The Judgment of the Court was delivered by
Koshi, C.J:— There are two appellants in this Criminal Appeal. Marudevi Avva, appellant 1, was accused 1 and Appukuttan appellant 2, accused 4 in Sessions Case No. 66 of 1956 on the file of the Sessions Court, Kozhikode. There were in all four accused persons in that case. While there was a common charge against all the four of kidnapping, or in the alternative of abducting, a woman to compel her marriage an offence punishable under S. 366, Penal Code accused 1 and accused 4 were called upon to answer a further charge, the former under S. 115, (Penal Code) and the latter under S. 307 (Penal Code).
2. Accused 4 was alleged to have attempted to murder one Padmayya Goundan (P.W 1) by driving a jeep over him and accused 1 was alleged to have abetted the said act of accused 4 driving the jeep over P.W 1. Hence the charges under S. 307 and S. 115 respectively against accused 4 and accused 1. The learned Sessions Judge acquitted all the four persons of the common charge under S. 366, but found accused 1 and accused 4 guilty of the specific charges against them. Accused 1 was sentenced to undergo simple imprisonment for a period of 3 months under S. 115 and accused 4 to undergo rigorous imprisonment for a period of 3 years under S. 307. In this appeal they challenge these convictions and sentences. Accused 1 is the wife of one Padmaprabha Goundan. P.W 12 is the younger sister of accused 1. Their mother died some 4 or 5 years before 1-9-1956, the date of the occurrence complained of. Their father (P.W 13) thereafter left P.W 12 in the charge of accused 1 who was his eldest daughter. Since her marriage with Padmaprabha Goundan accused 1 lived with her husband at Puliyarmala, some miles away from the residence of Pw. 13. It would appear that while Pw. 12 was residing with accused 1, the latter's husband developed a desire to make Pw. 12 his second wife. Coming to know of this, Pw. 13 took Pw. 12 away to his house.
3. She lived with him for 2 or 3 months and then Pw. 13 made arrangements with Pw. 1 to keen her with him and his family at his Kootamunda Estate in Kottappadi Amsom (Vyanad Taluk). Pw. 1 is a nephew of Pw. 13. Pw. 13 is said to have made this arrangement as there were no females in his house and he apprehended that while he is absent from there Padmaprabha Goundan might forcibly remove Pw. 12 to his place. Pw. 12 lived with Pw. 1 and his family for 4 or 5 months. During that period Padmaprabha Goundan was nutting pressure on his wife to bring back Pw. 12 to his place and see that she became his second wife. Reports would seem to have reached Padmaprabha Goundan that Pw. 13 was contemplating to give Pw. 12 in marriage to somebody else. One Sundaram's name was in the air as the prospective husband of Pw. 12.
4. This Sundaram was the brother-in-law of Jinachandra Goundan, an younger brother of Padmaprabha Goundan, Padmayya Goundan was their eldest brother's son. It would appear that Padmaprabha Goundan was not on good terms with his younger brother (Jinachandra Goundan) or with his nephew (Padmayya Goundan). Differences, both domestic and those connected with Legislative Council elections would appear to have existed between the brothers. The nephew was on the side of the younger brother.
5. The prosecution case is that rumours about the marriage of Pw. 12 to Sundaram caused great discomfiture to Padmaprabha Goundan and that in the forenoon of 1-9-1956 he sent his wife, accused 1 and the three remaining accused persons in a jeep to Kootamunda Estate to take Pw. 12, away to his place at Puliyarmala. Accused 2 is Padmaprabha's Kariasthan (agent), accused 3, his cook and accused 4, the driver of the jeep. The jeep belonged to Padmaprabha Goundan.
6. According to the prosecution Pw. 12 was born on 29-8-1940. On 1-9-1956 she was therefore below 18 years of age, being just over 16, The jeep driven by accused 4 carried accused 1, 2 and 3 as also a daughter of accused 1 to Kottamunda Estates & they reached there before noon. After the exchange of usual courtesies with Pw. 1, his wife (Pw. 2). Pw. 12 and others, accused 1 mooted the idea of taking Pw. 12 also with her to Puliyarmala. The prosecution would have it that Pw. 12 was not willing to go and told her sister that she could not accompany her unless P.W 1 agreed. P.W 1 stated that he could not agree unless Pw. 13 gave his consent. When accused 1 tried to induce Pw. 12 to accompany her Pw. 1 asked her to go, upstairs (in his house) and remain there.
