BIJENDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Additional Sessions Judge, Faridabad, on April 29, 1986 acquitted Bejinder Singh, appellant of the charge framed under section 376, IPC. However, he convicted him under sections 363, 366, IPC. On both these counts, the appellant was ordered to undergo R.I. for one year and to pay a fine of Rs. 500/- each and in default of payment of fine to undergo R.I. for one month. Both these sentences were ordered to run concurrently hence this appeal.

(2.) The prosecutrix is Smt. Santosh. On Sept. 8, 1985 at about 2.00 P.M. she had gone out to answer the call of nature. The appellant met her and enticed her away after administering some eatables. Both of them stayed at Delhi, Alwar and Sohana where as per allegation of the prosecutrix she was subjected to rape by the appellant. At Sohana the police apprehended them on 27th Sept. 1985. The case having been registered and after completion of the investigation, the appellant was tried. AddI. Sessions Judge gave a finding that the prosecutrix was a consenting party in this venture and acquitted the appellant of the offence under section 376 IPC holding that the prosecutrix was over 16 years of age. The conviction was recorded under Sections 363 and - 366 IPC as the prosecutrix was found to be below 18 years of age as per birth entry Ex. P-D proved by PW-3 Ram Karan Singh Rathi. Vide this entry a daughter was born on Feb. 5, 1969. Thus on the date of the offence was committed she was 16 years and about 7 months old. It is not considered appropriate to refer to the evidence to re-affirm the finding of the Additional essions Judge regarding consent as aforesaid.

(3.) The question for consideration in this appeal is about the age of the prosecutrix. If the evidence produced by the prosecution is accepted that the birth entry Ex. PD in fact relates to the prosecutrix Smt. Santosh, the conviction recorded by the Additional Sessions Judge under Sections 363 and 366 IPC would be un-assailable.