JAGE RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) APPELLANT Jage Ram stands convicted and sentenced to different terms of rigorous imprisonment under Sections 366/376(2)(g) and 506, IPC, by Shri R.S. Bhatia, Sessions Judge, Bhiwani, vide his judgment dated July 20, 1985.

(2.) HAVING heard the learned Counsel for the parties at some length I do not feel the necessity of recapitulating the facts of the case in detail in view of the fact that the learned Counsel for the appellant has confined his arguments to only one aspect of the case that in view of the provisions of section 375 IPC, clause fifth, the appellant cannot possibly be held guilty of rape as the prosecutrix Dhannar is not proved to be less than 16 years of age at the time of the alleged occurrence. As per the findings of the learned trial Court, the prosecutrix was bodily lifted by the appellant and his co-accused Suresh on the night intervening 25/26th of August, 1984, from the courtyard of their house in village Samaspur District Bhiwani and was subjected to rape firstly in the bushes and pits at a distance of a few yards from her house and later at different places to which they travelled even in trains till they were apprehended by the police on October 19, 1984 at bus stand, Bhiwani. For recording the conviction of the appellant, the Sessions Judge has primarily relied upon the statement of the prosecutrix and the statement of doctors, namely Dr. Mrs. Santosh Bansal and Dr. V.B. Dixit who proved the radiological examination report of the prosecutrix (Exhibit PR) prepared by Dr. V.S. Lochab who by the commencement of the trial had proceeded abroad.

(3.) IT is the undisputed fact that there exists no record in the form of birth register or school register so far as the age of the prosecutrix is concerned. The only other evidence besides the statements of the two doctors referred to above is the statement of Ram Kumar, PW-7, brother of the prosecutrix according to whom she was 13/14 years of age at the time of occurrence. This evidence, to my mind, cannot by itself be conclusion so far as the age of the prosecutrix is concerned. It is more so when the said evidence is not well supported by the opinion of the doctors referred to above. Dr. Mrs. Santosh Bansal PW-9, after physical examination of the prosecutrix opined that she could be between 12 to 16 years of age at the time of her examination i.e. on March 16, 1985. She, however admitted that at that time the prosecutrix had 28 teeth and it is possible that one may be 18 years old before the eruption of 28th tooth but that will be an exceptional case.