P.D. Kudal, J.
1. This is a criminal appeal against the judgment of the learned Additional Sessions Judge, Dholpur, dated September 4, 1976, where by the accts d appellant was convicted and sentenced under Section 368 and 373 I.P.C. to three years' and five years' rigorous imprisonment with a fine of Rs. 1,000/- on each count, in default of payment of fine to further rigorous imprisonment for six months on each count.
2. Accused Mangal Singh and Naresh were tried for offences of buying and obtaining possession of minor girls Km. Shanti alias Sharda and Km. Radha for the purpose of prostitution and for wrongful selling or keeping them in confinement and for voluntarily causing hurt. Accused Naresh was further charged for an offence under Section 376 I.P.C. for committing rape on Km. Radha.
3. The salient facts pertaining to this case are that on November 1, 1974, PW 5 Shri Prahlad Singh S.H.O. Police Station, Saipau was going to village Kolua in connection with anti-dacoity duties The two minor girls Km. Shanti & Km. Radha came running out of the house belonging to the accused & prayed for their safety and rescue. The S.H.O. recorded the statement of Km. Shanti, who told him that about one and a half month back two ladies used to come to her village for selling cut-piece clothes, from whom she used to purchase some clothe Section That these ladies took her into confidence and assured her that she would be provided with good dresses, better food and would be entertained nicely & would also be given in marriage with suitable good boy. Km. Radha the cousin of Km. Shanti was also induced and lured in the same manner. Both these gigs were then brought by these two ladies to Patina where they were kept in a locked room. When these two girls started weeping, these ladies threatened them with dire consequences Ultimately both these girls were brought from Bihar to village Kolua in Rajasthan and they were kept in confinement in the house of the accused Manger Singh. Manga! Singht and Naresh along with their elder brother Kumar beat these girls number of times and told them that they have been 'purchased from those two ladies and that now they have to earn by selling their flesh in the open market by way of prostitution. Budha, the father of the accused also told these girls that Radha has been purchased for Rs. 2,000/- and Shanti for Rs 700/-. He also insisted that they should earn by restitutions. These girls yare then sent for medical examination Dr. M.L Maru PW 1 conducted the ossification test and he was of the opinion vide his reports Ex. p 3 and P 4 that the age of Radha was about 17 year s while the age of Shantiv Das between 14 to 17 years. Dr. Sushila Shaima also examined these girls but according to her she did not find any injury on their breasts or on any other part of their bodies She also did not find any injury on their private parts. Their hymens were found to be hem and their vaginas admitted two fingers easily. Their vaginal smear did not disclose the presence of sperms. The lady doctor vide her reports Ex. P. 1 and 2 opined that these two girls were not subjected to any recent rape.
4. The statements of the accused were recorded under Section 313 Cr.P.C. The accused pleaded not guilty and asserted that they have been falsely implicated by the Thakurs of the village due to enmity. Accused Naresh contended that he is a student of 11th class and was residing at Dholpur.
5. The learned Additional Sessions Judge acquitted Naresh of all the charges levelled against him. The learned Addl. Sessions Judge, however, convicted and sentenced Mangal Singh as indicated above.
6. It has been strenuously contended on behalf of the accused-appellant, Mangal sirgh, that there is absolutely no evidence on record regarding the purchase of these girls by Mangal Singh from the two ladies Smt. Parvati and Smt. Pushpa. It was also contended that in her statement before the court Mst. Shanti stated her age to be 20 years. It was also contended that the question of wrongful confinement did not arise as the two girls are reported to have met the station house officer on the road. It was also contended that the learned Additional Sessions Judge has erred in holding that Km. Shanti was a minor. It was also contended that the prosecution story is manifestly false as according to the statement of Km. Shanti herself, she and Km. Radha along with eight others were recovered from the house of the accused. It was also contended that though these girls were kept ir the police station for more than two weeks still the prosecution has failed to record the statements of Smt. Pushpi and Smt Parvati It was also contended that even the statements of the parents of these girls have not been recoded. It was this contended that the prosecution has miserably failed to bring the guilt hen e to the accused. As a matter of fact, it was strenuously argued that for the reasons best known to the prosecution to most material witnesses namely Smt Pushpa and Smt. Parvati, the parents of the girls and the other residents of the house of Mangal Singh were not even examined. Ii was also contended that there was absolutely no justification for the investigating authorities to have kept these young girls in the police station for Lout a fortnight. It was also contended that the medical examination of Km. Shanti dose not reveal that she was below 18) ears of age at the time of her abduction from Bihar or at the time when she was kept confined in village Kolua in the house of the. accused Mangal Singh.