7. While Pw. 12 tried to go upstairs, accused 1 prevented her from doing that and caught hold of her and made her get into the jeep. At the Instance of accused 1 accused 3 also joined her in helping Pw. 12 into the jeep. When that was done all those who had come in the jeep to Kottamunda Estate, except accused 2 got into it, the driver taking his seat at the wheel. Pw. 1 then tried to prevent the jeep moving by standing in front of it but at the bidding of accused 1 accused 4 drove the jeep over him with the result he fell down.
8. It is alleged that he got underneath the jeep, that the jeep dragged him for a distance of about 20 feet and that the jeep was then driven away leaving accused 2 behind. As a result of the fall and the subsequent dragging P.W 1 sustained not less than 15 injuries.
9. It was on the above prosecution case that the four accused persons in the case were committed to stand their trial before the learned Sessions Judge. The learned Judge found that it was not proved beyond doubt that P.W 12 was Below 18 years of age on the date of the occurrence and that therefore the charge of kidnapping failed. He further found that the case that P.W 12 was forcibly removed from Kootamunda Estate was not true, that she was a willing and consenting party to accompany accused 1 in her jeep and that therefore the alternative charge of abduction also failed. On these findings the acquittal of all the four accused persons on the charge under S. 366, Penal Code became inevitable. The learned Judge however, found that at the bidding of accused 1, accused 4 had driven the jeep over P.W 1 and that though it was clone with the intention or knowledge that P.W 1 would thereby be killed as the former had escaped from being killed accused 4 was guilty under S. 307, Penal Code, of attempt to murder and that accused 1 was guilty under S. 115, Penal Code.
10. We have now to consider whether the convictions and sentences passed against the two appellants have been rightly made. It is common ground that for some time prior to the occurrence P.W 12 was living with P.Ws 1 and 2 in Kootamunda Estate and that on the fore-noon of 1-9-1956 accused 1 paid a visit to that place in a jeep and took her younger sister, P.W 12, back with her to Puliarmala. The defence would however have it that accused 4 was not the driver of the jeep, that it was one Krishnan Nair who drove the jeep that day and that the party consisted besides the said driver only of accused 1, her daughter Visalakshi and a sucking baby. The defence denied the case that P.W 12 was forcibly taken away, that she was below 18 years of age, that P.W 1 caused obstruction to the jeep leaving the place and that he was driven over and hurt. The evidence the prosecution relied upon to prove the occurrence consisted of the testimony of P.Ws 1, 2, 3, 4, 5 and 12. P.W 12 & her father P.W 13 proved hostile to the prosecution at the Sessions trial and in the exercise of the discretion vested in him under Section 288 of the Cr PC, the learned Sessions Judge treated their evidence before the committal court as evidence in the case. Before we proceed to refer to the evidence of the occurrence witnesses, it is necessary to have an idea of the background which according to the prosecution led to the occurrence.
11. From the evidence of P.Ws 1, 2, 12, 13, 16 and 17 it is clear that after the death of the mother of accused 1 and P.W 12 the latter was left in the charge of her elder sister, accused 1, that some 8 or 10 months prior to the occurrence P.W 13 took her away to his place and that after 2 or 3 months he left her in the charge of P.W 1. In their evidence both in the committal court and at the Sessions trial P.Ws 12 and 13 made no secret of the fact that what led P.W 13 to remove P.W 12 from the charge of accused 1 was that P.W 13 suspected that Padmaprabha Goundan had the intention of making P.W 12 his second wife. The evidence of P.Ws 1 and 2 as also that of P.W 16 not only gave corroboration to the above, but also made it clear that what induced P.W 13 to leave P.W 12 at Kootamunda Estate in the charge of P.W 1 was that as P.W 13 was alone in Iris house he apprehended that in his absence from there Padmaprabha Goundan might forcibly take P.W 12 away from there. The evidence of P.W 13 at the Sessions trial is also to the same effect. P.W 16 was an employee under Padmaprabha Goundan's father and after his death under Padmaprabha Goundan. He was also a friend of Pw. 13. He was present when Pw. 13 entrusted Pw. 12 to Pw. 1. It would appear that he was one of the party that took Pw. 12 to Pw. 1's place. According to him he had learnt from accused 1 that her husband was very desirous of marrying Pw. 12, that though she was originally against it due to threats and ill-treatment she had finally agreed to her husband adopting that course and that she even entreated Pw. 16 to use his good offices to see that Pw. 12 was given in marriage to her husband as his second wife.
