RADHESHYAM Vs. STATE OF M P

JUDGEMENT

(1.) I ASJ, Sidhi in S. T. No. 80/02 vide impugned judgment dated 20. 12. 08 recording conviction of appellant under Section 376 (2) (f), IPC sentenced him to undergo R. I. for a period of 10 years and to pay fine Rs. 1,000/- in default to suffer further imprisonment for a period of six months. Being aggrieved, appellant has preferred this appeal under Section 374 (2), Cr. PC.

(2.) RAMSUNDER (P. W. 3) father of the prosecutrix (P. W. 2) aged about 6 years on 15-3-02 lodged the report (Exhibit P-4) to the effect that on 13-3-02 in the evening prosecutrix was subjected to rape by the appellant. On the basis of report aforesaid, prosecutrix was sent to hospital. Dr. Pushpa Soni (P. W. 5)on examination found marks of violence on the private part of the prosecutrix and recorded the report (Exhibit P-l ). Completing the investigation appellant was charge-sheeted. M. F. C. Waidhan in Criminal Case No. 276/02 vide order dated 5-7-02 committed the case to the Court of Sessions. The Court below vide impugned judgment recording conviction of appellant under Section 376 (2) (f), ipc sentenced him to undergo RI and to pay fine in default to suffer further imprisonment for the period said above.

(3.) IN this appeal, vide I. A. No. 2917/2005, it has been contended that on the date of alleged incident dated 13-3-02, appellant was a juvenile in conflict with law as defined under Section 2 (1) of Juvenile Justice (Care and Protection of Children) Act, 2000. As such, the Court of Sessions had no jurisdiction to try the case relating to alleged act of crime against the appellant. As per certificate of Primary School Examination, 1998 (Annexure A-l) and Middle School examination, 2001 (Annexure A-2) the date of birth of appellant has been stated as 4-3-88. Vide order dated 12-5-05 in the present appeal, Superintendent jail, Rewa was directed to get the ossification report of the appellant from radiology Department of Medical College, Rewa. A memo to this effect has been sent and in compliance vide memo No. 1311, dated 16-6-05, the report of the Board was received. As per this report, on the date of examination, i. e. , 2-6-05, the appellant was said to be above 19 years of age. On the basis aforesaid, it has been strenuously contended that in any case on 13-3-02, appellant was a juvenile in conflict with law.