Judgment:
P.K. Patra, J.
1. The appellant has challenged the judgment dated 29-6-1996 passed by Shti D. G. Samal, Assistant Sessions Judge, Deogarh in S.T. No. 18/3 of 1996 convicting him under section 366/376 of tbe Indian Penal Code (hereinafter referred to as 'IPC') and sentencing him to ' undergo rigorous imprisonment for eight years and to pay a fine of Rs. 500.00 on each count, in default to undergo rigorous imprisonment for a further period of three months on each count with direction that the sentences would run concurrently.
2. Briefly stated, the prosecution case is as follows : On 10-7-1995 the prosecutris (p. w. 1), aged about twelve years, daughter of the informant (p. w. 2), resident of village Kalanda under Deogarh police station in the district of Deogarh had been to Deogarh with other girls of her village and some relations to witness return car festival. While they were returning to village after witnessing the festival, the grand-father of the prosecutrix, the appellant (hereinafter referred to as the 'accused') and his father were also following them. On the way, theaccused enticed the prosecutrix and took bet away. The grandfather of the prosecutrix returned to village and told the matter to p. w. 2. - They searched for the prosecutrix, but in vain. On 13-7-1995 he lodged written report (Ext. 3) at the Deogarh police station before the O. I. C. of the said P. S. who treated the same as F.I.R., registered the case under section 366, I.P.C. and directed the S.I. of the said police station (p. w. 10) to take up investigation. During investigation, p. w. 10 examined witnesses, rescued the prosecutrix from the grocery shop of the accused adjoining his residential house in village Goisapada. He arrested the accused and took him to the police station along with the prosecutrix, seized their wearing apparels, sent them; for medical, examination to the Deogarh District Headquarters Hospital, forwarded the accused to court in custody and forwarded the seized wearing apparels for chemical examination. On 6-10-1995 he attested the father of the accused alleging that he had abetted the offence committed by the accused. After completion of investigation p.w. 10 sub mitted chargesheet under sections 363/366/376, I.P.C. against the accused and under sections 212/109, I. P. C, against his father and both of them stood their trial, The trial court convicted the accused as stated earlier but acquitted the co-accused, his father, of the charge levelled against him.
3. Defence plea is one of denial and according to the accused, the prosecutrix had come to his bouse out of bet own will and wanted to marry him.
4. Mr. R.K. Nayak, learned counsel for the appellant, and Mr. S. Pradhah, learned Addl. Standing Counsel for the State, were heard at length. While Mr. Nayak contended that the impugned judgment is unsustainable in law and is liable to be set aside, learned Addl. Standing Counsel supported the impugned judgment.
5. In order to bring, home the charge against the accused, prosecution examined ten witnesses in this case of whom p. w, 1 is the prosecutrix and p, w. 2 is her father who lodged .the F. I. R. in this case. P. ws. 3 and 4 are the co-villagers of the informant. P. w. 5 is the medical officer who had medically examined theprosecutrix. P. w. 6 is the husband of the aunt of the accused in whose house the accused and the prosecutrix had stayed for some hours when the father of the accused took them to bis house. P. w. 7 is another medical officer who examined the X-ray plates, teeth and other parts of the body of the prosecutrix and determined her age to be below seventeen years (14 to 16 years). P. w. 8 is the Constable who was present at the time of seizure of the wearing apparels of the prosecutrix. P. w. 9 is the Head Pandit of Kalanda Primary School who has produced the Admission Register of the school showing the date of birth of the prosecutrix as 1-7-1985 as per the entry against Sl. No. 2 of the year 1990-91 when she took admission on 3-7-1990 in Class-I. P. w. 10 is the investigating officer.
6. Defence has examined three witnesses in support of its plea. D. w. 1 is a co-villager of the accused who has stated regarding a Punch meeting held in the village after arrival of the victim girl in the village in which she expressed her willingness to marry the accused. D. w. 2 is another co-villager who has stated that the victim girl travelled in a bus from Deogarh to the village of the accused with her. D. w. 3 is a co-villager of the informant and mother-in-law of the cousin of the informant who has stated regarding the decision of the informant to give the prosecutrix in marriage to one Ananta of Nuagaon, her sister's son and about refusal of the prosecutrix to marry said Ananta. She has also stated that she had been to Deogarh to witness Bahuda Jatra and was returning to her village with the prosecutrix and her grand father and other relations and that the prosecutrix and her grand-father went to the bus-stand.
7. Discussing all the materials on record, the trial court held that under no circumstances the age of the victim girl would be more than sixteen years at the time of occurrence when the accused enticed her for the purpose of committing rape on her and that the accused committed tape on the victim girl. He found that there was no material on record to believe that the father of the accused had abetted the offence committed by the accusedand as such the father of the accused was acquitted. The contention of the learned counsel for the accused that the learned Assistant Sessions Judge failed to appreciate the evidence on record in its proper perspective requires careful consideration.
8. The medical officer - p.w. 5 who examined the prosecu-trix on 15-7-1995 submitted the report-Ext. 4 and found as follows ;
'1. The victim girl was capable of sexual intercourse.
2. I found her hymen absent.
3. There was a laceration of the posterial wall of the vagina.
4. I collected vaginal swab and on myctospic examination of the vaginal swab I found dead spermatozoa.'
P. w 7 is the other medical officer who examined the X-ray plates and other physical features of the prosecutrix on on 1-5-1996 being directed by the C. D. M. O., Deogarh and submitted his report-Ext. 6, found as follows :
'1. The lower end of ulna and the lower end of radius have not fused evidencing the age of the victim girl to be less than sixteen years.
