1968 P (PLP)

Moreover, there is a variance between the age sought to be established by Exh. 6 and this present Exh.

5. So far as the medical examination goes, the girl was first examined by P. W. 19, Dr. Muhammad Shaokat Ali, Sub‑Assistant Surgeon of Muhammad Ali hospital, Bogra on 16‑3‑

65. On examination of Muslema, be found 28 teeth 14 x 14 in each jaw. Axillary hair fully grown. Breasts fully developed. Pubic hair fully grown. Vulva well developed. He further found that there was sufficient space for wisdom tooth, and she was above 15 years of age. On 16‑4‑

65. In cross‑examination he admitted that normally up to 17/18 years of age persons generally have 28 teeth and wisdom tooth comes out after 18 years of age. Now this expression "above 15 years of age" means nothing. It may be above

16. It may be 17, it may be

18. At any rate, above 15 does not surely mean that she was below 16 years of age. P. W. 13, another doctor, Assistant Radiologist at Rajshahi medical college held ossification test by X‑ray examination of Moslema Khatun on 15‑7‑

65. He found epiphysis of lower end of humerus, opiphysis of the head of radius end of femer media epicondyble of humerus proximum and distal epiphysis of tribia all united with the corresponding shafts. But he found compound epiphysis of the head of the humerus distal ends of the radius, ulna and of femer proximal epiphysis of the fabula and eliacrest not yet united with the shaft. But he found epiphysis of the head of the distal ends of the radius. On the above basis he gave the opinion that Moslema Khatun on the date of examination, namely, 15‑7‑65 was below 16 years but above 15 years. This again is an absurd position. The ossification test is not very much advanced as to fixation of the age of the girl. If it is above 15, it may as well be above

16. It need not necessarily be under 16 as opined by the Doctor. Dilating a little farther on the evidence of the mother, P. W. 10, on this point it appears that she stated that she was married 26 years back at the age of 15 years. Her first issue, a son, was born one year after her marriage and her second issue, a daughter was born one year after her first issue and 3 years after that her third issue another son was born. Her further evidence was that her other children were born at the interval of 2 years. Moslema Khatun was her 5th issue. In view of her statement that*she was married 26 years back when she was 15 years old, her age would be 41 years. According to her, the age of her first issue, the son, is now 25 years as he was born one year after the marriage. The age of her second issue, a daughter, is therefore 24 years and her third issue, another son would be 21 years. The other issues born at the interval of 2 years after her third issue, the age of the 4th issue would be 19 years and of the 5th issue, namely, the present abducted girl, would be 17 years. Exh. C (1), copy of the birth register of Bogra thana lends some support to this. This shows birth of a daughter on 3‑7‑41 to P. W. Dr. Majibar Rahman who was also known as Majibar Rahman Pashari. The evidence of age as. given by the parents, is as a rule, entitled to the highest consideration but in this case it cannot be so. Their evidence trying to show that she was below 16 years cannot be accepted because the father has given 3 different ages in the first information report, committing Court and trial Court. The father has even varied his own age though he is a respectable doctor. He is 50 years in the committing Court while at the trial he has come to be 48 years of age. Coming to the mother, in the committing Court she has shown her own age to be 45 years while at the trial she brought it down to 40 years. All these go to show that the attempt was to keep their own ages down so as to reduces the age of the girl. So far as the medical evidence goes, apart from its inherent lacuna, there remains the hard fact, though not suggested that the father of the girl P. W. 1 is of the same fraternity as the two doctors. In those circumstances, we do not find any substantial reason for differing from the learned Assistant Sessions Judge in his finding as to the age of the girl being over

16. Reliance has been placed on the decision in the case of Ghulam Rasul and others v. Crown (2 P C R 225) in which it was held that the evidence of a doctor as regards the age of a person is nothing more than an opinion and an opinion of an expert is of little value unless it is corroborated by convincing ; materials on the record. Reliance has also been placed on the observations in the case of Sk. Hatem Ali and others v. Emperor (54 C W N 329) which was a case where the age of the girl abducted was near the border line age of

16. The relevant observations at page 326 are as follows "So far as the question of age is concerned, the principal witness is Capt. Mukherjee. Our criticism of the learned Judge's charge in this respect is that he has failed to point out that if the evidence of this witness is carefully examined, he has not, in fact, really deposed that the girl is under 16 years of age. All he has stated is that the girl is between 15 and 16 years of age and he has qualified this with an admission "In our opinion we fix the age as between 15 and 16 or like that. There may be I to 3 months more or less but not to the extent of 6 months." This seems to us to amount to an admission that the girl might be anything up to 16 years and 5 months old or some 5 months below the age of

15. The ambiguity in the evidence perhaps to some extent may be due to the fault of cross‑examining lawyer, but in view of the fundamental importance of the question of age, it was the duty of the learned Additional Sessions Judge to have obtained the evidence of the witness with the utmost precision and to have had it brought‑ out clearly whether the witness was prepared to stake his opinion that the girl could not be of the age of 16 or over." Reliance has also been placed in the decision in the case of Debprosad Bose v. The King (54 C W N 329) in which it was observed inter alia as follows: "In as much there is a variation between tables given by different authorities on fusion of particular bones between certain ages, the ossification test is not of much assistance in etermining the age of a girl." The girl, therefore, being a major, the question that. remains is as to whether she was taken out by force or deception. Mr. Bose has pointed out from the evidence of P. W. 4 Moslema Khatun, that she is in two minds about it. Once she bas C taken the stand that she was taken out deceitfully by his holding out high hopes of Calcutta and next she has said that she was taken out by force. Mr. Bose has pointed out that there cannot be force and deception at the same time and that the evidence of the baithak does not say about deception and that even the mother does not say that the girl was taken out deceitfully. It appears that the date of the two going to Calcutta was 13‑11‑

