Vimlesh vs State Of U.P.
2021 Latest Caselaw 1586 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 33
 

 
Case :- CRIMINAL APPEAL No. - 191 of 2016
 
Appellant :- Vimlesh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sunil Kumar,Rajiv Mishra,Soniya Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. This Criminal Appeal, under Section 374 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'), has been preferred by the appellant-Vimlesh (hereinafter referred to as 'appellant') against the judgment and order dated 28.1.2016, passed by Additional Sessions Judge, Court No. 10/Special judge Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act'), Unnao, in Special Sessions Trial No. 15/2015 (State vs. Vimlesh), arising out of Case Crime No. 1043/2014, P.S. Makhi, District Unnao, whereby the appellant has been convicted and sentenced for offence under Section 376 (2) I.P.C., for 10 years rigorous imprisonment with a fine of Rs. 10,000/- and for offence U/s 366 I.P.C., for 5 years rigorous imprisonment with a fine of Rs. 5,000/- with further direction that all the sentences shall run concurrently.

2. The prosecution case, in brief, is that Dharam Pal (P.W.-2), father of victim (P.W.-3), lodged the first information report (Ext.-Ka-2) (in short F.I.R.) on 15.12.2014, at about 15:30 p.m. at P.S. Makhi, District Unnao, alleging that P.W.-3 aged about 14 years, had left her house on 07.12.2014 to go to her maternal uncle (mama)'s house situated in Village Kokarikhurd, but it was found that she did not reach there. It was also found that the appellant, who is distant relative, as mama (maternal uncle) of the victim, r/o Mustafabad h/o Pakhraura, had enticed the victim away with the help of appellant's elder brother-Kamlesh, his father-Gauri Shankar and his mother-Nanhi. It is further alleged that the victim had also taken away Rs. 35,000/- in cash, a silver anklet of 200 grams and 2 mobile phones bearing no. 7309354605 and 7052809921 with her.

3. On the said information, a criminal case was registered against the appellant-Vimlesh, Kamlesh along with co-accused-Gauri Shankar and Smt. Nanhi and the investigation was handed over to S.I., Suresh Chandra (P.W.-8), who, during investigation, recorded the statement of Dharam Pal (P.W.-2), visited the place of occurrence, prepared site plan (Ext.-Ka-11), arrested the appellant along with victim (P.W.-3), prepared a recovery memo (Ext.-Ka-3) and sent the P.W.-3 for medico legal examination.

4. Dr. Sanju Agarwal (P.W.-4), examined the victim on 16.12.2014, at about 3:45 p.m. According to her, at the time of examination, the victim was aged about 15 years ; no external or internal injury was found on the person of victim; her hymen was old and torn ; two slides of vaginal smear were prepared and sent for pathological examination. According to her further, she had prepared medico legal examination report (Ext.Ka-6) and supplementary medico legal examination report (Ext.-Ka-7) on the basis of pathological report, but no dead or alive sperm was found and the victim was also sent for determination of her age to radiological expert.

5. Dr. Rajendra Kumar (P.W.-1) conducted the radiological examination of the victim and according to him, on the basis of x-ray report (Ext.-Ka-1) and x-ray plates (material Ex.1), the right knee joint of the victim was fused, whereas the wrist joints were not fused and the victim was aged about 15 years.

6. Meanwhile, investigation was transferred to S.I., Pramod Kumar Yadav (P.W.-7), who produce the victim before the concerned Judicial Magistrate for recording her statement under Section 164 of the Code.

7. The statement, under Section 164 of the Code (Ext.-Ka-5), of the victim (P.W.-3), was recorded on 19.12.2014 by the concerned Judicial Magistrate, wherein she stated that the appellant-Vimlesh had come at her home and enticed her to come with money, which was kept by her father. She further stated that he (appellant) enticed her away and kept moving her till 8 days. She further stated that he used force (rape) with her ; she had requested him to carry her to her home but police had caught her at Chakalbansi. She further stated that the appellant is her maternal uncle (mama) in distant relationship and sometimes he used to come at her home. She further stated that he did not make any attempt to outrage her modesty (galat-kaam) at her home; she had not gone according to her own will ; and he (appellant) had asked her for a visit to Chakalbansi. She further stated that she wanted to go with her parents ; rape was committed with her ; and she understood the meaning of rape.

