JUDGMENT
Sunil Kumar Garg, J.
1. This appeal has been filed by the accused appellant against the judgment dated 20-4-1998 and order of sentence dated 23-4-1998 passed by the learned Additional Sessions Judge No. 2, Bikaner in Sessions Case No. 68/97 (new) and 104/97 (old) by which he convicted the accused appellant in the following manner :-
Name of convicted Sentence
accused under awarded
appellant Section
Om Prakash 376(2)(f) IPC Ten years' RI
and fine of Rs.
1,000/- and in
default of payment
of fine, to
further undergo
six months RI.
342 IPC Six months RI
323 IPC Six months RI
2. The facts giving rise to this appeal, in short, are as follows :-
On 30-6-1997 at about 5.00 P.M., PW 3 Anita aged 9 years lodged an oral report before PW 12 Charan Singh, SHO, Police Station Panchu District Bikaner stating inter alia that she is a student of Class Ist in the School “Maharani Laxmi Bai Kanya Patshala”, village Panchu. PW 2 Lalit, son of her uncle Gopikishan, PW 7, also reads in Class IIIrd in the same School. It is further stated in the report that on that day, both went to the School and the School was closed at nearabout 12.00 noon and at that time, accused appellant, who was teacher in the School, was alone there as all the children have gone to their home. It is further stated in the report that accused appellant also allowed PW 2 Lalit to go to his house, but he did not allow her to go to home and stopped her on the pretext that she did not remember questions. It is further stated in the report that she remained also alone in the School and then accused appellant unclothed her and then opened his pant and underwear and put her on the ground and, thereafter, he put his penis in her vagina forcibly. It is further stated in the report that she made hue and cry, but he pressed her mouth and blood came out from her private part. It is further stated that accused raped her for some time and thereafter, he left her. Thereafter, in the state of wailing, she came to her house and told the whole incident to her mother PW6 Radhadevi and uncle PW7 Gopi Kishan and thus, now she has come to lodge report along with her mother PW6 Radhadevi and Uncle PW7 Gopi Kishan.
On this report, PW12 Charan Singh, SHO registered the case and chalked out FIR No. 52/97 and started investigation. During investigation, accused appellant was got medically examined by Dr. Nand Kishore Suthar, PW1 about his potency and his report is Ex. P/1. PW3 Anita was also got medically examined both in respect of rape as well as age. Her report Ex. P/4 pertains to age, where PW4 Dr. Ranjan Mathur has opined that she was about 9 years of age on the date of incident i.e. on 30-6-1997. Her other medical examination report is Ex. P/5 for which PW5 Dr. Rajkumar has been produced by the prosecution. PW 5 Dr. Rajkumar, in his statement, has stated :-
1. That there were no auxiliary pubic hair.
2. That there was swelling on labia majora and over labia minora.
3. That on separating the labia majora and labia minora, mucosa starts bleeding.
4. That hymen is showing a tear of the design of the size 7’O clock right side which was going up to the base.
5. That there was swelling in the hymen and on touching blood came out from it.
6. That cut was found in hymen up to the perineal of the size 0.1 cm x 0.1 cm muscle deep.
P.W. 5 Dr. Rajkumar has further stated that medical examination findings are consistent with penetration of hard object like erected male organ. He has proved the report Ex. P/5.
The accused appellant was arrested by PW12 Charan Singh on 2-7-1997 through Ex.P/15 and clothes of PW3 Anita were also seized and sent to FSL and the report of FSL is Ex. P/24.
After usual investigation, the police submitted challan against the accused appellant in the Court of Magistrate and thereafter, the case was committed to the Court of Session. The case was, thereafter, transferred to the Court of Additional Sessions Judge No. 2, Bikaner.
The learned Additional Sessions Judge No. 2, Bikaner vide order dated 6-10-1997 framed charges against the accused appellant for the offences under Sections 376(2), 342 and 323, IPC. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial.
