- (1.) We have heard learned counsel for the parties at length. A definite finding of fact has been recorded by the Trial Court, which is affirmed by the High Court also, that at the time of incident, the Prosecutrix was less than 16 years of age. No doubt, to arrive at such a finding, the courts below have gone by the testimony of PW -3/father of the Prosecutrix, PW -4/Prosecutrix and PW -2/Ajit Kumar Jaiswal. In a statement given in the Court at the time of trial, Prosecutorix specifically stated that she was 15 years of age at the time of incident. She was subjected to lengthy cross -examination by the appellant -accused but her testimony, insofar as age is concerned, could not be shaken. We find from the record that the only argument raised by the appellant -accused was that when she had given the statement under Section 164 Cr.P.C. before the Magistrate on 04.09.1995, she herself stated that she was 17 1/2 years of age. We may record that when she appeared as PW -4, she stated that the accused -appellant had given her Laddoo and after eating that, she was intoxicated and, therefore, did not even know what she has stated before the Magistrate while making her statement under Section 164 Cr.P.C. This version of PW -4 has been believed by the two courts below. That apart, we are of the view that not much reliance can be placed on the statement made under Section 164 Cr.P.C. inasmuch as while recording her deposition, her age is mentioned as 15 years. Thus, in that very statement, the age is mentioned as 15 years as well as 17 1/2 years. It is strange that the concerned Magistrate did not even notice such a discrepancy and we have doubt as to whether due precautions were taken by the Magistrate, before recording that statement, as to whether the Prosecutrix was in a fit state to make the statement and was making the statement voluntarily. Therefore, as rightly held by the courts below, no reliance can be placed on the statement given under Section 164 Cr.P.C.
(2.) Once, we accept the finding of the courts below that the Prosecutrix was less than 16 years of age, then the offence under Section 366A IPC read with Section 376 IPC is clearly made out. We, thus, find no error in the judgments of the courts below. The appeal is devoid of any merit and is dismissed.;