IMPORTANT POINT
The sole testimony of a prosecutrix can suffice for conviction in rape cases if credible, while age determination must be supported by reliable evidence.

ORDER :

Arvind Kumar Verma, J.

This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure has been filed against the judgment of conviction and order of sentence dated 27.09.2022 passed by the Additional Sessions Judge Fast Track Special Court Surajpur, District Surajpur in Special Sessions Trial No.26/2021 by which the appellant has been convicted for the offence under Section 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 and has been sentenced to undergo RI for ten years with fine of Rs.200/- u/s. 376, and to undergo RI for 10 years with fine of Rs. 200/- u/s.4 of the POCSO Act, with default stipulations. Both the sentences have been directed to run concurrently.

2.As per prosecution case, on 30.03.2021, a written report Ex.P-6 was lodged by the prosecutrix alleging that on 29.03.2021 at night, she went along with the appellants Kandapariha, Shiv Kumar and Jeevan Singh to the house of Keso Singh in pooja and at about 10.00 pm. while returning, Kandapariha and Shivkumar went to their home and she came with Jeevan Singh. On the way, the present appellant forcefully carried her to the abandoned public toilet room and committed rape on her. On the basis of the written report at police station Ramanujnagar, FIR Ex.P-7 was registered against the appellant in Crime No. 63/2021 for the offence punishable under Section 376 IPC and Section 4 & 6 of the POCSO Act. Appellant was arrested and charge sheet was filed.

3.The Trial Court framed charges under Section 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offence Act, 2012 against the appellant. The appellant abjured his guilt and pleaded innocence stating therein that he has been falsely implicated in this case.

4.The prosecution in order to prove its case examined as many as 9 witnesses.

5.The Trial Court by the impugned judgment dated 27.09.2022 convicted and sentenced the appellant for the above-mentioned charges. Hence this appeal.

6.Challenging the judgment and sentence passed by the Court below, it is submitted by learned counsel for the appellant that the prosecutrix was a consenting party and the Trial Court has wrongly held that she was minor. It is submitted that although the prosecutrix had alleged that she was forcibly raped by the appellant but the manner in which the appellant carried her on his shoulder but she did not try to resist or raise any alarm, makes it clear that the prosecutrix was a consenting party. He submits that if the school admission and discharge register is taken into consideration, her age was found to be above 16 years and below 18 years and if the margin of error of two years is taken in favour of the appellant then it is clear that the prosecutrix was major. There is no kotwari register or ossification report produced by the prosecution to determine the actual age of the prosecutrix and there is no legally admissible evidence with regard to the age of the prosecutrix stating that on the date of incident she was minor.

7.Per Contra, the submission made by the counsel for the appellant is vehemently opposed by learned counsel for the State. It is submitted that as per school record, the date of birth of the prosecutrix is 17.05.2003 and she was forcefully subjected to rape by the appellant on the date of incident. Thus, it is clear that the prosecutrix was minor. She submits that the School Admission and Discharge Register is an admissible piece of evidence to determine age of the prosecutrix, therefore, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment of the Court below needs no interference.

8.Heard counsel for the parties and perused the material available on record with utmost circumspection.

9.The prosecution case is based mainly on two grounds -i) whether the trial Court has rightly held that on the date of incident, the victim was minor and ii) whether the prosecutrix was a consenting party