JOYMALYA BAGCHI,J. - (1.) The appeal is directed against judgement and order dated 16th January, 2014 passed by the learned Additional Sessions Judge, FTC -II, Islampur, Uttar Dinajpur convicting the appellant for commission of offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer simple imprisonment for seven years and to pay a fine of Rs.2,000/ -, in default, to suffer imprisonment for one year more. The prosecution case as alleged against the appellant is as follows : - One Jalinur Khatun (PW1) lodged a written complaint on 25th November, 2010 before Inspector -in -charge, Chakulia Police Station alleging that on 24th November, 2010 when she had gone out of her house to relieve herself under a mango tree, the accused - appellant accosted her from behind, gagged her mouth with a scarf and dragged her in a paddy field at a distance of 200/250 metres away on the eastern side of her house. The appellant thereafter threatened her with a knife and raped her against her will. She lost her senses due to pain and the appellant ran away leaving her behind in the paddy field. On her written complaint, Chakulia Police Station Case No. 301/2010 dated 25th November, 2010 was registered for investigation. In conclusion of investigation, charge -sheet was filed in the instant case and the case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, Fast Track Court -II for trial and disposal. Charge was framed under Section 376 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined as many as 12 witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial court convicted and sentenced the appellant, as aforesaid. Mr. Asis Sanyal, learned senior advocate appearing for the appellant submitted that the appellant was a juvenile at the time of occurrence. Accordingly, he could not have been convicted and sentenced as an adult. He further submitted that the evidence of PW1 with regard to the alleged rape is improbable and ought not to be believed. It is patently absurd that PW1 was dragged to a paddy field at a distance of 200/250 metres away from her house and ravished when she had gone out in the night to relieve herself. The scarf and knife used by the appellant were not seized. He further submitted that the victim was a major lady above the age of consent. He also submitted that the evidence of PW8, medical witness suffered from patent contradictions and did not inspire confidence. He accordingly, prayed for acquittal of the appellant.
(2.) On the other hand, Mr. Ranadeb Sengupta, learned advocate appearing for the State, submitted that evidence of PW1 was consistent and convincing. Her mouth was gagged and she had been raped at the point of a knife. Evidence of PW8 supported the act of forcible intercourse. Evidence of PW6 proved the ossification report of the victim which showed that she was a minor at the time of occurrence. Accordingly, appeal is liable to be dismissed.
(3.) With regard to juvenility of the appellant I find that the aforesaid issue was raised at the time of suspension of sentence. By order dated 17th April, 2014, learned trial Judge was directed to hold an enquiry in terms of Section 7A of the Juvenile Justice (Care and Protection) Act, 2000 and take a decision as to the juvenility of the appellant. The learned trial Judge relying on the ossification report of the appellant, which showed that the appellant was between 19 to 22 years of age at the time of commission of offence, declined such prayer. Such issue was considered at length by this Court vide order dated 24th September, 2014. After considering the evidence of the parents of the appellant, the admission register of the school as well as the ossification report of the appellant at length, this Court opined that there was no evidence on record to show that the admission register produced on behalf of the appellant related to the school which the appellant first attended. Accordingly, such admission register could not be relied upon in precedence to other evidence in terms of Rule 12 sub -rule (3)(a)(ii) of the Juvenile Justice (Care and Protection) Rules, 2007. In absence of matriculation or equivalent certificate by the Board or the birth certificate issued by the school when the accused first attended in terms of the aforesaid Rule, this Court relied on the ossification report which disclosed the age of the appellant between 19 to 22 years and accordingly, rejected the prayer for juvenility. I find no reason to come to a contrary opinion with regard to such issue and accordingly, I hold that the trial of the appellant was rightly conducted by the ordinary court. Reference may be made to Kulai Ibrahim vs. State reported in (2014) 12 SCC 382 and Parag Bhati vs. State reported in JT (2016) 5 SC 242.;