JUDGMENT
P.N. Sinha, J.
1. This appeal is directed against the judgment and order dated 30.7.96 passed by the learned Additional Sessions Judge, Purulia in Sessions Trial No. 14 of 1995 (Sessions Case No. 35A of 1992) thereby convicting the appellant under Section 376 of the Indian Penal Code (hereinafter called the IPC) and sentencing the appellant to suffer detention for five years in lieu of imprisonment with further direction that the appellant being juvenile delinquent be kept in safe custody in Purulia Jail for five years. Being aggrieved by, and dissatisfied with, the judgment and order of conviction the appellant who was a juvenile at the relevant time of incident has preferred the instant appeal.
2. The prosecution case was started on the basis of complaint filed by the victim Charubala Mahato in the Court of the learned Chief Judicial Magistrate (hereinafter called the CJM), Purulia praying for sending the complaint to Officer-in-Charge, Purulia (M) P.S. for investigation under Section 156(3) of the Code of Criminal Procedure (hereinafter called the Code) treating the complaint as FIR. According to the story as depicted in the FIR, the victim and the accused are residents of same village and victim was aged about 15/16 years old and the accused was aged about 17/18 years. There was love affair between the victim and the accused-appellant. The appellant forcibly inter-coursed with the victim and the victim raised objection but the appellant stated to her that he will marry her soon. The appellant used to meet with the victim and intercoursed with her against her will. He assured the victim that he will make his father agree in marrying her but, his father the accused No. 2 denied the proposal. Subsequently the appellant refused to marry the victim on 4th August, 1991. Since 21st January to 4th day of August, 1991 the accused made sexual intercourse with the victim against her Will and the victim did not state it to any other as she was a poor girl and her father was unable to give her marriage and the victim was under the belief that the appellant would marry her. When on 4th August, 1991 the appellant denied to marry her the victim stated the entire fact to her father, mother and others. There was a meeting in village but the accused No. 2 denied the proposal of villagers to give marriage of appellant with the victim. The villagers assured that they will settle the matter within 15 days but they failed to do anything and hence there was delay in lodging FIR. The villagers arranged for her medical treatment and she was examined by Dr. Goswami on 6.8.91 when it was detected that she was pregnant for about 7 1/2 months. Learned CJM sent the petition of complaint to O.C., Purulia (M) P.S. and on the basis of it Purulia (M) P.S. Case No. 188 dated 30.8.91 under Sections 493/ 376/ 506/ 109 of IPC was started against the appellant and his father. After completing investigation the police submitted chargesheet against this appellant and his father. This appellant raised the plea in the Court below that he is a juvenile and accordingly by the order of the learned Sessions Judge, Purulia an enquiry was made by the learned SDJM, Purulia, who after considering the ossification test report and school certificate opined that the appellant was a juvenile. Accordingly, trial was separated for this juvenile appellant and he was examined under Section 251 of the Code. After the trial the learned Sessions Judge found him guilty under Section 376 of IPC and sentenced him to suffer detention for five years in safe custody in lieu of sentence of imprisonment.
3. The materials on record including the Lower Court Records reveals that in the trial 11 witnesses were examined for the prosecution and the appellant did not examine any witness. Out of 11 witnesses examined in Court during trial P.W. 1 Dr. Sanatan Dutta, P.W. 3 Dr. Ramkrishna Mondal, P.W. 4 Dr. Panchanan Dey and P.W. 5 Dr. A. K. Hazari are the medical officers. P.W. 1 is a Gynaecologist attached to Purulia Sadar Hospital and on 2.9.91 he examined the victim being referred by O.C. Purulia (M) P.S. and found the victim pregnant and was carrying for 28 weeks. P.W. 3 examined this appellant and opined that he was capable of enjoying sexual intercourse. P.W. 4 Dr. Panchanan Dey held ossification test of the victim on 11.9.91 and opined that the victim completed 18 years of age but below 25 years of age on the date of examination. P.W. 5 Dr. A. K. Hazari after receiving the victim for medical examination sent her to radiologist for ossification test. P.W. 2 Kishore Kr. Sinha was Officer-in-Charge of Purulia (M) P.S. on 30.8.91 and receiving the complaint sent by the learned CJM started Purulia (M) P.S. Case No. 188 dated 30.8.91 treating the said complaint as FIR. These five witnesses are not witnesses of incident and their evidence is only corroborative in nature.
4. P.W. 6 is the victim, P.W. 7 Smt. Sundara Mahato is the mother of the victim, P.W. 8 Tarani Kanta Mahato is a villager who heard about the matter of pregnancy of victim caused by this appellant from Phani Bhusan Mahato, father of the victim. P.W. 9 Dilip Kr. Mahato is another villager who heard the same matter like P.W. 8. P.W. 10 S.I. A. T. Banerjee is a Sub-Inspector of Police who held investigation in this case and after completing investigation submitted chargesheet against this appellant and father of the appellant. P.W. 11 Amiya Kr. Banerjee is practising Advocate of Purulia Bar, who drafted the petition of complaint as per dictation of the victim and thereafter filed the complaint before the learned CJM for sending it to the police authorities under Section 156(3) of the Code.