12. These entreaties were made after Pw. 12 began to reside at Kootamunda Estate. Once Pw. 1 also was in the company of Pw. 16 when accused 1 made these disclosures. Pw. 1 and Pw. 16 had visited accused 1 at her residence and she made it clear that her life was made very unhappy as her husband was not able to take Pw. 12 as his second wife. These two witnesses had visited accused 1 and her husband more than once after Pw. 12 began to reside at Kootamunda Estate and apart from what accused 1 told them they knew that Padmaprabha Goundan was really furious over his designs with respect to Pw. 12 not materialising. Pw. 17 gave further support to this aspect of the case.
13. He is a cousin of padmaprabha Goundan, being his father's younger brother's son. Three days prior to the occurrence he visited accused X and her husband at their place and accused 1 enquired of him whether Pw. 12 was going to be given in marriage to Sundaram. She made her understand that her husband would never allow such a marriage to take place. It is against the background of these facts that the prosecution alleged that on the forenoon of 1-9-1956 accused 1 paid a visit to Kootamunda Estate in a jeep accompanied by accused 2, 3 and 4 and her daughter Visalakshi.
14. Accused 1, as stated earlier, did not dispute the factum of her visit to Kootamunda Estate on the said date and that on her return she took P.W 12 with her to Puliyarmala. She denied that accused 4 was the driver and the presence of accused 2 and 3 in her company during that visit was also denied. According to her it was a mere social visit that she paid to her husband's nephew and his family. It was sought to be made out that her sucking baby was also with her, but the prosecution never admitted it.
15. If it were a mere social call one would wonder why her husband's kariasthan and cook should have accompanied her. If therefore the presence of these two is also established it would go a fairly long way in supporting the prosecution case that the visit was one designed for an ulterior purpose, to wit, to take Pw. 12 away at any cost. There is overwhelming evidence in the case that accused 4 was driving the jeep that day during the visit of accused 1 to Kootamunda Estate and back.
16. Throughout the case P.W 12 had stuck to that version even though in her evidence at the sessions trial she went back on her former statements on other material aspects of the case. If one Krishnan Nair was the driver we cannot find any reason why the prosecution should leave him out and try to bring accused 4 in his place. Pws. 1, 2, 3 and 5 also spoke in unmistakable terms that accused 4 was driving the jeep that day and they also spoke about the presence of accused 2 and 3 in the party. Besides these witnesses, Pw. 8 had seen accused 4 driving the jeep towards Kootamunda Estate when accused 1, her daughter Visalakshi and accused 2 and 3 were also in it.
17. The question whether the prosecution version that accused 4 was driving the jeep that day and at the material time has been discussed by the lower court, in paragraph 20 of its judgment and we are unable to take a different view about the question than what the lower court arrived at, namely, that accused 4 was the driver. It is evident that the defence attempt was to take advantage of a slip P.W 1 made in a statement he made before the Sub-Magistrate, Kozhikode during the night following the date of the occurrence.
18. That statement is Ext. D-2 and there Pw. 1 is seen to have stated that his recollection was that it was the cook who drove the jeep over him. The lower court has adverted to this statement and took the view that it was a mistaken statement made by him when he was in a very weakened state, both in health and mind. A written complaint (Ext. P-4) signed by Pw. 2 which she caused to be delivered at the Meppadi Police Station by Pw. 3 at 5 p.m on the date of the occurrence mentioned accused 4 as the driver.
19. A statement (Ext. P-1) purporting to have been made by Pw. 1 at 2 P.M on the date of The occurrence itself to Pw. 14, the Medical Officer who rendered first aid to him refers to accused 4 as having been driving the jeep, at the material time. There is also a later statement (Ext. P. 2) of Pw. 1 to the police immediately after mid-night on the date of the occurrence wherein the same version is found as to the identity of the driver. No doubt the defence impugned Ext. P-1 as ante-dated and some doubts were also thrown about the admissibility of Ext P-2 even though the defence expressly stated that they were not urging that it was wrongly admitted.
