K.P. Mohapatra, J.
1. The revision is directed against the order passed by the learned Sessions Judge, Berhampur confirming the order of conviction of the petitioners under Sections 143 and 363 I. P. C. passed by the learned Assistant Sessions Judge, Phulbani.
2. The prosecution case is that Baseli Pradhan (P. W. 2 ) aged about 17 years was married according to caste custom to Ramesh Padhan ( P. W. 1 ) of village Masedikia about three weeks prior to the occurrence which took place on 26. 3. 79. On that day Baseli along with her companions, Kalimai Padhan (P. W. 3), Urmila Padhan (P. W. 4). Ali Padhan & Aba Padhan of the village came to the nearby jungle to collect mohua flowers. While the girls were collecting mohua flowers, petitioners Ragendra Padhan along with the other petitioners arrived there and having formed an unlawful assembly, forcibly and with out her consent kidnapped Baseli with the intent that she may be compelled to marry petitioner Rajendra. After kidnapping, they kept her at the Dhangidi Ghar of Bati (P. W. 5) of village Panjamaha. In the meanwhile, the other girls returned to the village and informed Ramesh (P. W. 1) that his wife had been kidnapped by the petitioners. Ramesh (P. W. 1) lodged F. I. R. ( Ext. l/l ). The next day kidnapped girl was recovered by P. W. 7, A. S. I. of Police, Raikia. After recovery he was sent for medical examination to determine her age. Dr. K.K. Misra, Professor and Head of the Department of Forensic Medicines of the M.K.C.G. Medical College Hospital, Berhampur (P. W. 9) examined her person on 19.4.79, as well as, the X-ray plates (Ext. 4 to 4/6) taken for ossification test and submitted his report (Exts. 5) to the effect that the victim girl was above 15 and below 17 years of age. After close of investigation, P. W. 8, Officer-in-charge of Raikia Police Station submitted charge-sheet against the accused persons for having committed offences under Sections 143, 366 and 342 I.P.C.
3. The learned Assistant Sessions Judge framed charges against the petitioners under Sections 143 and 366 I. P. C, who pleaded innocence. On consideration of the prosecution evidence he found that Baseli was the legally married wife of P. W. 1, the petitioners kidnapped Baseli on the date of occurrence from her lawful guardian and on the relevant date Basali was a minor. In vie v of these findings and as there was no. evidence that Baseli was kidnapped with the intent that she shall be compelled to marry petitioner Rajendra, the learned Assistant Sessions Judge altered the charge from Section 366 to Section 363 I. P. C. and sentenced each of them to undergo rigorous imprisonment for one year on each count.
4. The petitioners preferred appeal to the Court of session. The learned Sessions Judge, Berhampur on a fresh appraisal of the prosecution evidence affirmed the aforesaid findings of fact and upheld the conviction of the petitioner for the offences they were charged with. He maintained the sentence for the offence under Section 363 I. P. C but did not pass a separate sentence for the offence under Section 143 I. P. C.
5. P. W. 1, Ramesh stated in his evidence that he had married P. W. 2 and both of them were living as husband and wife. P. W. 2,Baseli stated that she was married to P. W. 1 according to caste custom and was living with him. P.Ws. 3 and 4, the companions of P.W.2 belong ing to the same village stated that P. Ws. 1 and 2 were husband and wife. P. W. 10, Patarani Pradhan, mother of P. W. 2, Baseli stated that she gave her daughter, Baseli in marriage with P. W. 1, Ramesh. The aforesaid evidence is of conclusive character. Therefore, the Courts below were justified in holding that Baseli (P. W. 2) was the legally married wife of Ramesh P. W. 1, who her lawful guardian.
6. The evidence of Baseli (P. W. 2) and her companions (P.Ws. 3 and 4) reveals that the girls came to the jungle to collect mohua flowers. At that time petitioner Rajendra arrived there along with the other petitioners. All of them took away Baseli by force despite her protest. According to the evidence of P. Ws. 5 and 6, petitioner Rajendra brought Baseli to village Panjamaha ana kept her inside the Dhangidi Ghar. Baseli slept inside the Dhangidi Ghar at night. It will appear from the evidence of P.W. 7, the A.S.I of Police that Baseli was recovered from the Dhangidi Ghar of Panjamaha as per the search list (Ext. A). The evidence of these witnesses was thoroughly scrutinised by the Courts below who came to hold that as a matter of fact the petitioners had kidnapped Baseli from the lawful guardianship of her husband, Ramesh (P. W. 1). It is difficult to differ from the concurrent finding of both the Courts below.