8. Meanwhile, again the investigation was transferred to S.I., Srikant Dwivedi, who recorded the statement of witnesses and after investigation, filed the charge-sheet (Ext.-Ka-8) only against the appellant, for offence under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act before the concerned Magistrate, who took the cognizance of the offence and since the offence was exclusively triable by the Court of Sessions, after providing the copies of relevant police papers, as required under Section 207 of the Code, committed the case to the Court of Sessions, Unnao, for trial.

9. The learned trial Court framed the charges for offence under Sections-363 and 366 and 376 I.P.C. alternatively for offence under Section 3/4 POCSO Act against the appellant to which he denied and claimed for trial.

10. Prosecution, in order to prove its case, examined Dr. Rajendra Kumar (P.W.-1) (Radiologist), Dharam Pal (P.W.-2/informant), victim (P.W.-3), Lady Doctor-Sanju (P.W.-4), S.I. Srikant Dwivedi (P.W.-5/investigating officer), Constable-Moharir Chandra Pal (P.W.-6), S.I., Pramod Kumar Yadav (P.W.-7/Investigating Officer) and S.I., Suresh Chandra (P.W.-8/Investigating Officer), wherein, Dharam Pal (P.W.-2) and victim (P.W.-3) are witnesses of fact and rest are formal witnesses.

11. The prosecution has also relied upon documentary evidence i.e. x-ray report of the victim (Ex.Ka-1); x-ray plate (material Ex.1), written report (Ext.-Ka-2), recovery memo of victim (Ext.-Ka-3), statement of victim recorded by police (Ext.-ka-4), statement of victim under Section 164 of the Code (Ext.-Ka-5), medico legal examination report of victim (Ext.-Ka-6), supplementary medico legal examination report (Ext.-Ka-7), charge-sheet (Ext.-ka-8), Chik F.I.R. (Ext.-Ka-9), G.D. Report (Ext.-ka-10) and site plan of the place of occurrence (Ext.-Ka-11).

12. After conclusion of prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code, wherein he denied the prosecution story as well as evidence adduced by the prosecution. The appellant further stated that the marriage of the victim with him was settled, but due to dispute arose in their settlement, marriage could not be solemnized and due to that enmity, a false report was lodged against him. In support of defence, no evidence was adduced by the appellant.

13. Learned trial Court, after hearing the learned counsel for both the parties and considering the material available on record, convicted and sentenced the appellant as above by the impugned judgment. Aggrieved by the said judgment, the appellant has preferred this appeal.

14. Heard Sri Rajiv Mishra, learned counsel for the appellant, Sri Tilak Raj Singh, learned A.G.A. for the State and peruse the record.

15. Learned counsel for the appellant has submitted that the appellant is innocent and has been falsely implicated, due to failure of settlement of marriage of the victim with appellant, between the parents of the appellant and father of the victim. Learned counsel further submitted that both the appellant and victim are members of scheduled caste and the appellant is distant relative of the victim as mama. Learned counsel further submits that the victim was aged about more than 16 years, although her age was not proved by the prosecution. Learned counsel further submitted that according to the prosecution evidence, the victim had gone from her home according to her own will and the appellant had not taken her away. Learned counsel further submitted that Dharam Pal (P.W.-2) is not an eye-witness and the F.I.R. was lodged by him by delay of 7 days, without any explanation. Learned counsel further submitted that the prosecution evidence is self contradictory and is not reliable. Learned counsel further submitted that the trial Court, without applying its proper judicial mind as well as without considering the evidence available on record, convicted the appellant and the impugned judgment and order is against the provision of law, which is liable to be set aside.

