Gauhati High Court
Page No.# 1/13 vs State Of Assam on 15 September, 2025
Page No.# 1/13
GAHC010004322012
2025:GAU-AS:12503
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./51/2012
TANURAM PEGU
S/O DAKIRAM PEGU, R/O JIADHAL KEKURI, P.S. DHEMAJI, DIST. DHEMAJI,
ASSAM.
VERSUS
STATE OF ASSAM
Advocate for the Petitioner : MR.S SAHU, MR. R B PHOOKAN, AMICUS CURIAE,MR.G C
PHUKAN
Advocate for the Respondent : , PP, ASSAM
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT
Date : 15-09-2025 Heard Mr. R.B. Phookan, learned Amicus Curiae for the appellant. Also heard Mr. M.P. Goswami, learned Addl. Public Prosecutor, Assam appearing for respondent State.
2. This Criminal Appeal under Section 374 of the Cr.P.C is directed against the Judgment and Order dated 19.08.2011, passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 88 (DH)/2009, whereby the appellant/accused has been convicted under Section 363 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two Page No.# 2/13 (2) years and to pay a fine of Rs.5,000/- (Rupees Five Thousand) and in default to payment of fine, to undergo simple imprisonment for another three (3) months.
3. The case set up by the prosecution is that on 27.04.2006, informant Rameswar Doley lodged an ejahar with the Dhemaji Police Station alleging that in the night of 25.04.2006, at about 9:00 p.m., while his daughter (the victim), aged about 13 years was returning home, on her way the accused Tanuram Pegu forcibly dragged her and committed rape on her and thereafter left her in the house of Nandeswar Tayung. On receipt of the written ejahar from the informant, police registered a case and started investigation. During the course of investigation police examined the victim girl medically by a Doctor; recorded her statement under Section 164 of the Cr.P.C. and after completing the investigation submitted the charge sheet under Sections 366(A)/376 of the I.P.C. and sent the accused to stand trial under the said Sections of law.
4. On production of the accused from the jail hajot, copies of the papers submitted under Section 173 of the Cr.P.C. were furnished to the accused complying with the provision of Section 207 of the Cr.P.C. Since the offences under Section 366(A)/376 of the I.P.C. were exclusively triable by the court of Sessions, the learned Judicial Magistrate First Class committed the case to the Court of Sessions for trial and accordingly the case has been registered as Sessions Case No. 88 (DH)2009.
5. The accused person was produced before the Court of Sessions from the jail hajot and after hearing the learned counsel for both sides on the question of charge and considering the case record; the statements of the witnesses and the materials available before the learned Trial Court, charges were framed under Sections 366(A)/376 of the I.P.C. against the accused, the charges were read over and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
6. During the course of trial, the prosecution has examined altogether seven (7) Page No.# 3/13 witnesses, the statement of the accused was recorded under Section 313 of the Cr.P.C. The accused has adduced none for his defence and his plea is of total denial.
7. The learned Trial Court took two points for determination, i.e.:
(1) Whether the accused committed rape on the victim and he thereby committed an offence punishable under Section 376 of the I.P.C.?
(2) Whether the accused kidnapped the victim by taking her away out of her lawful guardianship without the consent of the guardian with intent to marry or to compel her to force or seduce illicit intercourse with another and he thereby committed an offence punishable under Section 366(A) of the I.P.C.?
After hearing the argument advanced by the learned counsel for the parties, both points were discussed and determined together and passed the impugned judgment and order dated 19.08.2011, as stated above.
8. Being aggrieved by the impugned judgment and order, the convicted accused/appellant has preferred the present appeal on the following grounds:
(1) The learned Trial Court erred in law and in facts in convicting and sentencing the appellant U/S evidence while 363 of the IPC on the same set of evidence while acquitting him of offences U/S 366(A)/376 of the IPC, disbelieving that the appellant committed the offence U/S 366 (A)/376 of the IPC.
(2) In order to hold somebody guilty of offence U/S 363 of the IPC, the prosecution is to prove that a minor or any person of unsound mind within the meaning of Section 361 of the IPC was taken or enticed away out of the keeping of the lawful guardian of such minor or person of unsound mind without the consent of the guardian. In the instant case the prosecution failed to prove that the victim girl was a minor at the time Page No.# 4/13 of incident.
