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2011 DIGILAW 2264 (RAJ)

Ashok Kumar v. State of Rajasthan

2011-10-21

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—The accused-appellants have preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction dated 10.11.2006 and order of sentence dated 15.11.2006 passed by Additional Sessions Judge, Neem Ka Thana (District Sikar) in Sessions Case No. 05/2006 whereby the appellants have been convicted for offence under Section 376(2)(g) IPC and each of them has been sentenced for rigorous imprisonment for 10 years with a fine of Rs. 10,000/- and in default thereof to further undergo rigorous imprisonment for one year. It was also ordered that out of amount of fine, Rs. 15,000/- may be paid to the prosecutrix as compensation. 2. The brief relevant facts for the disposal of this appeal are that complainant-P.W.1 Shri Raju, elder brother of prosecutrix, submitted a written report Ex.P/1 on 14.1.2006 before Dy. S.P. Neem ka Thana alleging therein that his sister the prosecutrix is a student of Class VI and on 13.1.2006 at 10.00 a.m. when she was going to her school in the way the appellants forcefully took her in the house of one Shri Birbal son of Shri Malaram Balai and the appellant Ashok committed rape upon her, whereas appellant-Dilip Kumar locked the house from outside. It was further stated in the report that when in the interval her sister did not return from school for taking her meals and upon inquiry being made, it as revealed that she did not attend the school on that day and thereafter she was found in the house of Birbal where the crime was committed. Upon the written report, the Dy. S.P. directed the SHO Police Station Patan to register a case and FIR No. 7/2006 for offences under Section 376, 342 and 120-B IPC was registered against the appellants at Police Station Patan on 14.1.2006 at 6.30 p.m. and after usual investigation charge sheet was filed against the appellants. The learned trial Court framed charge under Section 376(2)(g) IPC against each of the appellants to the effect that on 13.1.2006 at 10.00 a.m. in village Raipur Patan the appellants in furtherance of their common intention took the prosecutrix aged 12 years and 7 months in the house of one Shri Birbal and there the appellant Ashok Kumar committed rape upon her whereas the appellant-Dilip Kumar locked the house from outside. To prove the charge the prosecution produced oral as well as documentary evidence whereas each of the appellant in his statement under Section 313 Cr.P.C. denied the allegation and evidence produced on behalf of the prosecution and specifically stated that there was previous intimacy between the appellant-Ashok Kumar and the prosecutrix and she used to write love letters to appellant-Ashok Kumar and by that reason the family members of the prosecutrix were annoyed and she was scolded several times by that reason and the appellants have been falsely implicated. The appellant Dilip Kumar further stated that there was a dispute regarding 'Bada' and by that reason also he has been falsely implicated whereas he neither caught hold prosecutrix nor he locked the house from outside. In their defence, the appellants produced DW1-Pawan, DW2-Smt. Maruti and DW3-Shri Banshidhar and also produced documentary evidence. 3. The learned trial Court after appreciating and evaluation the evidence available on record and hearing both the parties by passing the impugned judgment and order convicted and sentenced the appellants as aforesaid. Hence, the instant appeal. 4. The learned trial Court arrived at a conclusion that on the date, time and place as alleged by the prosecution sexual intercourse took place between the appellant-Ashok Kumar and prosecutrix but the prosecutrix was consenting party to it but as she was below the age of 16 years at the time of incident, her consent is irrelevant and thus, the intercourse between her and appellant-Ashok Kumar comes within the purview of rape within the meaning of Section 375 IPC. It was also held that the appellant-Dilip Kumar was also involved in the incident and although, he did not commit rape upon the prosecutrix but the offence was committed in furtherance of common intention of both the appellants each of them is guilty for offence under Section 376(2)(g) IPC. 5. Assailing the impugned judgment, the learned counsel for the appellants has raised the following grounds : (i) The learned trial Court has wrongly come to a conclusion that the sexual intercourse between the prosecutrix and appellant-Ashok Kumar took place as there is no convincing evidence available on the file so as to at all arrive at a conclusion that on the alleged date, time and place sexual intercourse took place between the appellant and the prosecutrix. The learned counsel pointed out that there are several major and material improvements in the statement of the prosecutrix recorded during the