20. No doubt their concession will not justify the Court to depend upon it for any purpose, but the concession clearly shows that the defence had no complaint that they were prejudiced by its admission. After all the value of the earlier statements is only that they lend corroboration to the substantive evidence at the trial. Whatever that be, it is clear to us that the prosecution has properly established that accused 4 was in charge of the jeep as driver when the incident forming the subject of this case took place.
21. The prosecution version is that while accused 1, aided by accused 3, forcibly made Pw. 12 get into the jeep notwithstanding the protests of Pw. 1, the latter stood in front of the jeep to prevent its moving and that at that time at the bidding of accused 1, accused 4 drove the jeep over him making him fall down and to be dragged along the road by the jeep for a short distance. The medical evidence clearly supports the case of the prosecution that Pw. 1 sustained several injuries as the result of the fall and the subsequent dragging by the jeep.
22. Ext. P. 6 is the wound certificate issued by Pw. 7 for the injuries he noticed on Pw. 1 when the latter was admitted to the Head Quarters Hospital at Kozhikode as an in-patient during the night of the occurrence. There were as many as 15 injuries and Ext. P. 6 describes them as follows:—
“(1) An abrasion 1½″ × 1″ over the front of right knee. (2) An incised wound 1″ long ¼″ deep one inch above the right knee cap. (3) and (4) Series of abrasions on the lateral aspect of right leg and right thigh. (5) Three abrasions each about 1″ × 1½″ along the lateral and anterior surface of the left knee. (6) Minor abrasions ½″ × ¾” on the left thigh. (7) An abrasion 5″ long 2″ wide over the lateral surface of right upper arm. (8) An abrasion 2″ long and 1″ wide over the lateral surface of right elbow. (9) Minor abrasion ½″ × ¾″ over the posterior aspect of right elbow. (10) Minor abrasion ¾″ × ¾″ over the tip of right middle finger. (11) A contusion 1″ × ½” over the lateral half of right eyebrow. (12) A contused lacerated wound 2½″ × ¼″ over the right parietal region of the scalp 3″ above right ear. The outer layer of skin and heir were lost) for an area ¾” in diameter all around the wound. (13) An abrasion ¾” × ¼″ on the top of right external ear. (14) A contused abrasion about 1½″ in diameter over the left occipito-parietal region of the scalp. (15) An abrasion 10″ long 6″ wide obliquely over the back of left shoulder and over the left shoulder bone”.
23. The question for us is whether these injuries were caused as alleged by the prosecution when the jeep ran over P.W 1 and dragged him or was it a case of mere accident as suggested by the defence. The defence had a further case that, assuming the whole prosecution version that the jeep was allowed to run over P.W 1 deliberately with the intention of killing him or with the knowledge, that he would thereby meet with his death is accepted, they were protected from the consequence of their action by the right of private defence.
24. We shall now refer to the evidence of the eye-witnesses as to how P.W 1 happened to be injured. P.Ws 1 to 5 have given consistent evidence that after P.W 12 was forced into the jeep and all those who had that day gone over to Kootamunda Estate in it, except accused 2, got into it, P.W 1 stood in front of the jeep with a view to prevent its moving and that then accused 1 asked accused 4 to drive the vehicle over him and that the latter acted as ordered, with the result P.W 1 fell down and was dragged for some distance by the jeep. The early records of the case already referred to (Exts. P1, P4, D2, and P2) lend support to this evidence. The nature of the injuries make it unmistakably clear that P.W 1 had fallen down and that the jeep had dragged him for a distance. We see no reason to doubt the truth of the prosecution evidence that accused 1 had bid the driver to let the vehicle move and the words attributed to her, set out more or less uniformly in the earlier records as also in the evidence given at the trial, clearly indicate that she wanted the driver to take the vehicle along regardless of the consequences. There is, however, more than one difficulty to believe that P.W 1 was right in front of the jeep when accused 4 made the vehicle move as per the direction of accused 1. If P.W 1 was right in front of the vehicle, probabilities are he would have sustained far more serious injuries. The height of the bottom of the engine from the ground level was only 1 foot 2 inches. The evidence that he fell on his back is more or less belied by the injuries noticed on the front part of the body, particularly the knees. While we have no hesitation to think that accused 4 took a very rash step in allowing the vehicle to move while P.W 1 was in such close proximity to it as to get hurt by the motion, we cannot agree that accused 4 or even accused 1 ever intended to kill P.W 1 or knew that he might sustain such injuries as would result in his death. Probably accused 1 thought the threat that the vehicle will be taken over his body would make P.W 1 move away and accused 4 also must have thought likewise. The lower court itself would appear to have been in two minds as to whether the facts of the case warranted the conclusion it came to, namely, that by his act accused 4 intended to cause the death of P.W 1 or that he knew that death would be the result of his action and whether accused 1 was instigating him to do that with such intention or knowledge. In paragraph 21 of its judgment in discussing the medical evidence the lower court observes:—