(3) In order to prove the age of the victim neither birth certificate nor a school certificate was proved before the Trial court. The prosecution side simply relied on the oral statement made by the father of the girl and also the opinion expressed by the Doctor i.e. PW-5. PW-1, the father of the girl without reference to any regard in proof of the age of the victim, simply stated that the occurrence has taken place while his daughter was 13 years old. The date of birth of his daughter was not indicated at all. There was no other evidence from other prosecution to support the statement that at the time of alleged occurrence the age of the victim was 13 years. On the above backdrop, the Doctor (PW-5) stated in his evidence that the X-ray showed that the age of the girl was more than 15 years but less than 17 years.
(4) There was no convincing evidence to the age of the alleged victim girl and as such the learned trial court was not correct in holding the victim girl to be minor at the time of occurrence. It may be stated that in order to accept the report of the Doctor, the X-ray plate and other materials were not produced before the Trial Court. Again coming to the evidence of PW-6, the alleged victim also stated that at the time of occurrence, her age was 16/17 years. That means according to the victim also she was already at the verge of majority at the time of occurrence. As such, on the evidence on record before the learned Trial court, it was not justified in holding the alleged victim girl to be below 18 years at the time of occurrence for the purpose of invoking the definition of kidnapping as provided U/S 361 of the IPC.
(5) For that in order to hold somebody guilty it is the bounded duty of the prosecution to prove that the minor girl was taken or enticed away from the lawful authority of her guardian. In the instant case the victim girl who was examined as PW- 6 categorically stated on oath that she was in love with the appellant and therefore she eloped with him but her father instituted the present case as he did not want to marry away her to the appellant. In view of the above statement on oath, any previous unsubstantial statement recorded U/S 164 of the Cr.P.C. is no value. The record does Page No.# 5/13 not indicate that the victim girl ever contradicted the statement U/S 164 of the Cr.P.C. As such there was no evidence on record that the appellant had either taken or enticed away the victim girl in any manner so as to hold him guilty for punishment U/S 363 of the IPC.
(6) There is no evidence that the victim girl was kidnapped by the accused. On the other hand PW-4 Nanndeswar Tayung, in whose house the victim girl was found was declared hostile and cross-examined by the prosecution. In cross- examination, however, no incriminating evidence could be elicited from him against the appellant. While PW-7, the I.O. of the case in his evidence stated that PW-4 Nandeswar Tayung told before him that on 25-04-2006 at about 12 midnight the accused Tanuram Pegu took the victim to their house and stayed for the night which statement was denied by the concerned PW-4. Although the I.O. has made the above kind of statement but there is nothing in his evidence that the victim girl was kept in his house for the night after taking or enticing her away from the custody of her guardian. The learned trial court however without any evidence of above nature, wrongfully held that there was evidence of taking away the victim girl for which the appellant could be held guilty.
9. Mr. R.B. Phookan, learned Amicus Curiae for the appellant submitted that the learned Sessions Judge, Dhemaji had already held that the prosecution could not establish the case against the accused/appellant, under Section 366A and 376 of the IPC, though the charges were initially framed against the accused/appellant and the accused is accordingly convicted only under Section 363 of the IPC, with an opinion that the victim was a minor at the relevant time of incident and was kidnapped by the accused/appellant from the custody of her lawful guardian. But from the evidence of the victim as the PW.6, it reveals that they were in love relationship and she willingly eloped with the accused, as her father did not want to give marriage of his daughter with the accused/appellant. Further, there is no any document to held that the victim was a minor or below 18 years of age at the relevant time of incident. Only on the basis of the ossification test, the trial Court had arrived at the decision that the victim was minor at the time of incident and she was below 18 years when the alleged incident had happened. However, the learned Amicus Curiae submitted that as per the Page No.# 6/13 ossification test/medical report, the victim was stated to be not beyond the age of 16 years but below the age of 17 years. But the ossification test cannot be considered as a conclusive proof in absence of any other documentary evidence with regard to birth of the victim or the accused. He further submitted that the judicial notice of margin of error in the age, ascertained by the radiological examination is two years on the either side. Even, considering that aspect also, the victim at the relevant time of incident, may either be 18 years or above 18 years of age, even as per the radiological test. Therefore, the age determined on the basis of the medical examination cannot be considered to be the conclusive proof of age and the medical opinion gives a range within which the age of the victim lies and in that case, the benefit should be given to the accused and it is the higher limit of the age opined, which should be taken into consideration and the benefit of doubt should be extended to the accused.
