Gauhati High Court
Page No.# 1/19 vs The State Of Assam And Anr on 19 September, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/19
GAHC010250902023
2025:GAU-
AS:12958-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./408/2023
JINNAT ALI
S/O MD. HAZRAT ALI @ HAZRAT ALI,
VILL.- BECHIMARI, P.S.- DALGAON, DIST.- DARRANG, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P., ASSAM.
2:SAMAR ALI
S/O LATE SIRAJ UDDIN
VILL.- BARUAJHARI
P.S.- DALGAON
DIST.- DARRANG
PIN- 784514
ASSAM
Advocate for the Petitioner : MR H R A CHOUDHURY, MS R DEKA,MR. I U
CHOWDHURY,MR. M A CHOUDHURY,MR. A AHMED
Advocate for the Respondent : PP, ASSAM, B BARMAN (R-2),MR. H ALI(R-2)
For the Appellant : Mr. A. Ahmed, Advocate
For the Respondent No.1 : Ms. B. Bhuyan, Sr. Adv. & APP, Assam
For the Respondent No.2 : Mr. H. Ali, Advocate
Page No.# 2/19
-BEFORE-
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE ANJAN MONI KALITA
Date of hearing : 15/09/2025
Date of Judgment : 19/09/2025
JUDGEMENT AND ORDER (CAV)
(Michael Zothankhuma, J)
1. Heard Mr. A. Ahmed, learned counsel for the appellant. Also heard Ms. B.
Bhuyan, learned senior counsel and APP, Assam, assisted by Ms. R. Das,
appearing for the State. Mr. H. Ali, learned counsel appeared for the respondent
no. 2.
2. The appellant has put to challenge the judgment dated 11/10/2023 passed by
the Special Judge, Darrang, Mangaldoi, in Special (POCSO) Case No. 82/2019, by
which the appellant has been convicted under Section 376 of the IPC, Section 6 of the
POCSO Act and Section 448 of the IPC. The appellant was sentenced to undergo
rigorous imprisonment for a term of 20 years with a fine of Rs. 5,000/-, in default,
simple imprisonment for 1(one) month under Section 6 of the POCSO Act. He was also
sentenced to undergo rigorous imprisonment for 6 months for the offence under
Section 448 of the IPC.
3. The prosecution case, in brief, is that an FIR dated 21/09/2019 was submitted
by the informant/PW-1 stating that the appellant had raped the informant's physically
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challenged daughter, who resultantly carried a 4 (four) month old pregnancy. Pursuant
to the FIR dated 21/09/2019, Dalgaon PS Case No. 537/2019 under section 448/376
IPC was registered. After investigation of the case had been completed, a charge
sheet was submitted against the appellant, as a prima facie case under section
448/376 IPC and section 6 of the POCSO Act had been found against him. The learned
trial Court thereafter framed charges under section 448 and 376 IPC along with
section 6 of the POCSO Act, to which the appellant pleaded not guilty and claimed to
be tried.
4. The learned trial Court thereafter examined 9 Prosecution Witnesses and after
examining the appellant under section 313 Cr.P.C., the learned trial Court came to a
finding that the appellant had committed the offence under section 448/376 IPC and
section 6 of the POCSO Act. However, in view of section 42 of the POCSO Act, 2012,
where an alternative punishment which is greater in degree can be given, the learned
Trial Court sentenced the appellant under section 6 of the PCOSO Act. Being aggrieved
with his conviction and sentence, the appellant has approached this Court by way of
the present appeal.
5. The appellant has also filed an application under section 389 Cr.P.C. seeking
suspension of the sentence passed against the appellant and for his release on bail.
The appellant has by way of the application under section 389 Cr.P.C. also raised a
plea of juvenility, which plea had not been taken/raised by the appellant before the
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learned trial Court.
6. This Court having regard to the plea of juvenility raised by the appellant, had
directed the learned Special Court to make an enquiry, to ascertain the age of the
applicant/appellant vide order dated 08/04/2025. This Court vide the said order dated
08/04/2025 had also given a direction to the learned Session Court to go for an
Ossification Test, for ascertaining the age of the applicant/appellant. Pursuant to the
order dated 08/04/2025, the learned trial Court had opened a supplementary case
record for ascertaining the age of the appellant/applicant. The learned trial Court
thereafter transmitted the supplementary case record to this Court along with the
Ossification Test Report on the basis of a forwarding letter dated 16/05/2025. In the
supplementary case record opened by the learned trial Court, it had been observed
that no school certificate or birth certificate was available with the appellant.
