R.K. Das, J.
1. The appellant has been convicted under Section 366 Indian Penal Code, and sentenced to R. I. for five years and to pay a fine of Rs. 400/in default to undergo for five months.
2. The appellant was working as a Naib Tahasildar at Basta at the time of alleged occurrence. He had friendly relations with the family of Fakir Panigrahi (P. W. 1) the informant in this case. It is the case of the prosecution that on the evening of 18-3-1962, the appellant along with his peon Srinath went to the house of the P. W. 8 and spent the night there. During his stay there he made a proposal to the members of the family to visit the Pinchabania Mela, which was then being held near about Baste, The informant, however, did not approve the proposal but later on, under the persuasion of his brother, he allowed them to go in the company of accused to see the mela.
Accordingly on the following day that is, on 19-3-1962, Sambhunath P. W. 7 his brother and Keshamani P. W. 6 his wife and their daughter Satyabhama P. W. 1 along with another daughter started for Baste and boarded the train at the Railway Station, Nilgiri. Getting down at the Baste Railway Station, they proceeded to the office of the accused which was at a distance of about 2 miles from the Baste Railway Station and reached there at about 10. p. m. They stayed there for the night and on the next morning when they wanted to see the mela, the accused on some pretext or other deferred the matter from day to day and the party being disappointed desired to return home.
About three days after, that is, on 22-3-1962 the party boarded the train at the Baste Railway Station on their homeward journey. When the train was about to move, the accused, it is alleged, pulled back P. W. 1 from behind and she was forcibly taken back to the office of the accused where she was left for several days. There the accused made a proposal to marry her, but she refused. Meanwhile Fakir being informed by his brother P. W. 7 about the incident came to Bata and found his daughter in the office of the appellant. When he wanted to take back his .daughter he was resisted by the appellant and was assaulted. Then he went to the Police Station and lodged the F. I. R, (Ext. 6). After investigation and charge sheet, the accused was committed to the Court of Sessions where he was convicted and sentenced as above.
3. The plea of the accused was one of denial of the occurrence. He however stated that P. W. 1 her mother P. W. 6 and uncle P.W. 7 along with a child voluntarily arrived at his office on 20-3-1962 at about 9 p. m. to see the Panchamanis Mela and not that he had been to their house on the previous day and requested them to come. He further stated that he could not oblige the party to accompany them to the Mela as it was collection season. He also denied to have gone to the Railway Station to see off the party or to have forcibly detained P. W. 1.
According to him P. W. 1 herself voluntarily stayed back with the consent of her parents to see the Arnapurna theatre and when Fakir came to his office for taking back his daughter he never offered any resistance, but on the other hand the girl herself was unwilling to go. His case was that he was very intimately known to P. W. 1 and her family and there was exchange of loveletters between him and P. W. 1 and they were on loving terms and on several occasions had gone out together and had taken photographs also. In support of his contention, he examined a number of witnesses and also produced certain documents including some letters that passed between him and P. W. 1 as well as some of their photographs.
4. At the trial the accused was charged under Section 366, Indian Penal Code for having kidnapped P. W. 1 aged 15 years from Basta Railway Station on 22-3-1962 while she was trying to board the train with the intent that she would be compelled to marry him against her wishes.
5. In a charge of this nature, the age of the girl is one of the. crucial question, as there cannot be a case of kidnapping unless the girl is found to be below 18 years of age. On this question, even on the basis of the prosecution evidence, there appears to be two versions. P. W. z is the lady doctor who examined the victim girl, P. W. 1 on 5-4-62 on police requisition. Her report is Ext. 1. After having applied the necessary test, P. 'W. 2 gave the opinion that P. W. 1 was about 18 years of age. P.W. 3 is the Radiologist at the Balas ore Sadar Hospital. On 5-4-62 he made an X-Ray examination to determine the age of P. W. r and after ossification test, he was of the opinion that the age of the girl was between 17 and 18 years. He gave his report Ext. 2.
