RAM @ RAM KUMAR Vs. STATE

JUDGEMENT

(1.) Aggrieved by a judgment dated 29.05.2013 of learned Addl. Sessions Judge in Sessions Case No. 48/2012 arising out of FIR No. 374/1993 PS Trilok Puri whereby the appellant - Ram @ Ram Kumar has been held guilty for committing offence punishable under Sections 450/376 IPC, he has preferred the instant appeal. By an order dated 03.06.2013, the appellant was sentenced to undergo RI for seven years with fine Rs. 2,000.00 under Sec. 376 Penal Code and RI for five years with fine Rs. 1,000.00 under Sec. 450 IPC. Both the sentences were to operate concurrently.

(2.) Initially, charge-sheet was filed against the appellant for commission of offences punishable under Sections 450 and 376 Penal Code read with Sec. 511 Penal Code on the allegations that on 15.06.1993 at about 10.00 a.m. after committing criminal tress-pass at House No.E-534, Gali No.10, West Vinod Nagar, Mandawali, Delhi, the appellant attempted to commit rape upon the prosecutrix 'X' (assumed name) aged around 10 years. Subsequently, during investigation, it revealed that the appellant had committed rape upon the prosecutrix. Accordingly, under Sec. 216 Crimial P.C. charge was altered to Sec. 376 Penal Code by an order dated 209.201

(3.) I have heard the learned counsel for the parties and have examined the file. Admitted position is that the prosecutrix / victim was aged around 10 years on the day of occurrence. PW-7 (Harbhajan Singh), Head Master, Nagar Nigam Prathmik Vidyalaya, Trilok Puri, Delhi proved the record where date of birth of the victim recorded was 04.11.1982. The victim had taken admission in the school on 009.1992 in 4th standard. She was admitted on the basis of Transfer Certificated issued by the school in which she had studied previously. The witness proved the documents (Ex.PW-7/A to Ex.PW-7/D). Since the date of birth of the prosecutrix came to be recorded much prior to the lodging of the FIR, there was least possibility of her parents to manipulate her date of birth. No other date of birth has been suggested to the prosecutrix. Apparently, the victim was below 16 years of age on the day of crime.