T.N.R. Tirumalpad, J.C.
1. This is an appeal against the conviction and sentence of six months' R.I. of the appellant under Section 363 I.P.C. by the Additional Sessions Judge (I), Manipur, in Sessions Trial No. 23/11 of 1960.
2. Besides the appellant there was one other accused who was charged in the Sessions case, but he was acquitted. The case against the appellant was that on 23.9.1959 in the evening at about 3 to 4 p. m, when P.W. 3 Yumlembam Ningol Tampaklei Devi aged below 15 years was returning to her house with plantain leaves, the appellant all on a sudden caught hold of her and dragged her and the other accused and another Kali Singh also appeared at the scene and in spite of the girl raising an alarm she was over-powered by the three persons and taken to the house of the appellant. From there she was again forcibly taken to Khurkhul village and made to spend the night in the house of an unknown person guarded by the three persons.
The next morning she was again brought back to Sekmai village and kept confined in the house of an unknown person and therefrom she was rescued in the evening by the Police. It was alleged that P.W. 3 was thus forcibly taken away or kidnapped from lawful guardianship in order to compel her to marry the appellant against her will and so the appellant was charged under Section 366 I.P.C. and fee other accused, for abetment under Section 109/366 I.P.C.
3. It may be mentioned here itself that Section 361, I.P.C. (which defines kidnapping from lawful guardianship) in its application to Manipur Territory makes it necessary that the minor girl should be under 15 years of age and not under 18 years. Hence the prosecution had to establish that P.W. 3 was under 15 years of age.
4. Eight witnesses were examined in the Sessions Court in support of the charge. The learned Sessions Judge did not find any evidence to prove the guilt of the other accused and hence acquitted him. With regard to the appellant, he found that the story that the appellant took away the girl against her will was false. But he held that the girl was below 15 years of age and that therefore the appellant in taking her away must be held to have kidnapped her from lawful guardian without the consent of such guardian within the meaning of Section 361 I.P.C. and that he was guilty under Section 363, which was a lesser offence than the one under Section 366. With regard to the punishment, the learned Sessions Judge having found that the girl had eloped with the appellant according to previous arrangement and had consented to marry the appellant, sentenced him to only six months' R.I.
5. Now it is contended in appeal that the evidence in the case did not prove that the girl P.W. 3 was below 15 years and that the appellant should not have been held guilty of kidnapping from lawful guardianship under Section 363 I.P.C. The learned Sessions Judge found the girl to be below 15 years of age, mainly, from the evidence of the lady Doctor - Indu Bhattacharjee who was examined as P.W. 5 in the case. P.W. 5 gave the certificate Ext. A/1 stating that she concluded that the age of the girl was between 14 and 15. In the certificate she did not give the reasons which made her to come to that conclusion. Nor did she give any reasons for coming to that conclusion when she gave evidence as P.W. 5. She mentioned her observations about the height, weight, teeth, breast, axillary hair, pubic hair, hymen and menstruation and said that from the above she concluded that the girl was between 14 and 15 years at the time of her examination. She did not say what particular characteristics which she observed made her say that the girl was past 14 years, but had not attained the age of 15 years.
6. Unfortunately, the appellant was not defended in the lower Court by a lawyer and so there was hardly any cross-examination of P.W. 5. Actually, when a Doctor gives evidence in Court, particularly, with regard to the age, which is most material point in the case and in support of her certificate, it is not enough if she merely repeats what she has stated in the certificate, as was done in the present case. It is the duty of the prosecution to elicit from the Doctor, the reasons which made her come to that conclusion. The fact to be proved conclusively by the prosecution was that P.W. 3 was below the age of 15 years. So it is not enough if the Doctor said that she concluded that the girl was between 14 and 15 years of age. The Doctor has got to give valid reasons why she concluded that the girl was below 15 years. It is a serious lacuna that the prosecution did not elicit those reasons.
7. In answer to Court questions the Doctor said she had occasion to examine many girls during the period of her service. Actually the doctor was herself quite young, being only 26 years old and cannot have much expert knowledge in such matters. She added that she determined the age of this particular girl according to Medical Jurisprudence. One would like to know what was the particular test which the Doctor did or on which the Doctor relied 'according to Medical Jurisprudence' to come to the definite conclusion that the girl was below 15 years of age. If the Doctor relied on the height, weight, teeth, breast, axillary and pubic hair etc., which she mentioned in her evidence, she did not say what was the state of immaturity or lack of development she noticed in the girl which 'according to Medical Jurisprudence' would establish that the girl was below 15 years but above 14 years of age.
