RAMESH PATEL @ RAHUL Vs. STATE

JUDGEMENT

(1.) By the present petition the Appellant impugns the judgment dated 6th January, 2011 whereby the Appellant was convicted for offence under Sections 376/506 IPC and the order on sentence dated 11th January, 2011 whereby he was directed to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs. 2,000/- for offence punishable under Section 376 IPC and in default of payment of fine to further undergo Simple Imprisonment for six months and Rigorous Imprisonment for two years and a fine of Rs. 1,000/- for offence under Section 506 IPC and in default of payment of fine to further undergo Simple Imprisonment for two months. Learned counsel for the Appellant contends that since the school certificate of the prosecutrix was not sufficient proof of the age, the prosecution ought to have got the ossification test conducted. At the time of incident the prosecutrix was above 18 years of age even as per the statement of the witnesses. PW5, father of the prosecutrix stated that he was settled in Delhi in 1989 and thus the prosecutrix was above 18 years. Neither any record from the hospital nor the MCD was asked to verify the factum of age nor was any witness from neighbourhood examined. Further the prosecutrix admitted that she performed intercourse with the Appellant 12-14 times. Since she never disclosed this incident to anybody else and kept silent it is clear that she was a consenting party. The FIR was registered belatedly. The prosecutrix did not allege that she was threatened with knife by the Appellant either in the FIR or in her statement under Section 161 Cr. P.C. and thus the statement before the Court was a clear improvement. The learned Trial Court noticed that there were contradictions in the testimony however, ignored them as trivial in nature though they were material contradictions. Further as per the statement of PW5 there were complaints about number of other boys who were teasing his daughter however, the Appellant was never named in them. Reliance is placed on Jabar Singh vs. Dinesh and another, 2010 3 SCC 757 and Sunil Kumar Sharma vs. State of NCT of Delhi, 2011 CrLJ 4996.

(2.) Learned APP for the State on the other hand contends that the hymen was torn, PW1 has not been cross-examined by the Appellant and thus his testimony has gone unchallenged. The prosecutrix was pregnant when she revealed the entire incident to her mother who took her to the police and got her statement recorded on 27th September, 2006 Ex. PW1. The DNA of the foetus matched with that of the Appellant and the prosecutrix and thus it has been established beyond reasonable doubt that the Appellant committed sexual intercourse with the prosecutrix. Further the Appellant in his statement under Section 313 Cr. P.C. has nowhere admitted commission of sexual intercourse however, his defence was that the prosecutrix compelled him to satisfy her desire of having sex with him. As regards the age of the prosecutrix, the school certificate clearly mentions the date of birth as 24th November, 1990 which showed that she was less than 16 years of age at the relevant time. The prosecutrix being a minor her consent was immaterial. There is overwhelming evidence against the Appellant and thus no case of acquittal is made out and the appeal be dismissed.

(3.) I have heard learned counsel for the parties.