SUNIL KUMAR GARG - (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 accused appellant convicted under Section Sentence awarded 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 suppoZrt 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. ;