10. To substantiate his plea, the learned counsel for the accused/appellant also relied upon a decision of the Delhi High Court, which was passed in Criminal Revision Petition No.292/2022 and Criminal M.A. No.9474/2022, wherein considering the judgment of the Hon'ble Apex Court, it has been held in para 23 and 24 of the said judgment, which read as under:
"23. In Raju Yadav (supra), the Court, apart from bone ossification test report, had other evidence before it, including the presumption of guilt which operates against the accused therein under Section 29 of Protection of Children from Sexual Offences Act, 2012, which was invoked therein, to conclude that even though the bone ossification test says the age of the prosecutrix to be between 15 and 17 years, the prosecutrix therein should not be treated as more than 18 years.
24. In the present case, as noted hereinabove, apart from the ossification test report, which opines the age of the victim to be between 16 and 18 years, there is no other evidence/document on record by which the age of the victim can be determined. Even without giving the benefit of the period of two years' addition, as has been accepted by the Supreme Court in the above judgments, and only considering the higher age, as opined in the medical report of the victim, the age of the victim should be taken as 18 years as on the date of the alleged offence.".
11. Mr. Phookan, the learned Amicus Curiae for the accused/ appellant also relied upon a Page No.# 7/13 decision of the Hon'ble Supreme Court passed in Criminal Appeal No.603/2025 (Rajni vs. State of Uttar Pradesh and another) and submitted that the ossification test cannot be the sole criteria for age determination. In that regard, Mr. Phookan, the learned Amicus Curiae for the accused/appellant basically relied upon para 33.11 of the said judgment, which reads as under:
"Ossification test cannot be the sole criteria for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015".
12. Mr. Phookan, the learned Amicus Curiae further submitted that from the evidence of PW.6 itself it is seen that she eloped with the accused/appellant by her own and the PW.4, in whose house they were stated to be stayed together did not support the prosecution version and as per him, they went to his house and after a while, they left his house. Thus there is no evidence that the accused/appellant had kidnapped the victim from the custody of her lawful guardian and kept her confined in the house of PW.4 to fulfill the ingredients of Section 363 of the IPC and in the same time, the prosecution also failed to prove that the age of the victim was below 18 years at the relevant time of incident to convict the accused/appellant under Section 363 of the IPC.
13. On the other hand, Mr. M.P. Goswami, learned Addl. Public Prosecutor, Assam appearing for State respondent submitted that the learned Sessions Judge, Dhemaji has passed the order after appreciating the evidence on record in true perspective and hence, interference of this Court is not necessary. Mr. Goswami further submitted that Section 361 of the IPC speaks about the materials to fulfill the ingredients of Section 363 of the IPC and here in the instant case, it is also seen that the victim was a minor under 18 years of age who was kidnapped by the accused/appellant and kept her confined in the house of the PW.4 and thus, the prosecution could establish the fact that the victim being a minor girl was kidnapped by the accused/appellant from the custody of her lawful guardian. More so, though the PW6 (the Page No.# 8/13 victim) had stated that she went with the accused by her own but from her evidence it is also seen that the accused had sexual intercourse without her against her will and during the entire trial, the victim was also not confronted with her age and it was accepted that she was minor at the time of incident and as per the ossification test and the medical evidence of PW.5, the Doctor also revealed that she was below 18 years as per the ossification test report.
14. Mr. M.P. Goswami, learned Addl. Public Prosecutor, Assam further submitted that there was no authentic document to prove the age of the victim and the prosecution failed to exhibit or seize any educational qualification certificate or the birth certificate of the victim and it is the settled position of law that in absence of any such document, the ossification test can be considered to determine the age of the victim as well as the juvenile. Mr. Goswami further submitted that the accused/appellant was acquitted from the charge of Section 366A and 376 of the IPC but rightly convicted under Section 363 of the IPC and thus, no interference is required in the judgment and order passed by the learned Sessions Judge, Dhemaji.