“…… The contention of the learned Counsel for the defence is that P.W 1 could not have fallen on his back in front of the jeep and caught up and dragged away by the jeep as alleged by the prosecution. They would contend that P.W 1 was standing on a side of the jeep, that when the jeep was driven his cloth probably was caught up in the hooks and then he fell down on his right side and was dragged. P.W 7 has stated in very clear terms that all these injuries could be caused by being knocked down by a jeep and dragged for some distance. In cross-examination he was asked whether the injuries could not be caused by P.W 1 falling on his right side and then being dragged by reason of his cloth getting entangled in some portion of the jeep. He said that was also possible. “This only means that the injuries are consistent with the prosecution case and also consistent with the defence theory.” The matter was further pursued in cross-examination and it was elicited that if a man falls on his back by a violent push the prominences on the back side will come into violent contact with the earth, that the back of head and buttocks are the two major prominences on the back side and that if the back of head comes into violent contact with the earth, necessarily an injury right on the back of the head can be caused. But then in re-examination he has stated that injury No. 14 is on the left side of head partly to the back of head also, that if in falling on the back the head is slightly tilted to a side there will not be any injury right on the back of the head and that if when the body is dragged by the jeep the body is turned sightly to the right the injuries will be mostly on the right side. “It will now be seen that the medical Evidence is not inconsistent with the prosecution case regarding the manner in which P.W 1 sustained the injuries.” There is the consistent testimony of P.Ws 1, 2, 3, 4 and 5 ….” (the underlining (here into “ ”) is ours).
25. On the finding that the injuries are consistent with the prosecution case and also consistent with the defence theory, the learned Judge should, in our opinion, have inclined to accept the defence suggestion. To our minds, had the occurrence taken place as alleged by the prosecution nothing short of the happening of a miracle would have allowed P.W 1 to come out of the ordeal with only such injuries as he actually sustained. He must have been hanging on to the jeep from the side. That the jeep left suddenly is clear from the fact that accused 2 was not able to get into it before it left. We would therefore take the view that accused 4 drove the jeep at the bidding of accused 1 at a time when P.W 1 was in such close proximity to the jeep as suggested by the defence and that accused 4 drove the jeep so rashly or negligently as to endanger the life of P.W 1. Hurt was thereby caused to P.W 1. Though he had to be kept treated in the hospital as an inpatient for 45 days, P.W 7 stated in his evidence that after 14 days P.W 1 could have been discharged and that after the said period he was in a position to attend to his ordinary avocations in life. Such evidence from a medical witness is rather unusual but it is there. In the circumstances the criminal act of accused 4 would fall only under S. 337, Penal Code, and not under S. 338 as it naturally would have been as the result of the 45 days' stay in the hospital.
26. In all the circumstances of the case we consider it more prudent and more safe to arrive at the above conclusion that the offence committed by accused 4 would only amount to the offence stated above and not under Section 307 I.P.C We are certain in our minds that but for the instigation from accused 1 accused 4 would not have emboldened himself to take the rash step of driving the vehicle in such a way as to endanger the life of P.W 1. She therefore abetted accused 4 to commit an offence under S. 337, Penal Code. During the course of the argument we put it to the learned counsel for the defence whether in case we were to come to this finding they would consider their clients to have been prejudiced by our convicting them accordingly when they were not tried for these offences. Their reply was that we would be within the law in so doing and that in that event they could not complain of any prejudice to their clients. We feel the concession is perfectly right.
27. There remains for us only to consider the question of the right of private defence set up by the accused. The argument was that as on the lower court's own showing the accused were not committing any offence in taking away P.W 12 from the custody of P.W 1, the latter had no justification in seeking to prevent the jeep moving with her in it and that as his obstruction amounted to wrongful restraint of the persons seated in the jeep, the use of such force which resulted in injuries of a not serious character alone being caused to P.W 1 by the driving of the jeep in the manner accused 4 did, that did not amount to any offence. According to the defence as the obstruction of P.W 1 was unauthorised and unlawful, they were entitled to cause any harm to him short of killing. The lower court rightly dismissed the contention unceremoniously. The learned Judge merely observed that he could not see how it was possible to rely on the right of private defence in this case and held that the plea was not available to the defence.