16. Learned counsel further submitted that the appellant is languishing in jail since 2014 ; he, at the time of occurrence, was aged about 18-19 years old ; and he has no criminal history. Therefore, if the offence is made out, a lenient view may be adopted by the Court in passing the sentence against the appellant.

17. Per-contra, learned A.G.A. has vehemently opposed the submission advanced by learned counsel for the appellant and submitted that at the time of occurrence, the victim was less than 16 years and the said offence is proved by the prosecution evidence against the appellant beyond reasonable doubt. Learned A.G.A. further submitted that there is no contradiction between the ocular evidence and medical evidence. Learned A.G.A. further submitted that the recovery of the victim from custody of appellant is not disputed and delay in lodging the F.I.R. is natural and is not fatal to the prosecution case. Learned A.G.A. further submitted that there is no illegality in the impugned judgment and order passed by Court below and the appeal is liable to be dismissed.

18. I have considered the rival submission of learned counsel for both the parties and perused the record.

19. Learned trial Court, after considering the prosecution evidence, found that the prosecution had succeeded to establish the age of victim at the time of occurrence as 15 years and the appellant had kidnapped her from lawful guardianship and committed rape with her, thus, found the appellant guilty for the offence under Sections 366 and 376 (2) I.P.C. and Section 3/4 POCSO Act and convicted and sentenced him for the offence under Section 376 (2) and 366 I.P.C. as above.

20. Section 361 I.P.C. defines the offence of kidnapping. Section 375 defines offence of rape, Section 363 deals with punishment of kidnapping from lawful guardianship, Section 366 I.P.C. is aggravated form of kidnapping and deals with punishment for offence of kidnapping, abducting or inducing woman to compel her marriage, Section 376 I.P.C. deals with the punishment for the offence of rape and Sections 3 and 4 POCSO Act deals with definition and punishment of penetrative sexual assault. Sections 361, 363, 366, 375 and 376 I.P.C. and Sections 3 and 4 POCSO Act as it were in the year of 2014 are as under :

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

363. Punishment for kidnapping.--Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.

" Section 375. A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances failing under any of the following seven descriptions:-

First. Against her will.

Secondly. Without her consent.

Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. With her consent when, at the time of given such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. With or without her consent, when she is under eighteen years of age.

Seventhly. When she is unable to communicate consent.

Explanation 1. For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1. ................

Exception 2. .................

"Section 376. (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever_

(a) .....................

(b) .....................

(c) .....................

(d) .....................

(e) .....................

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman ; or.

(g) commits rape during communal or sectarian violence; or.

(h) commits rape on a woman knowing her to be pregnant ; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

Explanation. .................."

Section 3. Penetrative sexual assault - A person is said to commit "penetrative sexual assault" if-

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person ; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person ; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person ; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

Section 4. Punishment for penetrative sexual assault - Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

21. Dharam Pal (P.W.-2), father of the victim, is not an eye witness of the occurrence. He has stated that on 7.12.2014, the victim had left her house to go to her maternal uncle's house situated in Village Kukarikhurd. He further stated that after two days, he got the information that the victim had not reached there and thereafter he got information that the victim was seen in company of appellant- Vimlesh. He further stated that at the time of her (victim) departure, she had taken away Rs. 35,000/- in cash, a silver anklet of 200 grams along with two mobile phones. Stating that he got the report written (Ex.Ka-2) by a person and after copying the same, lodged the F.I.R. at concerned police station, he further stated that the victim was recovered on 16.12.2014 and the recovery memo (Ext.-Ka-2) was prepared in his presence. In cross-examination, he admitted that at the time of lodging the report, he had gone at concerned police station with his father-in-law, wife and brother-in-law (sala) and the said report (Ext.-ka-1) was written by his brother-in-law (behnoi). Stating that he did not know the name and identity of the person who had informed him that the victim had gone with the appellant, he further stated that when the victim was recovered, both mobiles were also recovered from custody of appellant and later on, it were handed over to him, but those mobiles were not sealed by the police. He further stated that on the day of recovery of the victim, the police met him at 3:30 p.m. and thereafter, the victim and the appellant were arrested in chakalbansi when they were getting down from a tempo on 16.12.2014.