trial in comparison to her previous statements recorded under Section 161 and 164 Cr.P.C. Apart from that, there are several important and vital contradictions and inconsistencies between statements of prosecution witnesses and for that reason in absence of reliable evidence, the conclusion arrived at by the learned trial Court is liable to be set aside From the evidence available on record it is clear that the prosecutrix since before the incident was having closed intimacy with the appellant-Ashok Kumar and was willing to marry with him and by that reason the family members of her were annoyed and there is every possibility that by that reason false allegation has been made against the appellants. (ii) The learned trial Court has come to a conclusion that the prosecutrix was a consenting party to the alleged sexual intercourse but looking to the fact that she was below the age of 16 years at the time of the incident, her consent is irrelevant. On consideration of the evidence available on record, the finding of the trial Court regarding her age is not correct. It was submitted that even the trial Court has not relied upon the oral evidence regarding age of the prosecutrix whereas the school certificates produced on behalf of the prosecution to prove the age of the prosecutrix cannot be relied upon by the reason that the Headmaster who issued the certificates has not been examined and in absence of his evidence only on the basis of the certificates her date of birth cannot be held to be proved. In this regard, it was also submitted that to prove age of a person, a school certificate is relevant only when it is further shown what was the source of information upon which the date of birth was recorded in the school register. According to the learned counsel for the appellants in absence of primary evidence regarding age either in the form of school certificate or Municipality/Gram Panchayat Certificate, medical evidence is relevant to prove the age of a person and in the present case, the medical evidence available on record clearly shows that at the time of incident the age of the prosecutrix was between 15 to 17 years. It was also submitted that if according to the medical evidence there is variance regarding age of prosecutrix, the age favouring the accused is to be taken as the age of the prosecutrix at the time of the incident and in the light of this legal position the age of the prosecutrix definitely comes more than 16 years and when the prosecutrix was consenting party to the intercourse, no offence under Section 376 IPC can be said to be made out. (iii) So far as appellant-Dilip Kumar is concerned, even according to the prosecution rape was not committed by him and only allegation against him is that he helped the appellant-Ashok Kumar in committing rape by locking the house from outside in which the incident took place, but there is no reliable evidence so as to hold that he was present at the time of accident and he locked the house from outside and he in any way helped the other accused to commit the crime. (iv) If the court comes to a conclusion that appellant-Dilip Kumar was not in any way involved in the crime but concurs with the conclusion arrived at by the trial Court to the effect that the appellant-Ashok Kumar committed rape on the prosecutrix, then the offence does not travel beyond Section 376 IPC and it does not come under Section 376(2)(g) IPC. (v) Although for offence under Sec. 376(2)(g) IPC, minimum sentence of ten years is prescribed but for adequate and sufficient reasons, the court is empowered to award even sentence of imprisonment of less than ten years and in the present case there are more than one reason to reduce the sentence awarded by the trial Court. At the time of incident the appellants were the age of 20 years and the appellant-Ashok Kumar is in custody since his date of arrest i.e. 17.1.2006 and he has already undergone more than 5½ years imprisonment and it would be in the interest of justice, if the sentence of imprisonment is reduced to as already undergone by him. In support of his submissions, the learned counsel for the appellants relied upon the following cases:- (1) 1988 (Supp.) SCC 604 (Birad Mal Singhvi vs. Anand Purohit (2) 2001 Cr.L.R. (SC) 543 (Bhaiyamiyan @ Jardar Khan & Anr. In support of his submissions, the learned counsel for the appellants relied upon the following cases:- (1) 1988 (Supp.) SCC 604 (Birad Mal Singhvi vs. Anand Purohit (2) 2001 Cr.L.R. (SC) 543 (Bhaiyamiyan @ Jardar Khan & Anr. vs. State of Madhya Pradesh (3) (2010) 1 SCC (Cri) 910 Sunil vs. State of Haryana (4) 2011(2) Cr.L.R. (Raj.) 1072 Madan Lal vs. State of Rajasthan (5) 2008(2) Cr.L.R. (Raj.) 1753 Kamrujma vs. State (6) (2008) 13 SCC 133 Babloo Pasi vs. State of Jharkhand & Anr. (7) 1990 Cr.L.R. (Raj.) 162 = RLW 1990(1) Raj. 22 Mahendra Singh & Ors. vs. State of Rajasthan (8) 1999 Crl.L.J. (AP) 1928 Kondapalli Laxman Rao vs. State of A.P. (9) 1989 Cr.L.R. (SC) 247 Prem Chand & Anr. vs. State of Haryana (10) 2007(6) WLC (Raj.) 751 Pradeep Kumar vs. State of Rajasthan (11) AIR 1965 SC 282 Brij Mohan Singh vs. Priya Brat Narain Sinha & Ors. 6. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant, by supporting the conclusions arrived at by the trial Court has further submitted that from the evidence available on record this conclusion of the trial Court is wrong that the prosecutrix was consenting party to the crime. It was contended that from the evidence available on record it is clear that on the date of incident when the prosecutrix was going to her school in the way both the appellants by force took her in a nearby house and the appellant-Ashok Kumar committed rape on her without her consent but against her will whereas the appellant-Dilip Kumar helped him to commit the crime by locking the house from outside. It was further submitted that for an offence of "gang rape" within the meaning of Section 376(2)(g) IPC, it is not essential that each and every member of the group commits rape and even if one of the members acting in concert with others commit rape, it is sufficient. It was also submitted that so far as the age of the prosecutrix is concerned, school certificate of a person is the best evidence and in the present case, more than one document has been produced so as to prove the date of birth of the prosecutrix and there is no reason to disbelieve the evidence produced in this regard. It was also submitted that so far as the age of the prosecutrix is concerned, school certificate of a person is the best evidence and in the present case, more than one document has been produced so as to prove the date of birth of the prosecutrix and there is no reason to disbelieve the evidence produced in this regard. It was also contended that it is not a legal requirement that in each and every case, the Headmaster of the school who has issued the certificate regarding age must appear as a witness before the Court to prove the contents of the certificate. Similarly, if there is conflict between the medical evidence and school certificate regarding the age of a person, the school certificate has to be given preference as the medical evidence is only an opinion of an expert and it is not a conclusive proof regarding age of a person. It was also submitted that the learned trial Court has rightly come to a conclusion that at the time of incident, the prosecutrix was below the age of 16 years and her consent is irrelevant and even if for the sake of argument it is admitted that she was a consenting party even then offence as defined under Section 375 IPC is clearly made out. It was also submitted that although there are some improvements in the statements of the prosecution witnesses recorded during trial in comparison to their statements recorded during investigation and also there are some contradictions and inconsistencies between their respective statements but all these contradictions, improvements and inconsistencies are of very minor and immaterial nature and only by that reason the whole of the prosecution case cannot be rejected. It was also submitted that from the evidence available on record, it is clear that appellant-Dilip Kumar was also actively involved in the incident and he in furtherance of the common intention of the appellants and to help the appellant-Ashok Kumar to commit rape upon the prosecutrix locked the house from outside and took away the key of the lock which was recovered at his instance during investigation. In support of their submissions, the learned Public Prosecutor and the counsel for the complainant relied upon the following cases : 1. 2004(2) WLC (Raj.) 98 State of Rajasthan vs. Lal Chand @ Laliya & Anr. 2. 2002(1) Cr.L.R. (Raj.) 778 = RLW 2002(4) Raj. In support of their submissions, the learned Public Prosecutor and the counsel for the complainant relied upon the following cases : 1. 2004(2) WLC (Raj.) 98 State of Rajasthan vs. Lal Chand @ Laliya & Anr. 2. 2002(1) Cr.L.R. (Raj.) 778 = RLW 2002(4) Raj. 2436 Rajan & Ors. vs. State of Rajasthan 3. 2010 (Suppl.) Cr.L.R. (SC) 231 Rajinder @ Raju vs. State of Himachal Pradesh 4. 1999 WLC (Raj.) UC 673 Rangji vs. State of Rajasthan 5. 2011 Cr.L.R. (SC) 546 7. