KANA @ KANHAIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant has been convicted for the offence under Sec. 376, Penal Code and sentenced to four years rigorous imprisonment and a fine of Rs. 2,000.00. In default of payment of fine he has been ordered to rigorous imprisonment for one year. Against this conviction and sentence by the Sessions Judge, Jhalawar dated 23rd Sept. 1982, the appellant has preferred this appeal.

(2.) I am constrained to observe that a prosecution was launched by the SHO of Police Station Bhalta but no steps were taken to bring the facts straight and complete before the Court in case where the age of the prosecutrix borders of 16. It is very essential that the doctor who examined her makes a complete examination and given an opinion which may not be vague and confusive. Secondly, where the physical examination of the prosecutrix does not reveal marls of injuries, then the report of the Chemical Examiner becomes very relevant, because the commission of sexual intercourse with her very much depend upon the findings of the Chemical Examiner, in this case the cloths of the girl were seized and sent to Chemical Examiner, but what happened thereafter is not known to anybody. Neither the report of the Chemical Examiner was received nor it was tendered before the Sessions Judge.

(3.) Dr. Manohar Singh Singhvi, who conducted the medical examination of the girl Sugna Bai. Considering the height, weight, leels and sex characteristic and on this basis he gave approximately age as 14 to 15 years. He suggested X-rays of elbow joint and wrist joint and these X-rays were taken and the result as entered by him is that lower end of radius not found. He has not said anything about the upper end which is linked to the elbow. On this finding he gave the age as below 17 years. He has not fixed any lower age limit, on the basis of which it could be said that her age was between 13 and 17 years or 15 and 17 years, or 16 and 17 years. While in the witness box he admitted in cross examination that the age is below 17 and that she could have been 16 and half years of age.