M. Jeyapaul, J. - (1.) ACCUSED Jai Singh @ Jaiya and accused Rakesh were both convicted for the offence under Section 366 IPC and were each sentenced to undergo 4 years R.I. and to pay a fine of 500/ - and in default to undergo a period of 1 months R.I. Accused Jai Singh was also convicted for the offence under Section 376 IPC and was sentenced to undergo 7 years R.I. and to pay a fine of 500/ - and in default to undergo a period of 1 month R.I. Accused Rakesh preferred separate Crl.A. No. 718 -SB of 1999. As he died during the pendency of the appeal, the said appeal abated. Now this Court is concerned only with the present appeal filed by accused Jai Singh aggrieved by the order of conviction and sentence passed by the trial Court.
(2.) THE case in brief of the prosecution is that accused Jai Singh and accused Rakesh met their neighbour PW3 and PW4 on 24.9.1997, when they had been to the fields to attend the call of nature. At that point of time, PW3 was studying in 7th Standard and PW4 was studying in 8th Standard. Both the accused having obtained the consent of PW3 and PW4 took them in a Maruti van on the pretext that a magician was performing a show at Gurgaon. The accused without stopping the van at Gurgaon proceeded to Delhi. PW3 and PW4 were taken to a hotel where accused Jai Singh committed rape on PW3 and accused Rakesh committed rape on PW4. Thereafter, both the girls were taken to Kharkoda in Uttar Pradesh where the sister of Rakesh was living. Both the girls were kept at the house of the sister of Rakesh for two days. Thereafter, they were taken to Gurgaon. The girls were secured when they were found loitering at the railway station. Both the accused were arrested on 28.9.1997. They were subjected to medico -legal examination. The school certificates showing the date of birth of PW3 and PW7 were also obtained. Having completed the investigation, the Investigating Official laid challan as against both the accused. The trial Court having relied upon the evidence of PW2 Krishna Kumari, School Mistress, PW3 and PW7 Dr. Ila Garg returned a verdict of conviction as against accused -Appellant Jai Singh. It is to be noted that the trial Court also arrived at a decision that accused -Appellant had intercourse with PW3 only with her consent. Having found on the basis of Ex.PE School Certificate produced by PW2 Krishna Kumari showing the age of PW3 below 16 years, convicted the accused -Appellant under Section 366 and 376 IPC.
(3.) LEARNED Counsel appearing for the accused -Appellant would vehemently submit that the age of PW3 was not established. The prosecution has not cared to produce the birth certificate of PW2 and radiology test report. Even the parents of PW3 were not examined. Therefore, it is his submission that the prosecution has failed to establish that the accused -Appellant committed rape on a minor girl aged below 16 years, having kidnapped her, intending to have intercourse with her.;