No Legal Mandate That Two Years Must Be Added To Outer Age Limit Determined By 'Ossification Test': Orissa High Court

The Orissa High Court has held that there is no law that two years mandatorily be added to the outer limit of age as determined by 'ossification test'. While rejecting an argument to that effect, a Single Judge Bench of Justice Sashikanta Mishra observed, "…there is no law which mandates that in each and every case two years have to be added to the outer age limit determined by the ossification test. It would rather be prudent for the Court to accept the higher range of the age determined by the ossification report which, in the instant case is 16 years." Brief Facts: The petitioner accused herein was convicted for the offence under Sections 363/376, IPC by the Chief Judicial Magistrate-cum-Asst. Sessions Judge, Jeypore by a judgment passed on 03.02.2006. The said judgment of conviction and sentence was confirmed by the Additional Sessions Judge (Fast Track Court), Jeypore through a judgment dated 21.11.2006. Challenging such judgment of conviction and sentence and the order of its confirmation in appeal, the petitioner approached the High Court in the present revision. Contentions of the Petitioner: Mr. A. Mishra, counsel appearing for the petitioner stressed that the victim's version that she was dragged from her house to the vehicle, which was at a distance of 200 meters, is difficult to believe as there is no evidence that she had shouted for help during such time. In view of the evidence of the doctor that there were no bodily injuries on the victim and further that she was used to sexual intercourse, he strongly suggested that it was a case of consent. He also argued that the age of the victim must be held to be more than 18 years at the relevant time in view of the evidence of the doctor to the effect that the ossification test placed the same at 14-16 years. It was further argued that the doctor also testified that the victim was used to sexual intercourse as her hymen was ruptured and her vagina easily admitted two fingers. According to him, it suggests that the victim and the accused had a consensual sexual relationship. Contentions of the State: Mr. Sitikanta Mishra, Additional Standing Counsel for the State argued that when the victim's testimony has not been rebutted or discredited in any manner whatsoever, there is no reason to disbelieve her version. The contradictions and discrepancies in the prosecution evidence as pointed out by the defence are too minor to be taken note of and in any case, the same cannot demolish the clear and credible evidence of the victim herself. Even if it is proved that the victim was habituated to sexual intercourse, the same does not mean that the offence was not committed, he added. Court's Observations: The Court reiterated that the law requires iit to deal with cases of rape with utmost sensitivity by examining the broader probabilities of a case and not to get swayed away by minor or insignificant discrepancies in the statement of the prosecution which are not of a fatal nature. Reference was made to the decision of the Apex Court in State of Punjab v. Gurmit Singh. The Court further observed, "It is also trite that the victim of a rape is not an accomplice rather her position is like that of an injured witness. Ordinarily, the evidence of a prosecutrix should not be suspected and should be believed, and if the evidence is reliable, no corroboration is necessary. The conviction can be based on the sole testimony of a prosecutrix if it is implicitly reliable and there is a ring of truth in it. Thus, the position of law is that the conviction can be based even on sole testimony of the prosecutrix provided it is natural, trustworthy and worth being relied upon." With regard to the argument that the victim's version is difficult to believe as the vehicle in question was at a distance of 200 meters from her house and there were other houses in between and yet the victim did not raise any shout, the Court noted that it was brought out in cross-examination that while dragging her, the accused was throttling her. Further, no question was put to the victim at the time of trial as to whether she had raised any shout. Therefore, the Court held, even assuming that the victim was throttled by the accused while being dragged to the vehicle, no question having been put by the defence as to if she had raised any shout in protest, the contention raised before the High Court at this belated stage cannot be accepted. The Court rejected the contention that lack of injury on the person of the prosecutrix, falsifies her version. It held, it is well settled that injuries on the person of a rape victim are not even a sine qua non for proving the charge of rape. As such, absence of injury on the person of the victim is not necessarily evidence of falsity of the allegation of rape or evidence of consent on the part of the prosecutrix. In this regard, reference was made to ...

No Legal Mandate That Two Years Must Be Added To Outer Age Limit Determined By 'Ossification Test': Orissa High Court

Jyoti Prakash Dutta

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