22. Victim (P.W.-3), star witness, has stated that on 7.12.2014, she was going to her maternal uncle's house situated in Village Kukarikhurd and when she was on her way, the appellant met her and asked to visit Chakalbansi with him. She further stated that thereupon she went with him to Chakalbansi and thereafter to Kanpur. She further stated that she was kept moving hither and thither by the appellant for 6-7 days and the appellant had also kept her in the house of his maternal aunt (mausi). She further stated that during that period, the appellant had committed rape with her on twice occasions. She further stated that on 16.12.2014, the police had caught her with the appellant in presence of her parents and recovery memo (Ext.-Ka-3) was also prepared, whereupon she had also put her signature. She further stated that her statement (Ext.-Ka-5) was also recorded by the Magistrate and her Medico Legal Examination and x-ray was also conducted at District Hospital.

23. Dr. Sanju Agarwal (P.W.-4) has stated that she had examined the victim on 16.12.2014 at about 3:45 p.m. According to her, the height of the victim was 152.5 cm ; her weight was 46 kg ; teeth were 14+14 ; and her breasts were developing. This witness has also stated that neither any external nor any internal injury was found on the body of the victim and on internal examination, it was found that her hymen was torn and old. She further stated that the two slides of vaginal smear were prepared and sent to find out the sperm (dead or alive) to Chief Medical Officer, Unnao. She further stated that she had also prepared Medico Legal Examination Report (Ext.-Ka-6) and supplementary Medico Legal Examination Report (Ext.-Ka-7), but no sperm either dead or alive was found. According to her, the victim was aged about 15 years.

24. Dr. Rajendra Kumar (Radiologist) (P.W.-1) has stated that radio-logical examination, for determination of age of the victim, was conducted by him and it was found that her knee joint were in process of fusion ; elbow joint were fused whereas wrist joint were not fused. He further stated that the victim's age was about 15 years; he had prepared x-ray report (Ext.-Ka-1) and on the basis of x-ray plate (Material Ex.1), the victim's age might be 14 years also.

25. Constable-Chandra Pal Singh (P.W.-6) has stated that on the basis of written report (Ext.-Ka-2), Chik-F.I.R. (Ext.-Ka-9) was prepared by him on 15.12.2014 and a Criminal Case No. 1043 of 2014 under Sections 363, 366 I.P.C. and Section 11/12 of POCSO Act was registered and the said information was entered in G.D. Report (Ext.-Ka-10).

26. S.I., Suresh Chandra Shukla (P.W.-8), first Investigating Officer, has stated that he had recorded the statement of Dharam Pal (P.W.-2), visited the place of occurrence and prepared site plan (Ext.-Ka-11). He further stated that he had also recovered the victim and arrested the appellant, prepared the recovery memo (Ext.-Ka-3) on the spot.

27. S.I., Pramod Kumar Yadav (P.W.-7), second Investigating Officer, has stated that he had produced the victim before the concerned Magistrate for recording her statement under Section 164 of the Code and after recording her statement, the offence of Section 376 I.P.C, 3/4 POCSO Act were added, during investigation.

28. S.I., Srikant Dwivedi (P.W.-5), third Investigating Officer, has stated that during investigation, he had recorded the statement of witnesses and after investigation, the involvement of other accused except appellant-Vimlesh was not proved and he had submitted the charge-sheet (Ext.-Ka-8) only against the appellant-Vimlesh.

29. The said occurrence was happened on 7.12.2014 i.e. after the enforcement of Criminal Law Amendment Act, 2013. For offence of kidnapping, as provided under Section 361 read with Section 363 I.P.C. and Section 366 I.P.C. and for offence of rape, as provided under Section 375 read with Section 376 I.P.C., the age of the victim is very important and if the victim is below than 18 years, her consent is immaterial either for offence of rape or for kidnapping.

