BIRANCHI PRADHANI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellants assail the judgment and order dated 18.12.1991 passed by the Addl. Sessions Judge, Titilagarh in Sessions Case No. 101/5 of 1990 -91 convicting the accused -appellants for offence under Sections 366/34 IPC and sentencing each of them to undergo R.I. for one year and to pay a fine of Rs. 100/ - and in default to undergo R.I. for 15 days more.

(2.) SUCCINCTLY stated the case of the prosecution is that on 29.10.1984 during morning hour P.W.6, a minor girl (the victim) alongwith her sister P.W.3 and some of her co -villagers went to Jurabandh market to sell guava and dry fish. At about 11.00 A.M., while they were returning home, on the way, near Dhubapali all the accused -appellants emerged out from a bush and accused Balaram @ Guman Patra forcibly dragged P.W.6 to his house in order to marry her against her will and without consent. In the process an earthen pot containing molasses and brinjals held by the victim fell down and got broken. When the companions of the victim tried to rescue her, the other co -accused pushed them. Hulla raised by P.W.3 did not yield any result. So, she went to her house and informed about this incident to her father P.W.4, who orally reported the incident before the A.S.I, of Tikrapara out post, who reduced it into writing and a case was registered under Sections 366/ 354/34 of I.P.C. On the next date the victim was rescued from the house of the accused -appellant Balaram @ Guman Patra and was sent to District Headquarters Hospital, Bolangir for ossification test. P.W.2, the doctor after conducting ossification test on the victim determined her age to be of 161/2 to 18 years. In course of investigation the I.O. visited the spot and recovered broken pieces of earthen pot and the molasses and brinjals therefrom and prepared seizure list in respect thereof in presence of P.W.1 and examined the witnesses. After completion of investigation charge sheet was submitted under Sections 366/354/ 34 of I.P.C. against all the accused persons, under which they faced trial.

(3.) AS per the evidence of the radiologist, P.W.2, the age of the alleged victim was 16 1/2 to 18 years on the date of her examination i.e. on 2.11.1984. According to the evidence of P.W.5, the lady Asst. Surgeon, who examined the victim, the age of the latter was 16 to 17 years as appeared from her physique. During cross -examination, P.W.5 stated that the age determined on ossification test may vary by 2 to 3 years on either side. In the decision Bishnudas Behera v. State of Orissa 83 (1997) 445 it has also been held that the age determined on ossification test may vary by two to three years on either side. If two years is added to the age as determined by P.Ws. 2 and 5, then the age of the alleged victim would be more than 18 years at the time of occurrence. Accordingly, the appellants cannot be said to have kidnapped the victim.