7. In Ex. P. 8 on 1-11-1974 Parcha Bayan Km. Shanti staled her age to be of 14 years. In her statement u/s 164 Cr.P.C. Ex. D I she maintained that her age was 14 years. When examined in court on 2-8-75, she deposed her age was 20 years PW 1 Dr. Mare has taken skiagrams Ex. P.9 & Ex. P. 10 According to Dr. Mare Km. Shanti measured 4' 7' in height on 11-11-1974 and her weight was 44 Kgs. She had 28 teeth. Her breasts were well developed. The auxiliary and public hair were shaved. Her skiagram revealed the union of all epiphysis complete in the elbow joint but the distal end of ulna redius and iliac crest were not completely fused In the opinion of Dr Maru the age of Km. Shanti was be teen 14 years to 17 years.
8. The learned Public Prosecutor placed reliance on the following observations at page 34 Mode's Medical Jurisprudence 1977 Edition:
Fusiln according to Lall and Townsend in females of United Provinces is at the age of 19 Distal End of Ulna, fusion is also at the same age of 19.
According to Modi's Medical Jurisprudence at page 31, 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 table. But it must be remembered that too much reliance should not be placed on this 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. Recent work has shown that the range of and may be upto (sic) 3 years.
9. The following observations have been made in Medical Jurisprudence and Toxicology by Glaister 11th Edition at page 70.
According to Brash, growth changes in the skeleton, although providing a very reliable basis for the estimation of age, do not permit of an exact determination but only within a range since there is variation in relation to growth and age. In referring to this point he states that, before puberty, when the skelten begins to consolidate, so many active growth change; are going on including the development of the growing (epiphyseal) ends of the limb bones, and the progressive calcification and the eruption of the teeth that it is relatively easy to determine probable age within a year or so. From puberty until the consolidation of the skeleton (at twenty-two or twenty-three, or at the most twenty-five years), a fairly close estimate.-.within a range of two to three years may still be made mainly on the progress of the union of the epiphyses.
10. The learned Counsel for the accused appellant has therefore, strenously urged that the prosecution has miserably failed to establish that Km. Shanti was below 18 years of age. Reliance has been placed on Kishori Lal Raghbir Dass v. The State , Ram Murti v. State of Haryana A.I.R. 1970 S.C. 1020, Amar Alt & Aer v. Emperor A.I.R. 1926 Lah 384 & Emperor v. Zomin A.I.R. 1932 Oudh 28, The entire prosecution case hinges upon the age of Km, Shanti. The ossification test carried out by P W 1 Dr. Maru does not conclusively prove that Km. Shanti was below the age of 18 years. The learned Sessions judge has disbelieved the prosecution story about the abduction of these girls against their wishes. There is no evidence on record 10 establish the bargain of selling Of these girls by Smt. Parvati and Smt. Pushpaand buying of these girls by Mangal Singh accused. Km. Shanti has herself stated in court that her era is 20 years. That she stated previously to be 14 years under the pressure of the Police. Despite the fact that Km. Shanti was kept in the police station for about a for tight, the prosecution did not care to examine Smt. Pushpa and Smt. Parvati nor any efforts were made to examine the parents of Km. Shanti. The lady doctor Smt. Sushila Sharma has cleat by stated that the hymen was absent and that the two fingers could easily be admitted into the vagina In these circumstances it is extremely difficult to hold that the prosecution has succeeded in establishing that Km. Shanti was minor i.e. below 18 years of age. Km. Shanti has stated that the Police had recovered her from the house while she was locked up in a latrine. The S.H.O. has, however, stated that Km. Shanti came running to him on the main road where her parched Banyan was prepared. Under these circumstances. I have no hesitation in holding that the prosecution has failed to bring home the guilt to the accused.
11. The appeal filed by Maigal Singh is, therefore, allowed. His conviction and sentences are accordingly set aside. Maigal Singh is in judicial custody. He is directed to be released forthwith if not required in any other case.