour first to closely examine the finding of the learned Assistant Sessions Judge on this point and to try to assess for ourselves the age of the girl and thereafter to ascertain whether she was taken by force or by deceitful means for illicit intercourse as alleged in the present case.
On the point of age, it appears that 3 categories of evidence have been brought forward viz. documentary, medical opinion and parents' statement.
The evidence of P. W. 1, the father and P.W.10 the mother as the he stated the age of the girl which is entitled to the higher consideration does not seem to be satisfying enough. So for as the father goes he has given the age of the girl as 14 years 7 months on 26-5- 65 in the committing court where he deposed on 7-5-65, he stated the age of the girl as 14 year In the ejahar Exh. 1 lodged by him on 16‑I1‑64 he stated the age Khatun as 13 years.
There is clear attempt all the time to bring down her age as far as possible and to keep it any how under 16 years. It is rather unusual for a father to be so shaky about the exact age of the girl. The evidence of P. W. 10, the mother was that Moslema Khatun was 14 years 6 months old on 28‑7‑65. The documentary evidence Exh. 6, is the entry in the hat‑chitta maintained by Mohalla Chowkidar. This entry shows birth of a daughter to P. W. 1 Majibar Rahman on 3‑3‑51.' is accepted the girl will, of occurrence but the chowkidar has not been examined particular hat‑chitta against this Exh. 6 number in the register of birth maintained to the thana. So, there can be no doubt that the date of the birth of this particular daughter of Majibar Rahman has also been entered in the register of births maintained is the thana. A certified copy of that register as well might have been produced to support the entry, Exh. 6. On the other hand, Exh. C, certified copy of register of births of Bogra thana bearing No. 37 of 1951 does not relate to any of the daughters of P. W. I Majibar Rahman. There is, thus, no force in the hat‑chitta, Exh. 6, on the point of the age of the girl, being below 16.
Another document, namely Exh. 5 as produced by the prosecution, is the certified copy of the register of admission of Muslema Khatun in Dhandari Girls High School. This entry, Exh. 5, in the school admission register shows the date of birth as 24‑3‑51. There is nothing to show the basis or by whom the date of birth as given in Exh. 5, was supplied to the school.
Moreover, there is a variance between the age sought to be established by Exh. 6 and this present Exh. 5. So far as the medical examination goes, the girl was first examined by P. W. 19, Dr. Muhammad Shaokat Ali, Sub‑Assistant Surgeon of Muhammad Ali hospital, Bogra on 16‑3‑65. On examination of Muslema, be found 28 teeth 14 x 14 in each jaw. Axillary hair fully grown. Breasts fully developed. Pubic hair fully grown. Vulva well developed. He further found that there was sufficient space for wisdom tooth, and she was above 15 years of age. On 16‑4‑65. In cross‑examination he admitted that normally up to 17/18 years of age persons generally have 28 teeth and wisdom tooth comes out after 18 years of age. Now this expression "above 15 years of age" means nothing. It may be above 16. It may be 17, it may be 18. At any rate, above 15 does not surely mean that she was below 16 years of age.
P. W. 13, another doctor, Assistant Radiologist at Rajshahi medical college held ossification test by X‑ray examination of Moslema Khatun on 15‑7‑65. He found epiphysis of lower end of humerus, opiphysis of the head of radius end of femer media epicondyble of humerus proximum and distal epiphysis of tribia all united with the corresponding shafts. But he found compound epiphysis of the head of the humerus distal ends of the radius, ulna and of femer proximal epiphysis of the fabula and eliacrest not yet united with the shaft. But he found epiphysis of the head of the distal ends of the radius. On the above basis he gave the opinion that Moslema Khatun on the date of examination, namely, 15‑7‑65 was below 16 years but above 15 years.
This again is an absurd position. The ossification test is not very much advanced as to fixation of the age of the girl. If it is above 15, it may as well be above 16. It need not necessarily be under 16 as opined by the Doctor.
