JUDGMENT

Sharad Kumar Gupta, J. - Challenge in this appeal is levied to the judgment of conviction and order of sentence dated 7-9-2001 passed by the Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in brevity the SCST Act) in Misc. Criminal Case No. 1/2001 whereby and whereunder, he has convicted and sentenced the appellant as under :-

2. In brief, the prosecution story is that on 30-11-2000 prosecutrix was aged about 12 years old. She was resident of village Kandri. She is a member of Scheduled Caste. The applicant is neither a member of Scheduled Caste nor Scheduled Tribe. On Tuesday of Jeth month of year 2000, when prosecutrix was alone in her house, applicant entered in her house, closed the door from inside, gagged her mouth by a handkerchief and committed forcible sexual intercourse with her. Thereafter, he committed repeatedly sexual intercourse with her. When she became pregnant he threatened her that if she discloses about the incident to anyone, she will face dire consequences. When her belly grown, then she disclosed the incident to her mother. On 30-11-2000 she lodged an FIR in police station Chando. After completion of the investigation, a charge sheet was filed against him for the offences punishable under Section 376 (2)(f) and Section 3(1)(xii) of the SCST Act. The trial Court framed the charges against him under Section 376 of the IPC and Section 3(1)(xii) of SCST Act. He abjured the charges and faced the trial. To bring home the charges against him, the prosecution examined 9 witnesses in all. He did not examine any witness in his defence. After conclusion of trial, the trial Court convicted and sentenced him as mentioned above. However, he was acquitted of the charge punishable under Section 3(1)(xii) of the SCST Act.

3. Being aggrieved by the aforesaid judgment of conviction and order of sentence, the appellant has preferred this criminal appeal.

4. Counsel for the appellant submits that the appellant has been falsely implicated. No rape has been committed by him with the prosecutrix. Trial Court has not properly appreciated the evidence available on record in proper perspective. She was the consenting party. Therefore, the impugned judgment of conviction and order of sentence may be set aside and he may be acquitted of the aforesaid charge.

5. On the other hand, the Panel Lawyer appearing for the State supported the impugned judgment and submitted that the trial Court has rightly convicted and sentenced the appellant. Hence, the appeal may be dismissed.

6. As per the alleged MLC report Ex. P-7, P.W. 8 Dr. Smt. Kiran Bhajgavli had examined prosecutrix and found that no any external injury was present on her body. No injury was present on her private part. She was pregnant by 28 weeks.

7. There is no such evidence on record on strength of which it can be said that Ex. P-7 is not believable. Thus, this Court believes on Ex. P-7.

8. Now we will consider as to what was the age of the prosecutrix on Tuesday in the month of Jeth of year, 2000.

9. In the matter of Alamelu and another Vs. State represented by Inspector of Police, (2011) 2 SCC 385 , the Supreme Court has held as under:-

"9. That the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentially value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentially value unless the person, who made the entry or who gave the date of birth is examined."

10. As per the alleged certi