- (1.) This appeal has been filed by the accused appellants against the judgment and order dated 29-11-2001 passed by the learned Addl. Sessions Judge (Fast Track), Ratangarh District Churu in Sessions Case No. 80/2001 (20/2000 ADJ Ratangarh) by which he convicted and sentenced the accused appellants in the following manner :- Name of accused applellants Convicted under section Sentence awarded (1) Rajan 366/120B, IPC Four years RI and to pay a fine of Rs.100.00, in default of payment of fine, to further undergo, RI for six months. 366/120B, IPC Four years RI and to pay a fine of Rs.100.00, in default of payment of fine, to further undergo, RI for six months 376, IPC Ten years RI and to pay a fine of Rs.100.00, in default of payment of fine, to further undergo, RI for one year. (2) Hariram 366/120B, IPC Four years RI and to pay a fine of Rs.100.00, in default of payment of fine, to further undergo, RI for six months (3) Ramsharan Das 366A/120B, IPC Four years RI and to pay a fine of Rs.100.00, in default of payment of fine, to further undergo, RI for six months All the above substantive sentences were ordered to run concurrently. The learned Addl. Sessions Judge also convicted the accused appellants for the offence under Sections 363/120B, IPC, but no sentence was passed for the said offence.
(2.) The facts giving rise to this appeal, in short, are as following :- On 19-3-2000 at about 11.30 a.m., PW1 Leeladhar lodged a written report Ex. P/2 with the Police Station Kotwali Churu stating inter-alia that his niece Pinky, PW 2 (hereinafter referred to as the prosecutrix) aged about 14 years, daughter of Nandlal (PW 3) came to Churu from Delhi and on 18-3-2000 at about 2.00 p.m., she was found missing and in that report, suspicion was placed on the accused appellant Pankaj alias Rajan that she had gone with the accused appellant Pankaj alias Rajan. Thereafter, on 23-3-2000, PW 1 Leeladhar lodged another report Ex. P/1 before Dy. Sp. Churu stating inter alia that on 18-3-2000, prosecutrix PW 2 Pinky was being enticed by the accused appellant Pankaj alias Rajan and his brother Hari Ram (accused appellant No. 2) and both had taken her from Delhi to Churu and he had come to know from reliable sources that they all are at Delhi. It was further stated in the report that age of the prosecutrix PW 2 Pinky was 14 years and she was student of 8th Class and efforts be made to recover prosecutrix PW 2 Pinky. On that report, police registered the case for the offence under Sections 363, 366, IPC and chalked out regular FIR Ex. P/3 and started investigation. During investigation, on 24-3-2000, prosecutrix PW 2 Pinky was got recovered through Ex. P/4 ad her medical examination was got conducted by PW 8 Dr. Satyapal and her medical examination report is Ex. P/15, where doctor found that her vagina admits two fingers and her medical examination report Ex. P/15 further shows that she was experienced one for sexual intercourse. For the purpose of ascertaining her age, X-rays of her wrist, elbow and pelvis were taken and after seeing the X-rays, the doctor opined that her age was between 16 and 17 years and that Certificate of age is Ex. D/3. During investigation, police also came to know that prosecutrix PW 2 Pinky was student of Nigam Prathmik Vidyalaya , Rohini Sector 4, Delhi and in the TC Certificate (Ex. P./21A), her date of birth was shown as 16-10-1986. Ex. P/22A is the admission form submitted by PW 3 Nandlal, father of the prosecutrix and in that also, the age of the prosecutrix PW 2 Pinky was shown as 16-10-1986 and Ex. P/23A is the admission and withdrawal register of the school, namely, Sarvodaya Girls School, Delhi, where the age of the prosecutrix was shown as 16-10-1986. The accused appellants Rajan, Hariram and Ramsharan Das were arrested through Ex. P/7, Ex. P/8 and Ex. P/9 respectively. After usual investigation, police submitted challan against the accused appellants in the Court of Magistrate, from where the case was committed to the Court of Session. On 30-6-2000, the learned Addl. Sessions Judge, Churu framed charges for the offence under Sections 363/120B, 366/120B, 366A/120B and 376, IPC against the accused appellant Rajan and for the offence under Sections 363/120B, 366/120B, 366A/120B, IPC against accused appellants Hariram and Ramsharan Das. The charges were read over and explained to the accused appellants. The accused appellants denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 10 witnesses and got exhibited some documents. Thereafter statements of the accused appellants under Section 313, Cr. P.C. were recorded. No evidence was produced in defence by the accused appellants. However, some documents were got exhibited in defence by the accused appellants. After conclusion of trial, the learned Addl. Sessions Judge (Fast Track), Ratangarh through his judgment and order dated 29-11-2001 convicted and sentenced the accused appellants in the manner as stated above holding inter alia : 1. That on the date of the occurrence, the prosecutrix PW 2 Pinky was below 18 years of age. 2. That accused appellant Rajan had sex with the prosecutrix PW 2 Pinky against her will. 3. That if there was any consent on the part of the prosecutrix PW 2 Pinky, that consent had no meaning in the eye of law, as she was minor. 4. That prosecutrix PW 2 Pinky was kidnapped by the accused appellants by making conspiracy. Aggrieved from the said judgment and order dated 29-11-2001 passed by the learned Addl. Sessions Judge (Fast Track), Ratangarh, this appeal has been filed by the accused appellants.
(3.) In this appeal, the learned counsel appearing for the accused appellants has made the following submissions :- (1) That since in doctor's certificate Ex. D/3, by which the age of the prosecutrix PW 2 Pinky was determined, it has been clearly mentioned that her age was between 16 to 17 years, therefore, preference should be given to the doctor's opinion, rather on school certificates and thus, prosecutrix PW 2 Pinky should be declared as major one. (2) That from the evidence on record, the fact that she was a consenting party to all the activities right from the very beginning is well established and when she is a major girl, no offence was committed by the accused appellants. (3) That so far as the accused appellants Hariram and Ramsharan Das are concerned, they have committed no offence. Hence, it was prayed that this appeal be allowed and the impugned judgment and order be set aside and the accused appellants be acquitted of the charges framed against them.;