SANDEEP Vs. STATE

JUDGEMENT

(1.) TRIAL court has convicted the appellant under Sections 376/ 363 IPC; sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 2,000/ - and in default of payment of fine to face simple imprisonment of 6 months under Section 363 IPC; rigorous imprisonment of 5 years with fine of Rs. 1,000/ - and in default of payment of fine to undergo simple imprisonment for 3 months under Section 363 IPC. Both the sentences have been directed to run concurrently, inasmuch as, benefit of Section 428 Cr.P.C. has been accorded to the appellant. Aggrieved by his conviction as also the quantum of sentence, appellant has preferred this appeal.

(2.) PROSECUTION case, as emerges from the record, is that the appellant had kidnapped the prosecutrix aged about 13 years on 7th July, 2007, kept her with him for about 11 days and committed rape on her during this period. Prosecutrix and the appellant were apprehended from Sarai Kale Khan, Bus Stand on 8th August, 2007 by the police officials on the pointing of the father of prosecutrix.

(3.) THOUGH , conviction has not been challenged on merits but still to satisfy myself with the correctness of the impugned judgment I have perused the same as well as the Trial Court Record carefully and find that the prosecutrix was less than 16 years of age at the time of incident In her statement under Section 164 Cr.P.C. prosecutrix had given her age as 15 years. In the FIR, father of prosecutrix has given her age as 13 years. As per the birth certificate Ex.P -1 issued by Sub Registrar (Birth & Death) Shahdara Zone, Delhi, the date of birth of prosecutrix is 2nd March, 1997; meaning thereby she was about 11 years of age at the time of incident. As per the ossification report, prosecutrix was between 13 to 14 years of age. Documentary evidence in the form of her birth certificate which has been duly proved by producing witness from the Sub Registrars' office, has to be preferred as against the ocular and medical evidence. From the evidence adduced on record, it is clear that prosecutrix was less than 16 years of age as on the date of incident.