ABDUL NOOR Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. H.R.A. Choudhury, learned Sr. Counsel assisted by Mr. I.U. Choudhury, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Sr. Counsel and Addl. P.P., Assam appearing for the respondent No.1 and Mr. U. Choudhury, learned Legal Aid Counsel appearing for the respondent No.2.

(2.) The appellant has challenged the impugned judgment and order dt. 16/12/2019 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 18/2015, by which the appellant has been convicted under Sec. 376(2)(i) of IPC read with Sec. 6, for having committed the offence under Sec. 5(j) (ii) of the POCSO Act, 2012. The appellant was thereafter sentenced to undergo rigorous imprisonment for the remainder of his life with a fine of Rs.1,00,000.00in default, rigorous imprisonment for 1 (one) year under Sec. 376(2)(i) of IPC.

(3.) The appellant has put to challenge the impugned judgment basically on three grounds. Firstly, though blood sample had been taken from the appellant and the victim's child on 13/12/2013 for conducting a DNA test, no report was made. Thereafter, a second blood sample was collected from the appellant, the victim and the baby on 18/1/2014 for DNA profiling/testing. He submits that though the DNA profiling/test allegedly proved that the appellant was the father of the victim's child, the taking of the blood samples from the appellant had not been done in a proper manner. Secondly, Sec. 376(2)(i) of IPC could not have been applied for convicting the appellant, in view of the fact that the said Clause (i) of Sec. 376(2)(i) had been deleted on 21/4/2018, vide the Act 22 of 2018, i.e, before the impugned judgment had been passed on 16/12/2019. The third ground of challenge made by the appellant is on the finding of the learned Trial Court that the victim was less than 18 years of age at the time of the offence. He submits that there is no document to prove the age of the victim and no ossification test had been conducted. The only test that had been conducted upon the victim was an X-ray test, which in the opinion of the Doctor was that the victim was between 16-17 years at the time of taking the X-ray test on 11/12/2013.