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

"…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 the decision of the Supreme Court in Mukesh v. State (NCT of Delhi).

Further, the Court rejected the argument that the prosecutrix consented for the intercourse as she had a ruptured hymen and her vagina easily admitted two fingers. The Court observed that even assuming that the victim was habituated to sexual intercourse, the same does not grant a licence to the accused or any other person to exploit her sexually against her consent nor can it be said that the victim was a girl of easy virtue.

The petitioner contended that the victim was aged more than 18 years at the relevant time in view of the fact that the doctor had placed her age between 14 to 16 years on the basis of 'ossification test'. Thus, counsel for the petitioner contended that two years must be added to such age as per the settled position of law.

But the Court rejected such contention by holding that 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. Rather, it deemed it proper to accept the higher range of the age determined by the ossification report which, in the instant matter, was 16 years.

It further observed,

"Even otherwise, the age of the victim would be relevant, had there been any evidence, even remotely, of she being a consenting party to the sexual intercourse. As has already been discussed hereinbefore there is no such evidence to support the theory of consensual sexual intercourse. In such view of the matter, even assuming for a moment that the victim was aged about 18 years at the relevant time, the same shall not enure the benefit of the accused in any manner whatsoever."

Accordingly, the revision was dismissed and judgments of both the Trial Court and Lower Appellate Court were confirmed.

Case Title: Gobardhan Gadaba @ Gadava v. State of Odisha

Case No.: CRLREV No. 247 of 2007

Judgment Dated: 5^th July 2022

Coram: Justice Sashikanta Mishra

Counsel for the Petitioner: M/s. A. Mishra, B. Nayak, S.A. Hafiz & S. Biswal, Advocates

Counsel for the Respondent: Mr. Sitikanta Mishra, Addl. Standing Counsel

Citation: 2022 LiveLaw (Ori) 110