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2006 Supreme(Gau) 246
IN THE HIGH COURT OF GAUHATI
Ranjan Gogoi, J.
Ambar Newar @ Rajen Newar and Anr. – Appellants
Vs.
State of Assam – Respondent
Decided On: 16.03.2006
The reliance on ossification tests as the sole basis for determining the age of the victim and convicting the accused must be supported by other reliable evidence.
Headnote:
Ossification Test - Criminal Appeal - Sections 366/34 IPC - Summary: The court considered the reliance on the ossification report to determine the age of the victim girl and the subsequent conviction of the accused-appellants. It highlighted the lack of examination of the Radiologist who conducted the test, the speculative nature of ossification tests, and the rejection of other evidence on the victim's age. The court concluded that the prosecution failed to prove the case beyond reasonable doubt.
Fact of the Case:
The prosecution alleged that the accused-appellants forcibly took away the victim girl, who was later found in a different village where she was allegedly raped. The trial court convicted the accused-appellants under Sections 366/34 IPC based on the victim's age and consent.
Finding of the Court:
The court found that the trial court's reliance on the ossification report to determine the victim's age and convict the accused-appellants was not justified. It highlighted the lack of examination of the Radiologist, the speculative nature of ossification tests, and the rejection of other evidence on the victim's age.
Issues: The key issue was the reliance on the ossification report to determine the victim's age and the subsequent conviction of the accused-appellants.
Ratio Decidendi: The court's decision was influenced by the lack of examination of the Radiologist who conducted the ossification test, the speculative nature of ossification tests, and the rejection of other evidence on the victim's age.
Final Decision: The court allowed the Criminal Appeal and set aside the conviction and sentence recorded against the accused-appellants by the trial court.
Ranjan Gogoi, J.
1. This criminal appeal by two convicted accused-appellants is directed against the judgment and order dated 30.3.1998 passed by the learned Additional Sessions Judge, Sonitpur in Sessions Case No. 54(S) of 1997. The accused-appellants have been convicted under Sections 366/34 IPC and sentenced to undergo R.I. for 4 years each and to pay a fine of Rs.1,000 each, in default, to suffer R.I. for a period of another 3 months more.
2. The case of the prosecution, in short, is that on 21.11.1996, the alleged victim girl Sonia Surin (PW 2) went to her sister's house at Sukurmari Borowa Gaon. At night, she went to the house of her sister-in-law Bulbuli to sleep in the said house. At about 10 PM, she, accompanied by her sister-in-law Bulbuli went out to answer the call of nature when the two accused-appellants along with another Sukra Munda (since deceased) caught hold of her and took her away to Borbeel Village where she was lodged in the house of the aunt of the accused Sukra Munda. According to the prosecution, the present accused-appellants thereafter left the place and the accused Sukra Munda committed rape on the alleged victim girl. Thereafter, the alleged victim girl managed to reach a nearby house of one Jogi and informed him of the incident. According to the prosecution, the President of the Mahila Samiti (PW 4) came to the house of Jogi whereafter PW 6 Khem Khetri wrote the ejahar, which was lodged with the Jamuguri Police Station. On the basis of the ejahar filed, Jamuguri PS Case No. 94 of 996 under Section 365/376/34 IPC was registered. Police took up investigation, on the completion of which charge sheet was filed against the accused appellants under Sections 366/34 IPC. Additionally, charge sheet under Section 376 IPC was filed against the accused Sukra Munda (since deceased). The case being exclusively triable by a Court of Sessions, it was committed to the court of the learned Sessions Judge, Sonitpur for trial. The learned trial court framed charge under Sections366/34 IPC against the present accused-appellants whereas, additionally, charge under Section 376IPC was framed against the accused Sukra Munda. All the accused pleaded not guilty and claimed to be tried. In course of trial, 7 witnesses were examined on behalf of the prosecution. No evidence was adduced by the defence. During the course of the trial, the third accused Sukra Munda died and the trial against the present accused-appellants proceeded. The accused-appellants were examined under Section 313 Cr.P.C. At the conclusion of the trial, the learned Sessions Judge, having found the offence alleged under Section 366/34 IPC, to be proved and established by the evidence and materials on record, convicted the accused-appellants under the aforesaid sections of the Penal Code and sentenced them, as already noticed. Aggrieved, this appeal has been filed.
3. Of the 7 witnesses examined by the prosecution, P.W. 1 is Dr. Gopal Chandra Bordoloi, who had conducted a medical examination of the victim girl on 23.11.1996. PW 2 is the victim girl herself. PWs 3 and 4 are functionaries of the local Mahila Samiti whereas PW 5 is the V.D.P. Secretary from whose house the accused Sukra Munda was arrested by the police. PW 6 Khem Khetri is the person, who wrote the ejahar whereas PW 7 is the Investigating Officer of the case.
4. The learned trial court, on a consideration of the evidence of PW 2, i.e., the alleged victim girl, came to the conclusion that the materials on record permitted drawal of a conclusion that the alleged victim girl had gone away with the accused on her own will. The aforesaid finding was recorded by the learned trial court by having due regard to the fact that the sister-in-law of the alleged victim girl Bulbuli did not raise any alarm at the time when the accused-appellants are alleged to have forcibly taken away the victim girl. The learned court below found it difficult to accept as to how the accuseds could have anticipated the
