The court emphasized the necessity of valid evidence for victim age determination and the unsuitability of applying deleted provisions of law for conviction, thereby affirming the need for due process in sexual offence cases.

JUDGMENT :

1. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel assisted by Mr. I.U. Choudhury, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Sr. Counsel and Addl. P.P., Assam appearing for the respondent No.1 and Mr. U. Choudhury, learned Legal Aid Counsel appearing for the respondent No.2.

2. The appellant has challenged the impugned judgment and order dated 16.12.2019 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 18/2015, by which the appellant has been convicted under Section 376(2)(i) of IPC read with Section 6, for having committed the offence under Section 5(j) (ii) of the POCSO Act, 2012. The appellant was thereafter sentenced to undergo rigorous imprisonment for the remainder of his life with a fine of Rs. 1,00,000/- in default, rigorous imprisonment for 1 (one) year under Section 376(2)(i) of IPC.

3. The appellant has put to challenge the impugned judgment basically on three grounds. Firstly, though blood sample had been taken from the appellant and the victim’s child on 13.12.2013 for conducting a DNA test, no report was made. Thereafter, a second blood sample was collected from the appellant, the victim and the baby on 18.01.2014 for DNA profiling/testing. He submits that though the DNA profiling/test allegedly proved that the appellant was the father of the victim’s child, the taking of the blood samples from the appellant had not been done in a proper manner. Secondly, Section 376(2)(i) of IPC could not have been applied for convicting the appellant, in view of the fact that the said Clause (i) of Section 376(2)(i) had been deleted on 21.04.2018, vide the Act 22 of 2018, i.e, before the impugned judgment had been passed on 16.12.2019. The third ground of challenge made by the appellant is on the finding of the learned Trial Court that the victim was less than 18 years of age at the time of the offence. He submits that there is no document to prove the age of the victim and no ossification test had been conducted. The only test that had been conducted upon the victim was an X-ray test, which in the opinion of the Doctor was that the victim was between 16-17 years at the time of taking the X-ray test on 11.12.2013.

4. Ms. B. Bhuyan, learned Addl. P.P., on the other hand, submits that there was no infirmity in the collection of blood samples from the appellant, victim and the child on 18.01.2014 and as the DNA profiling/test proved the appellant to be the father of the child, the fact that rape had been committed by the appellant had been proved.

5. The learned Addl. P.P admits to the fact that Section 376(2)(i) of IPC could not have been applied by the learned Trial Court, in view of sub-clause (i) having been deleted by the Act 22 of 2018, which came into force on 21.04.2018.

6. The learned Addl. P.P submits that the age of the victim was below 18 years at the time of the offence, as has been proved by the Birth Certificate that had been registered on 01.11.2013 and issued on 10.11.2016. She submits that the Birth Certificate had been issued in terms of Section 13 of the Registration of Births and Deaths Act, 1969 (hereinafter referred to as the “1969 Act”), after taking written permission of the Additional District Magistrate, Karimganj, vide Permission No.5991 dated 25.10.2016. Further, the Transfer Certificate dated 07.07.2015 issued by the Headmaster of Samabay High School, Srigouri, Karimganj shows that the victim’s date of birth to be 11.11.1999 and that she had left the school on 31.12.2013. The date of birth on the Transfer Certificate had been made on the basis of the Admission Register.

7. The learned Additional Public Prosecutor submits that as the said Transfer Certificate had been exhibited as Ext.-26, where the age of the victim girl has been stated to be around 14 years at the time of the incident, the impugned judgment should not be interfered with.

8. Mr. U. Choudhury, learned Legal Aid Counsel for the respondent No.2 reiterates the submission made by the learne