Kanta Bhatnagar, J.
1. Appellant Poorandas was tried for the offences under Sections 366 and 376 Indian Penal Code by the Additional Sessions Judge, No. 2, Jodhpur. The learned Judge found him guilty for the aforesaid offences and sentenced him to two years rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine to under go three months rigorous imprisonment for the offence under Section 366 Indian Penal Code and four year's rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine lo under go three months rigorous imprisonment for the offence under Section 376 Indian Penal Code.
2. Broadly speaking the prosecution ease giving rise to the trial of the appellant and his conviction and sentence is as under:--Surji (P.W. 1) daughter of Bhoora Ram (P.W. 2) resident of Harijan Basti at Jodhpur was sitting out side her house on April 20, 1976 at about 5.30 p. n. The appellant went there and allured her for new clothes and ornaments if she would go with him. It is alleged that the girl at the threat of knife accompanied the appellant. The appellant took the girl to 'Idgah' and then to Chitra Cinema House. At about twelve in the noon, he took her in an un-inhabitted house and committed rape with her. Bhoora Ram (P.W. 2) father of the girl, on his return to the house did not find her there. He waited for a while and then tried to trace her at the houses of the relatives and the acquaintees. On the next day when Bhoora Ram was trying to search out his daughter, he met Pahadia (P W. 5), Kalu (P.W. 7) and Shera Ram (P.W. 8) who told him that they had seen his daughter with Pooran Das in a tempo in the morning. At this Bhoora Ram went to police station and lodged the report Ex. P. 1 Case under Sections 363 and 366 Indian Penal Code was registered against the accused P.W. 10 Narayan Singh, ASI of Siwanchigate Out Post, which is in the circle of the Khanda falsa Police Station, went in search of the girl along with Bhoora Ram (P.W. 2) and Thana Ram (P.W. 4). At about 8.00 p.m. they found the appellant and Surji sitting near Bhika-Piao (Water-Hut). The appellant was arrested vide memo Ex. P. 5. The girl was recovered vide memo Ex. P. 2 and was entrusted to her father Bhoora Ram. Thereafter the underwear of the girl Ex. 1 and the pants of the appellant Ex. 2 were taken in possession by the police vide memo Ex. 7 and sealed and later on sent for chemical examination. On April 22, 1976 presecutrix Surji and appellant Pooran Das were medically examined by P.W. 9 Dr. R.K. Gehlot, Medical Jurist, M.G. Hospital, Jodhpur. On April 25, 1976 the Investigating Officer went to the house of Bhoora Ram (P.W. 2) and inspected the site where from the alleged kidnapping is said to have taken place. After completion of necessary investigation charge sheet against the appellant was filed in the Court of Additional Munsif and Judicial Magistrate, No. 1, Jodhpur. The learned Magistrate finding a primafacie case exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions Judge, Jodhpur to stand his trial. The case on transfer reached the court of the Additional Sessions Judge, No. 2, Jodhpur who charge sheeted the appellant for the aforesaid offences and recorded his plea. The appellant denied the indictments and claimed to be tried.
3. Prosecution examined ten witnesses in all. The appellant in his statement under Section 313 of the Code of Criminal Procedure totally denied the allegations levelled against him and stated that because of Bhoora Ram (P.W 2) hiving enmity with his father, a false case has been concreted against him. One defence witness was examined to support the contention of the appellant that he was arrested from his house and not from near 'Bhika-Piao' as alleged by the prosecution. The learned trial Judge placed reliance on the prosecution evidence and convicted and sentenced the appellant as stated earlier.
4. Being agrieved by his conviction and sentence, the appellant has preferred this appeal in this Court.
5. Mr. K.C. Gaur, learned Counsel for the petitioner has assailed the findings of the learned trial Judge on a number of grounds. According to him the learned Judge has not looked into the evidence in its proper perspective and was in error in arriving at a conclusion that Surji was below sixteen years of age at the time of the alleged crime. That there is no evidence as to where the slides of swab and smear remained and where from they were sent to the chemical examiner.
