IMPORTANT POINTS
Ossification test being a mere opinion cannot prevail over proved documentary and reliable oral evidence.
Question of consent becomes irrelevant in case of a prosecutrix below 16 years of age.
Consent, when a helpless young girl below 16 years of age falls under the dominion of two grown up males, cannot be conceived.
Persons abusing and manipulating their social relationship to commit the crime of rape on helpless girl below 16 years of age are not entitled to reduction of sentence.

JUDGMENT

Dipak Misra, J.

The present appeal depicts a sordid situation and sketches a morbid scenario, for the sad story commences with total trust, as it has to be, inasmuch as the first appellant, the uncle of the prosecutrix, being the cousin of her father, takes her with him but does not return and thus betrays the trust, definitely inconceivable, for the young girl, PW 7, who had remotely no idea about his dubious design when she accompanied him to the house of the appellant No. 2, the maternal uncle of the first appellant, that she would be sexually assaulted first by the appellant No. 1 and thereafter by the appellant No.2 who also succeeded in his threats to the uncle – and at the end, they, after being sent up for trial for the offences punishable under Sections 363, 366A/376/34 of the Indian Penal Code, 1860 (IPC) in order to escape the charge and in justification of their carnal desire and perverted acts, pleaded consent.

2. As the factual score would uncurtain, the case of the prosecution from the very beginning was that the prosecutrix was below sixteen years of age. The trial court believed the prosecution as regards the age of the prosecutrix as a consequence of which the plea of the defence had to collapse like a pack of cards which entailed conviction for the charged offences as per judgment dated March 10, 2003 which led to the sentence of rigorous imprisonment of ten years under Section 376(2)(g) IPC with separate sentence under Section 363 IPC with the stipulation that all the sentences shall be concurrent.

3. The judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Sirsa in Sessions Case No. 55 of 2002 were assailed before the High Court in Criminal Appeal No. 914 of 2003 and the learned Single Judge referred to the evidence of Manohar Lal, PW-1, Principal of the Govt. Primary School, Rupana Khurd, Dist. Sirsa, Bhajan Lal, PW-9, the father of the prosecutrix, Dr. Santosh Bishnoi, who had examined the accused and the prosecutrix and took note of the ossification test report, Ext. DA, and upon due appreciation of ocular and documentary evidence brought on record concurred with the view expressed by the trial court that the prosecutrix was below 16 years of age. Be it stated that the High Court did not think it appropriate to rely on the ossification test report as it found a number of flaws with it and opined that it was not worthy of credence. Additionally, the High Court has opined that the prosecutrix had no idea about the evil design of accused Parhlad, her uncle and she had proceeded with him in good faith and under compulsive circumstances she was raped by the accused persons and, therefore, there was really no consent. On the basis of the said analysis, it affirmed the judgment of conviction and order of sentence passed by the trial court. Hence, this appeal by special leave.

4. We have heard Mr. Harinder Mohan Singh, learned counsel for the appellant and Mr. Shekhar Raj Sharma, learned counsel for the respondent-State.

5. The core issues that arise for consideration in this appeal are whether the finding as regards the age of the prosecutrix is based on the proper appreciation of evidence on record or it is so perverse that it deserves to be dislodged in exercise of jurisdiction under Article 136 of the Constitution, and further whether the opinion of the High Court relating to consent withstands scrutiny. On a perusal of the findings returned by the learned trial Judge as well as by the High Court, it is noticed that the learned trial Judge has relied upon the testimony of the prosecutrix, her father, and the school leaving certificate, which has been brought on record and tendered in evidence; and the High Court, on re-appreciation of the testimony of the prosecutrix and her father coupled with the testimony of PW-1, the Head Master of the concerned school has found that the version of the prosecution is truthful. As is perceptible, the prosecutrix has depos