01Facts
The appellant, the victim’s brother-in-law, was alleged to have taken the victim from her parents’ home in July 2022 and kept her with him for several days.
pp. 2–3 · ¶ 3–5The victim’s elder sister lodged an FIR, and police later recovered the victim with the appellant.
pp. 2–3 · ¶ 3–5The Special Judge convicted the appellant under Section 366 IPC read with Section 6 of the POCSO Act and imposed separate terms of imprisonment.
p. 2 · ¶ 2On appeal, the appellant challenged, among other things, proof of the victim’s age and the evidence of sexual assault.
pp. 4–6 · ¶ 8–902Issues
i.1. Whether the prosecution proved that the victim was a child at the time of the incident, notwithstanding the ossification-test estimate of an age between 14 and 18 years.
pp. 12–13 · ¶ 23–27ii.2. Whether the evidence established that the appellant took the victim and subjected her to sexual intercourse, attracting Section 366 IPC and Sections 5(l) and 6 of the POCSO Act.
pp. 13–14 · ¶ 27–3003Law Applied
The Court applied Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, holding that age is to be determined from the prescribed documentary records where available, and that an ossification test is appropriate only where the date of birth cannot be established from the school admission register and certificate.
pp. 12–13 · ¶ 23–24, 29It treated the school admission-register entry as evidence of age and considered it alongside the father’s testimony.
p. 13 · ¶ 24–26Under Section 5(l) of the POCSO Act, penetrative sexual assault on a child below 16 years is aggravated, with punishment prescribed by Section 6; a child below that age cannot give legally valid consent to the sexual act.
p. 14 · ¶ 28The Court also applied Section 366 IPC to the taking of the victim from her home and guardianship that culminated in sexual intercourse.
p. 14 · ¶ 28Provisions in the judgment · 11 · Linked ones open on LawLens
Indian Penal Code, 1860 Section 366Section 363Section 365Section 376
Protection of Children from Sexual Offences Act, 2012 Section 6Section 4Section 29Section 5
Code of Criminal Procedure, 1973 Section 164Section 313
Juvenile Justice (Care and Protection of Children) Act, 2015. Section 94
04Reasoning
The Court accepted the school Headmaster’s evidence and the admission-register entry recording the victim’s date of birth as 10 January 2009.
pp. 12–13 · ¶ 24–26, 29It found that the father’s evidence about the relative ages of his daughters corroborated that entry, and therefore preferred the documentary and family evidence over the ossification-test range.
pp. 12–13 · ¶ 24–26, 29The victim testified that the appellant took her and raped her; the medical evidence that her hymen was ruptured provided corroboration, and the evidence showed that she and the appellant were recovered together after her disappearance.
pp. 13–14 · ¶ 17, 28Even if she had accompanied him willingly, her age meant that she could not consent in law.
p. 14 · ¶ 28The Court accordingly found the taking and sexual intercourse sufficient to sustain the offences.
p. 14 · ¶ 2805Holding
The Court held that the victim’s age was proved and that the evidence supported the appellant’s conviction under Section 366 IPC read with Section 6 of the POCSO Act.
p. 14 · ¶ 29–30It found no infirmity in the trial court’s judgment, dismissed the appeal, and directed that the trial-court record be returned.
p. 14 · ¶ 30–32Original Court PDF
Raju Gogoi @ RajenvsThe State Of Assam
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