28. In our opinion in the circumstances disclosed by the evidence in the case it was atrocious for anybody to think of using a heavy and mechanically propelled vehicle like a jeep as a means or weapon to exercise the right of private defence even if any existed and to uphold the plea would be to set at naught the limitations imposed by S. 99, Penal Code. Had the accused caused P.W 1 to be bodily removed from the place where he stood to cause obstruction we can understand that would not have, on the findings of the learned Judge relating to the offence of kidnapping and abduction, amounted to any offence. There is also nothing to show that the accused party could not have had recourse to public authorities to remove the so-called obstruction and consequent wrongful restraint. The learned Judge below was therefore perfectly right in repelling this plea.
29. There is however, another approach to this aspect of the case. While we do not seek to quarrel with the learned Judge's finding that it was difficult to sustain the charge of abduction, we cannot agree lie was right in taking the same view concerning the charge of kidnapping. He observed in paragraph 17 of his judgment that to establish the charge of kidnapping the prosecution had to prove beyond reasonable doubt that the woman taken away was a minor and that she was taken away by force from lawful custody. While the learned Judge is right that the prosecution should prove that the woman concerned was below 18 years of age, he went clearly wrong in opining that to constitute kidnapping the ‘taking’ should have been forcible.
30. The law is that to constitute the offence of kidnapping the ‘taking’ need not be by force, actual or constructive. All that S. 361 stated is that “whoever takes or entices any minor…………….out of the keeping of the lawful guardian……….without the consent of such guardian is said to kidnap such minor………….”. To say that the taking should be by force is to introduce words or elements which the section does not require and to attach no significance to the word ‘entices’. Further, we do not consider that the learned Judge's view that the prosecution had not proved beyond doubt that P.W 12 was below the age of 18 is right. Paragraph 17 of the judgment is concluded thus:—
“The position therefore is that the prosecution evidence based on the testimony of witnesses and Ext. P. 5(a) that P.W 12 was born on 29-8-1940 is destroyed by the medical evidence in the case. It follows therefore that it is impossible to hold that P.W 12 was born on 29-8-1940 as spoken to by the witnesses or as disclosed by Ext. P. 5(a).”
31. We may straightway refer to certain decided cases which hold that medical evidence as to the age of a person cannot be utilised to override the effect of other cogent evidence on the point. We will first refer to a decision of the Privy Council reported in Mahomed Syedol Ariffin v. Yeok Ooi Gark, 43 Ind App. 256 at p. 260 : (AIR 1916 PC 242 at p. 243) (PC) (A), where Lord Shaw observed that the opinion of a medical witness as to the age of a person, judged by the teeth, the appearance and the voice of that person is worthless. In Mt. Zaitoon v. Emperor, AIR 1946 Sind 132 (B) Davis C.J pointed out that medical evidence as to age cannot stand against the evidence of Municipal Register of Births properly authenticated. Reference may also be made to Emperor v. Qudrat, AIR 1939 All 708 (C) where it was held that the statement of medical witness based on certain physical peculiarities such as teeth, height etc., is no legal proof but only opinion. The case in Mahomed Syedol Ariffin v. Yeoh Ooi Gark (A) has been referred to and followed there.
32. The correct view of the law on the question being the above the learned Judge was clearly wrong in considering that the medical evidence ‘destroyed’ the other evidence bearing on the point. There is, in our view, overwhelming evidence in the case to establish that P.W 12 was below the age of 18 on the date of the occurrence.
