A.K. Goswami, J. (Oral)

Heard Mr. M. Khan, learned counsel for the appellant. Also heard Mr. D. Das, learned Additional Public Prosecutor, Assam.

2. This appeal is directed against the judgment dated 26.02.2007 passed by the learned Sessions Judge, Dhubri, in Sessions Case No.172/2004, whereby the accused-appellant was convicted under Sections 448/354 IPC and sentenced to pay fine of Rs.500/-, in default, to suffer simple imprisonment for 2(two) months for offence under Section 448 IPC and to suffer simple imprisonment for 6(six) months for offence under Section 354 IPC.

3. From the order dated 10.12.2015 passed in this appeal, it appears that the appellant had taken a plea of juvenility on the basis of a photocopy of a birth certificate showing the date of birth of the appellant as 1.1.1990, which makes him about 14 years old at the time of the occurrence on 24.2.2004. As Section 7A of the Juvenile Justice (Care and Protection) of Children Act, 2000, provides that the claim of juvenility may be raised before any Court at any stage, the Court considered it fit and proper to cause an enquiry regarding the age of the appellant and, accordingly, by the aforesaid order dated 10.12.2015, the learned Sessions Judge, Dhubri, was directed to make an enquiry and submit a report. From the copy of the order dated 28.1.2016, passed by the learned Sessions Judge, Dhubri, in Sessions Case No.172/2004 (Supplementary-I), it appears that on the basis of summons issued by the learned Court, the Senior Medical and Health Officer and In-charge, Gajarkandi PHC had appeared before the learned Sessions Judge. The learned Court below recorded that the Medical Officer informed that the Register where the date of issue of birth certificate of the accused was recorded, had been destroyed in a fire on 05.07.2013 and, as such, could not throw light as regards the authenticity of the birth certificate of the accused-appellant. As the accused-appellant had not gone to school and as he had already crossed the age of 25 years, it was opined that direction for ossification test of the accused-appellant will not bring the desired result and, as such, the learned Court below recorded that, in the circumstances, further progress with regard to the enquiry as to the juvenility of the accused-appellant could not be made.

4. Mr. M. Khan, learned counsel for the appellant submits that in view of the developments, he would not raise the plea of juvenility and instead argue the case on merits.

5. An ejahar was lodged by the victim, who is hereinafter referred to as X, on 2.3.2004, before the Officer-in-charge, Mankachar Police Station stating that, on 24.2.2004 at around 9 P.M., when her husband was not at home, taking advantage of his absence, the accused No. 1, namely, Md. Jil Hoque, criminally trespassed into her residence and by placing a dagger on her neck, he forcibly committed sexual intercourse with her and thereafter, the other accused persons namely, Gendu Sheikh and Jeleka Khatun assaulted her with lathi as a result of which she suffered grievous injuries and they had also taken away one golden nose pin, one pair of silver earrings and one silver necklace. She stated that a couple of days before also, the accused No. 1, namely, Md. Jil Hoque had forcibly raped her. On the basis of the aforesaid ejahar, Mankachar Police Case No. 48/2004 under Section 448/376/325/329/34 was registered.

6. Police started investigation and finding incriminating materials against the accused No. 1 Md. Jil Hoque, submitted charge sheet on 30.6.2004. The other two accused persons, who were stated to have assaulted her, were not sent up for trial. At the time of filing of charge sheet, the accused was shown as absconder.

7. It appears that, subsequently, the accused appeared and the case being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate committed the case to the court of the learned Sessions Judge at Dhubri wherein Sessions Case No.