Case Title: Gobardhan Gadaba @ Gadava v. State of Odisha
The Orissa High Court has ruled that there is no law mandating that two years be added to the outer limit of age as determined by the 'ossification test.' While rejecting such an argument, a Single Judge Bench led by Justice Sashikanta Mishra observed
‘...there is no law which mandates that in every case two years have to be added to the outer age limit determined by the ossification test. It would rather be prudent for the Court to accept the higher range of the age determined by the ossification report which, in the instant case is 16 years."
According to the judgement passed on 03.02.2006 by the Chief Judicial Magistrate/Assistant Sessions Judge, Jeypore, the petitioner accused in this case was found guilty of the crime under Sections 363 and 376 of the IPC. The Additional Sessions Judge (Fast Track Court), Jeypore confirmed the conviction and sentence in a ruling dated November 21,2006. In the present revision, the petitioner went to the High Court to challenge such a conviction and sentence judgement as well as the order that upheld it.
Mr. A. Mishra, the petitioner's attorney, emphasised that it is difficult to believe the victim's account that she was dragged 200 metres from her home to the vehicle because there is no proof that she yelled for aid at the time. Given the doctor's testimony that the victim had no physical injuries and had previously engaged in sexual activity, he strongly implied that consent had been given. He also argued that the victim's age at the relevant time must be held to be more than 18 years, despite the doctor's evidence that the ossification test placed the victim at 14-16 years. It was also argued that the victim was used to sexual intercourse because her hymen was ruptured, and her vagina easily admitted two fingers. He believes it indicates that the victim and accused had a consensual sexual relationship.
Mr. Sitikanta Mishra, Additional Standing Counsel for the State, argued that there is no reason to doubt the victim's version of her testimony has not been refuted or discredited in any way. The contradictions and discrepancies in the prosecution evidence pointed out by the defence are too minor to be noted, and in any case, they cannot undermine the victim's clear and credible evidence. Even if it is proven that the victim was habituated to sexual intercourse, that does not mean the crime was not committed, he added.
The Court reiterated that the law requires it to deal with rape cases with sensitivity by examining the broader probabilities of a case and not be swayed away by minor or insignificant discrepancies in the prosecution's statement that are not fatal. The Court further observed,
‘It is also trite that the victim of a rape is not an accomplice rather her position is like that of an injured witness. Ordinarily, the evidence of a prosecutrix should not be suspected and should be believed, and if the evidence is reliable, no corroboration is necessary. The conviction can be based on the sole testimony of a prosecutrix if it is implicitly reliable and there is a ring of truth in it. Thus, the position of law is that the conviction can be based even on the sole testimony of the prosecutrix provided it is natural, trustworthy and worth being relied upon.’
Regarding the argument that the victim's version is difficult to believe because the vehicle in question was 200 metres from her house and there were other houses in between, and yet the victim did not scream and shout, the Court noted that it was brought out in cross-examination that the accused was throttling her while dragging her. Furthermore, no question was posed to the victim during the trial as to whether she had shouted anything. As a result, even if the victim was throttled by the accused while being dragged to the vehicle, and no question was raised by the defence as to whether she had raised any protest shout, the Court held that the contention raised before the High Court at this late stage could not be accepted.
The Court rejected the argument that the prosecutrix's lack of injury invalidates her version. It was held that it is well established that injuries to a rape victim's person are not even a sine qua non for proving the charge of rape. As a result, the victim's lack of injury is not necessarily evidence of the falsity of the rape allegation or consent on the part of the prosecutrix. In this regard, the Supreme Court's decision in Mukesh v. State was quoted (NCT of Delhi).
Furthermore, the Court rejected the prosecutrix's argument that she consented to the intercourse because she had a ruptured hymen and her vagina easily admitted two fingers. Even if the victim was accustomed to sexual intercourse, the Court observed that this does not give the accused or any other person permission to exploit her sexually against her consent, nor can it be said that the victim was a girl of easy virtue.
The petitioner contended that the victim was over the age of 18 at the time of the incident, citing the doctor's determination of her age based on an 'ossification test.' Thus, counsel for the petitioner contended that two years must be added to such age by the settled law. However, the Court rejected such a claim, stating that no law requires that two years be added to the outer age limit determined by the ossification test in every case. Rather, it thought it was appropriate to accept the upper range of the age determined by the ossification report, which in this case was 16 years.
Accordingly, the revision was dismissed, and the judgments of both the Trial Court and Lower Appellate Court were confirmed.