Accordingly, the Joint Director of Health Services, Darrang, Mangaldoi, had been
directed to make necessary arrangement for having an Ossification test, for
ascertaining the age of the appellant. Consequently, a Medical Board was constituted
vide order dated 06/05/2025, which submitted 2 (two) certificates dated 14/05/2025
and 15/05/2025 regarding the age of the appellant.
7. As per the certificate dated 14/05/2025 issued by the Medical Board, the age of
the appellant was estimated to be around 15-17 years, while in terms of the certificate
dated 15/05/2025, the age of the appellant/applicant was around 18-21 years. Faced
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with the two conflicting certificates issued by the Medical Board, this Court vide order
dated 09/06/2025, directed the learned trial Court to ascertain the age of the
appellant afresh, in terms of section 94 of the Juvenile Justice (Care and Protection of
Child) Act, 2015 (hereinafter referred to as the 2015 Act). This Court also directed that
in case the documents required for ascertaining the age of the appellant/applicant was
not available in terms of section 94 of the 2015 Act, the learned trial Court was to
ensure that a Medical Board was constituted for conducting an Ossification Test on the
appellant.
8. Subsequent to the above order dated 09/06/2025 and other orders passed by
this Court, an Ossification Test was again conducted on the appellant, as no
documents were available to ascertain the age of the appellant in terms of section 94
of the 2015 Act.
9. The letter No. TMCH/Letter/01/2013/1259 dated 15/07/2025 issued by the
Professor (Dr) Rupam Borgohain, Medical Superintendent, Tezpur Medical College
Hospital, Tezpur, has as it's annexure, the Ossification Test Report conducted upon the
appellant by the Medical Board constituted pursuant to the orders of this Court. The
final report of the Medical Board on the Ossification Test conducted upon the appellant
on 15.07.2025, shows that the Medical Board was of the opinion that the age of the
appellant was about 23-25 years of age.
10. The appellant has challenged the decision of the learned Trial Court, on the
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ground that the appellant was a minor at the time of the incident. Further, the victim
had produced different documents with regard to the age of the victim. Material Ext.-
1, which is the School Leaving Certificate, wherein the date of birth of the victim was
mentioned as 05.10.2002. However, Material Ext.-2, which is the Admission Register of
the school, showed that the victim had admitted herself in the school on 04.01.2011 in
Class-I, when she was 7 years old. Further, in the counterfoil of Material Ext.-3, which
is the victim's School Transfer Certificate, the date of birth of the victim was shown as
04.05.2004. As such, when there was a dispute with regard to the age of the victim at
the time of the incident, keeping in view the various documents that had been
exhibited before the learned Trial Court, the date of birth of the victim, which was in
favour of the appellant, would have to be accepted by this Court. Further, in the
evidence of PW-6, who is the Doctor, who had examined the victim on 21.09.2019, the
radiological examination of the victim showed her age to be approximately 20-22
years or above and that the ultrasonography examination revealed a live fetus of 22
weeks 2 days ± 1 week of gestational age.
11. As the age of the appellant had been found to be 23-25 years of age in the final
Ossification Report, based on the examination of the appellant on 15.07.2025, the
appellant would be less than 18 years of age on the date when the victim got
pregnant, if we are to take the age of the appellant as 23 or by taking the age of the
appellant as 25 years and giving the benefit of the margin of error of minus 1 or 2
years in terms of the decisions of the Supreme Court. As such, the appellant, even if
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found guilty, would have to face the consequence of his illegal act only in terms of
2015 Act. The appellant's counsel thus submits that there was no ground for the
learned Trial Court to have convicted the appellant under Section 6 of the POCSO Act
in view of the above, as the appellant was a minor at the time of the alleged incident.
12. The appellant's counsel submits that the FIR dated 21/09/2019 submitted by
the informant/PW-1, is to the effect that the victim was carrying a 4(four) month old
pregnancy. As such, the incident would have occurred on or about 21/05/2019. The
Supreme Court in the case of Jaya Mala Vs. Home Secretary, Government of
Jammu and Kashmir [(1982) 2 SCC 538], held that one can take judicial notice
that the margin of error in age ascertained by radiological examination is two years on
either side. The learned counsel for the appellant has also relied upon the decision of
the Supreme Court in the case of Ram Suresh Singh Vs. Prabhat Singh alias
Chhotu Singh & Anr. [(2009) 6 SCC 681], wherein it has been held that if a
medical report is to be considered for ascertaining the age of a juvenile in conflict with
law, error of two years in determining the age of the juvenile is possible.