5. The status of the witnesses discussed above makes it clear that the evidence of P.W. 6, P.W. 7, P.W. 8 and P.W. 9 are important as they are witnesses of the incident, though of course P.W. 7 to P.W. 9 are not witnesses of actual incident and they heard the matter from the victim and her father Phani Bhusan Mahato. Phani Bhusan Mahato, father of the victim, was not examined as a witness in Court by prosecution.
6. Evidence of victim (P.W. 6) reveals that on 7th Magh she went to collect cowdung when this appellant came to her and committed sexual intercourse with her. She knew the accused beforehand and the accused often used to tell her that he would marry her. Believing such assurance of the accused appellant she allowed the accused to cohabit with her and there was cohabitation between them from 7th day of Magh to 18th day of Shravan. When she requested the accused to marry her he refused to marry her and thereafter only she reported the matter to her mother, father and brothers. Her parents and brothers thereafter narrated the incident to the villagers. A meeting was called in the village but in the meeting the accused denied his involvement, though once the accused stated that as his father did not agree he could not marry the victim. The villagers requested the victim and her parents for some time for deliberation and to manage the affair but, the villagers could not do anything. She was examined by a doctor and it was detected that she was pregnant for 7 1/2 months. The father of the accused and the accused was again approached by the villagers for marrying the victim but they refused and thereafter the complaint was lodged which resulted into the instant case. The cross-examination of P.W. 6 clearly reveals that she was known to accused for long time and there was love affair between them and she was a consenting party to the alleged incident of sexual intercourse. Her evidence discloses that on 18th day of Shravan she had last talk with the accused at noon and the talk lasted till evening. On that date also there was sexual intercourse between her and the accused. Her evidence clearly reveals that she did not report the matter to her parents and others earlier and concealed everything including her pregnancy.
7. The evidence of P.W. 7, mother of the victim clearly reveals that she did not realise that her daughter, the victim became pregnant. It is surprising that the mother of victim could not realise that her daughter was 7 1/2 months pregnant and even could not understand the matter and did not notice symptoms of pregnancy. If a girl becomes pregnant for about 7 1/2 months it must come to the notice of the parents of the girl from different systems like vomiting at early stage, stoppage of menstruation and signs on abdomen. A mother cannot remain so indifferent in such a matter and a daughter cannot conceal symptoms of pregnancy to her mother. Her evidence reveals that she was unaware of the entire incident and came to know about cohabitation between her daughter and appellant from victim when the victim disclosed the matter to her after the appellant refused to marry the victim. Evidence of villagers namely P.W. 8 and P.W. 9 reveals that they learnt from Phani Bhusan Mahato, father of the victim that his daughter became pregnant due to sexual intercourse with this appellant. They called a meeting and requested the accused and his father for marriage negotiation between victim and accused but the accused and his father did not agree. Evidence of P.W. 8 reveals that he was declared hostile as did not support the prosecution case and did not disclose name of the person responsible for the pregnancy of victim. Evidence of P.W. 8 and P.W. 9 have no importance in this case as their evidence is hearsay and the person, that is, father of the victim from whom they heard the matter, was not examined in this case.
8. Considering the nature of the evidence it appears to me that the victim was a consenting party to the entire incident and her mother also was fully aware about the entire matter and that is why though her daughter became pregnant she remained silent and did not tell the matter to anybody. She raised hue and cry only after this appellant refused to marry the victim. The question is now whether consent of the victim is valid or not as it is the prosecution case that victim was below 16 years at the time of incident. It is also admitted that the accused-appellant was also a minor and the victim (P.W. 6) in her evidence admitted that accused was a school student. The separate trial for this appellant treating him as juvenile indicates that the appellant was a minor at the time of incident.
