P (PLP)

The High Court while dealing with the question of enhance ment of sentence is competent to see whether the conviction recorded can be sustained. (b) Evidence Act (I of 1872) S. 45‑Statement of doctor as to age‑Not supported by reliable evidence carries no value. The statement of the doctor unsupported by any other reliable evidence is of no value. 32 P. L. R, 99 and 32 Cr. L.. J. 1931 relied on. ORDER.‑--Seven persons were tried under section 363 Indian Penal Code for kidnapping of minor girl Mst. Imam Sain from the guardianship of her parents on the night between 11 and, 12th of January, 1946 at Isha time. The report was made by Ghulam Qadir, a brother of the girl at 9‑30 A. M. on 12th of January, 1946. See Exhibit P. A. Nizam out of the seven was acquitted. The others were convicted under section 363 and each was sentenced to 4 months' rigorous imprisonment. Their appeal to the learned Sessions Judge was dismissed. The learned Sessions judge has recommended for the enhancement of the sentence. It is an admitted principle of law that the High Court while dealing with the question of enhancement of sentence is competent to see whether the conviction recorded can be sustained. Section 363 Indian Penal Code reads, " Whoever kidnaps any person from British India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." The present is a case of kidnapping from lawful guardianship and to support a conviction of kidnapping from lawful guardianship under this section, the facts must come within the ambit of section 361. i.e., the person against whom the offence is committed must be under age of 14, if a male, and under the age of 16, if a female. The important question for consideration is whether 141st. Imam Sain was proved to be a minor for the purposes of section

363. The burden to prove it was on the prosecution. Ghulam Qadir, the real brother of Mst. Imam Sain had stated in examination‑in‑chief as well as in the cross‑examina tion that the correct age of the girl was 18 years. He denied to have stated in first information report that the age of his sister was between 13 and 14 years. The father and the mother of the girl, i. e., Burhan and Mst. Roshnai had appeared as prosecu tion witnesses but neither of these made any statement about the age of the girl. The doctor alone had deposed that according to him the age of the girl was 15 years. Not only that the doctor's opinion as to age is not of much value, but in the present case, the opinion of the doctor is definitely contradicted by the real brother of the, girl who was expected to know her age. The learned Magistrate had observed in his judgment that according to Ghulam Qadir, the brother of the girl, her age was between 13 and 14 years. This statement is not supported by the evidence of Ghulam Qadir on the file. His statement was read more than once by me with the learned Government Advocate and even after I had gone into the judgment of the learned Magistrate. All that I could find was that Ghulam Qadir had persistently stated that the age of the girl was 18 years and the statement of the doctor was incorrect, and that the statement was the result of a collusion with the accused. I do not believe the last portion of the statement of Ghulam Qadir, because, there could be no collusion between the accused and the doctor to the prejudice of the former. At any rate, it is clear as I have already observed that the statement of the doctor unsup ported by any other reliable evidence is of no value. See 32 Punjab Law Reporter 98, 32 Cr. L. J. 1931. The burden to prove the age of the girl was on the prosecu tion. The parents of the girl made no statement in thi s connection. The brother's statement is definitely against the prosecution. The doctor's opinion alone as to age is of little value Mst. Imam Sain made no statement as to her age while in the witness‑box. She only gave her age when the technical parti culars of the witness at the time of her examination were written by the Court. It means, therefore, that the prosecution had failed to prove the most important ingredient of section 363 Indian Penal Code and consequently the conviction of the accused under that section could not be recorded. This was the opinion of the learned Crown counsel as well. I have therefore, no alterna tive but to set aside the conviction and sentence of the accused and to acquit them. The recommendation of the learned Sessions Judge for the enhancement of the sentence as a matter of course fails and dismissed. The convicts shall be released forth with if not wanted in any other case. K. A. M. Appeal dismissed.