Dilating a little farther on the evidence of the mother, P. W. 10, on this point it appears that she stated that she was married 26 years back at the age of 15 years. Her first issue, a son, was born one year after her marriage and her second issue, a daughter was born one year after her first issue and 3 years after that her third issue another son was born. Her further evidence was that her other children were born at the interval of 2 years. Moslema Khatun was her 5th issue. In view of her statement that*she was married 26 years back when she was 15 years old, her age would be 41 years. According to her, the age of her first issue, the son, is now 25 years as he was born one year after the marriage. The age of her second issue, a daughter, is therefore 24 years and her third issue, another son would be 21 years. The other issues born at the interval of 2 years after her third issue, the age of the 4th issue would be 19 years and of the 5th issue, namely, the present abducted girl, would be 17 years. Exh. C (1), copy of the birth register of Bogra thana lends some support to this. This shows birth of a daughter on 3‑7‑41 to P. W. Dr. Majibar Rahman who was also known as Majibar Rahman Pashari.
The evidence of age as. given by the parents, is as a rule, entitled to the highest consideration but in this case it cannot be so. Their evidence trying to show that she was below 16 years cannot be accepted because the father has given 3 different ages in the first information report, committing Court and trial Court.
The father has even varied his own age though he is a respectable doctor. He is 50 years in the committing Court while at the trial he has come to be 48 years of age. Coming to the mother, in the committing Court she has shown her own age to be 45 years while at the trial she brought it down to 40 years. All these go to show that the attempt was to keep their own ages down so as to reduces the age of the girl.
So far as the medical evidence goes, apart from its inherent lacuna, there remains the hard fact, though not suggested that the father of the girl P. W. 1 is of the same fraternity as the two doctors.
In those circumstances, we do not find any substantial reason for differing from the learned Assistant Sessions Judge in his finding as to the age of the girl being over 16.
Reliance has been placed on the decision in the case of Ghulam Rasul and others v. Crown (2 P C R 225) in which it was held that the evidence of a doctor as regards the age of a person is nothing more than an opinion and an opinion of an expert is of little value unless it is corroborated by convincing ; materials on the record.
Reliance has also been placed on the observations in the case of Sk. Hatem Ali and others v. Emperor (54 C W N 329) which was a case where the age of the girl abducted was near the border line age of 16. The relevant observations at page 326 are as follows
"So far as the question of age is concerned, the principal witness is Capt. Mukherjee. Our criticism of the learned Judge's charge in this respect is that he has failed to point out that if the evidence of this witness is carefully examined, he has not, in fact, really deposed that the girl is under 16 years of age. All he has stated is that the girl is between 15 and 16 years of age and he has qualified this with an admission "In our opinion we fix the age as between 15 and 16 or like that. There may be I to 3 months more or less but not to the extent of 6 months." This seems to us to amount to an admission that the girl might be anything up to 16 years and 5 months old or some 5 months below the age of 15. The ambiguity in the evidence perhaps to some extent may be due to the fault of cross‑examining lawyer, but in view of the fundamental importance of the question of age, it was the duty of the learned Additional Sessions Judge to have obtained the evidence of the witness with the utmost precision and to have had it brought‑ out clearly whether the witness was prepared to stake his opinion that the girl could not be of the age of 16 or over."
Reliance has also been placed in the decision in the case of Debprosad Bose v. The King (54 C W N 329) in which it was observed inter alia as follows:
"In as much there is a variation between tables given by different authorities on fusion of particular bones between certain ages, the ossification test is not of much assistance in etermining the age of a girl."
The girl, therefore, being a major, the question that. remains is as to whether she was taken out by force or deception. Mr. Bose has pointed out from the evidence of P. W. 4 Moslema Khatun, that she is in two minds about it. Once she bas C taken the stand that she was taken out deceitfully by his holding out high hopes of Calcutta and next she has said that she was taken out by force.
Mr. Bose has pointed out that there cannot be force and deception at the same time and that the evidence of the baithak does not say about deception and that even the mother does not say that the girl was taken out deceitfully.
It appears that the date of the two going to Calcutta was 13‑11‑64. The girl returned on 11‑4‑65. Rajat the appellant returned on 13‑3‑65. Charge‑sheet was submitted on 24‑2‑65. She was, for the first tune, produced before the police on 13‑5‑65. For one month she was not produced before police or Magistrate.
