BUDH RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD the learned counsel for the petitioners.

(2.) BY this petition, filed under Article 226 of the Constitution of India, the petitioner Budh Ram has prayed that a Writ of Habeas Corpus be issued and Kum. Kamla daughter of Jagga Ram resident of Sadulsahar District Sri Ganganagar, who is presently lodged at Nari Niketan, Jaipur be set free.

(3.) THE age of Kum. Kamla has been found to be between 15 to 16 years of age, by the medical examination. No school certificate is available probably because she did not attend any school. THE allegations made by her parents are that she is a minor and these allegations are prima facie supported by the medical report. In proceedings under Article 226 of the Constitution of India, the disputed question of age cannot be decided by this Court. If any authority is needed for this view, a reference may be made to the decision of the Hon'ble Apex Court in the State of Kerala & ors. vs. O. C. Kuttan and Ors. (1 ). In that case, the High Court, in a writ petition filed under Article 226 of the Constitution of India, determined the age of the girl and held that no offence had been committed by the accused-persons. THE Hon'ble Supreme Court observed:- ". . . . we have no hesitation to come to the conclusion that the High Court committed gross error in embarking upon an inquiry by shifting of evidence and coming to a conclusion with regard to the age of the lady on the date of alleged sexual intercourse, she had with the accused persons and also in recording a finding that no offence of rape can be said to have been committed on the allegations made as she was never forced to have sex but on the other hand she willingly had sex with those who paid money. "