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law. 8. My findings with reasons on each of the grounds raised by the appellants are as below : (i) Looking to the evidence available on record, the finding arrived at by the trial Court to the effect that on the date, time and place as alleged by the prosecution, sexual intercourse between the prosecutrix and appellant-Ashok Kumar took place and the prosecutrix was a consenting party to it, is liable to be affirmed and maintained. The learned trial Court after a very minute a careful consideration of the evidence on record has rightly come to aforesaid finding. Neither the contention raised on behalf of the appellants to the effect that no sexual intercourse at all took place between the prosecutrix and the appellant-Ashok Kumar nor the plea raised by the prosecution that the appellants forcefully took the prosecutrix to the place of incident and appellant-Ashok Kuamr committed rape upon her without her consent but against her will can be accepted. Although, there are some improvements, contradictions, inconsistencies and discrepancies in the evidence produced on behalf of the prosecution but none of them can be said to be of major and material nature and inspite of all these infirmities, the whole prosecution case cannot be discarded. In my view the contradictions, improvements, inconsistencies, infirmities and omissions as indicated by the appellants resulted by the reason that the prosecution tried to show that the sexual intercourse as without the consent of the prosecutrix and was against her will whereas the fact is that the prosecutrix was a consenting party. In my view the contradictions, improvements, inconsistencies, infirmities and omissions as indicated by the appellants resulted by the reason that the prosecution tried to show that the sexual intercourse as without the consent of the prosecutrix and was against her will whereas the fact is that the prosecutrix was a consenting party. There is convincing evidence on record indicating that the prosecutrix was having close intimacy with appellant-Ashok Kumar since before the incident and she as willing to marry with him. It is also clear that letters Ex.D/5 to Ex.D/11 were written by the prosecutrix to the appellant and she also sent a greeting card Ex.D/12 to him. This fact is an indication of close intimacy between them and her inclination towards him. Apart from that, looking to the time and place of incident it is hard to believe that the appellants without attracting the attention of any other person abled to take the prosecutrix against her will and without her consent to a nearby house. The time was 10.11. a.m. and place is a common thorough-fare nearby which several residential houses are situated. It is more likely that the prosecutrix herself willingly went with the appellants to the nearby house. From the evidence available on record it appears that when the prosecutrix did not return to her house to take meals in the interval, search was made and she and the appellant-Ashok Kumar were found together in that house and she was brought to her house. The incident is of 13.1.2006 but the written report was submitted in the evening of 14.1.2006. Although, mere delay in lodging FIR cannot be a sole reason to discard the prosecution case in toto but the delay gave an opportunity to the family members of the prosecutrix for deliberations and consultation and to level allegation of forceful act. (ii) Looking to the fact that the trial Court as well as this appellate Court has concurrently held that the prosecutrix was the consenting party to the intercourse, the fact of age of the prosecutrix at the time of incident has got much importance and as such close and careful determination of the age of the prosecutrix is imperative. From the evidence available n record the trial court has held that the prosecutrix was below the age of 16 years at the time of incident. From the evidence available n record the trial court has held that the prosecutrix was below the age of 16 years at the time of incident. To prove the age of the prosecutrix the prosecution itself has produced three types of evidence; first the oral evidence of the prosecutrix and her family members; second documentary evidence in the form of school certificate and school leaving certificate etc. and third in the form of medical evidence. It is pertinent to mention that from the very beginning the prosecution case is that the age of the prosecutrix at the time of incident was 11 years and she was a student of 6th Standard. In the endorsement made by the police on the written report Ex.P/1 the age of prosecutrix has been mentioned as 11 years. The prosecutrix in her statement recorded under Section 161 Cr.P.C. Ex.D/14 and statement under Section 164 Cr.P.C. Ex.P/15 has indicated her age 11 years. The complainant-PW1-Raju, brother of prosecutrix, in his Court statement recorded on 17.3.2006, has stated his age 18 to 19 years and he has further stated that at the time of incident the prosecutrix was a student of 6th Standard and her age was 11 years. In his cross-examination, the complainant failed to state on what date and in which month and year he, his brothers and the prosecutrix were born, but he clearly stated that his younger brother-Om Prakash is three years younger than him and he is a student of B.Sc. Final Year, whereas his brother-Kishan is three years younger than Om Prakash and after three years from the birth of Kishan, the prosecutrix was born. He has also stated that the prosecutrix was