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2006 DIGILAW 248 (GAU)

Ambar Newar @ Rajen Newar v. State of Assam

2006-03-16

RANJAN GOGOI

body2006
JUDGMENT 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. 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 time when the alleged victim girl would come out of the house. The learned court below found it difficult to accept as to how the accuseds could have anticipated the time when the alleged victim girl would come out of the house. That apart, the learned trial court also came to the finding that the alleged victim girl and the accused-appellants were known to each other from before and that the place to which the victim girl was eventually taken, was three villages away from Sukurmari Borowa Gaon, where the incident reported is to have occurred. The aforesaid finding with regard to consent of the victim girl naturally will not be reopened by the court in the present appeal, which is against the conviction and sentence of the present accused-appellants. However, the learned trial court took the view that as the evidence on record established that the alleged victim girl was a minor at the point of time, such consent would be irrelevant and that the accused persons would be liable for the offence alleged. In so far as the evidence with regard to the age of the alleged victim girl is concerned, a scrutiny of the evidence reveals that in the deposition form of the alleged victim girl, her age was recorded as 15 years whereas PW 6, the ejahar writer, has mentioned the age of the alleged victim girl to be around 13/14 years. The report of the ossification test, proved as ext. 2, was another piece of evidence with regard to age of the victim girl. The learned trial court, for the reasons assigned, found the evidence of the alleged victim girl and PW 6 with regard to age to be not reliable and in this regard based its conclusion only on the basis of ext. 2. 5. Ext. 2, the ossification report of the Radiologist, was proved by PW 1, who has also identified the signature of the Radiologist in the report. The Radiologist, who had conducted the ossification test was not examined by the prosecution. 6. From the above facts, it would be clear that the only point that would require adjudication in this case is whether the reliance placed by the learned trial court on the ossification report, ext. 2, to determine the age of the alleged victim girl and on that basis to convict the accused-appellants, would be correct and justified in law. 7. From the above facts, it would be clear that the only point that would require adjudication in this case is whether the reliance placed by the learned trial court on the ossification report, ext. 2, to determine the age of the alleged victim girl and on that basis to convict the accused-appellants, would be correct and justified in law. 7. While the prosecution had conducted an ossification test with a view to determine the age of the alleged victim girl, the Radiologist, who had conducted the said test, was not examined to prove the report. In the absence of the Radiologist, the defence had no opportunity to cross-examine the author of the report of the ossification test and to test the correctness of the conclusion recorded therein. Not only that, P.W. 1, who had proved the report as well as the signature of the Radiologist appearing in the report, has not testified as to how and in what manner, he was conversant with the signature of the Radiologist. A consideration of the evidence of PW 1 in this regard would go to show that what was deposed by PW 1 is a verbatim reproduction of the contents of the ossification report. The said report also cannot be used as evidence under Section 293 of the Code of Civil Procedure. That apart, an ossification test would always leave room for speculation. The result of such test can only be an approximate factor and not a decisive and incontrovertible feature. There is a wide variation in the fusion of the epiphyses of individuals owing to climatic, dietic, hereditary and such other factors and it is hardly possible to formulate any uniform standard for determination of age on the basis of a radiological test. That is why a margin of 2-3 years, either way, has always been allowed by the courts in respect of the medical opinion rendered on the basis of an ossification test. In such circumstances, "other evidence" as to age coupled with the result of the ossification test would provide a more acceptable basis for recording a conviction but in the present case such "other evidence" brought by the prosecution was found to be unacceptable by the learned trial Judge himself. 8. In such circumstances, "other evidence" as to age coupled with the result of the ossification test would provide a more acceptable basis for recording a conviction but in the present case such "other evidence" brought by the prosecution was found to be unacceptable by the learned trial Judge himself. 8. In the above circumstances, this court is of the view that the learned trial court was not right in placing its infinite reliance on the report of the Radiologist, who had conducted the ossification test. The learned trial court, itself, having rejected the other evidence available on the point of age of the alleged victim girl, the sole basis of the conviction being what has been noticed above, I am of the view that there is no option but to hold that the prosecution has not succeeded in proving the case against the accused-appellants beyond all reasonable doubt. 9. For all the aforesaid reasons, I allow this Criminal Appeal and set aside the conviction and sentence recorded against the accused-appellants by the learned Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 54(S) of 1997. Appeal allowed.