30. Section 376 (1) I.P.C. provides that accused, for offence of rape, shall be punished with rigorous imprisonment for not less than 7 years which may extend to imprisonment for life and also for fine but if rape is committed with victim below than 16 years, such offence is covered under Section 376 (2) I.P.C., wherein the accused shall be punished for rigorous imprisonment which shall not be less than ten years which may extend to imprisonment actual reminder life. The appellant has been convicted by trial Court for offence under Section 376 (2) I.P.C. Therefore, it has to be determined whether the prosecution has succeeded to prove the age of victim below than 16 years or not.

31. Neither Code nor I.P.C. or POCSO Act 2012 provides procedure for determination of victim's age. Alleged offence was committed on 07.12.2014. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the '2007 Rules') framed under Section 67 of the Juvenile Justice (Care and Protection of Children) Act 2000, provides procedure for determination of juvenile's age. This provision is as under :

"12. Procedure to be followed in determination of Age.

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

32. Hon'ble Supreme Court in Jarnail Singh v. State of Haryana (2013) 7 SCC 263, deciding the issue of procedure for determination of age of victim of rape, was of the view that the procedure for determination of juvenile's age as provided in Rule 12 (supra) may be adopted for determination of victim's age. The Supreme Court in Jarnail Singh (supra) has held as under :

"Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."

(Emphasis supplied)

33. In this case, the trial Court, relying on the statement of victim (P.W.-3), her father (P.W.-2), Dr. Rajendra Kumar (P.W.-1) and Dr. Snaju Agarwal (P.W.-4), has held that the victim's age was below to 16 years, at the time of occurrence.

34. It is also pertinent to note that the opinion regarding the age of any person, based on medical and radiological evidence, can not be treated accurate and exact. Such determination of age, by medical expert, may vary in view of race, gender, geographical area, nutritional status and other factors like colour of pubic and armpit hair, development of sexual characteristics and other changes in the body of the victim. Such variation may be of one or two year of either side.

35. Supreme Court in Jaya Mala v. Home Secretary J & K and Ors. AIR 1982 SC 1297 has held as under:

"However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."

36. In Rajak Mohammad vs. State of Himachal Pradesh, (2018) 9 SCC 248, where radiologist had given an opinion that the age of prosecution was between 17 to 18 years, three Judges Bench of Supreme Court treating the prosecutrix above than 18 years and expressing its doubt on accuracy of radiological age, has held as under :

"9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused."

(Emphasis supplied)

37. Now the question arises whether or not, the evidence produced by the prosecution to prove the age of victim below to 16 years, is reliable and trustworthy. Admittedly, neither any matriculation nor equivalent certificate or any date of birth certificate, from the victim's school or any extract of Kutumb Register (birth and death register) maintained at the level of Village-Pradhan/Gaon Sabha of the victim, was filed by the prosecution before the trial Court.

38. Dharam Pal (P.W.-2) has stated that the victim, at the time of occurrence, was aged about 14 years and the victim (P.W.-3) has stated that she was student of class VI and when she attended the school for the first time, she was aged about 5 years. Stating that at the time of occurrence, she was studying in class VI, she further stated that she had left the school after the occurrence. The prosecution has not filed any document/certificate of educational qualification, issued by the said school, to prove the exact date of birth of the victim. According to Dr. Rajendra Kumar (P.W.-1) and Dr. Sanju Agarwal (P.W.-4), at the time of examination, the victim was aged about 15 years. Dr. Sanju Agarwal (P.W.-4) was not cross-examined by the defence on the point of age of victim, whereas Dr. Rajendra Kumar (P.W.-1) has rejected the suggestion of defence counsel at the time of occurrence, the victim was more than 17 years. Thus, in the light of the evidence available on record and in view of the law laid down by Hon'ble Supreme Court in Jarnail Singh (supra), Jaya Mala (supra) and Rajak Mohammad (supra) as well as relying upon the medical evidence on record, it may be held that the victim, at the time of occurrence, was more than 16 years but below to 18 years and the finding of the trial Court that the victim was below than 16 years is not acceptable.