admitted in school by their father. He specifically denied the suggestion that his age is 25 years, whereas the age of prosecutrix is 18 years. He also stated that his younger brother-Kishan at present is a student of a school situated at Patan and the prosecutrix was studying in Raipur for last 6 to 7 years. In his cross-examination the complainant has further stated that the prosecutrix never failed in any class. He also denied that the age of his brother-Om Prakash is 22 to 23 years. He has explained that his brother-Om Prakash initially studied in Haripura, then at Raipur, subsequently in a school at Kotputli and at present he is studying in Jaipur. In his cross-examination the complainant has further stated that the prosecutrix never failed in any class. He also denied that the age of his brother-Om Prakash is 22 to 23 years. He has explained that his brother-Om Prakash initially studied in Haripura, then at Raipur, subsequently in a school at Kotputli and at present he is studying in Jaipur. PW2-Kishan, another elder brother of the prosecutrix, in his court statement recorded on 18.3.2006 has stated that his age at present is 15 years. In his examination-in-chief, the witness has stated that his brother-Om Prakash is a student of B.Sc. at Jaipur, the prosecutrix is his younger sister and at the time of incident she was a student of 6th Standard at Raipur and her age was 11 years. In his cross-examination the witness stated that his father died on 26.1.2000. According to the witness his date of birth is 6.7.1991 and he studied at Raipur upto 8th Standard in the year 2005 whereas at present he is studying in a school at Patan. Although, the witness failed to state at what age he was admitted in the school, but he has specifically stated that when he was admitted in the school for the first time his date of birth was recorded as 6.7.1991. The witness failed to state what is date of birth of his elder brother-Om Prakash, at what age the prosecutrix was admitted for the first time in the school and in what year he was admitted for the first time in a school. PW-3-Smt. Vidya Devi, the mother of prosecutrix, in her Court statement recorded on 18.3.2006 stated her age 35 years and in her examination-in-chief she also stated that at the time of incident the prosecutrix was a student of 6th Standard and her age was 11 years. In her cross-examination the witness failed to state in which school for the first time the prosecutrix was admitted, what is age of her sons Raju, Om Prakash and Kishan and in what year the prosecutrix was born. Similarly, she failed to state in what year her sons Raju, Om Prakash and Kishan were born. According to the witness the prosecutrix was admitted in the school by her father, at that time her age was 6 years her husband died about 5 years ago and at that time the prosecutrix was of six years. Similarly, she failed to state in what year her sons Raju, Om Prakash and Kishan were born. According to the witness the prosecutrix was admitted in the school by her father, at that time her age was 6 years her husband died about 5 years ago and at that time the prosecutrix was of six years. PW4 prosecutrix in her court statement recorded on 31.3.2006 stated her age to be 11 years and in her examination-in-chief stated her age to be 11 years and in her examination-in-chief she has stated that at the time of incident she was a student of 6th Standard and she passed 5th Standard from Rajasthan Uchch Balika Vidyalaya, Raipur. In her cross-examination, the prosecutrix has stated that her elder brother Kishan was a student of 8th Standard of Jivan Jyoti School, Raipur in the previous year, but she failed to state what is the date of birth of her brothers and younger sister and in what year and on what date she was admitted in 1st Standard. She also failed to state at what age she was admitted in a school for the first time but she specifically denied the suggestion that she was born in the year 1989. She has also denied the suggestion that at the time of incident her age was more than 18 years. PW6-Dr. Mohammed Farooq, who examined the prosecutrix, on 15.1.2006 to determine whether the prosecutrix was raped or not, in his cross-examination upon a question asked by the learned counsel for the appellant-Ashok Kumar, has stated that generally in Indian conditions menstrual circle starts between the age of 9 to 12 years. PW7-Dr. Subhash Yadav, who medically examined the prosecutrix on 20.1.2006 to determine her age in his examination-in-chief has stated that on the basis of Radiological examination of the prosecutrix, her age was found between 15 to 17 years. The witness has proved the report Ex.D/13. The witness opined that from the radiological examination of the prosecutrix her age was found above 15 years but below 17 years. PW8 the Investigating Officer Shri Kanhaiyalal in his examination-in-chief has stated that the marks sheet Ex.P/11 was