Narendra Kumar Jain, J. - (1.) Accused Ram Singh S/o Shri Badrilal has preferred this criminal appeal under Section 374 (2) of the Code of Criminal Procedure, challenging his conviction and sentence passed by the Additional Sessions Judge (Fast Track), Tonk, vide its judgment and order dated 10.4.2003, in Sessions Case No.92/2002, whereby he was convicted and sentenced under Section 376, I.P.C., to seven years rigorous imprisonment and a fine of Rs.100/-, in default of payment of fine, to further undergo three months simple imprisonment; and under Section 366, I.P.C., to three years rigorous imprisonment and a fine of Rs.100/-, in default of payment of fine, to further undergo three months simple imprisonment.
(2.) The learned counsel for the accused-appellant initially argued that finding of trial Court about age of the prosecutrix i.e. less than 16 years, is illegal in view of medical report (Exhibit P-9) and statement of PW-13 Dr. P.D. Sharma, which state her age to be 17 to 19 years and, in case the age of prosecutrix is determined as above 16 years, then accused is liable to be acquitted even as per finding of the trial Court to the effect that prosecutrix herself was a consenting party to the sexual intercourse. However, keeping in view the statement of the prosecutrix PW-10 Reshma before the trial Court and the documentary evidence (Exhibit P- 20 and Exhibit P-21) in respect of date of birth of the prosecutrix wherein her date of birth is mentioned as 6.1.1987, meaning thereby she was aged 15 years and 3 months on the date of the occurrence, the learned counsel for the appellant did not challenge the finding of the trial Court during the course of arguments of the appeal and confined his arguments only in respect of reduction of sentence of imprisonment awarded by the trial Court. He contended that the accused-appellant is in jail since 29.6.2002, therefore, he has already undergone the sentence of imprisonment of 4 years 8 months and 9 days, therefore, the sentence of imprisonment awarded by the trial Court may be reduced to a period of imprisonment already undergone by him. He contended that there are adequate and special reasons in the present case for reducing the sentence of imprisonment of the accused-appellant, as the prosecutrix herself, in her statement before the investigating agency under Section 161, Cr.P.C., stated that she herself told the accused Ram Singh to meet her because she was annoyed with her father for the reason that her father used to commit sexual intercourse with her and she herself went with the accused. A copy of the above referred statement was placed on the record by defence as Exhibit D-4. He also contended that Reshma herself lived with accused for more than two months voluntarily and she became pregnant and her pregnancy of two months was also got terminated and further she, in her statement recorded before the Judicial Magistrate under Section 164 Cr.P.C. (Exhibit P-14), admitted that she herself went with the accused, who had consented sexual intercourse with her and for this she was not forced by the accused. However, she improved her statement before the trial Court and the trial Court itself acquitted other two accused-persons, namely, Kishan Singh and Ram Bux on the ground that there is an improvement in her statement before the trial Court, whereas on the same set of evidence accused has been convicted, therefore, he contended that looking to all these special and adequate reasons the sentence of imprisonment awarded by the trial Court be reduced to a period of sentence of imprisonment already undergone by him. The learned Public Prosecutor contended that as per the finding of the learned trial Court the age of the prosecutrix, on the date of occurrence, was less than 16 years, therefore, consent of prosecutrix in respect of these crimes becomes irrelevant and the appeal of the accused-appellant is liable to be dismissed.
(3.) I have considered the submissions of the learned counsel for both the parties and examined the impugned judgment as well as the record of the trial Court.;