Ja ya Mala v. Home Secretary, Government of Jammu & Kash
Case Details
Crl.A. 146/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) This appeal is directed against the judgment of conviction dated 30.5.2008 passe d by the learned Additional Sessions Judge (FTC) No. 4, Kamrup, Guwahati in Sess ions Case No. 276(K)/06, by which, the accused appellant has been convicted for the offence under Section 376 IPC and has been sentenced to undergo RI of 7 year s and to pay a fine of Rs. 2,000/- and in default, RI for another 6 months.
Legal Reasoning
I have heard Mr. S.K. Talukdar, learned counsel for the accused appellan 2. t. I have also heard Mr. B.B. Gogoi, learned A.P.P., Assam. By virtue of the ord er passed on 5.2.2009 in Crl. Misc. Case No. 500/2008, the accused appellant is on bail after serving sentence for about 8 months. Referring to the statements made under Section 313 CrPC and also in the 3. aforesaid Misc. Case in reference to the school certificate dated 24.9.2007, it is the case of the accused appellant that at the time of the offence, he was bel ow 18 years of age and thus could not have been tried as per the provision of th e Cr.P.C.. 4. Coming to the prosecution case, one Hamida Begum lodged an FIR through t he learned Judicial Magistrate, Hajo alleging that about 7 months ago, the accus ed committed the offence under Section 376 on her sister aged about 12 years and as a result, she carried pregnancy of 7 months. Based on the said FIR, the poli ce registered a case and started investigation and on completion of the same sub mitted the charge sheet under Section 376 IPC. The case being exclusively triabl e by the Sessions Court, learned Judicial Magistrate, 1st Class, Hajo committed to the case to the said Court. Charge was framed against the accused appellant u nder Section 376 IPC. 5. The prosecution examined as many as 9 witnesses including the Medical Of ficer and the Investigating Officer. The accused was also examined under Section 313 CrPC. The point that arose for consideration before the Trial Court was as to whether the accused on 18.4.2004 and 28.4.2004 had committed the offence of r ape on the victim girl. Learned Trial Court having convicted the accused appella nt by the impugned judgment, he has preferred this appeal. 6. Mr. Talukdar, learned counsel for the accused appellant referring to the evidence on record submits that it being a case of consent, cannot be taken to be an offence under Section 376 IPC. Referring to the doctor’s evidence, he subm its that the age prescription of the doctor, which is above 14 and below 16 year s cannot be based for convicting the accused appellant as the same is relaxable in either side. He submits that considering the fact that the victim girl was 7 months pregnant at the purported age of 13 years itself would go to show that sh e was much higher in age and also was a consenting party. In this connection, he has referred to the decision of the Apex Court reported in AIR 1982 SC 1297 (Ja ya Mala Vs. Home Secretary, Government of Jammu & Kashmir and Ors.), in which de aling with the age of the detenu, it was observed thus: (cid:28)However,, it is notorious and one an take judicial notice that the margin of er ror in age ascertained by radiological examination is two years on either side. (cid:29) 7. Mr. Gogoi, learned Addl. P.P., Assam, on the other hand submits that the offence being a admitted one coupled with the fact that the victim girl was bel ow 16 years of age, there is nothing wrong in convicting the accused appellant. He also submits that although the medical report itself does not disclose the ag e of the victim girl, but the doctor, who had examined by the prosecutrix clearl y stated that she was above 14 years and below 16 years. I have given anxious consideration to the submissions made by the learne 8. d counsel for the parties and have also considered the entire materials on recor d. As to what is the prosecution case has been noted above. PW-1 claimed herself to be eyewitness. She in her deposition stated about the incident that took pla ce about 4 years ago. When she had asked the accused appellant as to why he had done the offence, the accused allegedly assured her to marry the victim girl. Wh en her sister became 7 months pregnant, a village mel was called, but it failed to give any decision. It was only thereafter, she lodged the FIR. In her cross e xamination, contrary to her stand in the examine in chief, she admitted that she did not see the offence, but only heard from the victim girl i.e. her sister. P W-3, 4 and 5, all stated that they were present in the village mel in which no d ecision could be arrived at. PW-6 is the doctor, who in his deposition expressed his opinion regarding the age of the victim girl as (cid:28)above 14 years and below 1 6 years. (cid:29) 9. The learned Trial Court has passed the conviction on the basis of the af oresaid opinion which finds mentioned in the deposition of the doctor (PW-6). Ho wever, as stated above, in the medical report, there is no indication about the age of the victim girl. Learned Trial Court did not accept the submissions made on behalf of the defence that the radiological report or X-ray plat being not av ailable on record, the opinion rendered by the doctor was not acceptable to dete rmine the age of the victim girl. Learned Trial Court while admitting that thoug h the medical evidence itself is not a substantive peace of evidence, but held t he same to have been corroborated by the testimony of the victim girl. While adm itting that the opinion of the medical expert may defer for 2/3 years regarding calculation of the age, but since the doctor had physically examined the victim girl, held that his opinion regarding the aforesaid age s acceptable. 10. Only when it is conclusively established that the victim girl was below 16 years of age at the time of commission of the offence, Section 376 IPC would come into operation. In my considered opinion, it will not be conducive to hold that the age of the victim girl stood conclusively established as per the versio n of the doctor, which is (cid:28)above 14 and below 16 years (cid:29). According to the medica l jurisprudence, the opinion of the medical expert may defer for 2/3 years in re spect of the calculation of the age. If that be so, no definite conclusion could have been arrived at that the victim was below 16 years of age. There being als o evidence that the victim girl was a consenting party, I am of the considered o pinion that the appellant is entitled to benefit of doubt.
Decision
11. In view of the above, the appeal succeeds. The impugned judgment of conv iction dated 30.5.2008 passed by the learned Additional Sessions Judge (FTC) No. 4, Kamrup, Guwahati in Sessions Case No. 276(K)/06 stands interfered with. 12. The appeal is allowed. Bail bond stands discharged. Registry shall send back the case records to the learned Court below along with a copy of this judgm ent and order.