produced by the brother of the prosecutrix. He has also stated that he obtained age certificate Ex.P/29 and true copy of transfer certificate of prosecutrix Ex.P/30 during investigation. PW8 the Investigating Officer Shri Kanhaiyalal in his examination-in-chief has stated that the marks sheet Ex.P/11 was produced by the brother of the prosecutrix. He has also stated that he obtained age certificate Ex.P/29 and true copy of transfer certificate of prosecutrix Ex.P/30 during investigation. In his cross-examination he admitted that he did not seize admission form and attendance register of the prosecutrix. In the mark-sheet dated 16.5.2005 of Class V issued by Govt. Balika Madhyamik Vidyalaya, Raipur (Ex.P/1), the date of birth of the prosecutrix is recorded as 14.6.1993. Ex.P/29 is an age certificate issued on 16.5.2006 by Headmaster of Rajkiya Madhyamik Vidyalala, Raipur. According to this document the prosecutrix was a student of Class VI of the school and in this school register her date of birth was recorded as 14.6.1993. According to T.C. Form dated 28.1.2006 issued by Govt. Madhyamik Vidhyalaya, Raipur (Patan) the prosecutrix was admitted in Class VI of the school on 7.7.2005 on being passed her Class V from a previous school and her date of birth was recorded as 14.6.1993. It also mentions that her name was removed from the roll of the school on 24.1.2005 as she failed to attend the school continuously. According to medical report Ex.D/13 on physical and radiological examination being conducted on 20.1.2006, the age of the prosecutrix was found above 15 years and below 17 years. On consideration of the evidence available on record, it is revealed that the age of the prosecutrix at the time of incident was definitely below 16 years. The oral evidence corroborated by the documentary evidence in the form of age certificate, marks sheet and the transfer certificate issued by the respective schools of which the prosecutrix was student clearly supports this fact. So far as the medical evidence is concerned, looking to the fact that it is only an opinion of an expert preference cannot be given to it over factual evidence available on record. It has come in the evidence that the father of the prosecutrix got her admitted in the school for the first time and from this fact it can be inferred that the date of birth of the prosecutrix was recorded in the school record on the basis of information given by her father. There was no reason for him to give wrong date of birth at that time. There was no reason for him to give wrong date of birth at that time. It is also clear that initially the prosecutrix was admitted in Government Balika Madhyamik Vidyalaya, Raipur and when she left that school to get admission in another school after passing her 5th Standard, the marks-sheet Ex.P/11 was issued on 16.5.2005 and according to this document her date of birth is 14.6.1993. There is no reason to disbelieve the date of birth recorded in this document. Although, the admission form on the basis of which the date of birth was recorded in the school recorded or the copy of the school register was not produced during trial, but looking to the uncontroverted fact that the prosecutrix was initially admitted in that school by her father, it can easily be inferred that it was her father two gave her age to be 14.6.93 and on that basis her date of birth was recorded in the school register. So far as Ex.P/29 age certificate dated 16.5.2006 and transfer certificate form dated 28.1.2006 issued by Government Madhyamik Vidyalaya, Raipur are concerned, in these documents, the date of birth of the prosecutrix was recorded on the basis of transfer certificate issued by her previous school i.e. Government Balika Madhyamik Vidyalaya, Raipur by which the marks sheet Ex.P/11 was also issued. The evidence also reveals that the prosecutrix has three elder brothers namely PW1-Raju, Om Prakash, a student of B.Sc. Final and PW2-Kishan, a student of 8th Standard at the time of the incident. The appellants have not disputed the fact that the prosecutrix is younger than his brother PW2-Kishan. PW2-Kishan in his court statement recorded on 18.3.2006 stated his age to be 15 years and his date of birth 6.7.91 and in cross-examination nothing has come out so as not to believe his statement. The date of incident is 13.1.2006 and on 18.3.2006 when the statement of PW2-Kishan was recorded his age was approximately 15 years. Thus, it is clear that the prosecutrix being younger than her brother-Kishan, her aged was definitely less than 15 years. According to the school certificates the age of the prosecutrix at the time of incident comes around 12 years. If calculated from the age of PW2-Kishan, the date of birth recorded in these documents appears to be correct. Thus, it is clear that the prosecutrix being younger than her brother-Kishan, her aged was definitely less than 15 years. According to the