GARG, J. - (1.) THIS appeal has been preferred by the accused appellant against the judgment and order dated 21. 8. 2000 passed by learned Sessions Judge, Dungarpur in Sessions Case No. 46/99 by which the learned Sessions Judge convicted the accused appellant for offence under Section 376 I. P. C. and sentenced him as under:- Offence Sentence awarded 376 I. P. C. 7 years' R. I. and a fine of Rs. 100/- in default to further undergo 1 months' R. I.
(2.) THIS appeal arises in the following circumstances: 1) On 20. 6. 99 at about 4. 10 p. m. PW. 2 Mahesh Kumar lodged a report Ex. P/2 before Police Station Bichhiwara, Dist. Dungarpur before PW. 11 Lal Singh, SHO stating that on 19. 6. 97, he and his, wife Laxmi PW. 5 went to his in-laws' house at village Vagdari and they left her daughter Reena P. W. 1 (hereinafter referred to as ``the prosecutrix'') alone. It is further stated in the report that in the evening at 7 p. m. , when they returned to their house, PW. 1 Reena was lying on cot and she was weeping. When they asked about cause of weeping, the prosecutrix told them that after some time when they had gone to Vagdari, accused Shankar came to their house and took her to bushes of Nilgiri and there put her on the ground and pressed her mouth and committed rape, as a result of which blood was oozing from her female organ and seeing the blood, the accused appellant ran away. It is further stated in the report that there was profuse bleeding. In the night he took her to Himlaghar Hospital where the doctor advised that first the matter should be reported to the police and thus, in these circumstances, he lodged the report Ex. P/2 on 20. 6. 99. ii) On this report, police registered the case and chalked out FIR Ex. P/9 and started investigation. iii) During investigation, medical examination of PW 1 Reena was got conducted by PW. 10 Dr. B. P. Verma for the purpose of determining the age as well as for the purpose whether rape was committed with her or not and the medical report of P. W. 1 Reena is Ex. P/1. PW. 10 Dr. B. P. Verma after examining her physically and clinically and after taking x-rays, he has determined the age of the prosecutrix on 20. 6. 99 between 8 to 10 years and for the purpose of rape, he found clotted blood around vagina etc. The medical examination of the accused appellant was also got conducted by PW. 10 Dr. B. P. Verma and his medical report is Ex. P/8. The age of accused appellant has been determined between 16 to 18 years. iv) After usual investigation, challan for offence under Sec. 376 I. P. C. was filed against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Sessions Judge, Dungarpur. That the learned Sessions Judge framed charges against the accused appellant for offence u/sec. 376 I. P. C. on 31. 7. 99 who pleaded not guilty and claimed trial. During trial, 11 witnesses have been produced by the prosecution and thereafter statement of accused under Sec. 313 Cr. P. C. was recorded and two witnesses were examined in defence. The accused appellant examined himself as D. W. 1. After the conclusion of the trial, the learned Sessions Judge vide his judgment and order dated 21. 8. 2000 convicted and sentenced the accused appellant for offence under Section 376 IPC inter alia holding that: i) On the date of occurrence the age of prosecutrix was between 8 to 10 years. ii) On placing reliance on the statement of PW. 1 Reena, P. W. 2 Mahesh and the medical evidence, the learned Sessions Judge came to the conclusion that the rape was committed by the accused appellant with the prosecutrix and he convicted the accused appellant as stated above. Aggrieved from the said judgment, this appeal has been filed by the accused appellant.
(3.) IN this appeal, following submissions have been made on behalf of the accused appellant: i) Since in this case there is no evidence that on the penis of the accused appellant there was injury and further living sperm were not found and, therefore, offence under Section 376 I. P. C. should not be held to be proved. ii) Since, on the date of occurrence, the accused appellant was of the age between 16 to 18 years, therefore, it was duty of the learned Sessions Judge before passing the order of conviction that his age should have been determined and benefit of provisions of Juvenile Justice Act, 1986 (hereinafter referred to as ``the Act of 1986) should have been given to him. iii) Non-production of younger sister of the prosecutrix is fatal to the prosecution case and also he argued that the accused appellant should be acquitted or benefit of Act of 1986 should be given to the accused appellant on point of sentence. On the contrary, the learned Public Prosecutor has opposed the submissions made by the learned counsel for the appellant and submits that the judgment and order passed by the learned trial Judge are based on proper appreciation of evidence and do not call for interference. I have heard both. ;