Judgment :-

1. This criminal appeal has been preferred against the impugned judgment and order dated 20.9.2010 passed by the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No. 243-DB of 2002, by way of which the High Court has affirmed the judgment and order dated 4.3.2002 passed by the Additional Sessions Judge, Jind in Sessions Case No. 37 of 2001, by way of which the appellant no. 1 has been convicted under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as `IPC’) and awarded the sentence of seven years rigorous imprisonment with a fine of Rs. 5,000/- and in default of making payment, to further undergo imprisonment for two years. Further he has been convicted under Section 506 IPC and awarded the sentence of two years rigorous imprisonment. Both the sentences have been directed to run concurrently. The other co-accused, namely, Manoj, Satish @ Sitta and Kuldeep have been convicted separately under sections 376, 506, 366 and 363 IPC. Kuldeep Singh alone has been found guilty under Section 376 (2) (g) IPC, and has been awarded sentence of life imprisonment. Out of these four convicts, Kuldeep Singh and Manoj did not prefer any appeal against the High Court’s judgment, while appellant nos.1 and 2 preferred the present appeal. Appellant no.2 had died during the pendency of this appeal in jail, therefore, we are concerned only with the case of appellant no.1 i. e. Lillu @ Rajesh.

2. Mr. J.P. Singh, learned counsel for the appellant, submitted that the prosecution has failed to prove the date of birth of the prosecutrix and that she was about 17-18 years of age on the date of incident. Thus, it was a clear cut case of consent. The statement of Raj Bala, prosecutrix has not been corroborated by any of the witnesses and has not got corroborated by the medical evidence. Dr. Malti Gupta (PW-1), who had examined Raj Bala, prosecutrix medically had deposed that there was no external mark of injury on any part of her body. The possibility of prosecutrix being habitual to sexual intercourse could not be ruled out. There was no bleeding. Thus, in such a fact-situation, the statement of the prosecutrix that she was unmarried and had never indulged in sexual activity with any person, or was below 16 years, could not be relied upon.

3. On the other hand, the State of Haryana, as usual, remained unrepresented as the government counsel duly appointed by the State considered it their privilege not to appear in court and become the burden on public exchequer. So, the court has to examine the case more consciously going through the record and examine the correctness of the findings recorded by the courts below.

4. The trial court has examined the issue on age and after examining the school certificate (Ext. P-N), which stood duly proved by Lakhi Ram (PW-11), Science teacher, Government High Court, Badhana and Gajraj Singh, teacher, Govt. Primary School, Badhana, came to the conclusion that her date of birth as per the school register was 4.6.1987. So on the date of incident i.e. 7.3.2001, she was 13 years 9 month and 2 days old. She was a student of 6th standard. To refute the same, no evidence worth the name has been led by the accused- appellant. The said finding stood affirmed by the High Court and in view thereof, it remains totally immaterial whether the prosecutrix was a consenting party or not.

5. So far as the medical evidence is concerned, Dr. Malti Gupta (PW- 1), Medical Officer, Civil Hospital, Jind, has deposed that Raj Bala, prosecutrix was habitual in sexual activities and such a statement was made in view of the medical examination. Relevant part thereof reads as under:

"Bilateral breast were moderately developed, There was no external mark of injury seen any where on the body. Axillary heir was not developed. Public hair were partially developed.

On local examination labia majora and labia minora were moderately developed.

There was no bleeding P/V. Whitish discharge was present. Hymen was completely