GUMAN MAL LODHA, J. - (1.) A tiny village girl of 8 years was literally in a pool of blood on account of the forcible sexual intercourse by accused Puran. Yet the prayer by the learned counsel for the appellant is for releasing him on probation or giving benefit of the Children Act.
(2.) FAIRLY enough Mr. Soral, learned counsel for the appellant, has not entered into the controversy about the facts of rape. His anxiety is that Puran must as treated be a child and then released on probation. Mr. Soral, learned counsel for the appellant placed reliance on the provisions of Rajas than Children Act, and the decision of the Hon'ble Supreme Court in Satto Vs. The State of U. P. (1) A child has been defined under the Rajasthan Children Act, 1970 hereinafter called as the Act, 1970 to mean a boy who has not attained the age of 16 years. Section 21 provides that when a child commit an offence then either he may be sent to special school or may be allowed to go home after advice or admonition or release on probation. Section 22 provides a prohibition for sending a child to jail, the proviso also provides for detention by the State Government, of child who has attended the age of 14 years and committed a serious offence. The first question to be considered in the present case is the nature of offence. PW 7, Dr. Kanhaiya Lal, was Medical Jurist, in Genera! Hospital, Bharatpur, on the relevant date was examined the girl Kamlesh after the rape was committed. According to him the sexual organ of the girl was not fully developed. Hymen was torn, lacerated having blood clots. The torn hymen bleeded on probing. The tearyymen suggested rape. The blood has travelled from the vagina to thighs and covering the entire legs reached the foo". The age was between 8 to 10 years. The boy thurst his penis in the vaginal parts of the girl upto 3 to 4" (inch ). So far as the boy is concerned, according to Dr. PW. 3 Zal Singh he did not enquire about the age of the boy.
(3.) NOWHERE in the statement of any witnesses the age of the accused Puran has been mentioned on medical examination but according the view of the trial court he was 17 to 18 years of age and so far as his examination under Section 313 Cr. P. C. the boy mentioned that his age is 14 years but the Presiding Officer, who recorded the statement on his own estimate recorded the age of accused 17 to 18 years in the statement. Mr. Soral, learned counsel for the accused appellant pointed out that according to medical report of a accused the boy was reported to be above 15 -1/2 years and below 17 yrs. The X -ray report shows that epiphysis lower end of redius and ulna not united. Mr. Soral, submits that according to Modi, the fusion to capitulom of epicondal takes place in Bengal upto 15 yrs. , in Punjab upto 15 years and in England upto 16 years. Mr. Soral, submitted that since the appellant happens to be a child he should be given benefit of probation or be given benefit of the Children Act, 1970. ;