ANGREJ SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the accused appellant Angrej Singh against the judgment dated 30. 9. 1999 and order of sentence dated 1. 10. 1999 passed by the learned Additional Sessions Judge No. 2, Bikaner in Sessions Case No. 36/98 by which he convicted the accused appellant for the offence u/sec. 376 IPC and sentenced him to undergo ten years' SI and to pay fine of Rs. 2000/-, in default of payment of fine, to further undergo two months' SI.

(2.) THE prosecution story may be stated like this:- Sajjan Kanwar, PW 2 (hereinafter referred to as the prosecutrix) lodged a written report Ex. P/1 on 20. 3. 1998 at about 11. 30 AM before PW 9 Tara Chand, SHO, Police Station Lunkaransar District Bikaner and at that time, she was accompanied by the grand-father PW3 Sultan Singh stating inter-alia that prosecutrix resided in the agriculture Farm House Lunkaransar and used to study in Class VIIIth in Lunkaransar Senior Girls School. THE prosecutrix has further stated that on 20. 3. 1998 at about 7. 00 AM, her grand- father PW3 Sultan Singh went from her house for taking fodder for animals and after a long time when her grand-father PW 3 Sultan Singh did not return back, she proceeded towards agriculture farm's water Diggi for taking Rs. 10/- from her grand-father PW 3 Sultan Singh, but she did not find her grand father PW 3 Sultan Singh there. THE prosecutrix has further stated that when she was returning back to her house, accused appellant Angrej Singh and another accused Deepak met her and seeing her alone, both caughthold her and took her in khala. THE prosecutrix has further stated that accused Deepak closed her mouth and both accused put her on the ground in khala and accused appellant Angrej Singh opened her salwar and underwear forcibly and then committed rape on her and thereafter, both ran away towards the Dhani. THEreafter, she wailing and crying came to her house and narrated the whole story to her Bhua Prema and at that time, her grand-father PW3 Sultan Singh also came there and thereafter, the report Ex. P/1 was lodged by her alongwith her grand-father PW3 Sultan Singh. On this report, the police registered the case and chalked out FIR Ex. P/2 and started investigation. During investigation, site plan Ex. P/3 was prepared and through Ex. P/4, salwar, jampher and underwear of the prosecutrix PW 2 Sajjan Kanwar were seized. THE statement of the prosecutrix PW 2 Sajjan Kanwar u/sec. 164 Cr. P. C. was recorded by the Magistrate on 26. 3. 1998 and same is Ex. P/5. THE prosecutrix PW 2 Sajjan Kanwar was got medically examined for the purpose of ascertaining her age as well as for finding out whether rape was committed on her or not. Her medical examination report with regard to rape is Ex. P/9. THE report about her age is Ex. P/10, where the doctors, on the basis of clinical findings and radiological report assessed that her age was above 15 years and below 17 years on the date of examination i. e. 21. 3. 1998. THE Scholar Register of the Government Girls Senior Secondary School, Lunkaransar, where prosecutrix was studying, was also produced and as per that Scholar Register, her date of birth is 4. 1. 1984 and the copy of that Scholar Register is Ex. P/12a and the copy of the T. C. Form is Ex. P/13a, where the same date of birth is mentioned. THE application form (Ex. P/22a) by which the prosecutrix sought admission in Adarsh Happy School, Lunkaransar also shows that her date of birth is 4. 01. 1984. After usual investigation, the police submitted challan against the accused appellant Angrej Singh and another accused Deepak Kumar in the Court of Magistrate from where the case was committed to the Court of Session. Note:- It may be stated here that the case of accused Deepak Kumar was sent to Juvenile Court as he was below 16 years of age. On 16. 7. 1998, the learned Addl. Sessions Judge No. 2, Bikaner framed charge u/sec. 376 IPC against the accused appellant. THE charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. THEreafter, statement of the accused appellant u/sec. 313 Cr. P. C. was recorded. No evidence in defence was produced by the accused appellant. After conclusion of trial, the learned Addl. Sessions Judge No. 2, Bikaner through his judgment dated 30. 9. 1999 convicted the accused appellant for the offence u/sec. 376 IPC and sentenced vide order of sentence dated 1. 10. 1999 in the manner as indicated above holding inter-alia:- 1. That on the date of occurrence, the prosecutrix PW 2 Sajjan Kanwar was below the age of 16 years. 2. That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence u/sec. 376 IPC. Aggrieved from the said judgment dated 30. 9. 1999 and order of sentence dated 1. 10. 1999 passed by the learned Addl. Sessions Judge No. 2, Bikaner, this appeal has been filed by the accused appellant.

(3.) THE Hon'ble Supreme Court in Sidheswar Ganguly vs. State of West Bengal (1), has held that conclusive evidence of the girl's age may be the birth certificate, if it is not available then in conjunction with such oral testimony as may be available.