In support of its case, the prosecution examined as many as 12 witnesses and got exhibited many documents. Thereafter, statement of accused appellant under Section 313, Cr.P.C. was recorded. Neither document nor any witness was produced in defence by the accused appellant.
The learned Additional Sessions Judge No. 2, Bikaner, after conclusion of trial and hearing arguments, vide his judgment dated 20-4-1998 convicted the accused appellant for the offences under Sections 376(2)(f), 342 and 323, IPC holding inter-alia that age of the prosecutrix PW3 Anita was about 9 years and she has been raped by the accused appellant. All the pleas and contentions which were raised by the accused appellant before the trial Court were rejected by the learned Additional Sessions Judge No. 2, Bikaner and the same are in his judgment dated 20-4-1998.
On the point of sentence, the learned Additional Sessions Judge No. 2, Bikaner heard the counsel for the accused appellant on 23-4-1998 and after hearing the accused appellant, he sentenced the accused appellant in the manner as stated above. By the same order dated 23-4-1998, the learned Additional Sessions Judge No. 2 rejected the contention of the counsel for the accused appellant that on the date of occurrence, accused appellant was below the age of 16 years.
Aggrieved from the judgment dated 20-4-1998 and the order of sentence dated 23-4-1998 passed by the learned Additional Sessions Judge No. 2, Bikaner, the accused appellant has preferred this appeal.
3. During the course of arguments in this appeal, the learned counsel for the accused appellant has not assailed the findings of conviction recorded by the learned Additional Sessions Judge No. 2, Bikaner through his judgment dated 20-4-1998, but it has been argued on behalf of the accused appellant that on the date of occurrence, accused appellant was below the age of 16 years and thus, it was the duty of the Courts below to determine the age of the accused appellant before putting him for trial and since it has not been done, therefore, he should be released at once after recording the findings of conviction. In this respect, the learned counsel for the accused appellant has relied on the following three authorities of the Hon’ble Supreme Court :-
1. Gopinath Ghosh v. State of West Bengal, 1984 SCC (Cr) 478 : (1984 Cri LJ 168).
2. Umesh Singh v. State of Bihar, 2000 (3) RCR (Criminal) (SC) 14 : 2000 Cri LJ 3167.
3. Arnit Das v. State of Bihar, 2000 AIR SCW 2037 : 2000 Cri LJ 2971.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order of sentence passed by the learned Additional Sessions judge No. 2, Bikaner.
5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
6. Since the findings of conviction recorded by the learned Additional Sessions, Judge No. 2, Bikaner in his judgment dated 20-4-1998 have not been challenged by the learned counsel for the accused appellant, therefore, the findings of the learned Addl. Sessions Judge No. 2, Bikaner convicting accused appellant for the offences under Section 376(2)(f), 342 and 323, IPC are liable to be confirmed and his appeal against conviction is liable to be dismissed.
7. However, it may be stated here that no doubt findings of conviction have not been challenged by the accused appellant, but a perusal of evidence would reveal that statement of prosecutrix PW3 Anita is very well corroborated by the medical as well as oral evidence in the statements of PW2 Lalit, PW6 Radhadevi and PW7 Gopi Kishan and some sort of omission and contradictions which are found in her statement, they are not material one, looking to the overall aspect of the case.
On point of sentence
8. In this respect, some dates should be mentioned here :-
1. Date of occurrence : 30-6-1997
2. Date of arrest of
accused appellant through arrest memo
Ex. P/15. : 2-7-1997
Note :- The age of the accused appellant mentioned in arrest memo Ex. P/15 is 18 years.
3. Date of framing charge
against accused appellant. : 6-10-1997
4. Date of recording statement
of accused appellant under Section 313, Cr.P.C. : 16-3-1998
Note :- In the statement of the accused
appellant recorded under Section 313,
Cr.P.C., he has mentioned his age as 17 years,
but the Court's observation about the age of
the accused appellant is that his age is 20
years and thus, under the column estimated,
his age is mentioned as 20 years.