school certificates the age of the prosecutrix at the time of incident comes around 12 years. If calculated from the age of PW2-Kishan, the date of birth recorded in these documents appears to be correct. It is pertinent to note that the appellants have not disputed the fact that at the time of incident the prosecutrix was a student of 6th Standard, whereas her brother Kishan was a student of 8th Standard. If looked from that angel also, the age of prosecutrix as well as her brother-Kishan as came out in the evidence appears to be correct. According to the mother of the prosecutrix PW3-Smt. Vidya Devi, when the prosecutrix was admitted in the school for the first time her age was about 6 years. If calculated from this angle, at the time of incident when she was a student of 6th Standard, her age comes out around 12 years. It has also come in the evidence that the prosecutrix never failed in any class. There is another aspect of the matter from which also the age of the prosecutrix at the time of incident comes well below 16 years. Her mother PW3-Smt. Vidya Devi in her court statement recorded on 18.3.2006 stated her age to be 35 years and this statement has not been controverted by the appellants. Even if for the sake of arguments, it is admitted that the age as stated by her is her approximate age only, even then looking to the fact that, the prosecutrix is her forth child after three sons namely; Raju, Om Prakash and Kishan, the age of prosecutrix cannot be above 16 years. It is well settled that if primary evidence in the form of statement of facts and school certificates is available, the medical evidence which is an expert opinion cannot be relied upon to determine the age of a person. Medical evidence can be relied upon only when primary evidence is not available and when it is not made clear from what source the date of birth was recorded in school register. Medical evidence can be relied upon only when primary evidence is not available and when it is not made clear from what source the date of birth was recorded in school register. Although, the prosecutrix as well as her family members in their oral evidence tried to show her age to be 11 years at the time of incident, whereas upon calculation being made from the date of birth 14.6.93, her age comes little more than 12 years, but the difference is not such that the evidence is to be wholly discarded. In the present case, the consideration is whether at the time of incident the prosecutrix was below 16 years and not what is her exact date of birth. (iii) The only allegation against appellant-Dilip Kumar is that he locked the door of the house from outside and it helped appellant-Ashok Kumar to commit rape upon the prosecutrix. Looking to the finding that the prosecutrix was a consenting party to the sexual intercourse the prosecution case to this extent is liable to be rejected that appellant-Dilip Kumar along with the other appellant forcefully took the prosecutrix in the house in which the crime was committed. In these circumstances it is to be seen whether this appellant in any manner helped the other appellant in the commission of the crime. The prosecutrix PW4 in her examination-in-chief in this regard has stated that the appellant-Ashok Kumar asked the appellant-Dilip Kumar to go outside and lock the door. In her cross-examination the she has denied the suggestion that at the time of incident the appellant Dilip Kumar was not present. She has also stated that she stated before the Dy. S.P. and the SHO that the appellant-Ashok Kumar asked the appellant-Dilip Kumar to go outside and lock the door from outside. She has expressed ignorance whether that fact is recorded or not in her statement under Section 161 Cr.P.C. Ex.D/14 and statement under Section 164 Cr.P.C. Ex.D/15. The prosecutrix has specifically denied the fact that there was previous enmity between PW5-Ramver and appellant-Dilip Kumar and by that reason at the instance of Ramveer he has been falsely implicated in the case. She has also denied the suggestion that on the date of incident quarrel between her family and family of Dilip Kumar took place and by that reason also false allegation has been levelled against him. She has also denied the suggestion that on the date of incident quarrel between her family and family of Dilip Kumar took place and by that reason also false allegation has been levelled against him. PW5-Ramveer (aged 17 years) in his cross-examination has denied the suggestion that litigation between his father and father of Dilip Kumar was pending and by reason of that enmity, the appellant-Dilip Kumar has been falsely implicated in the case. In the written report Ex.P/1, apart from other facts it has also been alleged that appellant-Dilip Kumar locked the house from outside. The prosecutrix in her statement recorded under Section 161 Cr.P.C. Ex.D/14 apart from other facts stated that appellant-Dilip Kumar locked