13. In the case of Mohd. Imran Khan Vs. State Government (NCT of Delhi)
[(2011) 10 SCC 192], the Supreme Court has again relied upon it's earlier decision
in Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir & Ors.
[(1982) 2 SCC 538], wherein it had held in Para 9 of Jaya Mala(supra) as follows:
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".....However, it is notorious and one can take judicial notice that the
margin of error in age ascertained by radiological examination is two years on
either side."
14. In the case of Darga Ram alias Gunga Vs. State of Rajasthan [(2015) 2
SCC 775], the Supreme Court has again held that the general rule about age
determination is that the age as determined by the Medical Board can be subject to
variation of plus/minus 2 years. Para 16 and 17 of the said judgment states as
follows:-
"16. The medical opinion given by the duly constituted Board comprising
Professors of Anatomy, Radiodiagnosis and Forensic Medicine has
determined his age to be "about" 33 years on the date of the
examination. The Board has not been able to give the exact age of the
appellant on medical examination, no matter the advances made in that
field. That being so, in terms of Rule 12(3)(b) the appellant may even be
entitled to the benefit of fixing his age on the lower side within a margin
of one year in case the Court considers it necessary to do so in the facts
and circumstances of the case. The need for any such statutory
concession may not however arise because even if the estimated age as
determined by the Medical Board is taken as the correct/true age of the
appellant he was just about 17 years and 2 months old on the date of the
occurrence and thus a juvenile within the meaning of that expression as
used in the Act aforementioned. Having said that we cannot help
observing that we have not felt very comfortable with the Medical Board
estimating the age of the appellant in a range of 30 to 36 years as on the
date of the medical examination.
17. The general rule about age determination is that the age as
determined can vary plus minus two years but the Board has in the case
at hand spread over a period of six years and taken a mean to fix the age
of the appellant at 33 years. We are not sure whether that is the correct
Page No.# 9/19
way of estimating the age of the appellant. What reassures us about the
estimate of age is the fact that the same is determined by a Medical
Board comprising Professors of Anatomy, Radiodiagnosis and Forensic
Medicine whose opinion must get the respect it deserves. That apart,
even if the age of the appellant was determined by the upper extremity
limit i.e. 36 years the same would have been subject to variation of plus
minus 2 years meaning thereby that he could as well be 34 years on the
date of the examination. Taking his age as 34 years on the date of the
examination he would have been 18 years, 2 months and 7 days on the
date of the occurrence but such an estimate would be only an estimate
and the appellant may be entitled to additional benefit of one year in
terms of lowering his age by one year in terms of Rule 12(3)(b) (supra)
which would then bring him to be 17 years and 2 months old, therefore,
a juvenile."
15. On the other hand, Ms. B. Bhuyan, learned Addl. P.P. submits that there is no
infirmity with the age of the victim at the time of rape committed by the appellant on
the victim, inasmuch as, the victim was below 18 years of age at the relevant point of
time. Further, due to the rape, the victim had become pregnant and a child has now
been born to the victim. She, however, submits that the issue with regard to the
examination of the age of the appellant by way of an Ossification Test has already
been conducted and a decision can be made in terms of the said Ossification Test
Report, made by the Medical Board.
16. Ms. B. Bhuyan, learned APP, Assam, submits that in terms of Rule 12(3)(b) of
the Juvenile Justice (Care and Protection of Child) Rules, 2007, in case the exact
assessment of age of a child or juvenile in conflict with law cannot be done by a
Medical Board, the Board may for reasons to be recorded, give benefit to the child or
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juvenile by considering his/her age on the lower side with a margin of one year. The
learned APP thus submits that in terms of the above said Rule, a benefit of only one
year on either side of the age determined by the Medical Board can be given and not
two years, as has been submitted by the counsel for the appellant. The learned APP
has also relied upon the judgement of the Supreme Court in the case of Pawan
Kumar Vs. State of Uttar Pradesh [(2023) 15 SCC 683], in support of her
submission that the Supreme Court in the above judgment has also given the benefit
of plus/minus one year, to the age determined on the basis of the Ossification Test.
