Point of Law: Hon’ble Supreme Court held that exact age cannot be determined by ossification test and age can be assessed as (+) or (-) two years of assessed age.

JUDGMENT :

K. SURENDER, J.

1. The appellant was convicted for the offence under Section 376(2)(f) of IPC and sentenced to undergo rigorous imprisonment for a period of ten years vide judgment in S.C. No. 210 of 2008 dated 20.01.2009 passed by the Assistant Sessions Judge at Nalgonda. Aggrieved by the same, present appeal is filed.

2. The case of the prosecution is that on 22.08.2007, PW-1 who is the mother of the victim girl-PW-2, lodged complaint stating that the victim was six years old and the appellant had committed rape on 19.08.2007. The police investigated the case and filed charge sheet accordingly.

3. PW-1, the mother of the victim girl stated that on the date of the incident all the family members went to coolie work and PW-2 was in her house. They returned home in the evening around 5.00 p.m. and when PW-1 was preparing PW-2 for bath as usual, PW-2 complained of stomach pain. On enquiry, PW-2 informed that the appellant took her to his house removed her underwear and laid her on a cot and slept on her. PW-2 and others questioned the appellant regarding the said act of the appellant, on which the appellant threatened PW-1 and others. The caste elders were informed and when the appellant was summoned, he threatened all of them, for which reason, PW-1 lodged the complaint. PW-1 denied the suggestion that due to family disputes, a false case was filed.

4. PW-2 is the victim girl, who stated that on the date of incident, the appellant gave one rupee, caught hold of her hand and took her into his room and thereafter removed her underwear and laid her on the cot and he also laid on her. When PW-2 requested the appellant not to do anything, the appellant promised to give one more rupee if PW-2 slept there. Immediately PW-2 came out of the house, ran towards her friends. The appellant threatened PW-2 not to inform to anyone. Thereafter, PW-1 took PW-2 to the hospital.

5. Learned counsel for the appellant submits that the appellant was juvenile at the time of the incident. He referred to the complaint given by PW1, in which, she mentioned the age of the appellant as 17 years. The appellant filed I.A. No. 1 of 2022 under Section 391 of Cr.P.C. requesting this Court to receive the age certificate issued by the Doctor as additional evidence. The certificate was issued on 06.08.2022 by the Doctor on the basis of Aadhar card as 15.07.1990. When questioned, the learned counsel for the appellant submits that there are no hospital records or municipal records which are provided at the time of birth to confirm the exact date of birth.

6. The date of birth mentioned in the Aadhar card would be on the basis of the declaration made by the appellant or his parents. In the said circumstances, it cannot be conclusively said that the date mentioned in the Aadhar card is the correct date of birth. For the said reason, the certificate provided by the learned counsel for the appellant cannot be looked into to adjudicate upon the age of the appellant.

7. Alternately, learned counsel for the appellant submits that appellant should be sent for ossification test to determine the age of the appellant. He also relied upon the judgment of this Court in the case of Bandela Ailaiah vs. State of Andhra Pradesh, 1995 (1) ALD 20 (D.B.) wherein this Court found that if a person is a juvenile, the competent court to try the offence would be the juvenile court and not regular court. In the said case, the appellant was aged 13 years when he was taken before the Magistrate and completed 14 years of age when the trial commenced. Even when the matter was heard by this Court, the appellant was 16 years and three months. Accordingly, this Court quashed all the proceedings before the regular court and directed that the appellant therein has to be tried in accordance with the Juvenile Justice Act, 1986 before the Court constituted for the said purpose.

8. The aforesaid judgment is not applicable to the facts of the present case. It was the complainant/PW-1 who mentioned the a