39. So far as the submission of learned counsel for the appellant that the F.I.R. was lodged by delay of more than seven days, is concerned, Dharam Pal (P.W.-2), father of the victim is not an eye witness. In cross-examination, he had admitted that the information of the occurrence was given to him by co-villagers. Record further shows that a suggestion was also put to this witness by defence counsel that at the time of occurrence, he was residing at Pune and upon getting information, he reached to his village. Thus, it is clear that since, at the time of occurrence, the appellant was not in his village Jodhakhedha , report could not be lodged immediately and as he got information of the offence, he lodged the F.I.R. In addition to above, the offence is related with kidnapping and rape. In such cases, it is often seen that if the accused is not known to the parents and relative of the victim, they used to make effort to search and locate the victim in their relations and when they become helpless, they take help of police. No time limit has been prescribed in law to lodge the F.I.R. It depends upon the facts and circumstances of each case. Therefore, in view of above, it cannot be said that the delay in lodging the F.I.R. is fatal to the prosecution case.

40. Victim (P.W.-3), stating that the appellant had enticed her away and asked her to go with him to Chakalbansi and kept moving her till 6-7 days hither and thither and also kept her at the house of her mother-in-law (mausi), further stated that the appellant had committed rape with her twice during those days. She has also stated that she was caught by the police with the appellant on 16.12.2014, in presence of her parents. P.W.-2 has also stated that the appellant, along with victim, was caught on 16.12.2014 by police. Both these witness have been cross-examined by the prosecution at length but nothing had come out in their cross-examination which shows any ambiguity or doubt in their statement.

41. In addition to above, both P.W.-2 and P.W.-3 have clearly stated that the victim (P.W.-3) was recovered on 16.12.2014 from Chakalbansi when she was with the appellant. S.I. Suresh Chandra Shukla (P.W.-8) has also stated that he had recovered the P.W.-3 from the custody of the appellant and had also arrested the appellant. In cross-examination, this witness further stated that P.W.-3 was recovered near Village-Chakalbansi. In cross-examination of these witnesses i.e. P.W.-2, P.W.-3 and P.W.-8, no specific question or suggestion was put to these witnesses in order to create any doubt regarding the recovery of the victim from possession of the appellant. Further, a suggestion was also put to P.W.-2, during cross examination, by defence counsel that the victim's marriage was settled with the appellant and since he (P.W.-2) was residing out of station, he could not get any information regarding the settlement of the said marriage and further, a suggestion was also put to this witness that due to a dispute arose in settlement of their marriage, a false case was registered. In addition to above, a similar suggestion was also put to the victim (P.W.-3) during her cross-examination. Both P.W.-2 and P.W.-3 had clearly rejected those suggestion, put before them during their cross-examination. In addition to it, the appellant, in his statement, recorded under Section 313 of the Code, has also stated that his marriage was settled with the victim, but due to dispute of money, their marriage could not be finalized and a false report was lodged against him. The appellant had not produced any evidence in his defence to support the explanation given by him in his statement under Section 313 of the Code.

42. Although, according to P.W.-4, no external or internal injury was present on the private part of the victim and no spermatozoa was found from her vagina, merely on the ground of non presence of injury or spermatozoa where victim's hymen was found torn and healed and she was recovered from the custody of the appellant after nine days of the occurrence, it cannot be said that the offence of rape was not committed, particularly, if the victim was below than 18 years because according to Section 375 read with Section 376 I.P.C., if the victim is below the age of 18 years, her consent is immaterial in sexual intercourse.

43. It is also pertinent to note at this juncture that the appellant is a distant relative of the victim and there was no enmity of P.W.-2 and P.W.-3 with the appellant. Neither any suggestion was put to the prosecution witnesses during their cross-examination regarding any enmity with the appellant nor it is alleged by the appellant in his statement under Section 313 of the Code. Appellant was arrested with the victim and in medico legal examination, it was found that her hymen was old and torn. In addition to above, the appellant had not produced any documentary or oral evidence in his defence. Learned counsel for the appellant has failed to show any justification as to why P.W.-2 and P.W.-3 had falsely implicated the appellant.

