Ossification And Medical Test & School Admissions Register Establishes Age Of Victim As Minor: Odisha HC Upholds Rape Conviction

Finding the sentences imposed on the Appellant to be appropriate, the Orissa High Court upheld the appellant's convictions under sections 366 of the IPC and section 6 of the POCSO Act for kidnapping and raping a minor girl, aged less than sixteen years at the time of occurrence.

A Single Judge Bench of Justice S.K. Sahoo in its observation found out that “the ossification test report indicates that the victim was under sixteen years of age when the occurrence in question took place and her evidence that rape was committed on her repeatedly has not been shaken in the cross-examination and therefore, the learned trial Court was quite justified in convicting the appellant of the offences charged”.

“The doctor (P.W.3) stated that on 06.10.2017, she examined the victim and prepared the report (Ext.1). She further stated that as per the report of the radiologist vide Ext.2, the age of the victim was more than fifteen years and less than sixteen years. Thus, not only from the school admission register of Barada Primary School where the date of birth of the victim was mentioned to be 18.05.2005 but also from the evidence adduced by the victim, her father and moreover from the evidence of doctor (P.W.3), it appears that the prosecution has successfully proved that the victim was less than sixteen years of age as on the date of occurrence”, added the Bench.

Advocate Akhaya Kumar Beura appeared for the Appellant whereas Advocate Manoranjan Mishra appeared for the State of Odisha.

The brief facts of the case were that the victim girl’s father lodged an FIR stating his 14-year-old daughter (the victim) went missing. Later, it was found that the appellant, a married man, had kidnapped the victim on the pretext of visiting a jatra and took her to his friend's house, where he repeatedly raped her on the pretext of marriage. The police apprehended the appellant while he was trying to take the victim out of Odisha from Balasore railway station. The FIR led to the registration of a case under sections 363, 366, 376(2)(n) of the IPC, and section 6 of the POCSO against the appellant. Hence, the appellant approached the High Court.

After considering the submission, the Bench noted that section 366 of the I.P.C. prescribes punishment for a person who kidnaps or abducts any woman with the intent that she might be compelled, or knowing it to be likely that she would be compelled, to marry any person against her will, or in order that she might be forced or seduced to illicit intercourse, or knowing it to be likely that she would be forced or seduced to illicit intercourse.

Given the age of the victim, as has already been held to be below sixteen years, and the conduct of the appellant in taking the minor girl from the lawful guardianship and committing rape on her repeatedly, the Bench observed that the Trial Court has rightly convicted the appellant under section 366 of the I.P.C. so also under section 376(2)(i)(n) of the I.P.C.

Highlighting that the substantive offence as provided under section 363 of the I.P.C. is squarely covered under section 366 of the I.P.C., which is a higher offence, the Bench stated that there is no need to award a separate sentence under section 363 of I.P.C in view of the mandate under section 71 of the I.P.C., as it has merged in the sentence imposed under Section 366 I.P.C.

Therefore, refusing to interfere with the order of sentence as handed down by the Trial Court, the High Court confirmed the conviction.

Cause Title: Bapun Singh v State of Odisha

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