6. Mr. Gaur contended that even if the prosecution story is believed, still the circumstances clearly indicate that the intercourse, even if any, was with the free consent of the prosecutrix.
7. Mr. Gaur further contended that in cases where the girl herself goes to the accused and there is no threat inducement or enticement the minority of the age is immaterial. He seeks tartiated his contention by placing reliance on the various authorities which I would just discuss at appropriate stage.
8. The learned Public Prosecutor controverting these arguments submitted that the medical evidence proves the girl to be below sixteen years of age and therefore, it is a case of rape upon a girl of tender age, justifying the conviction under Section 376 Indian Penal Code. The learned Public Prosecutor urged that taking away a minor girl under a threat of knife and then being ravished is sufficient to bring home the guilt against the accused for the offence under Section 366 Indian Penal Code.
9. In cases of kidnapping, abduction and rape the age of the prosecutrix is of prime importance.
10. Surji has stated her age to be eleven years. The court has not given any estimation of her age In cases of this type if the trial Judge, having the occasion to see the witness appearing in the witness box, gives an estimation of the age, it lends some helps in forming an opinion regarding the age. Bhoora Ram (P. W. 2) has stated the age of Kamla, his elder daughter to be fifteen years. He could not say as to how many years after her birth Surji was born. He could not tell the date or 'tithi' as he was illiterate. The witness stated that there was horoscope of the Surji hut not of his other children. The witness further stated that the original horoscope of Surji was lost and he therefore, at the instence of the police got another horoscope prepared after this incident. P. W. 10 Narayan Singh, Investigating Officer has stated that he had taken the horoscope sometime after May 17, 1996. He could not tell the correct date of taking the horoscope and was reluctant to refer to the case diary for that purpose.
11. Horoscope is an important document for ascertaining the age of the girl but in the case like the present one, prosecution case can not be said to be established on the horoscope of Surji. It appears strange that Bhoora Ram (P.W. 2) had got prepared the horoscope of his daughter Surji alone and none else. The horoscope given to the police by Bhoora Ram (P.W. 2) is not the original one. As per his own virsion the original horoscope having been lost he got another one prepared. The date of birth given in horoscope Ex. P. 18 is February 3, 1964. The person who prepared it has not been examined by the prosecution, nor his name been stated by Bhoora Ram (P.W. 2). On whose information this date was written in Ex P. 18 by the person preparing the same is not known. As stated earlier, Bhoora Ram (P.W. 2) being illiterate had expressed his ignorance about the date and the 'tithi'. There is no evidence tint this Ex P. 18 was prepared by the same person who might have prepared the original horoscope. Even assuming for the sake of argument that there was a horoscope of Surji still its non production and Bhoora Ram (P.W. 2) taking the plea that it was lost and at the instance of the police another horoscope was prepared, throws doubt on the truthfulness of the date mentioned in Ex. P. 18. It is about a month after the alleged offence that the Investigating Officer has taken in possession this Ex P. 18.
12. Mr. Gaur emphatically argued that because the girl was above sixteen years of age a false horoscope was prepared. In view of the testimony of Bhoora Ram (P.W. 2) himself the horoscope Ex. P. 18 does not inspire confidence and the date of birth of Surji mentioned in it cannot be believed to be true.
13. On April 22, 1976 Dr. Gehlot clinically examined Suraj for her age and prepared the report Ex. P. 11. The Doctor on clinically examination observed as under:
She was well built, well nurished. Her height was 148 c.ms. and weight was 32 kg. In her month there were 28 teeth and lower left visdom tooth was under the process of eruption. The breast were firm, hamisperical and developed. The exillary hair were pale-brown coloured about 1.0 c.m. long separately distributed. The public hair were black, measuring about 6 c.m. moderately distributed and there was evidence of shaving.
