IMPORTANT POINTS
Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape.
Question of determination of age of prosecutrix by medical examination arise only in absence of documentary evidence.

Judgment

Pinaki Chandra Ghose, J.

1. The present Criminal Appeal has been preferred against the judgment and order dated 10.07.2008 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.924 of 2006, whereby the High Court set aside the judgment of conviction and order of sentence passed by the learned Trial Court and acquitted the accused from all the charges levelled against him.

2. The facts of the present matter are that on 03.01.2003, at about 10:30 A.M. the prosecutrix was going to school along with her sister. On realizing that she had left behind her practical note book, she returned back and after taking the said note book she once again headed towards the school. When she reached near Tar Badi (wire fencing) near Hawai Patti, there was an Ambassador car standing there and as alleged, the accused respondent came out of the car, pulled the prosecutrix inside the car and forced her to smell something, as a result of which the prosecutrix became unconscious. As alleged by the prosecution, the prosecutrix was taken to some unknown place thereafter.

3. On regaining consciousness, the prosecutrix felt pain in her private parts. On the same day, she was admitted in the District Hospital, Satna in an unconscious condition and information about the incident was given to Laxmikant Sharma (P.W.8), the uncle of the prosecutrix. On 10.01.2003, the prosecutrix was discharged from the Hospital and sent back to her home where she narrated the incident and thereafter an F.I.R was lodged. During the course of investigation, the prosecutrix was sent for medical examination and her clothes were seized and slides were prepared. After receipt of the medical report, F.I.R was registered and site map of the spot was prepared. The Investigating Officer seized various articles which included the prosecutrix’s birth certificate and certificate of the Middle School Examination, 2001. Along with that the relevant page (page No. 20) of the register of the U.S.A Hotel was also seized. After due investigation a charge-sheet was filed against the respondent for offences under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (“I.P.C.”) and the statements of the prosecution witnesses were recorded.

4. On 27.03.2003, the Judicial Magistrate, First Class Satna registered the Criminal Case No.116/2003 and passed the committal order. Accordingly, the case was transferred and was received by the Upper District Sessions Judge-III, Satna for trial.

5. The IIIrd Additional Sessions Judge, Satna, by his order dated 24.04.2006 passed in Special Case No.123/2003, convicted the accused under Sections 363, 366 and 376 of I.P.C. and held that all the offences against the respondent were proved beyond reasonable doubt. The respondent was awarded 7 years’ rigorous imprisonment and fine of Rs.500/-for the crime under Section 363 I.P.C., 10 years’ rigorous imprisonment and fine of Rs.1000/-for the crime under Section 366 I.P.C., and 10 years’ rigorous imprisonment and fine of Rs.1000/-for the crime under Section 376 I.P.C. with default clauses. All the substantive sentences were directed to run concurrently.

6. Aggrieved by the aforesaid judgment and order passed by the IIIrd Additional Sessions Judge, Satna, the respondent preferred an appeal under Section 374(2) of Cr.P.C. before the High Court of Madhya Pradesh at Jabalpur, which was numbered as Criminal Appeal No.924 of 2006. The learned Single Judge of the High Court, by impugned judgment and order dated 10.07.2008, set aside the judgment and order of conviction passed by the Trial Court against the respondent. The High Court ruled that the decision of the Trial Court was not sustainable solely on the ground that the prosecution had failed to prove the fact that the girl was less than 16 years of age at the time of the incident. The reasons that weighed heavily with the ruling of the High Court were that, either the public prosecutor or P.W.7 Pramod Kumar Sharma (father of the prosecutrix) tr