Prosecution can’t disown its witness unless declared hostile; ossification test comes into play only if documentary and other evidence doesn’t establish victim’s age

Bombay High Court: A Division Bench comprising of S.B. Shukre and S.M. Modak, JJ. allowed a set of criminal appeals filed against the judgment of Sessions Judge whereby the appellants were convicted under Section 376 (2)(n) IPC and under various sections of Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.

The appellants were the husband, parents, neighbours, etc. of the victim. The prosecution alleged that the victim was married to her husband when she was 15 years of age. She was pressurised by her parents. Soon after the wedding, the husband consummated the marriage with the victim. She was not able to resist the advances and acts of the husband who was 29 years of age. One day, on the pretext of celebrating he birthday with her parents, the victim ran away and lodged an FIR against the husband, her parents and other accused. The matter went to trial and the court convicted the accused as aforesaid. Aggrieved thereby, the convicts preferred the present appeals.

Mahesh Rai and A.A. Dhawas, Advocates for the appellants vehemently argued against the conviction and seriously disputed age of the victim at the time of the incident. They relied on evidence of one Vasanti, an employee of Municipal Council, Chandrapur. Notably, Vasanti was a prosecution witness but her evidence wherein she brought birth register proved that the victim was born in 1994 and not in 1999 as claimed by the prosecution. Thus, at the relevant time, the victim was more than 18 years of age. Therefore she could not be treated as a ‘child’ for the purpose of either POCSO or the Child Marriage Act.

The High Court, noting the above evidence stated that the same was reliable. It observed, “After having examined its own witness and after having not declared the witness with the permission of the Court as hostile to the prosecution, it is not permissible under the law for the prosecution to disown its own witness”. On the aspect of other evidence especially the ossification test, the Court relied on Mahadeo v. State of Maharashtra, (2013) 14 SCC 637 and State of M.P. v. Anoop Singh, (2015) 7 SCC 773. The Court stated, “The ossification test would come into picture only when the documentary and other evidence brought on record by the prosecution does not convincingly or beyond reasonable doubt establish the age of the victim, wherever it is relevant”. Thus, the victim not being a ‘child’ at the relevant time, the appellants were acquitted of offences under POCSO and Child Marriage Act. Further, regarding Section 376(2)(n) IPC, it was noted that the victim admitted that after the marriage she did not object to the acts of the husband and therefore even that offence was not established. Hence, the appellants were acquitted of all the charges. [Vimalbai Manohar Doballiwar v. State of Maharashtra, 2018 SCC OnLine Bom 6956, dated 19-12-2018]

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