7. Mr. S.K. Mund, learned counsel appearing for the petitioners, urged that the petitioners, as well as P. Ws. 1 and 2 belonged to Kandha tribe (Scheduled Tribes). According to the custom prevalent in the Kandha tribe, one of the recognised forms of marriage is that a young man forcibly takes away a young girl and later, with the consent and full participation of elder3 of both families marriage is solemnised. By advancing this argument the learned counsel wanted to convey that petitioner Rajendra, a young man forcibly took away Baseli, a young girl to marry her according to the tribal custom. The nation is entirely misconceived. The tribal custom, if any, may be confined, to young and unmarried men and women according to which the former makes a show of forcible taking away of the latter after which some form of marriage is solemnised. But by no stretch of imagination such a custom, if any will legalise a crime according to the penal law of the land and go to the extent of compromising an action, whereby a married woman is forcibly kidnapped from her lawful guardian and against her will which is a punishable crime. The contention is entirely unacceptable.
8. Mr. S.K. Mund then urged that Baseli was not a minor under 18 years of age as envisaged in Section 361 I.P.C, and as such the conviction and sentence under Section 363 I.P.C. cannot be sustained. In support of his contention he cited a decision reported in A. I. R. 1982 S. C. 1297 Jaya Mala v. Home Secretary Government of Jammu and Kashmir and others in which Desai, J. speaking for himself and Bhagwati, J, held in the facts and circumstances of the case as follows ;
'... However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.'
In that case one of the questions for consideration was whether the detenu under the J. & K. Public Safety Act, 1978 was a minor. The detaining authority contested this claim and placing reliance on the report of Dr. Sharma as to the age of the detenu stated that he was between 18 and 19 years. Thus the only evidence in the case was that of Dr. Sharma who had performed radiological and orthopaedics test and nothing beyond that. In view of the peculiar facts of that case it was held that the margin of error on either side was two years.
In a recent decision reported in 1984 S.C. C. (Cri) 453 (Hawaldar Singh and others v. State of Uttar Pradesh), the question for consideration . was whether two petitioners were under the age of 16 years on the date of occurrence so as to be. entitled to the benefit of the U. P. Children Act, 1961. Considering the evidence of Dr. B. S. Mathur, Chief Medical Officer, Dr. S. K. Tiwari, Senior Radiologist, X-ray reports and X-ray plates, Sen and Madon, JJ. held that the two petitioners failed to prove that either of them was under the age of 16 years on the date of occurrence so as to be entitled to the benefit of the U. P. Children Act. 1961. Significantly, reference was not made to the earlier decision reported in A. I. R. 1982 S. C. 1297. (Jaya Mala v. (sic) Jammu and Kashmir and others), nor did (sic) judges hold that the margin of error in age ascertained by radiological examination is two years on either side. Thus there are two inconsistent views rendred by two Division Benches consisting of two Hon'ble Judges of the Supreme Court on each occasion, one reported in 1982 and the other in 1984. The problem is whether the earlier view is binding or the latter view.
In this connection, it is interesting to refer to the decision rendered by a Division Bench of the Supreme Court consisting of two Hon'ble Judges and reported in A.I. R. 1985 S. C. 231 (Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra.) It appears therefrom that a Division Bench of the Supreme Court consiting of two Hon'ble Judges rendered a decision reported in A.I.R. 1983 S.C. 361, (C.T.V. Vatheeswaran v. State of Tamil Nadu), holding that delay of two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 of the Constitution and demand the quashing of the sentence of death. Very shortly thereafter, another Division Bench of the Supreme Court consisting of three Hon'ble Judges rendered another decision reported in A. I R. 1983 S. C. 465 (Sher Singh and others v. State of Punjab), in which while expressing almost complete agreement with most of what had been said in Vatheeswaran's case dissented - from the opinion expressed therein that a delay of two years and more was sufficient to entitle a person under sentence of death to invoke Article 21 of the Constitution. The learned Judges held that the fixation of time limit of two years did not seem to accord with the common experience of the time normally consumed by the litigative process and the proceeding before the executive. In the above premises, it was held that the Supreme Courts in its Divisions of two and three Judges for the sake of convenience and it may he inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges. It may be otherwise where a Full Bench or a Constitution Bench does so.