15. To arrive at the just decision, I find that the evidence of the prosecution witnesses are to be scrutinized.
16. During the course of trial of the case, the prosecution has examined the informant Rameswar Doley as PW.1, Smti Balda Doley as PW.2, Pradip Baishya as PW.3, Nandeswar Tayung as PW.4, the Medical Officer Dr. Dibya Sarmah as PW.5; the victim as PW.6 and the investigating officer Indeswar Hazarika as PW.7.
17. Informant Rameswar Doley as PW.1, the father of the victim stated in his evidence that on the night of the occurrence, the villagers sent the victim (PW.6) with the accused instructing him to hand over her to the guardian but the accused did not comply with the instruction of the villagers and ultimately the victim (PW.6) was recovered from the house of Nandeswar Tayung (PW.4) and the victim complained about forceful sexual intercourse committed by the accused with her, before her mother (PW.2).
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18. The victim as PW.6 stated in her evidence that prior to the incident, she had love affairs with the accused/appellant and she eloped with him by herself. After four days of the occurrence, her father lodged the FIR and she further deposed that the accused also had sexual intercourse with her against her will. At the relevant time of incident, she was 16 to 17 years of age and she further deposed that she went with the accused/appellant by her own. In her cross-examination, also she stated that they had love affairs and she went with the accused only with the intention to lead a conjugal life with him as husband and wife and her father was not willing to give her marriage with the accused/appellant and lodged the case accordingly.
19. Dr. Dibya Sarmah, the Medical Officer who examined the victim was examined as PW.5 who stated in his evidence that on 27.04.2025, he was working as the Medical & Health Officer-1 at Dhemaji Civil Hospital. On that day, he examined the victim on police requisition on being escorted and identified by a Woman Constable and found as follows:-
1. General Examination: - A human bite like mark is found at the right cheek which is oval and oblique.
2. On her private Examination: He found her breast, vulva, vagina are not fully developed. Axillary and Pubic hairs are scanty. No mark of injury is seen over her private parts. Vaginal swab is taken and sent for examination for presence of spermatozoa. On her vaginal examination, Vagina admits 2 finger easily. Hymen is absent, Cervix is normal.
3. The person is advised for pregnancy test and X-Rays of wrist joint, right elbow joint and right illiac crest.
4. The vaginal Swab examination shows no spermatozoa. The pregnancy test is negative. The X-Ray shows that the girl is more than 15 years of age and less than 17 years of age.
Opinion:- There is evidence of forceful sexual intercourse. Exhibit-2 is the medical report and Ext-2(1) is his signature.
Page No.# 10/13 In cross-examination, the Doctor opined that on the basis of injury No.1 on the cheek of the girl, he found that there is forceful sexual intercourse. But, he found no injury on the private parts and in his opinion, there may not be any injury on the private parts in forcible sexual intercourse.
According to the Doctor, the age of the girl may not beyond 16 years but below 17 years.
20. Sri Indeswar Hazarika who was examined as PW.7 stated in his deposition that on 27.04.2006, he was working as A.S.I. of Police at Dhemaji Police Station. On that day, the Officer-in-Charge of the Police Station, on receipt of a written ejahar from the informant Rameswar Doley, registered the Dhemeiji P.S. Case No.104/2006, under Sections 366A/376 of the IPC and entrusted him to investigate the case. During the course of investigation, he visited the place of occurrence, drew up the sketch map, examined and recorded the statement of the witnesses, sent the victim for medical examination and for recording her statement by a Judicial Magistrate. Ext. 4 is the sketch map and Ext. 4 (1) is his signature. After completion of investigation, he submitted the charge sheet against the accused showing him an absconder. Ext. 5 is the charge sheet and Ext. 5 (1) is his signature.
21. PW. 2 is Smti Balda Doley is the mother of the victim who stated that in the night on the day of occurrence the victim did not return home after attending "Huchari" and the victim complained to her that the accused took her to the house of Nandeswar Tayung and committed rape on her.
