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2019 DIGILAW 685 (RAJ)

Ramu Ram @ Ramu v. State

2019-02-27

PRADEEP NANDRAJOG

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JUDGMENT 1. Vide impugned judgment dated 6th May, 2013 the appellant has been convicted for offences punishable under Sections 450, 363, 366 and 376 IPC. He has been sentenced to undergo RI for 10 years, 7 years, 10 years and 10 years respectively for the four offences. In addition for each offence fine in sum of Rs. 2,000/- has been imposed, in default of payment of fine to undergo SI for a period of 3 months. All sentences have to run concurrently. 2. The only argument advanced at the hearing of the appeal is that the age of the prosecutrix has not been established with precision and thus the appellant should be entitled to the benefit of doubt concerning the age of the prosecutrix for the reason the testimony of the prosecutrix and her parents establishes that it was a case of sex with consent. 3. Process of criminal law was set into motion when the father of the prosecutrix lodged a written complaint pursuant whereto FIR was registered on 12th June, 2012 in which he informed that the appellant had run away with his daughter on 27.5.2012. 4. The prosecutrix has been examined as PW1 on 18.12.2012. She deposed that on 27.5.2012 the appellant raped her in her house after removing her clothes. She started crying. The appellant told her not to cry. He offered to leave her at the house of her paternal aunt. Thereafter, she and the appellant roamed around on a motor-cycle. On the way she saw policemen. She cried. The policemen stopped her and informed her parents. 5. In cross-examination, she admitted that she knew the appellant for about 3-4 months preceding 27 th May, 2012. She and he used to work in the same brick-kiln. She admitted that she lived with the appellant for quite some time. She stated that what she stated before the Magistrate was under fear and she was compelled by the appellant to disclose her age to be 18 years. She admitted that when she was with the appellant she went out with him in a bus. She also admitted that they were taking meals in a restaurant. 6. In view of the fact that consent of the prosecutrix has emerged for having sex with the appellant, the age of the prosecutrix would be material. 7. She admitted that when she was with the appellant she went out with him in a bus. She also admitted that they were taking meals in a restaurant. 6. In view of the fact that consent of the prosecutrix has emerged for having sex with the appellant, the age of the prosecutrix would be material. 7. Ex.P-17 is the Certificate issued by the Government School certifying that the prosecutrix was admitted in the School in Class-I and her date of birth as per school record is 8.7.1999. Ex.P-18A is the admission form for the Session 2004-05 bearing thumb impression of the maternal grand-father of the prosecutrix in which date of birth of the prosecutrix is recorded as 8.7.1999. Ex.P-19A is a certified copy of the school register which also records the date of birth of the prosecutrix to be 8.7.1999. 8. Learned counsel for the appellant argues that the admission form bearing thumb impression of the maternal grand-father of the prosecutrix lacks a supporting document in the form of a birth certificate. Taking the argument forward learned counsel argues that a rustic illiterate villager could have given a wrong date of birth. 9. As noted above, the date of incident is 27.5.2012. The date of birth of the prosecutrix in the school record is 8.7.1999. Thus, her age as of 27.5.2012 will be 13 years. 10. As noted above, the child was admitted in the school in July, 2004 and I take note of the fact that admission in Class-I is on a child attaining the age of 5 years. Surely, a child of 10 years cannot pass off as a child of 5 years. To clarify, when the maternal grand-father of the prosecutrix took her to the school in the year 2004 and presented her for admission and disclosed her age to be 5 years, had the prosecutrix been 10 years of age the same would have been detected. A rustic villager may miss-out on the exact year of the birth of a child by a year or two depending upon the time lag between the year when the child was born and rustic villager stating the date of birth of the child. In the year 2004 the maternal grand-father of the prosecutrix could not be of the mark in disclosing the year of her age to be 1999 by maximum of a year or so. 11. In the year 2004 the maternal grand-father of the prosecutrix could not be of the mark in disclosing the year of her age to be 1999 by maximum of a year or so. 11. Aforesaid reasoning is to counter the submission made by learned counsel for the appellant. 12. There is no reason to disbelieve the contemporaneous entries in the school record made in the year 2004 that the prosecutrix was born on 8.7.1999. No suggestion has been given to her parents that in the school record her date of birth is wrongly recorded. 13. Since the only contention advanced is noted and rejected, I dismiss the appeal. The conviction and sentences imposed are maintained.