14. On April 22, 1976 The Radiological examination was conducted under the supervision of Dr. Gehlot on X-ray films on Ex. 15 containing the report of the Radiological test was written by Dr. Gehlot. He also wrote this opinion on the back of Ex. P. 11. The report of the examination is as under:
(1) Epiphyses of leteral epicondile had fused epiphyses of medial epicondile had not fused, epiphyses of head of redius had fused.
(2) Epiphyses for lower and of radius and ulna had not fused.
(3) Epiphyses for iliac crest and ischial tubersity had not appeared.
15. Dr. Gehlot stated that on the basis of Radiological finding, general examination and clinical examination he formed the opinion regarding the age that Surji was about fourteen to sixteen years.
16. Mr. Gaur referred to the case of Mohmad Hussain v. The State RLW 1958-60 in which the question about the expert evidence in a case of rape came for decision and it was observed that evidence of a Medical Officer is helpful as an opinion of an expert, but it is necessary that such experts should bring their technical and scientific knowledge to bear upon the matter which is referred to them while giving their opinion. It is not sufficient to give some indications which can be observed even by a layman.
17. In the present case the Medical Jurist has not stated that he had technical or specific knowledge about radiology, nor the technician who took the x-ray has been examined.
18. In the case of Sachindra Nath Mazumder v. Bistupada Das and Ors. 1973 Cr. L.J. 1494 it was observed that ossification is not a sure test, although it is generally accepted as best available test for the determination of the age of the human beings.
19. Modi in his Medical Juris prudence and Toxicology at page 31 (Twentieth Edition) has opined as under:
In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken and an opinion should be given according to the following table but it must be remembered that too much reliance should not be placed on the table. It merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development.
20. It is relevant to note that in this case x-ray of both the sides of the upper extremities has not been taken. Apart from it the perusal of the chart along with the opinion of the Doctor based on the x-ray reports does not indicate that the prosecutrix was definitely below sixteen years of age. In that chart the learned author has given the opinion of various authors about ossification of bones in different provinces of India.
21. The ossification test in the present case can not be made a basis for forming an opinion that Surji could not have been above sixteen years of age. By clinical examination Dr. Gehlot has opined that the physical appearance of the girl was that of a developed girl. The Doctor has observed that lower wisdom tooth was under the process of eruption. According to Modi the wisdom teeth are usually cut between seventeen and twenty six years of age, though there may be exceptions to this rule. The learned author in his above referred Treatise at page thirty, has observed that 'after the eruption of the second molar teeth the body of the jaw grows posteriorly and the ramus is elongated to make room for the appearance of the third molar teeth. Hence, during the examination of a minor for determining his age, a note should always be made as to whether there was a space in the jaw behind the second molar teeth, if the third molars were absent'.
22. Dr. Gehlot had admitted that he did not make any note of presence of any space for the third molar because it was in his view of no practical significance.
23. In offence for rape, the important age for consideration is sixteen years. In the present case the definite finding can be given about Surji being above fourteen years of age but as discussed above it cannot be said with certainty that she was below sixteen years of age, rather there are strong grounds to hold that she might have crossed the age of sixteen years, the of course must have been below eighteen years of age and thus a minor.
24. Having arrived to the above conclusion regarding the minority and the age of the prosecutrix, the point emerging for consideration would be, whether she was forcibly taken away from her house and ravished against her will without her consent by the appellant. Surji had stated that she was allured for new clothes and ornaments by the appellant and was asked to accompany him. The witness stated that on Her refusal to do so, she was threatened with a knife and therefore, she went away with him. The witness then narrated about her going with the appellant to various places including 'Chitra Cinema' and 'Idgah'. She admitted that she neither told anything to any body in the way nor raised a cry. The reason given by her for not doing so was her being threatened with a knife by the appellant.