64. The girl returned on 11‑4‑

65. Rajat the appellant returned on 13‑3‑

65. Charge‑sheet was submitted on 24‑2‑

65. She was, for the first tune, produced before the police on 13‑5‑

65. For one month she was not produced before police or Magistrate. The evidence of P. W. 1, the father, on the point of deceit was that on return his daughter told that accused Rajat took her to India on false pretences and that Rajat had sexual intercourse with her against her will. He also stated that Moslema Khatun told that Shankari, sister of Rajat, introduced her to Rajat. Shankari was also student of Bhendari Girls' School. So Moslema used to visit Shankari's house with her. Moslema Khatun further told that Rajat used to tell her that he would get her employed in Cinema Company. So this witness came to know from his daughter after return that Rajat would try to get her employed in Cinema Company and that appellant Rajat took her to India on false pretext. It is remarkable that the mother of the girl, P. W.10, does not say about any deceitful means being employed. So far as P. W. 4 herself, the victim girl goes, she stated that she narrated the entire occurrence in detail to her mother and father. It would be more natural to state all the facts particularly regarding forcible sexual intercourse to the mother rather than the father. She says that Rajat held out hopes to her that while in Calcutta she would be emyloyeqd as an artist and that every time she visited his house, he gave rosy pictures of Calcutta to her. Narrating travel to the railway station, she said that she went to Bogra rail way station in a Rickshaw and that she was alone in the Rickshaw and that accused persons came by other Rickshaws. She, of course, stated that when she was being taken, it was told to her that Shankari would also be going to Calcutta. In cross-examination she further stated:‑ "Not true that I went with Rajat out of my own accord. I was taken by force. Not true that on that date before it dawned I myself out of my own accord left my house. I do not know Mani Babu father of Rajat." We shall see later that this statement‑has come in for a good deal of comment. There is no doubt that in the first part of her evidence, the girl has indicated that deceit had been practised upon her but at the same time it seems from the above lines that she was in two minds about it, having introduced the element of force. P. W. 9 is the younger brother of the girl, he does not say anything about hearing of deceit being practised upon his sister, the victim girl. He simply stated that Moslema Khatun related the occurrence to him in detail. P. W. 21, the Town Sub‑Inspector who examined Komal on 13‑5‑65 stated that P. W. 4 Komal did not state to him that Rajat had sexual intercourse with her at Calcutta nor her wearing apparels were produced or seized by him. The story of deception, therefore, rests on the solitary statement of the girl herself. The father's corroboration, if any, is a poor corroboration. In the predicament facing the girl it was only natural for the girl to try to white‑wash herself. Shankari the sister of Rajat being close friend of the girl at whose house the rosy picture of Calcutta was unfolded to the girl, has not been examined. Her examination was necessary at least to prove that there were previous me.‑tings with Rajat in their house in which the bright prospects of Calcutta were revealed to the girl by the appellant Rajat. It is true that there is no evidence as to the deceitful talks about the bright prospects of Calcutta having taken place in the very presence of Shankari, but all the same, her examination was necessary for proving that Rajat and the victim met previously in Shankari's and for that matter in accused' s house so as to offer the opportunity for such deceitful talks taking place previous to the taking itself. Moreover, in the cross examination as mentioned earlier she has said that was taken by force whether it is the result of mistake or the result of jugglery of the lawyer, that expression is there. The later lines "not true that on that date before it dawned, I myself out of my own accord left my house" show that her statement that she was taken by force is not altogether outside the context. At any rate, it is difficult to accept the position that the defence would suggest that she was taken by force. There is, thus, some inconsistency in the stand taken by her. It is to be noted that the abductor and the abducted are both teen‑agers and it is very likely that in the first flush of~ youth they started loving each other deeply, and hoped to build a family of their own, which, however, was shattered to pieces. There is even doubt as to who is older of the two‑the boy or the girl. Last but not the least, there is the evidence of P. W. 16, a member of Bogra Municipality and a neighbour of Dr. Majibar Rahman and his daughter Komal. He stated that college students lived in Ikbars Hall situated near the house of Dr. P Majibar Rahman. In 1961 or 1962 in one night a college student was caught in the house of Dr. Majibar Rahman with hi daughter. There is no doubt that the character of the girl herself is a highly material point in cases of the present kind. In those circumstances, the charge of taking the girl out by deceitful means has not been proved beyond reasonable doubt The case against the main appellant kajat having failed, the case against Sachin, the abettor also fails. We, therefore, allow the appeal and set aside the conviction and sentence passed on the two appellants and acquit them of the charge. Appellant Rajat is directed to be set at liberty forthwith, if not wanted in any other connection. The bail‑bond of appellant Sachin Ghosh is cancelled. ABDUL HAKIM, J.‑I agree. Appeal allowed