She accordingly submits that the benefit of lowering the age of the appellant from the
age determined by the Medical Board cannot be beyond one year. She also relied on
the decision of the Supreme Court in the case of Ashwini Kumar Saxena Vs. State
of M.P. [(2012) 9 SCC 750], to state that the Legislature and the Rule making
authority having fixed the manner in which the age of the child is to be assessed, by
giving consideration of the age of juvenile or child in conflict with law within the
margin of plus/minus one year, the Courts cannot go beyond the rule made by the
Legislature/Rule Making authority.
17. The learned APP has also relied upon the judgments of the Supreme Court in
the case of Vinod Katara Vs. State of U.P. [(2023) 15 SCC 210] and Rajni Vs.
State of U.P. [AIR 2025 SC 2787], wherein it has been held that the procedure to
be followed for determination of age is provided under Rule 12(3)(b) of the 2007
Rules, which reads as under:-
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"12. Procedure to be followed in determination of age.--(1)-
(2) * * *
(3) In every case concerning a child or juvenile in conflict with law, the age
determination inquiry shall be conducted by the court or the Board or, as the
case may be, the Committee by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent certificates, if available; and in the
absence whereof;
(ii) the date of birth certificate from the school (other than a play school)
first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a
panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the
medical opinion will be sought from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact assessment of the age
cannot be done, the Court or the Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may, if considered necessary, give
benefit to the child or juvenile by considering his/her age on lower side within
the margin of one year.
and, while passing orders in such case shall, after taking into consideration such
evidence as may be available, or the medical opinion, as the case may be, record a
finding in respect of his age and either of the evidence specified in any of the
clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in conflict with law."
18. To this submission made by the learned APP, the learned counsel for the
appellant submits that Rule 12 of 2007 Rules has been incorporated into section 94 of
the 2015 Act. As such, the benefit of giving one year on the lower side to a
child/juvenile in conflict with law, as provided in Rule 12(3)(b) of the 2007 Rules, is no
longer valid, inasmuch as, the 2015 Act does not bar giving the benefit of giving two
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years on the lower side.
19. We have heard the learned counsels for the parties.
20. As per Rule 12(3)(b) of the 2007 Rules, the benefit of 1 year can be given on
the lower side, on the age determined on the basis of an Ossification Test to a child or
a juvenile in conflict with law, when the exact age of the said child/juvenile cannot be
assessed. There is nothing in the 2007 Rules allowing the benefit of giving more than
1 year age benefit to a child/juvenile in conflict with law. Though Rule 12 of the 2007
Rules has been incorporated into Section 94 of the 2015 Act, there is nothing to show
that the benefit of ± beyond one year can be given to a child/juvenile in conflict with
law, as per the 2015 Act. In fact, some of the latest decisions of the Supreme Court as
reflected in Pawan Kumar (supra), Vinod Katara (supra) and Rajni(supra), go
to show that age benefit of only 1 year on the lower side has been given to a
child/juvenile in conflict with law, when there cannot be an exact assessment of age in
the medical test conducted upon the said child. In the case of Karan Vs. State of
M.P., reported in (2023) 5 SCC 504, the Supreme Court has held that Ossification
Test will only give a broad assessment of the age. It cannot give an exact age. It also
held that there is a element of margin of plus or minus 1-2 years.
21. As can be seen from Rule 12(3)(b) of the 2007 Rules, the Medical Board can
consider lowering the age of a child/juvenile in conflict with law by a margin of 1 year,
after recording reasons for the same for determining the age. Rule 12(3)(b) of the
Page No.# 13/19
2007 Rules does not speak of the Courts having the power to give the benefit of plus
or minus 1 year of benefit of age to an accused. The giving of the benefit of
plus/minus 1 or 2 years of age, on the age determined on the basis of an Ossification
Test to a child, can be given by the Courts, not under Rule 12(3)(b) of the 2007 Rules,
but in terms of the various decisions of the Supreme Court.
22. As can be seen from the judgments of the Supreme Court, a child/juvenile in
conflict with law can be given the benefit of plus/minus 1 or 2 years on his age
determined after an Ossification Test. In the present case, the Ossification Test held in
July, 2025 had given the age of the appellant as 23-25 years of age. When an age
range has been given by a Medical Board on the basis of an Ossification Test, it
becomes difficult for a criminal Court to decide as to whether the benefit of plus or
minus 1 or 2 years of age should be given to the lower age extremity of 23 years or
the upper age extremity of 25 years.