25. The statement of the witness does not inspire confidence for a number of reasons. According to her, her parents had gone out at that time and there was nobody with her when the appellant went outside her house. She admitted that children were playing at the time. Her father at the trial has stated about his absence from the house but has stated about the small children being there at the house. If the girl is threatened with a knife, the natural reaction would be to raise a cry or even to tell the children about her being forcibily taken away. Even if she could not have told anything still she could have cried and the children inside the house would have been attracted or even the children playing in street would have known about it. Bhooru Ram (P.W. 2) at the trial has stated about his being not at the house at the relevant time. His attention was drawn to his police statement Ex. D. 1 portion A to B where he had stated about his daughter waiting outside the house and the appellant passing from infront of the house and a little while thereafter the girl not being found there. He disowned that statement The learned Counsel for the appellant stressed that different version given by the witness at the trial must be taken to be an attempt to prove that as he was not in the house and the girl had no occasion to complain to any body or raise a cry or to resist from being taken away forcibily. If prosecution case about Pahadia (P.W. 5), Kalu (P.W. 7) and Shera Ram (P.W. 8) having seen the girl with the boy is believed then also they being nieghbourers, the girl could have raised a cry on seeing them so that they could have rescued her. The conclusion therefore, would be that no force was exercised by the appellant at any time during the period Surji remained with him nor is there any convincing evidence to suggest that she was forcibly taken away. The evidence of the prosecutrix taken as a whole even throws doubt even on the story narrated by her that she was taken away from the place and in the manner stated by her.
26. Be it as it may, the conduct of the prosecutrix in not telling any body, though she had the occasion for it, e.g. at Chitra Cinema where there was huge crowd and in the way and at 'Idgah', clearly shows that she had accompanied the appellant with her free will and the story of her being taken away at the point of knife is not believable. It is not worthy that Pooran was apprehended while in the company of Surji and no knife was recovered from his possession at the time of his arrest.
27. Next point to be determined is whether the appellant had any sexual intercourse with Surji, and if so, whether it was with or without her will and consent. The fact of prosecutrix being over sixteen years of age in itself is not sufficient to hold that she was a consenting party to sexual intercourse. The opinion of Dr. R.K. Gehlot regarding the physique of Surji has already been stated above.
28. The Doctor has preserved the swab and smear for chemical analysis for evidence of sperm/semen. The under-wear of Surji, the pants of the appellant and the swab and smear of Surji are said to have been sent for chemical examination. The Chemical Examiner detected human semen on all of them. Mr. Gaur assailed the veracity of this finding on the ground that, there is no evidence to show as to whether these articles were sent in sealed condition or not and where the slides of swab and smear remained till the time they reached the chemical analyst. P.W. 6 Jaisingh is the Constable who had taken the four packets on May 13, 1976 to the Director forensic Science Laboratory, Jaipur. The witness stated that these packets were given to him by Prabhatilal, A.S.I. Narayan Singh Station House officer (P.W.JO; has stated that on May 7, 1976 he had sent the clothes to the S.P. office to be sent for chemical analysis and till that time they remained in the malkhana with him. The witness further stated that he had himself taken the clothes to the S.P. office. There is also evidence about the clothes being sealed at the time of recovery However there is no evidence as to whom the Doctor entrusted the slides of swab and smear and from whose custody they were sent for chemical analysis. Thus the evidence of the chemical analyst is helpful to the prosecution only to the extent of there being human semen on the clothes of the prosecutrix and the appellant. There being atleast some evidence for sexual intercourse it becomes a matter of prime importance as to whether the girl was forcibily ravished by the appellant or the act of the appellant was with her consent. From the opinion of the Doctor Gehlot it is also evident that Surji was habituated to sexual intercourse as the hymen showed old tears.
29. In the circumstances discussed above, the version given by Surji, that she had agreed to sexual intercourse because of her being threatened by the appellant with a knife, is not believable.
