DULICHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This application has been filed by the accused-applicant seeking suspension of sentence awarded to him by the trial court.

(2.) Contention of learned counsel for the accused-applicant is that there is no cogent and reliable evidence with regard to age of the prosecutrix being less than 16 years. There is discrepancy with regard to the age of the prosecutrix, reflected from the documents, i.e. Admission Form of the prosecutrix in Class VI (Exhibit P-22A) and Transfer Certificate (Exhibit P-23A) whereas the prosecutrix in her statement has disclosed her age to be 16 years. The aforesaid documents therefore would not carry any significance because admission form of the prosecutrix is of Class VI and not Class I wherein the date of birth is normally being declared. This date has been entered in the admission form of Class VI on the basis of transfer certificate issued by the Primary School whereas admission form of the prosecutrix of Primary School and the Head Master, who gave her admission was not produced to prove her date of birth. Learned counsel, in support of his arguments, relied upon the judgment of the Supreme Court in Alamelu & Another Vs. State represented by Inspector of Police (2011) 2 SCC 385, Babloo Pasi Vs. State of Jharkhand & Another, (2008) 13 SCC 133 and this Court in Raju @ Rajkumar Gaudh Vs. State of Rajasthan through PP 2017 (3) Cr.L.R. (Raj.) 1521.

(3.) Contention of learned counsel for the accused-applicant is that the informant/mother of the prosecutrix has made the allegation that one Deepak had taken away the prosecutrix, who left a hand written letter to this effect that she was going with Deepak, but the investigating officer has not only not seized the aforesaid letter, but also not made investigation from Deepak and not produced him as witness. It is contended that allegation of rape is not substantiated even from the medical report of the of the prosecutrix and statement of Dr. Surendra Meena (P.W.3). In support of his argument, learned counsel relied upon judgment of the Supreme Court in Krishan Kumar Malik Vs. State of Haryana, (2011) 7 SCC 130 and Tameezuddin alias Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566. The age of the accused-applicant was about 20 years which is in the vicinity of the age of the prosecutrix and he is in jail for almost five years and hearing of the appeal is likely to take a long.