RAMESHBHAI PUSHKARDAS SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code and sentenced to suffer R. I. for one year and to pay a fine of Rs. 100/-, in default, 15 days R. I. and for offence punishable under Section 366 of the Indian Penal Code he is sentenced to suffer R. I. for two years and to pay a fine of Rs. 200/-, in default, one month's R. I. and for the offence punishable under Section 376 of the Indian Penal Code, he is sentenced to suffer R. I. for three years and to pay a fine of Rs. 300/-, in default, four months' R. I.

(2.) The learned Sessions Judge has convicted the accused by relying upon the evidence of the prosecutrix. He has arrived at the conclusion that she was below the age of 16 years on the day of incident and that even if she has given consent, it is no consent in the eye of law. The learned Sessions Judge further arrived at the conclusion that the prosecution has proved that the birth date of the prosecutrix is 1-5-1975 as per the school leaving certificate Ex. 16.

(3.) In this case the prosecution has relied upon the evidence of Dr. Vinod Joshi, P. W. 11 (Ex. 22), who examined the prosecutrix on 19-4-1986. The Medical certificate is produced at Ex. 24 which reveals that there were no signs of struggling or any external marks of injury on the body or face or abdomen. Her pubic hairs and axillary hairs were well developed, breast was well developed, and as per the Radiologist certificate she has completed 15 years. For the reasons best known to it, the prosecution had not examined the Radiologist. The case papers of the Radiologist are produced at Ex. 23. According to the certificate of the radiologist the prosecutrix has completed 15 years. Therefore, the medical evidence clearly proves that the prosecutrix was above the age of 15 years on the day of incident. P. W. 11, Dr. Joshi has stated in his cross-examination that body of the prosecutrix was fully developed and it likely that she was major. In view of this medical opinion, it cannot be said that the prosecution has proved beyond reasonable doubt that prosecutrix was under the age of 16 years.