8. As far as we know from Medical Jurisprudence the conclusive test in such matters of age is the ossification of bones and for this X'Ray examination of the bones wag absolutely j necessary. P. W, 5 did not carry out any X'Ray examination of the bones of the girl. If she formed her opinion on other characteristics like height, weight, breast, teeth etc., the opinion of the Doctor is in no way better than the opinion of a lay man and is not entitled to the weight which the Court will attach to the opinion of an expert under Section 45 of the Evidence Act.
9. As pointed out in the decision of the Privy Council in Mahomed Syedol Ariffin v. Yeoh Ooi Gark 43 Ind App 256 : AIR 1916 PC 242 a certificate given by a Doctor about the age on an examination of the teeth, appearance and voice etc. is not the certificate of an expert, but only an assertion of his opinion which was worthless, it has also been held in the decision Emperor v. Qudrat ILR (1939) All 871 : AIR 1939 All 708 that the statement of a Doctor as to the age of a girl based entirely on such particulars as her height, Weight, teeth, etc., which could be observed by any lay man, did not amount to proof of the age, when it did not appear that the Doctor brought any scientific knowledge to bear upon the opinion. The Doctor P.W. 5 did not say on what particular characteristic or appearance of the girl, she could form an opinion scientifically as to the age of the girl. Her evidence as to the age of P.W. 3 was therefore worthless.
10. The learned Judge had some duty to ask the Doctor for the reasons. The answer elicited by him from P.W. 5 that she determined the age' according to Medical Jurisprudence was a meaningless answer. In his judgment, however, the learned Judge appears to have attempted to supply the reasons which Doctor herself failed to give. He appeared to have consulted books on Medical Jurisprudence. He found from the books that usually at the age of 12 to 14 there would be 28 permanent teeth. He also found that the Doctor had noticed 28 teeth in the girl. This only proved that the girl must be more than 12 years old but not that she must be under 15 years. The learned Judge however stated that it followed from this that the age of the girl must have been, below 15. One is unable to understand how it followed as a matter of course. He failed to understand from the books that the remaining 4 teeth to make 32 teeth would begin to come only from the age of 17 and that the presence of the 28 teeth only showed that the girl was between 12 and 17 years of age and not that she was below 15.
11. The farther reason mentioned by the Sessions Judge was that breasts commence developing in girls when they are 13 to 14 years old and that in the case of this girl the breasts were not well-developed. But it is clear that they had commenced developing in the case of this girl. No book on Medical Jurisprudence lays down as a sure test of age the state of development of the breasts. Again, a third reason mentioned by the Sessions Judge was that axillary hair was absent and pubic hair scanty in the case of P.W. 3 and that according to Medical Jurisprudence such hair begins to appear from the 12th year. But it is not anybody's case that this particular girl was not more than 12 years old. In any case, the appearance of axillary and pubic hair is not a conclusive test about the age of a person - male or female. It was wrong on the part of the Sessions Judge to have relied on reasons regarding teeth, breast and hair when the Doctor did not mention any such reasons for her opinion.
12. I am aware that P.W. 1 the complainant who was related to the girl had stated the age of the girl to be 12 years. But the grand-mother of the girl P.W. 2 in whose custody the girl was contradicted P.W. 1 and stated that her age was 14 to 15 years. It may be mentioned here that the father of the girl was dead and that her mother had re-married and that her mother was not examined in Court. Her mother was the best witness to speak about the age of the girl in the absence of her father and in die absence of a birth certificate which would have been conclusive. The grand-mother P.W. 2 stated in Court that no horoscope was kept for the girl. But what she had told the Police was that her horoscope was missing.
When the girl was examined as P.W. 3, she no doubt stated that she was only 14 or 15 years at the time she gave evidence. But she had told the Police immediately after the occurrence that her age was 15 years. She had also told the Police that she bad arranged with the appellant to elope with him and had consented to marry him. Again, after she was rescued, when she was asked by her relatives she told them that she had consented to marry the appellant. During the pendency of this case, she had married another person. So her present evidence regarding her age was useless. The Sessions Judge had himself disbelieved her evidence that she was forcibly taken away by the appellant.
13. In the face of such evidence and particularly in the face of the evidence of the girl herself immediately after her rescue that she was 15 years old, it would be dangerous to accept the valueless medical opinion that the girl was between 14 and 15 years. The truth of the matter appeared to be what the appellant stated in Court. We was a poor man and so the relatives of the girl did not wish to give the girl in marriage to him after their elopement and started this case falsely against him.
14. In my opinion, the prosecution has not proved beyond reasonable doubt that the girl was below 15 years of age. The case of kidnapping from lawful guardianship cannot stand against the appellant.
15. The appeal is allowed and the conviction and sentence of the appellant are set aside and he is acquitted.