33. In the first place P.W 13, the father stated in his evidence before the committal court that P.W 12 was born on 29th August 1940, that her elder brother was born in July 1938 and that a boy immediately elder to that son was born in June 1936. These statements stood corroborated by properly authenticated extracts from the birth register maintained in the Anjukunju Amsom to which P.W 13 belonged. The extract which has been marked in the case as Ext. P. 26 not only refers to the date of birth of P.W 12, but also to the dates of birth of her two elder brothers as also of a younger brother. As per the entry in Ext. P. 26 the younger brother was born on 8-3-1943. The elder among the two elder brothers was born on 22-6-1936, the other on 18-7-1938 and P.W 12 on 29-8-1940. In her evidence at the sessions trial P.W 12 admitted that she had a younger brother who was no more. Of the children now living, of P.W 18, P.W 12 is the youngest. Ext. P. 26 was obtained by the police from the Vyanad Taluk Office as early as 7-9-1956. The register containing the entry as to the birth of P.W 12 was got produced in the case and proved by P.W 6, ??? Adhikara who made the entry in his own hand. The specific entry is Ext. P5(a) and it is to the effect that P.W 12 was born on 29-8-1940. P.W 6 knew P.W 13 and his family very well and we cannot understand how the learned Judge could have brushed aside the evidence of P.W 6 on the ground that he was too old and that his memory cannot be depended upon. He was speaking with reference to the entry made by him in his own hand in a public record and the ground mentioned by the learned Judge not to act upon his evidence, namely, he had new become too old and his memory cannot be depended upon appears to us to be too fanciful. Besides these pieces of evidence there was also the evidence of P.W 16. P.W 16, as mentioned earlier, was a friend of P.W 13 and he says that P.W 12 was born during the second half of 1940 and she is two months younger to his son. The evidence of P.W 1 is also to the effect that P.W 12 was running her 17th year. On the whole there was, therefore, clear evidence, oral and documentary, to show that on the date of the occurrence P.W 12 had not even completed 17 years of age.
34. We are also of the view that the learned Judge below misread the medical evidence in the case. The experts examined are P.Ws 10 and 11. P.W 11 examined P.W 12 on 2nd September 1956 and issued Ext. P. 7 to the effect that in our opinion the girl was then ‘over 17 years of age completed.’ The evidence of P.W 11 shows that the only basis for her opinion was the absence of wisdom teeth for P.W 12. She said that the wisdom teeth may appear at any age from 17 to 25. In Modi's Medical Jurisprudence (Eleventh Edition) at p. 27 we find a table where it is stated that the average period of eruption of the wisdom teeth will be the 17th to 25th year. On p. 28 of the same book it is stated that wisdom teeth are usually cut between 17 and 25 years of age. The evidence of P.W 11 lent no support to the view that the entry in the birth register or the other evidence relating to the age of P.W 12 was untrue. Indeed the fact that no wisdom teeth had appeared only confirmed the positive evidence furnished by Ext. P. 5(a) and Ext. P. 26 that P.W 12 was below 17 years of age.
35. The same is the case with regard to the evidence of P.W 10, the radiologist. He took two radiographs, M.O 5 and M.O 6. This was on 3-9-1956. M.O 5 is the radiograph showing the lower end of the radius and ulna and M.O 6 of pelvis, showing iliac crest. P.W 10 was of the opinion that P.W 12 had completed 17 years and was running 18 when he examined her. He stated that when a person completes 18 years, the crest of the ilium will completely fuse with the main bone and that in this case it had not completely fused. Similarly he said that when a person completes 18 years of age, the lower ends of the radius and ulna will completely fuse with the main bone and that in this case they had not completely fused. The table given in Modi at p. 33 shows that in the case of Madrasis the fusion of the crest of the ilium takes place between the age of 14 and 18 and that likewise the fusion of the lower ends of the radius and ulna takes place between the same ages. P.W 10 no doubt said that due to climatic dietetic, hereditary and other factors it was not possible to formulate a uniform standard for the determination of the age by the fusion of the bones. This is only echoing what Modi has said at p. 29 on his text book. The relevant passage reads:
“Owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different provinces of India it cannot be reasonably expected to formulate a uniform standard for the determination of the age of the union of epiphyses for the whole of India. However, from investigations carried out in certain provinces it has been concluded that the age at which the union of epiphyses takes place in Indians is about 2 to 3 years in advance of the age incidence in Europeans and that the epiphysial union occurs in females some what earlier than in males”.
36. Viewed in the light of all these, if any inference was possible from the evidence of P.W 10 as to the age of P.W 12, it was that she was below 18 because the fusion of the bones had not taken place. It only corroborated the other evidence in the case relating to the question and referred to earlier. P.W 10 had also said that he had not come across any instance where fusion is not complete when 18 years are completed. The medical evidence in the case being what has been set out above, to say that it destroyed the other evidence on the side of the prosecution relating to the age of P.W 12 is clearly wrong. On the other hand the medical evidence only went to corroborate the positive evidence furnished by the birth register and the oral evidence of P.Ws 13 and 16.