the door from outside. Similarly, her statement recorded under Sec. 164 Cr.P.C. Ex.D/15 also, she stated that the appellant-Dilip Kumar locked the door from the outside. From the evidence available on record this much is clear that at the time of incident appellant-Dilip was also present and he along with Ashok Kumar and prosecutrix went into the house of Birbal and whereas, the prosecutrix went into the house of Birbal and whereas, the prosecutrix and appellant-Ashok Kumar stayed inside the house, the appellant-Dilip Kumar came outside and he locked the door of the house from outside. There is no reason to disbelieve the statement of the prosecutrix. In the written report Ex.P/1 as well as in her statement recorded during investigation the prosecutrix has clearly stated about the role played by the appellant-Dilip Kumar. It is well settled that for the applicability of Section 376(2)(g), it is not essential that every member of the group commits rape. According to explanation-1 to Section 376(2) IPC, whereas woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed "gang rape" within the meaning of this provision. The fact that the appellant-Dilip Kumar also along with prosecutrix and the appellant-Ashok Kumar went into the house of Birbal and after leaving them together in the house, he on the asking of appellant-Ashok Kumar came outside and locked the door it is a clear indication that both the appellants were acting in furtherance of their common intention to commit rape upon the prosecutrix. The appellant cannot escape from his liability by saying that there is no allegation against him that he also committed rape upon the prosecutrix. The only defence taken by the appellant appears to be that there was litigation between the family of PW5-Ramveer, who is relative of prosecutrix, and the family of the appellant and due to that enmity he has been falsely implicated in the case. The suggestion made in this behalf during the course of cross-examination has been specifically denied. There is no evidence available on record from which such an inference can be drawn. Otherwise also, it cannot be believed that only due to some enmity the appellant-Dilip Kumar has been falsely implicated in such a serious offence. Therefore, by maintaining and confirming the findings arrived at by the trial Court it is held that the appellant-Dilip Kumar was also involved in the crime to the extent as indicated above. (iv) As this appellate Court has also come to a conclusion that the appellant-Dilip Kumar as also involved in the crime as indicated above, the finding of the trial Court to the effect that each of the appellants is guilty of offence under Section 376(2)(g) IPC is liable to be confirmed. (v) So far as the quantum of sentence is concerned, looking to the overall facts and circumstances of the case and more particularly to the age of the prosecutrix at the time of incident, the sentence awarded by the trial Court cannot be said to be unreasonable and excessive. For the offence under Section 376(2)(g) IPC sentence of minimum imprisonment of ten years is prescribed. Although, the court can, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years but in the present case the trial Court has not found any adequate and special reasons so as to award sentence of imprisonment for a term less than ten years. Although, at the time of incident the age of each of the appellants was about 20 years but looking to the age of the prosecutrix, the age of the appellants cannot be an adequate or special reason to award sentence of imprisonment less than the minimum prescribed by law. Accordingly, even on that score, no relief can be granted to the appellants. 9. Accordingly, even on that score, no relief can be granted to the appellants. 9. To assail the impugned judgment and order, no such other submissions were made on behalf of the appellants requiring consideration and decision by this Court. The contentions made on behalf of the appellants are of no substance and merit and are liable to be rejected. The result is that the judgment of conviction and order of sentence passed by the trial Court does not require any inference and the appeal is liable to be dismissed. 10. Consequently, by affirming and maintaining the judgment of conviction dated 10.11.2006 and order of sentence 15.11.2006, passed by the Additional Sessions Judge, Neem ka Thana (District Sikar) in Sessions Case No. 05/2006 the appeal stands dismissed. The appellant-Dilip Kumar is on bail. He is directed to surrender before the trial Court on or before 9.11.2011, failing which his bail bonds will stand forfeited and an appropriate action shall be taken by the trial Court for securing his attendance and taking such other action as is permissible in law to ensure that the appellant undergoes the sentence awarded to him. The record of the trial court along with a copy of this judgment may be sent back forthwith.