23. In the case of Mukarrab & Ors. Vs. State of U.P., reported in (2017) 2
SCC 210, it has been held that it is well accepted that age determination using
Ossification Test does not yield accurate and precise conclusion after the examinee
crosses the age of 30 years. It also held that on the basis of the age of the accused
appellants, who are determined to be between the age of 35-40 years, giving a
variation of 2 years in the upper age limit, i.e. besides an additional benefit of 1 year
in terms of Rule 12(3)(b) of the 2007 Rules would bring the age of the appellant to 37
years. The Supreme Court in the above case, however, did not act upon the
Page No.# 14/19
Ossification Test report, by holding that the age of the appellants therein would have
been only 14 years of age at the time of the incident. Thus, at the time of production
before the Court, the Court would have immediately noticed they were children and
they would have been dealt accordingly by the Juvenile Court. The Supreme Court
thus held that Ossification Test Report of the Medical Board could not be said to be
conclusive and could not be relied upon.
24. Para 26 & 27 of Mukarrab & Ors.(supra) are reproduced hereinbelow as
follows:-
"26. Having regard to the circumstances of this case, a blind and mechanical
view regarding the age of a person cannot be adopted solely on the basis of the
medical opinion by the radiological examination. At p. 31 of Modi's Textbook of
Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
"In ascertaining the age of young persons radiograms of any of the main
joints of the upper or the lower extremity of both sides of the body
should be taken, an opinion should be given according to the following
Table, but it must be remembered that too much reliance should not be
placed on this Table as it merely indicates an average and is likely to vary
in individual cases even of the same province owing to the eccentricities
of development."
Courts have taken judicial notice of this fact and have always held that the
evidence afforded by radiological examination is no doubt a useful guiding factor
for determining the age of a person but the evidence is not of a conclusive and
incontrovertible nature and it is subject to a margin of error. Medical evidence as to
the age of a person though a very useful guiding factor is not conclusive and has
to be considered along with other circumstances.
27. In a recent judgment, State of M.P. v. Anoop Singh [State of
M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208] , it was held that
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the ossification test is not the sole criteria for age determination. Following Babloo
Pasi [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri)
266] and Anoop Singh cases [State of M.P. v. Anoop Singh, (2015) 7 SCC 773 :
(2015) 4 SCC (Cri) 208] , we hold that ossification test cannot be regarded as
conclusive when it comes to ascertaining the age of a person. More so, the
appellants herein have certainly crossed the age of thirty years which is an
important factor to be taken into account as age cannot be determined with
precision. In fact in the medical report of the appellants, it is stated that there was
no indication for dental x-rays since both the accused were beyond 25 years of
age.
25. In the case of State of M.P. Vs. Anoop Singh, reported in (2015) 15 SCC
773, it was held that the Ossification Test is not the sole criteria for age determination
and it cannot be regarded as conclusive when it comes to ascertaining the age of a
person, moreso, when the persons have crossed the age of 30 years. In the present
case, the appellant has apparently not crossed the age of 30 years when the
Ossification Test was held.
26. In the case of Darga Ram alias Gunga (supra), the Supreme Court was
considering the Ossification Test, wherein the Medical Board had estimated the age of
the appellant in the range of 30-36 years as on the date of the medical examination.
The Supreme Court held that age determination can vary plus/minus 2 years, but the
Medical Board had spread the age of the appellant over a period of 6 years, i.e. 30-36
years and taken a mean to fix the age at 33 years. The Supreme Court held that they
were not sure whether the taking of a mean age in respect of the age range from 30-
36 years would be the correct way of estimating the age of the appellant. It held that
even if the age of the appellant was determined by the upper extremity limit, i.e. 36
Page No.# 16/19
years, the same would be subject to variation of plus/minus 2 years, meaning thereby
that he could be 34 years as on the date of the examination. Para 17 of the judgment
of the Supreme Court in Darga Ram alias Gunga (supra) is reproduced
hereinbelow as follows:
"17. The general rule about age determination is that the age as
determined can vary plus minus two years but the Board has in the case at
hand spread over a period of six years and taken a mean to fix the age of the
appellant at 33 years. We are not sure whether that is the correct way of
estimating the age of the appellant. What reassures us about the estimate of
age is the fact that the same is determined by a Medical Board comprising
Professors of Anatomy, Radiodiagnosis and Forensic Medicine whose opinion
must get the respect it deserves. That apart, even if the age of the appellant
was determined by the upper extremity limit i.e. 36 years the same would have
been subject to variation of plus minus 2 years meaning thereby that he could
as well be 34 years on the date of the examination. Taking his age as 34 years
on the date of the examination he would have been 18 years, 2 months and 7
days on the date of the occurrence but such an estimate would be only an
estimate and the appellant may be entitled to additional benefit of one year in
terms of lowering his age by one year in terms of Rule 12(3)(b) (supra) which
would then bring him to be 17 years and 2 months old, therefore, a juvenile."
