The Court ruled that evidence of school records is primary for establishing age in sexual offense cases, and a minor's consent is irrelevant. Conviction under Section 366A was modified to Section 363, with the sentence for rape affirmed.

JUDGMENT :

H.P. SANDESH, J.

1. This appeal is filed by appellant/accused No.1 (hereinafter referred to as ‘accused’ for brevity) challenging the judgment of conviction and order of sentence dated 17.06.2016 passed in Sessions Case No.85/2012 by the Court of the District and Sessions Judge, Yadgiri (hereinafter referred to as ‘Trial Court’) wherein the Trial Court convicted the accused for the offences punishable under Section 366A and 376 of Indian Penal Code (IPC) and sentenced him to undergo simple imprisonment for seven years and to pay a fine of Rs.10,000/- in default, to undergo simple imprisonment for six months for the offence punishable under Section 366A of IPC and further to undergo simple imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for six months for the offence punishable under Section 376 of IPC.

2. The factual matrix of case of prosecution before the Trial Court is that on 11.11.2010 at 4:40 p.m. when the victim girl was in Balaji Book Depot, Shahapur along with her inmates, accused had induced her to go to any place knowingly well that she is less than 18 years for having sex. On 15.11.2010 at about 9:00 p.m. in Bolewad Gravel (Kankar) Machine Shed, accused subjected her to sexual act and committed rape on her, who is a minor girl against her will and consent.

3. It is also the case of the prosecution that accused No.2 aided to accused No.1 in committing such offences. So also accused Nos.3 and 4 have also committed an offence punishable under Section 109 read with Section 34 of IPC.

4. The prosecution mainly based on the complaints-Exs.P.3 and P5 registered the case, investigated the matter, collected the material against all the accused by recording the statement of witnesses and also obtaining the medical report of victim girl and documentary evidence of age proof and also conducted panchnama, spot panchnama, filed the charge-sheet. The accused persons were secured before the Trial Court. Accused No.2 passed away during the course of trial and hence offence against him is abated vide order dated 23.03.2015. On considering both oral and documentary evidence, the trial Court acquitted accused No.3 and 4, convicted accused No.1 i.e., appellant herein. Hence, the present appeal is filed.

5. The prosecution mainly relies upon the evidence of PWs.1 to 18 i.e., oral and documentary evidence as Exs.P.1 to P14 and MOs.1 to 3. The accused did not choose to lead any defence evidence, but got marked documents as Exs.D1 to D1(b).

6. The main contention of the counsel appearing for the accused in his argument that the Trial Court committed an error in passing the judgment of conviction and the reasons assigned is erroneous. As such, Trial Court slipped into an error and the appreciation of evidence is failure on the part of the trial Judge, which has resulted in substantial miscarriage of justice. The counsel would vehemently contend that Trial Court has convicted the accused only on the basis of the age, more particularly on the extract issued by PW.1 without looking into the other aspects. The counsel also vehemently contend that in absence of any material for believing the date of birth mentioned in the extract and without examining the validity of the document, trial Court committed an error and appreciation of the material before the Court for accepting date of birth certificate is against the dictum of the Hon’ble Supreme Court.

7. The counsel also vehemently contend that the evidence of the PW.2, who is the brother of the victim. During his cross-examination, he categorically admitted with regard to the difference of age between him and the victim. It is very clear that he was aged more than 20 years. It is contended that teachers who have recorded the date of birth, the same is not supported by any other documents, either the revenue records or the hospital records. Trial Court erroneously accepted the age of the victim without any corroboration.

8. The counsel also veh