Point of Law: The age of victim of rape should be determined in manner provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, there is no difference as regards minority between child in conflict with law and the child who is victim of the crime. Under Rule 12, preference is to be given to school documents in determination of age of victim. The prosecution has not produced any school document to prove age of victim. PW-1, mother of the victim deposed that she cannot say about age of the victim. PW-2 to PW-6 including father of the victim have not deposed at all on the age of the victim. The doctor who had conducted ossification/radiological examination of victim was not produced by prosecution. Hence direct evidence for determination of age of victim is not there on the record.

JUDGMENT :

1. This is an appeal against the judgment of conviction dated 26.03.2018 and order of sentence dated 05.04.2018 passed in Sessions Trial No. 461 of 2011 arising out of Sanokhar P.S. Case No. 36 of 2010 whereby the learned Trial Judge (Additional Sessions Judge-VII, Bhagalpur) found the sole appellant Md. Javed @ Md. Javed Mian guilty for offence under Section 376 IPC and sentenced to undergo rigorous imprisonment for seven years. A fine of Rs.25000/- was imposed to be paid to the victim and in default of payment of fine, further one year and nine months simple imprisonment was awarded.

2. The prosecution case as disclosed in the written report (F.I.R.) lodged by the victim girl is that the appellant by inducing the informant, aged about 14-15 years, to marry was in physical relation with her. The physical relation was continuing in the house of the appellant as well as in the house of the informant since last six months. Since the informant was carrying pregnancy from the appellant since last four months, she asked the appellant to marry with her, but the appellant refused and the family members of the appellant asked the informant to get aborted. Being frustrated, on 30.04.2010 she reported the matter to the police station, but the police did not take any action. Then a written report was submitted to the SP/Bhagalpur on 03.05.2010 and on direction of the S.P., Sanokhar P.S. Case No. 36 of 2010 was registered under Section 376 and 506/34 IPC.

3. During trial, the prosecution examined altogether ten witnesses. The defence also produced one witness Md. Hafiz.

4. Mr. Pratik Mishra, learned counsel for the appellant contends that a closure and careful scrutiny of the prosecution case and evidences would make it evident that the victim was in consensual physical relation with the appellant. The prosecution has failed to prove that on the alleged date of occurrence, the victim was below 16 years of age, as such her consent was immaterial. Learned counsel contends that it is not the prosecution case that consent of the victim was obtained by fraud or by putting her or anyone in whom she was interested in fear of death or at the time of giving consent the victim was of unsound mind or under influence of intoxication, consequently unable to understand the nature and consequence of that for which she gave the consent. Learned counsel contends that the aforesaid serious infirmity has been ignored by the learned trial Judge while recording the judgment of conviction, hence the same is not sustainable in law.

5. Learned counsel for the State-respondent Mr.Binod Bihari Singh would submit that the victim has deposed that she was below 16 years of age on the date of alleged occurrence and she was not cross-examined at all on this point, therefore the defence tacitly accepted the prosecution case on the age of the victim. Hence, consent of the victim was immaterial. Moreover, the consent of the victim was obtained by alluring her for marriage, hence the consent was obtained by fraud.

6. PW-7 the victim girl deposed that initially the appellant established physical relationship with her by force, however the appellant pretended that he would marry with her and thereafter both continued in relationship. The victim was carrying four months pregnancy from the appellant. Then she asked the appellant to marry. The appellant refused, hence the case was lodged. This witness admitted that the appellant was in physical relation with her consent. Both were enjoying the relationship. They used to eat together. The family members were aware of their relationship. The witness further admitted that she never made any protest of the act of the appellant in lifting her to his lap while watching television. The victim was in talking term with the appellant taking precaution of non- divulgence of their relationship. The family members never made any complaint against the act of the appellant.

PW-5 Julekha Khatoon is a relative of the victim girl. She has de