RAJESH Vs. STATE

JUDGEMENT

(1.) AGGRIEVED by a judgment dated 24.09.2013 of learned Additional Sessions Judge in Sessions Case No. 40/13 emanating from FIR No. 450/12 registered at Police Station Prashant Vihar by which the appellant -Rajesh @ Batla was held guilty for committing offences under Section 376/363 IPC, he has filed the instant appeal. By an order dated 08.10.2013, the appellant was sentenced to undergo RI for seven years with fine Rs. 5,000 under Section 376 IPC and RI for two years with fine Rs. 2,000/ - under Section 363 IPC. Both the sentences were to operate concurrently.

(2.) BRIEFLY stated, the prosecution case as set up in the charge -sheet was that on 07.11.2012, at about 5:00 p.m. at Village Razapur, Sector -9, Rohini, Delhi, the appellant kidnapped the prosecutrix 'X' (assumed name), aged around 12 years, from the lawful guardianship of her mother Badami Devi; wrongfully confined her at Noida and committed rape upon her without her consent. 'X' went missing from her house on 07.11.2012 when her mother had gone at her work -place. When 'X's mother Badami Devi returned to her residence at about 3:00 p.m., she found 'X' missing. Efforts were made to search her but to no effect. The Investigating Officer lodged First Information Report after recording her statement (Ex. PW -3/A). On 09.11.2012, 'X' returned to her house on her own and taken to Police Station. She was medically examined; she recorded her 164 Cr.P.C. statement. The accused was arrested and taken for medical examination. Statements of witnesses conversant with the facts were recorded. Upon completion of investigation, a charge -sheet was filed against the appellant in the court. The prosecution examined fourteen witnesses to substantiate its case. In 313 statement, denying the allegations, the appellant stated that the prosecutrix was a consenting party. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(3.) AGE of the prosecutrix is relevant to infer the appellant's guilt. Throughout, the prosecution's case is that 'X' was aged about 12 years on the day of incident. PW -5 (Daisy Grover), Principal, Municipal Corporation Primary School, Section -13, Rohini, Delhi deposed that as per school record, date of birth of the prosecutrix was 10.04.2000. She proved the relevant documents Ex. PW -5/A to Ex. PW -5/D. The said date of birth was recorded at the time of admission in 1st class in 2007. 'X's mother had filed affidavit (Ex. PW -5/C) disclosing the said date of birth of the prosecutrix. It is true that at the time of recording her date of birth no birth certificate issued by the competent authority was furnished. No ossification test to ascertain the approximate age of the prosecutrix was conducted during investigation. However, there are no reasons to disbelieve the date of birth recorded in the School records as 'X' parents never anticipated such an incident to happen in future to manipulate her age that time. The appellant has not suggested any other date of birth of the prosecutrix. The Trial Court has dealt with this aspect minutely in the impugned judgment. Since the prosecutrix was below 16 years of age on the day of incident, her consent to have physical relations with the appellant was of no relevance. 'X' being an immature girl of tender age was incapable to take informed decision and to submit herself for sexual relations without understanding its consequences. Conviction recorded under Section 376/363 IPC cannot be faulted.