In a decision reported in A. I. R. 1977, All 1 (F. B. ), (U. P. State Road Transport Corporation v. The State Transport Appellate (Tribenal ) U. P. Lucknow and others), it was held that in case of conflict in two decisions of Supreme Court, law as declared in the latter case shall be followed. In another case reported in A. I. R. 1980 (Kant) 92 (Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. and another), the Hon'ble Judges following two decisions of the Supreme Court reported in A. I. R. 1974 S. C. 1596 (Muttulal v. Radhelal) and A. I. R. 1976 S. C. 2433 (Union of India v. K. S. Subramaniam) held that if two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by a larger Bench, while the other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the latter of the two decisions should be followed by High Court and other Courts. In A. I R. 1980 Bombay 341 (D. B.) (Vasant Tatoba Hargude and others v. Dikkaya Muttaya Pujari), it was held that in case of conflict between earlier and later decisions of two Benches of the Supreme Court, each consisting of equal number of Judges, the latter decision prevails.
The views expressed in A. I. R. 1985 S. C. 231 (Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra,) have strictly little bearing to solve the present problem. On the other hand, the principle on precedent laid down in A. I. R. 1977 AH. 1 (F. B. ) (U. P. State Road Transport Corporation v. The State Transport Appellate (Tribunal), U. P. Lucknow and others), A. I. R. 1980 Kant 92 (F.B.), (Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. and another) and A. I. R. 1980 Bombay 341 (D. B.), (Vasant Tatoba Hargude abd others v. Dikkaya Muttaya Pujari), has a directing bearing on the problem and applicable to the case, with which, I with great respect agree.
When confronted with two inconsistant co-ordinate authorities, Kay, J. in Miles v. Jarivis (24 (1983) Ch. D. 633) said :
'...The question is which of these two decisions I should follow, and it seems to me that I ought to follow that of the Master of the Rolls as being the botter in point of law.
Jessl M. R in a like circumstance said in Baker v. White (5 (1877) Ch. D. 183) that he was left with liberty to say which was not sound law. In the context of the aforesaid classical pronouncements, it is essential to consider the ramification of the margin of error of two years in determining the age in offences under Section 363 and 376 I. P. C where the age of the victim girl is one of the most important factors for consideration of Courts. If invariably in all cases it is accepted as a general proposition that the margin of error is two years, then cases in which the victims of kidnapping and rape are around 15 years or between 15 and 16 years may in most cases end in acquittal, therby causing miscarriage of justice.
In consideration of the above and on the weight of authorities referred to above and in consonance with the principle laid down in 1984 S.C.C. (Cri.) 453 (Hawaldar Singh and others v. State of Uttar Pradesh.) I am of the opinion that with regard to the age of the victim girl, each case will have to be decided in relation to its own facts established by the prosecution.
9 In the light of the dictum, it is necessary to examine the question of the age of Baseli. P. W. 9. Dr. K. K. Misra, Professor and Head of the Department of Forensic Medicines of the M. K. C. G. Medical College Hospital, Berhampur thoroughly examined the person of Baseli and took note of her physical characterstics. He also examined the X-ray plates (Exts. 4 to 4/6). On the basis of the physical characterstics and the radiological examination which included ossification test, he gave a detailed report in Ext. 5 and opined that the victim girl was above 15 and below 17 years of age on the date of examination, namely, 19. 4. 1979. The prosecution did not examine any other witness nor any documentary evidence was produced for proof of the age of Baseli. Although she was examined and her mother (P. W. 10) was also examined as witnesses, questions regarding her age were not put. Both these circumstances, it is difficult to discard the unchallenged evidence of P. W. 9, Dr. K. K. Misra. Accordingly, placing reliance on his evidence, I hold that Baseli was above 15 and below 17 years of age and hence a minor on the date of occurrence.In a case under Section 353 I. P. C., the prosecution, in order to succeed is bound to prove the following :
1. That the person kidnapped was a minor under 16 years of age, if male, or under 18 years of age, if a female, or that he/she was insane.
2. That such person was in keeping of a lawful guardian.
3. That the accused took or enticed such person out of such keeping and :
4. That ha did so without the consent of the lawful guardian.
Coming back to the present case, all the ingredients have been established by the prosecution including the minority of the victim girl. Therefore, in agreement with the learned Courts below, I hold that the charges have been brought home to the petitioners. While considering the question of sentence, it is pertinent to note that the victim girl according to evidence was not molested by any of the petitioners. So they deserve lenient punishment.
10. In the result, the revision is dismissed and the order of conviction is affirmed. The sentence imposed on each of them -is altered to rigorous imprisonments of one month.