37. The result of the wrong approach to this part of the prosecution evidence by the learned Judge has been that he wrongly acquitted the accused persons on the charge of kidnapping. If the accused were kidnapping P.W 12 from the lawful custody, of P.W 1, there is no gainsaying the fact that the latter was entitled to prevent it and against that lawful act of his, no right of private defence can exist. We consider it unfortunate that the State did not prefer an appeal against the acquittal on the charge of kidnapping.
38. An argument was raised before us that inasmuch as the order of acquittal has not been challenged by the State it was not open to us to canvass the correctness of the finding and our views about it will serve no purpose in the case. Learned Counsel for appellant 1 invited our attention to an observation of Sir Lawrence Jenkins, C.J, in Ram Ranjan Roy v. Emperor, ILR 42 Cal 422 : (AIR 1915 Cal 545) (D) to the effect that when an accused person has been acquitted on one count of the charge against him, in the appeal by him against his conviction on another count, in the absence of an appeal by the State against the acquittal, the Court has to assume that he was not guilty of the charge on which he was acquitted. The learned Chief Justice was not considering there whether the evidence against the appellant in relation to the charge on which he was acquitted could be used in the appeal for any other purpose. Indeed nothing in that case turned on evidence relating to the acquittal on one count. On the other hand in Malak Khan v. Emperor, 72 Ind App. 305 : AIR 1946 PC 16 (E), the Privy Council had to consider whether when a person charged with, robbery and murder was acquitted by the trial Court of robbery, the High Court was right in using the evidence relating to that offence to corroborate the evidence relating to murder. The argument before their Lordships was that in view of the acquittal under S. 392, Penal Code, it was not open to the High Court to review the finding of the Sessions Judge as to the recovery of the stolen articles and in repelling it Lord Porter, who pronounced the judgment of the Board, said:—
“Indeed this argument was put in the forefront of appellant's case. The Sessions Judge, it was said, had acquitted the appellant of robbery, he was, therefore, not guilty of that offence; no appeal had been taken against that acquittal and therefore no Court was entitled to take into consideration the allegation upon which the accusation of robbery was founded even as corroborative evidence in another case. Their Lordships cannot accept this contention. The learned Sessions Judge did not in fact find the accusation baseless; he only found the crime not proven. But even if he had disbelieved the whole story of the recovery of the stolen property from the appellant, his finding would not prevent the High Court from weighing its value and if they accepted its substantial truth from taking it into consideration in determining whether another crime had been committed or not. The acquittal no doubt would have entitled the accused man to plead autrefois acquit if again charged with the same crime, but it would not prevent a civil action being brought against him for the return of the things stolen or for their value upon the same evidence.
It could not, in their Lordships' opinion, be objected to as evidence in another case, criminal or civil, though no doubt its weight would be diminished. Before the Sessions Judge it was given for two purposes— (1) as corroboration of the testimony given in the charge of murder and (2) as direct evidence of robbery. Before the High Court its use for the first purpose was in no way precluded even though no appeal was taken against the dismissal of the charge of robbery. In such circumstances to appeal from the acquittal would be a mere idle form when the question at issue was whether the accused man was guilty of murder or not”.
39. Here the evidence of kidnapping has been considered by us to see whether the plea of private defence was available to the appellants with respect to the charges against them under Ss. 115 and 307, Penal Code. Even though the order of acquittal as to kidnapping remains in force, evidence relating to the commission of that offence can, in our opinion be made use of to find out whether other offences have or have not been committed by the appellants. Even without it, we have found that in this case the plea of private defence was not available to the defence and we have found that accused 4 was guilty of the offence under S. 337, Penal Code and accused 1 of abetment thereof.
40. We allow the appeal to the extent of altering the conviction of accused 4 into one under S. 337, Penal Code and that of accused 1 to abetment thereof (S. 337, Penal Code read with S. 109) and modifying the sentences as follows: Accused 1 will pay a fine of Rs. 250/- and accused 4 will undergo rigorous imprisonment for a period of 3 months. Their bail bonds are cancelled. In the event of non-payment of fine, accused 1 will undergo simple imprisonment for one month. The fine of Rs. 250/- only has been received in this office and remitted into the Subtreasury, Ernakulam as per chalan No. 4431/86566, dated 17-7-1957. Order accordingly.
D.H.Z
41. Order accordingly.