In his cross-examination, he stated that in the case of P. W. 1 the ossification test was complete in all respects except in the case of ileum. He admitted that considering all aspects of ossification (P. W. 1 was probably more than 18 years. P. W. 2 the lady doctor also admitted in her cross exanimation that she could not say definitely if P. W.1 was not more than 18 years. If the evidence of these two doctors are taken into consideration it can fairly be held to have been established that the girl was not below 18 years of age by the date of examination, which took place a few days after the date of occurrence. As against this expert evidence, the prosecution relief upon Ext. 3 and entry in the birth register showing the date of birth of P. W. 1 to be 5-11-46. Ext. g a horoscope of P. W. 1 and the oral evidence of P. Ws. 6, 7 and 8.
It is well settled that a birth, register is the conclusive proof of age, but entry does not prove itself and is no proof of age of any particular person unless the persons connected with the entry either by making the entry or giving information comes forward and speaks to the entry and connects the entry with the individual concerned. 1LR (1949) cut 195 : AIR 1949 Orissa. 22 Bisweswar Misra v. King. P. W. 4 the record keeper of Balas ore Collect orate produced the birth register (Ext. 3). From the said register it appears that one Fakir Mohan Panoramic had a daughter born to him on 5-11-46. P. W. 8, however, is Fakir Charan and not Fakir Mohan. The person who made the entry in the birth register was not examined. There is nothing to show whether the entry in Ext. 3 relates to either P. W. 1 or to P. W. 8, Fakir Charan Panigrahi. P. W. 4 admitted in his cross-examination that he was unable to say who this Fakir Mohan Panigrahi is. as it finds entry in Ext. 3.
P. W. 8 the father and not even P. W. 7 the alleged adoptive father claim to have given the requisite information about the birth of P. W. 1 on the basis of which the entry in Ext. 3 was made. All that they said was that P. W. 1 was born in Barricade Hospital. Thus it has not been satisfactorily established that Ext. 3 relates to the age of P. W. 1. It is the case of the prosecution that P. W. 1 was the natural born daughter of P. W. 8 and she was taken in adoption by Sambhunath P. W. 7. Ext. 5 is said to be the horoscope of P. W. 1 where the year of her birth has been shown to be 20th day of Tula 1354 Sal. No evidence has been placed to show if the date agrees with the date given in the birth register. Moreover, P. W. 1 has been described as the first born daughter of Sambhunath (P. W. 7) through his own wife. When in fact the alleged adoption took place there is no evidence.
Assuming the story of adoption is true, it is wholly inconsistent, with the recital in Ext. 5 where P. W. 1 was described as the first born daughter of Sambhunath through his own wife (Sojaya Garvu). The man who prepared this horoscope is said to be dead. No explanation is forthcoming as to why such an unusual and incorrect recital was made in the horoscope thought P. W. 7 admitted that in his very presence the astrologer prepared the horoscope. The learned Sessions Judge, however, reconciled this discrepancy by saying that after the adoption, by legal fiction, the adopted daughter is deemed to have been born to the adoptive father. Apart from the fact why P. W. 7 should adopt a daughter the fact of her being described as the first born daughter of P. W. 7 is on the face of it is incorrect and looks somewhat suspicious.
P. W. 1 was not even the first born child of P. W. 8. No weight can therefore be given to the. document, The oral evidence of P. Ws. i, 6 7 and S regarding the age appears to be equally unsatisfactory. P, W. 1 claims to be of sixteen years of age on the basis of her horoscope, Ext. 5. She was not sure whether she was the first or the second child of her parents. Though in the committing Court both she and her father P. W. 8 had stated that she was the first born child of her parents, both of them went back upon that statement and denied to have made the same. P. W. 8 is the natural father who says that a son was first born to him and after his death P. W. 1 was born and she was given in adoption to his elder brother Sambhunath.