9. Before proceeding further, it may be stated here that it is also the case of the prosecution that accused appellant was the teacher in the School Maharani Laxmi Bai Kanya Patshala, where the prosecutrix PW3 Anita was reading in Ist Class, therefore, there is a relationship of Disciple and Guru between PW3 Anita and accused appellant Om Prakash.
10. It may be stated here that since arrest of the accused appellant i.e. on 2-7-1997 and till he was heard on sentence i.e. on 23-4-1998, from the side of the accused appellant, the plea that he was below 16 years of age on the date of commission of the crime, has never been raised or taken. From the statement of the accused appellant recorded under Section 313, Cr. P.C., it appears that accused appellant has not raised any objection about his age.
Gist of the order of sentence dated 23-4-1998 passed by the learned Addl. Sessions Judge No. 2. Bikaner where the plea of age was raised by the accused appellant for the first time.
11. According to that order dated 23-4-1998, it appears that on behalf of the accused appellant for determining the age of the accused appellant, the Certificate of Sarpanch, Gram Panchayat, Panchu and Horoscope were produced before the learned Additional Sessions Judge No. 2, Bikaner and it was also argued before him that it was the duty of the prosecution that before putting the accused appellant for trial, his age should have been determined and it was further argued that from these two documents, it is clear that the date of birth of the accused appellant is 20-9-1981 and incident took place on 30-6-1997, therefore, he was below the age of 16 years on the date of incident and his age was nearabout 15 years 9 month. It is further argued that accused appellant has also stated in his statement recorded under Section 313, Cr.P.C. that his age is 17 years. Therefore, there is sufficient evidence to treat the accused appellant below 16 years of age.
12. The learned Additional Sessions Judge No. 2, Bikaner vide his order dated 23-4-1998 rejected the above argument holding inter alia :-
1. That such type of Certificates can be prepared at any time.
2. That to support these Certificates, no affidavit has been filed.
3. That in the arrest memo Ex. P/15, the age of the accused appellant is 18 years and when the statement of the accused appellant was recorded under Section 313, Cr. P.C., the observation of the Court itself about the age of the accused appellant is that his age is 20 years. Thus, accused appellant was not below the age of 16 years on the date of occurrence.
13. In my opinion, the reasons given by the learned Additional Sessions Judge No. 2, Bikaner in holding that the accused appellant was not below the age of 16 years on the date of incident, appear to be sound and cogent and the discretion which has been exercised by the learned Additional Sessions Judge No. 2 in not determining the age of the accused appellant at that stage, appears to be just and proper and this Court would not like to interfere with it.
14. Apart from the reasons given by the learned Additional Sessions Judge No. 2, there are some more reasons and one of them is that accused appellant was a teacher in the School Maharani Laxmi Bai Kanya Patshala, where the prosecutrix PW3 Anita was also reading and, therefore, holding the age of teacher below 18 years would be a fallacy. Apart from this, PW5 Dr. Rajkumar, who conducted the medical examination of prosecutrix PW3 Anita, has stated in his statement that in the vagina of prosecutrix PW3 Anita, there was consistent penetration of hard object like erected male organ and that in my view could have been of adult man and not of minor. From this point of view also, the plea of the accused appellant that he was minor on the date of occurrence, cannot be accepted. Not only this, the most important aspect of the case is that when accused appellant was arrested on 2-7-1997 and till order of sentence i.e. 23-4-1998 was passed against him, no objection whatsoever with regard to his age was ever raised by the accused appellant and thus, for the first time when it was raised, it appears to be a false and fabricated one. The learned Additional Sessions Judge No. 2, Bikaner has rightly rejected the plea of the accused appellant with regard to age. Hence, it is not a fit case where report about the age of accused appellant be ordered to be called for now under Section 32 of the Juvenile Justice Act, 1986.