22. PW.3, Sri Pradip Baishya is the scribe who wrote the ejahar marked as Ext.1 and in his evidence he stated that he wrote the ejahar marked as Ext. 1, incorporating the fact as narrated to him by the informant.
23. The evidence of Sri Nandeswar Tayung as PW.4 is that in the night on the day of Page No.# 11/13 occurrence the accused along with the victim came to his house and thereafter left his house. PW.4 has been declared hostile. The prosecution has taken some contradictions in the evidence on record of PW.4, drawing his attention with his previous statement made before the investigating officer under Section 161 of the Cr.P.C. and the contradictions have been confronted and confirmed by the prosecution from the investigating officer (PW.7).
24. After hearing the submissions made by learned counsel for both sides, I have also considered the evidence on record as well as the judgment passed by the learned Sessions Judge, Dhemaji.
25. It is a fact that initially the case was registered under Section 366A/376 of the IPC and charge was accordingly framed under the said sections of law. There are some ingredients of sexual intercourse with the victim which reveals from her statement as well as from the medical evidence also it is seen that she was subjected to sexual intercourse. But at the time of judgment with some observations, it is held by the learned Sessions Judge, Dhemaji that the prosecution could not establish the case against the accused appellant under Section 366A/376 of the IPC. It was held that the case is established under Section 363 of the IPC, wherein the victim who was minor at the relevant time of incident was kidnapped by the accused appellant from the custody of her lawful guardian. Thus at the time of passing the judgment, the charge has been altered and convicted the accused appellant only under Section 363 of the IPC. But against the said judgment or acquittal of the accused appellant from the charge under Section 366A and 376 of the IPC, the prosecution did not file any appeal nor agitated the order of acquittal of the accused appellant from Section 366A/376 of the IPC.
26. Thus, the present appeal is only against the conviction under Section 363 of the IPC. Section 361 of the IPC/kidnapping from lawful guardian speaks as under:
361. Kidnapping from lawful guardianship.--
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap Page No.# 12/13 such minor or person from lawful guardianship.
Section 363 of the IPC i.e. the punishment for kidnapping also reads as under:
363. Punishment for kidnapping.--
Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
27. Thus, the only consideration in the present case is that whether the victim was kidnapped from the custody of her lawful guardian/parents and as to whether she was minor or below 18 years of age at the time of alleged kidnapping.
28. From the discussions made above, it is seen that there is no relevant document to prove the age of the victim at the time of incident, as the prosecution failed to collect/exhibit any birth certificate or any authentic school certificate and in absence of those certificates, the age of the victim had to be determined on the basis of the ossification test. As per the medical evidence of the PW.5, the victim was beyond 16 years but below 17 years. But it is the settled position of law that the ossification/radiological test cannot be considered as a conclusive proof of age of either the victim or the accused/juvenile and the margin of error in age ascertained by the radiological examination is two years on either side.
29. Here, in the instant case also it is seen that the victim was stated to be beyond 16 years and below 17 years as per the radiological test and thus, even if it is considered two years error in both margins, in that case also the victim will be 18 years or above 18 years at the time of her radiological age determination. Thus, there is no conclusive prove that the victim was below 18 years of age at the time of incident to fulfill the ingredients of Section 361/363 of the IPC. At the same time, it is also seen that the victim eloped with the accused appellant at her own will as her father was against the love relationship between the victim and the accused appellant and with a view to lead a conjugal life with the accused appellant, she eloped with him and they were subsequently got apprehended in this case.
30. Thus, the prosecution could not establish the case beyond all reasonable doubt that the Page No.# 13/13 victim was a minor below 18 years of age at the time of incident or she was kidnapped from the custody of her lawful guardian by the accused appellant to fulfill the ingredients of Section 363 IPC, under which the accused appellant was convicted by the learned Sessions Judge, Dhemaji.
31. Accordingly, the judgment and sentence, passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 85 (JJ) of 2007 is hereby set aside and quashed and the accused/appellant is set at liberty forthwith.
32. Return back the Trial Court Record along with a copy of this judgment immediately.
JUDGE Comparing Assistant