9. Learned Advocate for the appellant Mr. Ashim Roy contended that the victim was a major girl and was a consenting party to the alleged incident. He contended that though in the FIR word “forcible sexual intercourse” was used, the victim in her evidence did not state that the accused committed forcible sexual intercourse with her. He contended that if the victim was aged below 16 years the alleged consent is not valid in the eye of law. The mother of the victim did not state actual age of the victim. In the ossification test report it was observed that victim completed 18 years of age but below 25 years of age on the date of examination and evidence of P.W. 4 reveals that he examined the victim on 11.9.91 for ascertaining her age. He contended that fusion is union and fusion completes at the age of 20 years. On recall name of one authority was stated to the doctor but relevant portion of the book of the authority was not shown to the doctor and the learned Judge in judgment referred to Modi’s Medical Jurisprudence but no question was put to P.W. 4, the doctor during his examination in Court from Modi’s Medical Jurisprudence. The authority of book put to P.W. 4 in evidence was not considered by the learned Judge in the judgment. Referring to the decision of Masji Tato Rawool and Ors. v. State of Maharashtra, reported in 1971 SCC (Cri) 664, he contended that the Supreme Court held that the High Court was in error by relying on some passage from Modi’s book on Medical Jurisprudence for the purpose of discrediting the medical testimony but it was not proper and was far from fair or just as the doctor who appeared as a witness was not questioned with reference to those passages. In the instant case also the learned Judge placed reliance in his judgment on Modi’s Medical Jurisprudence but no question was put to the doctor regarding Modi’s Medical Jurisprudence in respect of ascertaining age of a person. There was no ground at all for rejecting the medical evidence of P.W. 4 by the learned Judge without referring anything to the said doctor from Modi’s book.
10. Mr. Roy for the appellant further contended that the Supreme Court and this Court have held in several decisions that consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. In the instant case the prosecutrix was a grown up girl and she and the appellant were deeply in love. They often met on the field and the appellant made a promise to marry her on more than one occasion and in such circumstances there was sexual intercourse with the appellant several times. The circumstances clearly indicates that the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. The circumstances clearly show that the prosecutrix voluntarily and consciously consented to having sexual intercourse with the appellant and her consent was not in consequence of any misconception of fact. He contended that the Supreme Court made the above findings in Uday v. State of Karnataka, reported in 2003 SCC (Cri) 775. The same view was expressed by Division Bench of this Court in Jayanti Rani Panda v. State of West Bengal, reported in 1984 Cr. LJ 1535 and in Hari Maji v. State, reported in 1990 Cr. LJ 650. In the said decisions this Court observed that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. He contended that there was no ground to reject the medical opinion of P.W. 4 by the learned Trial Judge and evidence of P.W. 4 reveals that at the relevant time of incident the prosecutrix was full grown girl and much above 16 years in age. She voluntarily allowed the appellant to have sexual intercourse with her for few months and did not disclose the matter to her parents or others until she was pregnant for 7 1/2 months. It shows that there was no misconception of fact and the victim voluntarily had the consent in sexual intercourse with the appellant.
11. Mr. Biplab Mitra, learned Advocate for the State contended that Section 375 of the IPC defines rape and it shows that it would amount to rape if a man has sexual intercourse with a woman with or without her consent when she is under 16 years of age or with her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. In the instant case the age of the victim is the prime consideration. During examination of P.W. 4 one authority was referred to the doctor. Finding of learned Judge regarding age of the girl is below 16 years at the time of incident is acceptable. As the victim was below 16 years of age at the time of incident her consent does not arise in the instant matter of sexual intercourse with the appellant and sexual intercourse by the appellant with the victim amounted to rape.
12. Considering the nature of evidence of the victim, her mother and evidence of doctor (P.W. 4) I am of opinion that the learned Trial Court was in error by rejecting the evidence of P.W. 4. Learned Judge relied upon Modi’s Medical Jurisprudence referred to him by Public Prosecutor-in-Charge of the case regarding ascertaining age of the victim girl but, during examination of P.W. 4 in Court neither the Public Prosecutor nor the learned Trial Judge referred to the doctor about Modi’s Medical Jurisprudence to ascertain age of female or the age of the victim girl in the instant case. Learned Judge placed reliance on Modi’s Medical Jurisprudence and Toxicology, 16th Edition at pages 33 and 34, particularly the table lying in the said pages which indicated that fusion of radius takes place in case of female within 14 years and fusion of ulna at the age of 17 years. I am of opinion that there is difference between words ‘appearance and fusion’ from the word ‘completion of fusion’.
13. P.W. 4 stated that fusion of both radius and ulna of the victim was completed and fusion completes at the age of 20 years. He also stated that regarding pelvis and lower abdomen – head of femur greater trochender lesser trochender. Fuse with the diaphesis. The confusion completed at the age of 18 years. So the age is above 18 years. The iliac test not fuses with the diaphesis. So the age is below 25 years. Concerning all aspects he opined that the victim on the date of examination i.e. on 11.9.91 completed 18 years of age but below 25 years of age. It establishes that the victim was above 18 years on the date of examination i.e. on 11.9.91. Therefore, at the relevant time of the incident between 21.1.91 to 4.8.91 the victim was above 16 years even if two years reduction is made in age from the report of the ossification test as ossification test is based on scientific opinion and there may be variance of two years both ways. There was no justification for the learned Judge to disbelieve the evidence of P.W. 4 when during examination of P.W. 4 no question was put to the said doctor from Modi’s Medical Jurisprudence regarding particular pages and the table in respect of ascertainment of age relied on by the learned Judge. Regarding ossification test the evidence of doctor is admissible under Section 45 of the Evidence Act and his evidence has the value of experts opinion and without any valid reason Court cannot reject such experts opinion.