The evidence of P. W. 1, the father, on the point of deceit was that on return his daughter told that accused Rajat took her to India on false pretences and that Rajat had sexual intercourse with her against her will. He also stated that Moslema Khatun told that Shankari, sister of Rajat, introduced her to Rajat. Shankari was also student of Bhendari Girls' School. So Moslema used to visit Shankari's house with her. Moslema Khatun further told that Rajat used to tell her that he would get her employed in Cinema Company. So this witness came to know from his daughter after return that Rajat would try to get her employed in Cinema Company and that appellant Rajat took her to India on false pretext. It is remarkable that the mother of the girl, P. W.10, does not say about any deceitful means being employed. So far as P. W. 4 herself, the victim girl goes, she stated that she narrated the entire occurrence in detail to her mother and father. It would be more natural to state all the facts particularly regarding forcible sexual intercourse to the mother rather than the father. She says that Rajat held out hopes to her that while in Calcutta she would be emyloyeqd as an artist and that every time she visited his house, he gave rosy pictures of Calcutta to her. Narrating travel to the railway station, she said that she went to Bogra rail way station in a Rickshaw and that she was alone in the Rickshaw and that accused persons came by other Rickshaws. She, of course, stated that when she was being taken, it was told to her that Shankari would also be going to Calcutta. In cross-examination she further stated:‑
"Not true that I went with Rajat out of my own accord. I was taken by force. Not true that on that date before it dawned I myself out of my own accord left my house. I do not know Mani Babu father of Rajat."
We shall see later that this statement‑has come in for a good deal of comment. There is no doubt that in the first part of her evidence, the girl has indicated that deceit had been practised upon her but at the same time it seems from the above lines that she was in two minds about it, having introduced the element of force.
P. W. 9 is the younger brother of the girl, he does not say anything about hearing of deceit being practised upon his sister, the victim girl. He simply stated that Moslema Khatun related the occurrence to him in detail.
P. W. 21, the Town Sub‑Inspector who examined Komal on 13‑5‑65 stated that P. W. 4 Komal did not state to him that Rajat had sexual intercourse with her at Calcutta nor her wearing apparels were produced or seized by him.
The story of deception, therefore, rests on the solitary statement of the girl herself. The father's corroboration, if any, is a poor corroboration.
In the predicament facing the girl it was only natural for the girl to try to white‑wash herself. Shankari the sister of Rajat being close friend of the girl at whose house the rosy picture of Calcutta was unfolded to the girl, has not been examined. Her examination was necessary at least to prove that there were previous me.‑tings with Rajat in their house in which the bright prospects of Calcutta were revealed to the girl by the appellant Rajat. It is true that there is no evidence as to the deceitful talks about the bright prospects of Calcutta having taken place in the very presence of Shankari, but all the same, her examination was necessary for proving that Rajat and the victim met previously in Shankari's and for that matter in accused' s house so as to offer the opportunity for such deceitful talks taking place previous to the taking itself. Moreover, in the cross examination as mentioned earlier she has said that was taken by force whether it is the result of mistake or the result of jugglery of the lawyer, that expression is there. The later lines "not true that on that date before it dawned, I myself out of my own accord left my house" show that her statement that she was taken by force is not altogether outside the context. At any rate, it is difficult to accept the position that the defence would suggest that she was taken by force.
There is, thus, some inconsistency in the stand taken by her.
It is to be noted that the abductor and the abducted are both teen‑agers and it is very likely that in the first flush of youth they started loving each other deeply, and hoped to build a family of their own, which, however, was shattered to pieces. There is even doubt as to who is older of the two‑the boy or the girl.
Last but not the least, there is the evidence of P. W. 16, a member of Bogra Municipality and a neighbour of Dr. Majibar Rahman and his daughter Komal. He stated that college students lived in Ikbars Hall situated near the house of Dr. P Majibar Rahman. In 1961 or 1962 in one night a college student was caught in the house of Dr. Majibar Rahman with hi daughter. There is no doubt that the character of the girl herself is a highly material point in cases of the present kind.
In those circumstances, the charge of taking the girl out by deceitful means has not been proved beyond reasonable doubt The case against the main appellant kajat having failed, the case against Sachin, the abettor also fails.
We, therefore, allow the appeal and set aside the conviction and sentence passed on the two appellants and acquit them of the charge. Appellant Rajat is directed to be set at liberty forthwith, if not wanted in any other connection. The bail‑bond of appellant Sachin Ghosh is cancelled.
‑I agree. Appeal allowed
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