27. What can be gathered from the various decisions of the Supreme Court is the
fact that there can be no conclusive proof of age on the basis of an Ossification Test.
It has been held by the Supreme Court that there can be a variation of the age by
plus/minus 1-2 years of an accused, after having an Ossification Test conducted on
him, though nothing has been stated in the Act or the Rules that Courts can vary the
age of an accused by plus/minus 1-2 years. Besides the above variation that can be
done by the Courts, as held by the Supreme Court, the Medical Board which conducts
Page No.# 17/19
an Ossification Test can also give a variation of plus/minus 1 year at the time of
making it's report on the Ossification Test, provided it gives reasons for the same in
writing, in terms of Rule 12(3)(b) of the 2012 Rules.
28. A reading of the judgments of the Supreme Court shows that when an
Ossification Test has been held and the age range has been made like in the present
case, (23-25), or in a case where age range is spread over 5-6 years, the Supreme
Court has not felt comfortable with the fixing of a mean age. There is no clear cut
answer as to whether the benefit of variation of plus/minus 1-2 years is to be given on
the upper age limit or on the lower age limit.
29. In the present case, the fact remains that the victim was 4 (four) months'
pregnant at the time of filing of the FIR dated 21.09.2019, which would show that the
incident of rape had apparently occurred 4 (four) months prior to the filing of the FIR
i.e. in the month of April/May, 2019. The Ossification Test on the appellant had been
done in July, 2025.
30. The Medical Board had opined that the age of the appellant on the basis of
Ossification test done on 15/07/2025 was 23-25. If we take the age of the appellant
to be 23 years as on 15.07.2025, he would have been around 17 in April, 2019. Even
if we take the appellant's age to be 25 years as on July, 2025 and the benefit of only
minus 1 year is given, the appellant would be 24 on 15.07.2025. Thus, as on
April/May, 2019, he would be approximately less than 18 years of age. We are
Page No.# 18/19
accordingly of the view that the age of the appellant was less than 18 years, at the
time the incident of rape occurred. In view of the above, the appellant's case would
have to be decided by the Juvenile Justice Board constituted under Section 4 of the
2015 Act. In this regard, it is seen that the appellant had already been in jail, as an
under-trial prisoner from 03.10.2019 to 11.05.2020. Further, the appellant has been in
jail after being convicted by the learned Trial Court w.e.f. 11.10.2023 till today. The
total length of judicial custody of the appellant has been approximately 2 years, 6
months, 18 days.
31. The above being said, the evidence of the victim before the learned Trial Court
is to the effect that the appellant had promised to marry the victim and on one day at
around 12 noon, the appellant had raped her in her house. After 4 months from the
aforesaid incident, she found out that she was pregnant. There is nothing in the
evidence of the prosecutrix, which can lead us to believe that the same is not
trustworthy or cannot be acted upon. We are of the view that the evidence of the
victim is trustworthy and inspires the confidence of the Court, which is corroborated
by the victim getting pregnant and having a child subsequently. The statement of the
victim under Section 164 Cr.P.C. also corroborates the testimony of the victim. In view
of the above, we do not find any ground to interfere with the decision of the learned
Trial Court in convicting the appellant. However, as the appellant was below 18 years
of age at the time of the incident, the appellant cannot be sentenced under Section 6
of the POCSO Act or Section 448 of the IPC as an adult. He would have to be taken
Page No.# 19/19
before the Juvenile Justice Board, who shall then take a decision as to how to deal
with the appellant, keeping in view the fact that the appellant was a minor at the time
of the incident. In view of the reasons stated above, the challenge made by the
appellant to his conviction by the learned Trial Court is not interfered with. However,
the sentence passed upon the appellant by the learned Trial Court pursuant to the
impugned judgment is hereby set aside.
32. The appeal is accordingly disposed of.
33. Send back the TCR.
JUDGE JUDGE
Comparing Assistant
