1. In this appeal by Kishori Lal against his conviction and sentence of two years rigorous Imprisonment under section 363, Indian Penal Code, the only question for determination is that of the age of the prosecutrix, Mst. Munnl. According to the prosecution she is 14/15 years old. She had disappeared with him from the house of her parents in Jullundur Cantt. on the 29th of November 1955. On information given to the police by her father, Nabbu, a case under Section 363 I, P. C. had been registered. Kishori Lal and Mst. Munni on their return were taken into custody by the police near the railway station Jullundur Cantt. on the 5th of December 1955.
Between 29-11-1955 and 5-12-1055 they had not only indulged in sexual intercourse a number of times and visited Sharanpur and Ambala Cantt. but had represented to the owners of the houses they took up residence in that they were husband and wife. At the railway station Saharanpur, a police constable held them up as their movements had aroused his suspicion. He allowed them to go because the girl had assured him that she was the wife of her companion.
2. The learned State counsel concedes that on the evidence produced by the prosecution he cannot but support the finding of the learned trial Judge, that Mst. Munni was not only a willing but an active agent in her enticement. Her consent in her kidnapping has however been held to be of no help to Kishori Lal, as she was a minor not being eighteen years of age. To hold that she was a minor reliance was placed on the evidence of lady doctor Bhambri and Dr. H. S. Bhandari.
3. There is no document to show as to when the prosecutrix was born and her own evidence and that of her parents with regard to her age is ex. tremely unsatisfactory. She stated that she could not say as to how old she was and her mother also stated that she could not give her age. Her father Nabbu was equally vague. He stated that he was married thirty years ago and his first child was born three years after his marriage. According to him that cycle of three years' interval continued in the case of his other children as well and Mst. Munni was his fourth child. Calculated in the manner suggested by him the age of Mst. Munni would come to 18 years.
Her parents could have been the proper relations to give the date and year of her birth but their evidence falls to fix them. The other evidence consists of the statements of Doctors Bhambri and Bhandari. Lady Doctor Bhambri in view of the height, weight and teeth of the girl, stated that she appeared to be 15/16 years old. She found that the girl had hair in the pubic and axillary regions and that her breasts were developed moderately, her hymen torn and the normal sized uterus antiverted.
She gave a cautious opinion when she said that the criteria she applied only furnished an approximate estimate of the age of Mst. Munni and added that it was possible that she was 17. She, therefore, suggested that an X-ray examination Of her bones might give a more precise indication of her age. The opinion of Dr. Bhambri shows only a guess work whereas what Is required is evidence giving the true and exact age of the prosecutrix so that it could be determined if her consent to her enticement could absolve the accused. Dr. H. S. Bhandari is the radiologist who had examined the various bones of Mst. Munni on 6-12-1955.
He found that all the ossification centres around the elbow of the girl had fused with their shafts but the epiphyses of the lower end of the radius and of the upper ends of tibia and fibula had not yet completely fused with their shafts. He, therefore, concluded that she was about 16 years of age or a few months less or more. Here again it has to be observed that Dr. Bhandari's is only an opinion which cannot be regarded to be conclusive, particularly when the difference in the approximate age stated by him and the one fixed by section 363 I. P. C. is not wide. An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert, but it can by no means be so infallible and accurate a test as to indicate the correct number of years ! and days he has lived.
4. The learned State counsel referred me to the Table at page 30 of Modi's Medical Jurisprudence and Toxicology, Nineth Edition, showing the age in years of the appearance and fusion of some or epiphyses. The Table which was built on averages observed by various medical experts shows that in Punjabis the fusion of the distal end of redius takes place between 16 and 17 years, of the proximal end of fibula between 16 1/2 to 17 1/2 years, of the distal end of fibula between 17 to 18 years, of the proximal end of tibia between 16 1/2 to 17 1/2 years and of the distal end of tibia between 16 to 17 1/2 years. Relying upon these averages he contends that it has been rightly held by the trial Court that Mst. Munni had not completed her eighteenth year. I am unable to subscribe to that view as Dr. Modi has himself on page 29 of his book sounded a note of caution that it must be remembered that too much reliance should not be placed on the Table, as It merely indicates an average and is likely to vary in Individual cases even of the same province owing to the eccentricities of development, and that owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different provinces of India it cannot be reasonably expected to formulate a uniform standard for the determination of the age of the union of epiphyses for the whole of India.
Dr. Bhandari himself had to say that the age of the girl might be a few months less or a few months more than what he had concluded it to be and this opinion cannot therefore be said to be not speculative. As said above, there is no direct evidence that could prove the age of the prosecutrix and the opinion of Dr. Ehambri only gave an approximate idea of it. The opinion of Dr. Bhandari does not help in the precise fixation of her age without which the conviction of the appellant would be unsustainable.
5. I nave, therefore, to hold that the prosecution has not succeeded in proving beyond doubt that the prosecutrix when Kidnapped had not crossed her eighteenth year. The appeal is consequently accepted and the appellant acquitted.