2. All carpal bones were present at the time of examination showing the age of victim girl more than 12 years.
3. The lower end of bumeius and the external epicon-dyle have fused while the age of the victim to be more than 14 years.
4. The lower end of tibia and fibula have not fusedshowing the age of the victim girl to be less than16 years.
5. The upper end of tibia and of femur have not fused showing the age of the victim to he less than sixteen and half years.'
He was also of the view that the prosecutrix was below seventeen years of age (14 to 16 years).
9. In the F.I.R. (Ext. 3) the informant (p.w. 2) has given the age of the prosecutrix to be twelve years. The prosecutrix (p. w. 1) at the time of her examination on 29-4-1996 has givenher age to be twelve years while the court assessed her age to be fourteen years. The informant (p. w. 2) has'stated in court that the age of the prosecutrix was about tweve to thirteen years. As per the School Admission Registrar (Ext. 8) produced by p.w, 9, the date of birth of the prosecutrix is recorded as 1-7-1985, which shows that the prosecutrix was ten years' old at the time of the alleged occurrence which is apparently wrong in view of the medical evidence on record. It is well settled in law that ossification test to determine the age of the girl invariably be carried out whenever it is possible and it is better and sure test of fixing the age of the girl from the growth of teeth, public and auxilliaty hair, growth of the breast, height and weight of the girl. The birth register is conclusive evidence of age, but where such evidence is not available, ordinarily court will have to base the decision upon facts and circumstances as disclosed by physical features and other oral evidence.
10. In the present case, as per the statement of p. w, 7. who consided the X-ray plates of the wrist joints, elbow joints, ankle joints, knee joints and other physical features, the growth of teeth, public and auxilliaty hair and growth of breast of the prosecutrix, the age of the girl was below seventeen years, i.e. within fourteen to sixteen years, at the time of her examination. He has specified that the age of the victim girl cannot be less than fourteen years and more than sixteen years. In the opinion of the other medical officer (p. w. 5) who also examined the X-ray plates of the victim girl, the age of the victim girl was fourteen to sixteen years at the time of examination.
11. Books on medical jurisprudence establish the fact that the age of puberty in India is attained by a girl upon her reaching the age of fourteen. Even though puberty may be reached at that age, it is obvious that girls are unfit for sexual cohabitation till they are older and more developed in physique and strength. As stated by d. w. 3 who is related to the informant had no axe to grind againsc him, the prosecutrix had attained puberty six to seven years prior to the occurrence and that she was aged about five years about sixteen years back whend. w. 3 migrated to village Kalanda. Had the victim girl not attained marriageble age, her father would not have arranged her marriage with Ananta.
12. In the case of Jaya Malta v. the Home Secretary to Government of Jammu and Kashmir, reported in A. I R. 1982 S. C. 1297, the Apex Court held that 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 the case of Sribastsha Khamari v. State of Orissa, reported in (1993) 6 O. C. R. 661, the above view was followed by the Court and it was held that such margin will enure to the benefit of the accused. Keeping in view the principle enunciated in the above decisions, the age of the victim (p. w, 1) in the present case was definitely above sixteen years.
13. It has been held in several other cases that there may be variation of age determined by ossification test by two years this side or that side and that this variation should go to the benefit of the accused. In the present case if two years is added to the age of the victim girl then her age would have been above sixteen years at the time of the alleged occurrence.
14. The statement of the prosecutrix (p. w. 1) reveals that she was a willing party to the sexual intercourse, in as much as she had stated that after arrival in the house of the accused she put on saree, blouse and Saya given to her by the accused changing her frock and Chadi and slept with the accused in one bed. Her statement that the accused gave her something known as 'Kalinga Gupta' to eat on the way while she was returning from Deogarh to her village is a subsequent development and cannot be believed to be true, inasmuch as she has not stated the same before the investigating officer (p. w. 10). She has also stated to have accompanied the accused to different places where they had sexual intercourse several times. She has also stated to have signed a document (Ext. 1) agreeing to marry the accused in a meeting of the Panchayat, but she has not stated that her signature was taken by using force or inducement. The chemical examination report (Ext. 21) reveals that no stain oi blood orsemen was detected in the Saya, blouse, bra, two frocks and saree sent for chemical examination which indicates that she was a willing party to the sexual intercourse.
15. Thus from the evidence on record it is found that the victim girl (p w. 1) was aged more above sixteen years and that she had refused to marry one Ananta, son of ber aunt, whom her father p. w. 2 had selected and that she had accompanied the accused out of her OWD volition and had agreed to marry him without any force or coercion or inducement and had sexual intercourse with him with her consent. Therefore the findings of the trial court that the accused had kidnapped the prosecutrix (p. w. 1) and that the kidnapping was to compel the prosecutrix to marry him and that he committed rape on her are erroneous and cannot be sustained. Hence the conviction of the accused under sections 366 and 376 I.P.C. and the sentences passed thereunder are liable to be set aside and the accused will be entitled to an acquittal.
16. In the result, the Criminal Appeal is allowed. The impugned judgment dated 29-6-1996 of the Assistant Sessions Judge, Deogarh in S. T. No. 18/3 of 1996 is set aside. The appellant is found not guilty of the charge and is acquitted. He be set at liberty forthwith if his detention is not required in connection with any other case.
17. Criminal appeal allowed.