44. It is established principle of criminal administration of justice, particularly in offence of rape, that no person will frame his own unmarried minor daughter as a victim of rape because he is very well aware with the fact that whole life of victim may be victimized by the society, particularly in rural areas. Dharam Pal (P.W.-2) and his daughter are rustic witnesses. The victim (P.W.-3) is not well educated. They were put too lengthy cross examination by learned defence counsel before Trial Court but nothing could be extracted by way of cross examination so as to create any doubt in their testimonies regarding the offence of rape and kidnapping. Their statements are natural and trustworthy. According to the statement and examination of all the witnesses, each and every circumstances of the case, proved by prosecution, leads to only one conclusion that the victim was kidnapped and raped by the appellant. Proposed marriage of appellant with victim, if any, as alleged by appellant, though denied by P.W.-2 and victim (P.W.-3), does not authorise the appellant to kidnap the victim and to establish sexual relationship with her forcibly. There is nothing on record to show that prosecution witnesses had any animus with appellant so as to implicate him falsely by absorbing the actual assailant.

45. Thus, in view of the above, prosecution has succeeded to prove that the appellant had kidnapped the victim who was below than 18 years but more than 16 years and was also unmarried, for compelling her to marry with him and had committed rape with her and consequently, the prosecution has succeeded to prove its case beyond reasonable doubt against the appellant for the offence under Sections 366 and 376(1) I.P.C. read with Section 4 of POCSO Act.

46. So far as the quantum of sentence is concerned, record shows that the appellant was aged about 19 years at the time of occurrence, as he had disclosed his age as 20 years, in statement recorded under Section 313 of the Code on 9.12.2015. Learned counsel for the appellant has submitted that the appellant is very poor person ; he is languishing in jail since 17.12.2014 ; he has no criminal history ; and a lenient view is required to be adopted in sentencing the appellant. For the offence under Section 376 (1) I.P.C., the accused may be convicted for a sentence not less than 7 years which may extend to imprisonment for life and along with fine. Same punishment has been provided under Section 4 of POCSO Act, whereas, for the offence under Section 366 I.P.C., accused may be convicted for a sentence which may extend to ten years along with fine. Thus, the minimum sentence which can be awarded against the appellant for rigorous imprisonment which shall not be less than seven years along with fine.

47. It is settled principle of sentencing and penology that undue sympathy in awarding sentence with accused is not required. The object of sentencing in criminal law should be to protect society and also to deter criminals by awarding appropriate sentence. In this regard, Court in State of Madhya Pradesh Vs. Saleem @ Chamaru, AIR 2005 SC 3996, has said as under:-

"10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".

48. In Ramashraya Chakravarti vs. State of Madhya Pradesh AIR 1976 SC 392, reducing the sentence of young accused, aged about 30 years, convicted for offence under Section 409 I.P.C., from two years to one year, has observed as under:-

"In judging the adequacy of a sentence the nature of the offence, the. circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts. Trial courts in this country already over-burdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice pre-sentence investigation may be of great sociological value. Through out the world humanitarianism is permeating into penology and the courts are expected to discharge their appropriate roles"

49. Thus, in the light of above discussion, the conviction and sentence of the appellant for offence under Section 376 (2) and Section 366 I.P.C. is altered to for the offence under Section 376 (1) and Section 366 I.P.C. and the appellant is convicted and sentenced for the offence under Section 376 (1) I.P.C., for seven years rigorous imprisonment with fine of Rs. 10,000/- and so far as the conviction and sentence for the offence under Section 366 I.P.C., passed by trial Court, is concerned, it requires no interference. All the sentences shall run concurrently and the period of detention, undergone by him, will be set off in view of the provision of Section 428 of the Code.

50. The appeal is partly allowed and the impugned judgment and order is modified to the above extent.

51. The copy of this judgment along with lower court record be sent to the concerned trial Court for necessary information and compliance.

Order Date :- 27.01.2021

Saurabh/Mahesh