Reliability of school records over medical evidence for age determination.

JUDGMENT

Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 08.06.2015 passed by the learned Additional District and Sessions Judge, Ghatal, Paschim Medinipur in Sessions Trial Case No.31/May/09 convicting the appellant for commission of offence punishable under Sections 363/366/376 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- in default, to suffer rigorous imprisonment for further 3 months for the offence punishable under Section 363 of the Indian Penal Code and to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/-, in default, to suffer rigorous imprisonment for further 6 months respectively for the offences punishable under section 366/376 of the Indian Penal Code. All the sentences shall run concurrently.

2. The prosecution case as alleged against the appellant is to the effect that on 22.10.2008 the victim, a 15 year old girl (P.W. 2) had been kidnapped by the appellant, an ayurvedic doctor, and taken to Calcutta where she was raped against her will and detained in the house of Timir Baran Nag, P.W.3. As she went missing and could not be traced out, her father, P.W.1 searched for her at various places but in vain. Ultimately, he lodged missing diary on 20.11.2008. Subsequently, suspecting that the appellant had a hand in kidnapped his daughter P.W.1 lodged written complaint at Chandrakona P.S. resulting in Chandrakona P.S. Case No.105/08 dated 28.11.2008 against the appellant. Appellant was arrested and on his showing the victim was recovered from the residence of Timir Nag. She was medically examined and made statement before Magistrate. In conclusion of investigation, charge-sheet was submitted against the appellant. The case was committed to the Court of Sessions for trial and disposal. Charges were framed against the appellant under Sections 363/365/366/376 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried.

3. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents.

4. In conclusion of trial, learned trial judge by the impugned judgment and order dated 08.06.2015 convicted and sentenced the appellant, as aforesaid. Hence, the present appeal.

5. Mr. Bakshi, learned Counsel appearing for the appellant submitted that there is inordinate delay in lodging the missing diary/F.I.R. Allegation of kidnapping of the victim girl, P.W.2 is, therefore, highly improbable. He further submitted P.W.3 Timir Baran Nag has not supported the prosecution case. He also argued no ossification test to determine the age of the victim girl had been conducted. Accordingly, he prayed for acquittal of the appellant.

6. On the other hand, Mr. Ahmed, learned counsel appearing for the State submitted that evidence of the victim girl, P.W.2 is corroborated by other evidence on record including the medical evidence, P.W.8. Age of the victim has been proved through the evidence of her father, P.W.1 as well as the headmaster (P.W.7) of the school where she was studying during period of occurrence. Delay in lodging the F.I.R. has been duly explained and the prosecution case has been proved beyond doubt. Hence, he prays for dismissal of the appeal.

7. P.W.2 is the victim and the most vital witness. She deposed on 22.10.2008, that is, 5th Kartick 1415 B.S. around 4 P.M. she had gone to meet her younger sister Chandana Pal who was working as a maidservant in the house of one Indrajit Jana whom she was referred to as Jethamosai by village courtesy. While returning home she met appellant who is a Kabiraj by profession and used to visit her residence. She complained of headache and the appellant told her that medicine was available at Ghatal Bazar. Accordingly, she accompanied the appellant to purchase medicine at the Bazar. The medicine was not available at Ghatal Bazar. Appellant told her to accompany him in a bus to Panskura to purchase medicine. In good faith she