14. The mention of table in Modi’s Medical Jurisprudence by the learned Judge regarding ossification test to determine age of a person particularly on fusion of radius without referring relevant portions of Modi’s Medical Jurisprudence to the doctor concerned in Court to discredit the evidence of P.W. 4 was bad in law. In order to discredit the evidence of P.W. 4 regarding his assessment of age of the victim the learned Judge should have put questions to P.W. 4, from his report with reference to Modi’s Medical Jurisprudence. Without following that procedure the rejection of evidence of P.W. 4 was not proper. Moreover, the learned Judge did not consider that in Modi’s Medical Jurisprudence it has been categorically been mentioned that, “Owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different States of India it cannot be reasonably expected to formulate the uniform standard for the determination of the ages of the union of epiphysis for the whole of India.” Therefore, in the particular case with reference to the victim questions should have been put to P.W. 4 from Modi’s Medical Jurisprudence before disbelieving the evidence of P.W. 4.
15. The evidence and circumstances also supports that the victim had full consent in sexual intercourse with the appellant as from January, 1991 to 4th August, 1991. She had regular sexual intercourse with the appellant but did not report anything to her parents. She even did not report to her parents about her pregnancy during initial stages. On 4th August, 1991 when she last met with the appellant on that date also she enjoyed sexual intercourse with the appellant as it transpired from her evidence. She reported it to her mother only when the appellant refused to marry her. Relying on the decisions cited above by the learned Advocate of the appellant I am of opinion that in the instant case there was no misconception of fact and the victim being a full grown lady voluntarily consented to having sexual intercourse with the appellant. Her evidence also reveals that the appellant once disclosed to marry her but he could not marry her as his father objected to the marriage. It establishes that there was no misconception of fact in the instant case and the victim was a consenting party and her conduct was nothing but an act of promiscuity on her part. The aforesaid decision makes it clear that in such a situation the appellant cannot be held guilty under Section 376 of the IPC.
16. Learned Advocate for the appellant further contended that the appellant was a juvcnile and under Section 22 of the Juvenile Justice Act if a juvenile is found guilty he can be sent to safe custody but the Court cannot fix the place for keeping him in safe custody and it is duty of the Court to report the case for the orders of the State Government to make such arrangement in respect of the juvenile. In the instant case the learned Judge directed the jail authorities of Purulia Jail to keep him in safe custody which is bad in law.
17. Mr. Moitra, learned Senior Advocate for the State contended that the accused was a juvenile as it appears from the nature of the trial and the learned Judge had in his mind this fact that the present appellant is a juvenile. The matter was at Purulia and if there was no separate Juvenile Court the Sessions Judge can exercise power of a Juvenile Court. The learned Judge cannot impose sentence of 5 years upon the juvenile. The appellant is now major and now he cannot be directed to face trial afresh nor he can be sent to Reformatory School. He may be released on execution of bond to his father so that he can lead a normal life in mainstream as at the relevant time of incident he had no maturity of understanding to know or understand the nature and consequences of his act. In support of his contention he cited a decision in the case of Masarullah v. State of Tamil Nadu, reported in 1983 Cr. LJ 1043.
18. Considering the submissions made by the learned Advocate for the appellant and the learned Advocate appearing for the respondent-State I am of opinion that the point raised by them regarding Juvenile Justice Act in the instant case is not properly applicable. Sections 21 and 22 of the Juvenile Justice Act would have become relevant if it was found that the appellant being juvenile committed rape on the victim. Section 22 of the juvenile Justice Act proscribes that no delinquent juvenile shall he sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security ………………………Provided that where a juvenile who has attained the AGE of fourteen yours committed an offence and the Juvenile Court in satisfied that the offence committed is of so serious in nature or that his conduct and behaviour having been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient (SIC) Juvenile Court, may order the delinquent juvenile to be kept in safe custody in such place and manner as it thinks fit and shall report the case for the orders of the State Government.
19. However, these matters have become irrelevant in view of the finding that in the instant case the prosecution has failed to establish that the appellant committed offence under Section 376 of the 1PC. That being the position the appellant cannot be held guilty under Section 376 of the IPC and the finding of the learned Judge by which he held the appellant guilty under Section 376 of the IPC is set aside and the order of conviction passed by the learned Sessions Judge is also set aside.
20. In view of the discussion made above the appeal succeeds and the accused-appellant is found not guilty under Section 376 of IPC and acquitted of the charges under Section 376 of IPC. He is hereby discharged from bail bonds and set at liberty forthwith if not wanted in connection with any other case.
21. The appeal succeeds and allowed.
22. Send down the Lower Court Records along with copy of judgment to the learned Court below for information and necessary action.
23. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.