It was contended by the defence that only with a view to bring down the age of P. W. 1 both these witnesses have deliberately assigned the second place to P. W. 1. The contention cannot be said to be unfounded, P. W. 8 even did not disclose the correct age of his wife, P. W. 6 before the Court. In the committing Court he stated her age to be1 thirty-five, though at the trial he was unable to state her age. According to him, his wife was about 12 or 13 years of age when he married her and nuptial ceremony took place three or four years after the marriage, and six years after the marriage the first issue was born. In the lower Court his statement was that the first issue was born three or four years after the marriage. If his earlier version is accepted, P. W. 1 is his first child and she was born after three or four years after the marriage when the age of his wife was about 16 and if the age of the wife is 35 as stated in the trial Court, the age of P. W. 1 could not be only 16, but may be about. 18,. In that way his earlier version also supports the medical evidence.
Here again P. W. 6 was unable to give her own age. She was even unable to say how many years back she was married to P. W. 8 and what was his age at that time and how many years after her marriage the nuptial ceremony took place, though in the committing Court she stated that she was married at the age of eleven and the nuptial ceremony took place four years after the marriage. At the trial she denies to have made any such statement in the committing Court. She was unable to give the- age of P. W. 1. To quote her own words she said, 'I cannot say how many years back P. W. 1 was born to me'. Thus we find that all the members of his family have uniformly resoled from their earlier statements,
6. It was urged by the learned Counsel for the appellant that the witnesses have purposely avoided to disclose the correct state of affairs before the-: Court with a view to conceal' the real age of the girl. There is some force in this contention. As seen above, the earlier version of the witnesses when analyzed fixed the age of P. W. 1 somewhere at 18 and that 'also is in consonance with the evidence of berth the lady doctor, P. W. 2 and the Radiologist, P. W. 3 both of whom were of opinion that the girl might be 18 years of age at about the date of occurrence.
7. learned Counsel fox the State contended that in .view of. the evidence given, by, the parents of P. W. 1 and the evidence as furnished by the-Birth Register, Ext. 3, and the horoscope, Ext. 6 no preference should be given to the evidence-of the Radiologist. In support of his contention-he relied upon a decision of the Kerala High. Court reported in Cbhatu v. Govind Kutty, : AIR1958Ker121 . There is, however, no dispute over the position that the positive evidence furnished by the Birth Register or the members of the family with regard to age, will have preference over the opinion evidence of the doctor. But as has been seen . above the evidence adduced by P. Ws. 6 and 8 relating to the age of P. W. 1 is wholly unsatisfactory and such evidence cannot, form any basis for the determination of the correct age of P. W. 1. On the other hand, we have the ossification test which has been accepted by Courts in India as a surer ground for determination of age in such cases. That apart, when there are two versions available regarding the age the accused is entitled to the benefit of the version that supports him.
8. In a case reported in Biswanath Ghosh v. State, : AIR1957Cal589 . it was held that in the present state of the development .of medical science-and the present state of knowledge, the Court must proceed on the evidence of age as furnished by. the ossification test. In a case of this Court, reported in Anam Swain v. State, : AIR1954Ori33 , the ossification test has been accepted as a surer test of determination of age. In the present case in the absence of any other satisfactory evidence to determine the age of the girl we are left only with the evidence of the lady doctor, P. W. 2 and the Radiologist, P. W. 3 and both the witnesses agree that the age of girl was above 18. Thus, the prosecution has failed to prove that P. W. 1 was below 18 years of age on the date of occurrence.
9. I shall now take up the evidence with regard to the other essential ingredient of the offence namely, the taking away of the girl by the accused. The evidence on this point also is-thoroughly unsatisfactory. On this point, the case of the prosecution is that while returning on 23-3-62, the party boarded the train at the Baste Railway Station and P. W. 1 was the last to get into the compartment, but when she-was so doing, the accused dragged her from behind and carried her to his office in the Baste town.
