UDAI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Since the appellant has been convicted for offences under Sections 366, 376 IPC, the entire case turns on the issue whether the prosecutrix was a minor or was major on the date of alleged incident. According to the prosecution, the prosecutrix was less than 16 years old on 26.12.2007, the date of the alleged incident. Therefore, the question of her giving consent to a sexual intercourse does not arise. However, the defence has pleaded that, in fact, she was more than 16 years old on the date of the alleged incident; therefore, the issue of consent is eminently germane to the decision of this case.

(2.) The prosecution has relied upon the Admission Form (Ex.P-9), S.R. Register (Ex.P-8A) and T.C. Form (Ex.P-10) to buttress its contention that the date of birth of the prosecutrix is, in fact, 04.08.1992. Thus, she was a minor on the date of alleged incident. On the other hand, since the Investigating Agency did not get the age of the prosecutrix determined immediately after she was recovered, when the appellant's bail application was moved before this Court, this Court directed that the prosecutrix's age be determined by a Medical Board. Therefore, on 29.08.2008, the Medical Board gave its finding that the age of the prosecutrix is between 16 to 18 years.

(3.) Mr. Anurag Sharma, the learned counsel for the appellant, has contended that the learned trial court has erred in heavily relying upon the Admission Form (Ex.P-9), the S.R. Register (Ex.P-8A) and the T.C. Form (Ex. P-10) to conclude that the prosecutrix was, in fact, less than 16 years old. Accordingly to the learned counsel, in the Admission Form (Ex.P-9), the declaration about the date of birth has been made not by the prosecutrix's father, but by her uncle, namely, Kedar Singh. However, Kedar Singh has not been produced as a prosecution witness during the trial. Moreover, although the said form has been signed by the prosecutrix's father, Shiv Charan Singh (PW.3), in his testimony before the court, he does not utter a single word about the existence of the said form. Moreover, in his entire testimony, he does not give the actual date of birth of the prosecutrix. Although Rajrosi (PW.4), has proven the said documents, mentioned above, but in his cross-examination, he clearly admits that the said document was neither written by him, nor had been filled up before him. Therefore, the learned counsel contends that the date given in the said document cannot be believed. Moreover, the date given in the said document is not made on the basis of the date of birth given at the primary school to which the prosecutrix was admitted to. Thus, the veracity of the date becomes highly doubtful.