30. In most of the cases when the woman alleged to have been ravished is recovered, she, in order to prove her innocence fastens the guilt on the neck of the accused and therefore, the testimony of the prosecutrix is always to be taken with caution. In case force is used against a grown-up woman, she is bound to resist and in that process some injuries are likely to be sustained by the accused. There is also possibility of clothes of the two being torn in the struggle, if the girl resists. In the present case there is be such evidence. Surji does not state about any resistence from her side. Assuming for the sake of arguments that because of any fear she did not resist, still she was bound to sustain some injuries on the portion of her body which came in contact with the ground. According to her version, at the time of rape she was made to sleep on a slab of stone. If the woman is made to sleep on a hard substance abrasions and bruises are bound to occur on her back and buttocks. In the case of Puttan v. State 1972 Cr. L.J. 270 the case of the prosecution was that the accused subjected the girl to sexual inert-course in the field on uneven and rough ground. In the complete absence of any injury or scratches on the person of the accused and the victim, it was held that the intercourse was not forcible and the gill must have been a consenting party.
31. The reason for emphasizing necessity of corroboration to the statement of the prosecutrix in the charge of rape is, that, it is very easy to make such a charge but very difficult to refute. For this reason the courts insist upon some story of corroboration to the testimony of the prosecutrix. Such corroboration may be found in the medical evidence showing injuries to the private parts and others parts of the body of the victim.
32. In the present case the medical evidence does not give any such indication that force might have been used in committing sexual intercourse by the appellant over Surji. In such cases importance is always attached to the subsequent conduct of the prosecutrix because in case force is used, she on the first occasion available to her is bound to disclose her story. In the present case till the next evening she did not tell any body about what had happened to her rather had easily moved to various places with the accused.
33. The learned Public Prosecutor submitted that she had told the fact to her father. Father of course states so but not the prosecutrix. Even if it is true, still that was not the first opportunity available to the girl. In such circumstances, lack of corroboration to the testimony of Surji, coupled with the fact that she had no scratch even on her person led to the irresistible conclusion that she was a consenting party to the sexual intercourse, even if any. Hence the offence under Section 376 Indian Penal Code cannot be said to be made out against the appellant.
34. Now I would discuss the evidence regarding the offence under Section 366 Indian Penal Code.
35. The evidence on record proves the girl to be below eighteen years of age. Enticement is one of the ingredients of the offence of kidnapping.
36. In the case of Thakurlal D. Vedgama v. The State, their Lordships were pleased to propound that the word 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other.
37. In the present case the circumstances of the girl going to the Cinema and various places shows that she was allured to go with the appellant. Hence there is sufficient evidence for holding appellant guilty for kidnapping a minor girl Surji has stated that accused had told him that he would marry her in the Court but that is not sufficient to show that she was compelled or likely to be compelled to marry against her will. The evidence on record also does not prove that she was forced to illicit intercourse. The only point therefore to be seen is whether she was seduced to illicit intercourse.
38. The term seduce is used in Section 366 Indian Penal Code. The dictionary meaning of the word 'seduce' is to entice: to corrupt, to lead astray. If a person elopes with a minor girl and she surrenders to sexual intercourse, her being a consenting party to that act may not bring the charge under Section 376 Indian Penal Code home, still the minor girl being enticed or tempted to the sexual intercourse by the culprit, the case would fall within the ambit of Section 366 Indian Penal Code.
39. The prosecution has therefore, succeeded in establishing the offence under Section 366 Indian Penal Code against the appellant. The learned Counsel submits that the appellant was only eighteen years of age at the time of the alleged offence and therefore, he may not now be sent behind the bars again.
40. The appellant had remained in custody for a period of about five months. In view of the circumstances of the case and the fact that the matter relates to the year 1976, I do not consider it proper to send the appellant behind the bars after the lapse of a period of six years. The sentence for the period he had remained in custody along with the sentence of fine would therefore, meet the ends of justice.
41. Consequently, the appeal is partly allowed. The conviction of the appellant and the sentence passed under Section 376 Indian Penal Code are set aside and he is acquitted of that charge. His conviction for the offence under Section 366 Indian Penal Code is maintained. The sentence of imprisonment awarded to him for this offence is however reduced to the period he had remained in custody so far. The sentence of fine of Rs. 200/- in default to undergo three months rigorous imprisonment is maintained. He is allowed one month's time to deposit the amount of fine in the trial Court.