With respect to this part of the occurrence, the prosecution relies mainly on the evidence of P. W. 1 and that of P. Ws. 6 and 7. Though-in their very presence, P. W. 1 was pulled out and detained, they did not stop the train or bring-the matter to the notice of the fellow passengers-or even the railway staff. They quietly continued the journey. P. W. 7 though got down at their own station Khanatapara, P. W. 6 was over-carried to Sore wherefrom she returned the following day. On getting information from P. W. 7-P. W, 8 started for Baste. P. W. 1 on her part said that after being pulled out she was forcibly carried on a cycle by the accused to his office at Baste. When she cried she was threatened to be killed. At the Basta office of the accused, she was-detained for two days. At night the accused pro posed her to many him and on her protest he left her.
From her evidence it appears that the accused took her to his office by the road and there were police officers and railway staff on the platform when the accused dragged her. It is difficult to believe that the accused would forcibly carry the girl in the presence of the railway and police officials and it is also equally difficult to believe that P .W. 1 would not raise a word of protest at the platform or near the railway station if in fact she was so carried.
Her evidence when closely examined represents hopeless contradictions and is full of discrepancies and it is wholly unsafe to rely on such evidence. Even in respect of her own name she has given out different names at different places. This is clear from the evidence of both the doctors and the I. O., P. W. 12 that she named herself as Shakuntala though P. W. 1. denied to have given out such a name. It is not understood why the police officer and the two doctors would falsely depose on such a matter. In her examination in chief she stated that it was the accused who put her on the cycle, and took her to his office, but in her cross-examination she stated that it was Srinath (peon of the accused) who did so and not the accused. Though before the Court it was her case that she was dragged by the accused, she gave out an absolutely different story before the Investigation officer where her case was that when her mother and uncle boarded the train she and Alekh the accused, managed to go to the other end of the plaform. She did not state before the police that she was dragged by the accused.
A number of letters containing love poems (Ext. H series) have been exhibited in this case on behalf of the accused. The accuser's contention was that those letters and many more written by P. W. 1 were sent to him and that she was anxious to marry him and all that was to the knowledge of the members of the family of P. W. 1 and that she also took some photos with him. When the photos Ext. G were shown to her she could not recognize the same. She also denied the volumes of letters filed in the case to be in her hand but both the letters and the photos have been proved by the defence witnesses.
D. W. 6 Kartik Chandra Bank who was reading with Sarat the brother of P. W. 1 proves the letter to be in her hand. A perusal of these letters would show the mind of the girl and her attraction towards the accused. Some photographs have also been proved by D. W. 4 a co-villager of P. W. 1. According to him the accused and P. W. 1 sat together for the photo, Ext. G and he had also taken a number of other photographs of the members of the family. Though this is the state of affairs, P. W. 6 would deny that her daughter did not even appear before the accused and talk to him. It seems P. W. 6 was also intimately known to the accused and as appears from the evidence of P. W. 1 her mother also serves meal to accused -when the latter visits their family though P. W. 6 did not want to affluent the position.
From her evidence also it appears that she does not come with a clear story. At one stage in cross-examination she admitted that the accused did not go with them to the Railway Station. P. W. 7 who claimed to have seen P. W. 1 being pulled out by the accused did not inform 1 about. it to any police officer. It is somewhat strange that the mother and the father of the girl would so lightly treat the incident as if nothing had happened.
10. It appears from the F.I.R. lodged by P. W. 8 that the girl was not willing to come even though she was called by her father. From the evidence and circumstances it appears pretty cleat that P.W. 1 voluntarily stayed back as contended by the accused. Here however, there is complete absence of evidence regarding the taking of the girl by the accused. Thus even if P. W. 1is held to be a minor, the other ingredient of the offence not having been established no case under Section 366 Indian Penal Code is made out.
It is unnecessary to examine some other evidence adduced on behalf of the accused to show-that he was in fact absent at Balas ore on the date of occurrence and as such could not be present in the village of P. W. 1 on that day. That evidence however is irrelevant in relation to the charge. It was conceded that the appellant was falsely involved in the case but the series of love letters and the photographs show that the appellant was also partly responsible for such a situation.
I have already found that the prosecution has failed to make out a case against the accused beyond all reasonable doubt. The conviction and the sentence of the accused under Section 366, Indian Penal Code are accordingly set aside and he is directed to be set at liberty forthwith.