SK. JAKIR Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by judgment and order dated

(2.) In support of the appeal, learned counsel for the appellant submitted that the prosecution failed to prove theory of rape itself since except the bare testimony of the prosecutrix 'R', there was no other evidence. According to the learned counsel for the appellant, there should have been some corroborative evidence to her testimony. At any rate, even assuming but not admitting, there was sexual intercourse by the appellant with the prosecutrix 'R', as claimed by her, the finding about the age recorded by the trial Judge that she was below 16 years on the date of sexual intercourse is wrong and illegal. In the first place, the date of birth mentioned in the certificate of Urdu Medium School, Ambada is mentioned as 14.02.1980 (Exh. -50) but in the Register at Sr.No.754 against the name of the prosecutrix, her date of birth was mentioned as 14.02.1979 and the witness admitted that he had no explanation on what basis, the date of birth was mentioned in the register and on oral instructions from the parents, many a times, such dates are incorporated. He submitted that the Ossification Test shows that the age of the girl could be 14 and 16 and, therefore, according to the settled medical jurisprudence her age is nearing 16 and, therefore, in the wake of inconsistency in the documentary evidence regarding the date of birth, it was very risky to hold that the prosecutrix 'R' was below 16 years. Learned counsel for the appellant also submitted that if her age is taken as 16 yeas or above, then in that behalf, as found by the court below, the case is of consensual sex for over a period of time and in that case, no finding of rape is constituted. He, therefore, submitted that the Courts below committed an error in convicting him for the offence of rape. Insofar as conviction under Sec. 363 and 366 of the IPC is concerned, he submitted that there is evidence on record to show that with consent of father of the prosecutrix 'R' she was living at the house of the appellant in order to look after her sister and newly born child and, therefore, it was not a case of abducting the girl or woman from the house of the father without consent. The same does not amount kidnapping as such and, therefore, prayed for reversal of the order of conviction under Sec. 363, 366 of the IPC.

(3.) Per contra, the learned A.P.P. supported the impugned judgment and order and submitted that the prosecutrix 'R' herself mentioned her age as 14 years and the same is proved from the school leaving certificate. The learned A.P.P. submitted that the the evidence of prosecutrix 'R' is clear about the sexual intercourse by the appellant for 17 to 18 times as stated by her in her evidence and then medical evidence also shows that she was habituated to sexual intercourse. Even assuming there was sexual intercourse, as contended, the age of the girl being below 16 years, offence of rape was proved by the prosecution and, therefore, conviction cannot be said to be illegal. He, therefore, prayed for dismissal of appeal.