15. Now, the cases relied upon by the learned counsel for the accused appellant are being considered.
16. The first case relied upon by the learned counsel for the accused appellant is Gopinath Ghosh v. State of West Bengal (supra) where the accused appellant claimed for the first time before the Hon’ble Supreme Court that he was aged below 18 years on the date of occurrence and so entitled to the benefit of West Bengal Children Act and thus, plea was entertained by the Hon’ble Supreme Court and Session Court’s findings regarding age of the accused were called for and on that basis, accused was found below 18 years of age on the date of occurrence and thus, it was held by the Hon’ble Supreme Court that entire trial of accused was without jurisdiction and his conviction and sentence were set aside and it was directed that accused be released on bail and case was remitted for proceeding in terms of the Act. The said authority of the Hon’ble Supreme Court would not be helpful to the present accused appellant since on the face it does not appear at all that on the date of occurrence accused appellant was below the age of 16 years.
17. The second authority relied upon by the learned counsel for the accused appellant is Umesh Singh v. State of Bihar (supra), where the accused appellant was found below 18 years of age when the offence was committed, but he was tried along with other adult accused persons and age of accused was not brought to the notice of the trial Court and the Sessions Court and no enquiry was held about age. The Hon’ble Supreme Court, in the above circumstances, upheld conviction, but set aside sentence. It may be stated here that in that case Hon’ble Supreme Court called the report of the Expert about the age of the accused appellant and report clearly indicated that on the date of incident, accused in that case was 13 years old. This fact was also supported by the School Certificate. In my opinion, this authority would also not be helpful to the present accused appellant, inasmuch as, in that case accused was found nearabout 13 years old and in the present case, the position is altogether different from the very beginning and in the arrest memo Ex. P/15, the age of the accused appellant is 18 years and estimated age by the learned Additional Sessions Judge No. 2, Bikaner is 20 years and no documentary evidence worth reliable has been produced by the accused appellant and as he was a teacher, he could have produced the School Certificate of any Board by which he passed the matriculation examination. Hence, for the reasons stated above, it is not a fit case where sentence imposed upon the accused appellant should be set aside.
18. It may be stated here that conclusive evidence for determination of age of child is the Birth Certificate or School Certificate. Both are missing in the present case.
19. The next authority on which reliance has been placed by the learned counsel for the accused appellant is Arnit Das v. State of Bihar (supra), where the Hon’ble Supreme Court has stated that crucial date for determining the question whether a person is juvenile is the date when he is brought before the competent authority and not the date of commission of offence. In that case, findings were given by the learned ACJM about the age of the delinquent and the same were maintained by the Sessions Court in appeal and, thereafter, by the High Court in revision and the Hon’ble Supreme Court found no case for interfering therewith. In the present case, no doubt there are no findings of any Magistrate, but as stated above, it is not a fit case where findings should be called for as the learned Additional Sessions Judge No. 2, Bikaner has given cogent reasons in not holding the accused appellant below 16 years of age, in his order of sentence dated 23-4-1998. Therefore, this authority would also not be helpful to the present accused appellant.
20. Thus, the result of the above discussion is that it does not appear :-
1. That accused appellant was below the age of 16 years on the date of occurrence or when he was brought before the competent authority.
2. That it is not a fit case where report about the age of the accused appellant should be ordered to be called for now.
3. Hence, no case for setting aside the sentences imposed upon the accused appellant is made out.
21. For the reasons stated above, the judgment dated 20-4-1998 and order of sentence dated 23-4-1998 passed by the learned Additional Sessions Judge No. 2, Bikaner are liable to be confirmed.
In the result, the appeal filed by the accused appellant Om Prakash fails and is dismissed, after confirming the judgment dated 20-4-1998 and order of sentence dated 23-4-1998 passed by the learned Additional Sessions Judge No. 2, Bikaner.
