SANJAY KUMAR Vs. STATE

JUDGEMENT

(1.) Instant criminal appeal is directed against judgment of learned Sessions Judge Udhampur dated 28.12.2002 in case titled State v. Sanjay Kumar (file No. 29/Sessions whereby the appellant has been convicted for offence punishable under Section 363 and 376 RPC and sentenced rigorous imprisonment of two years & fine of Rs. 500/- and seven years & fine of Rs. 1000/- respectively. The impugned judgment and order have been passed against the following factual backdrop:

(2.) Learned trial Judge on a threadbare discussion of the charge sheet, presented against the appellant and the evidence brought on file by the prosecution as well as appellant as also the stand of appellant in his statement Under Section 342 Cr.P.C, held the prosecution to have proved its case against the appellant beyond any doubt. The trial court on 27.12.2002 proceeded to convict the appellant Under Section 363, 376 RPC and adjourned the matter to 28.12.2002 to hear the appellant on sentence. The trial court on 28.12.2002 after hearing the appellant sentenced the appellant as above. The judgment dated 27.12.2002 convicting the appellant Under Section 363, 376 RPC of the aforesaid offence and the order dated 28.12.2002 sentencing the appellant are assailed on the following grounds:

(3.) I have gone through the memo of appeal, the impugned judgment and order as also record received from the trial court. I have heard learned Counsel for the appellant and Ld. Dy. Advocate General. Learned Counsel for the appellant while elaborating on the grounds set out in the memo of appeal to question legality of impugned judgement and order points out that prosecution had failed to bring any evidence on record to prove that the victim was minor at the time of occurrence. It is argued that the school certificate recording date of birth of the victim though placed on file, has not been proved in accordance with law in as much as the author of certificate or official of the school in possession of school record has not been examined to prove the certificate. The learned Counsel for the appellant submits that failure of the investigating agency to subject the victim to ossification test to prove her age, has also made a major dent in the prosecution case. It is argued that once a victim is held not to be a minor on the date of occurrence, the complexion of the matter is changed and the consent of the victim discernible from the record, would absolve the appellant from the charges leveled against him. The counsel for the appellant to support his argument, places reliance on law laid down in 2001 SC 2231 and 2000 Cr. Law Journal 4683.