The Patna High Court recently comprising of a bench of Justice Birendra Kumar observed that the evidence on the approximate age of the victim would not be sufficient about the exact age of the victim. (Anil Chaudhary v The State of Bihar)
The bench noted that it is not mentioned as to in which class the prosecutrix was admitted in the said school in the year, 2010 nor the school admission register was produced before the Court. Hence, the letter cannot be treated as proof of the exact date of birth of the prosecutrix.
Facts of the Case
The Trial Court found both the appellants guilty for offence under Section 366-A of the Indian Penal Code. Appellant Rajesh Chaudhary was further found guilty of offence under Section 376 of the India Penal Code. The Present has filed the Present appeal assailing the conviction and sentence order of the Trial Court.
Contention of the Parties
The appellants submitted that statement of the victim-girl is totally inconsistent with her previous statement before the Magistrate under Section 164 Cr.P.C. and she has been confronted with her previous statement. Moreover, a perusal of her entire testimony would reveal that she is not consistent in her testimony, rather has changed her entire statement which makes her testimony unworthy of credence. Further, the prosecution has failed to prove that the victim was a minor, by adducing evidence of exact age. According to informant P.W. 2, he learned that the appellants had kidnapped to the victim but the source of his learning is not disclosed nor does any prosecution witness claims to have seen the victim along with the appellants.
On the other hand, the counsel for the State contends that on the date of the alleged occurrence, the victim was a minor. Hence, her consent or no consent is wholly immaterial. Corroboration of the testimony of the victim is not the mandate of law and in material particular, she is wholly consistent. Therefore, the judgment of conviction requires no interference.
Courts Observation & Judgment
The bench after looking into the facts of the present case and going through the submissions of the Parties observed that under the said rule for determination of the age the preferential evidence to be brought on the record is the date of birth certificate from the school, or the matriculation or equivalent from the concerned examination board, if available and in the absence thereof, the birth certificate given by a corporation or a municipal authority or a Panchayat and only in absence of both the above, the age is to be determined by ossification test. P.W. 1 has admitted that the prosecutrix is a matriculate, hence, the best evidence would have been the certificate granted by the School Examination Board which was not produced by the prosecution.
Moreover, Ext. 6 is a letter written by the Headmaster of Ram Pyare Singh Uchcha Vidyalaya, Kanchanpur disclosing the fact that the date of birth of the prosecutrix is entered in the school record as 18.04.1994. The student took admission in the school in the year, 2010. However, it is not mentioned as to in which class the prosecutrix was admitted in the said school in the year, 2010 nor the school admission register was produced before the Court. Hence, the letter cannot be treated as a prove of the exact date of birth of the prosecutrix.
The Court referred to the Judgment in the case of Rajak Mohammad V. State of Himachal Pradesh [(2018) 9 SCC 248], where the case was of consensual intercourse and the prosecution had failed to prove that the victim was a minor on the date of occurrence. Hence, the Supreme Court set aside the judgment of conviction recorded by the High Court and said that “While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin, either way, has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused”.
The Court allowing the appeal remarked, “What noteworthy infirmities and discrepancies in the prosecution case and evidence are that the prosecutrix is not consistent in the matter or manner of occurrence, nature of occurrence and place of occurrence. The prosecution has led evidence of only the approximate age of the prosecutrix. The expert, who performed radiological examination, did not appear before the Court to substantiate his conclusions. Due to aforesaid infirmity and in absence of any corroboration, in my view, the conviction of the appellants would not be safe. The learned Trial Judge has not considered the aforesaid infirmities in the prosecution case. Hence, the impugned judgment of conviction and order of sentence is hereby set aside and these appeals stand allowed.”
Read Judgment @Latestlaws.com
Picture Source :
