Consent is of no consequence in cases of rape involving minors.

( 1 ) THERE is no need to loose much breath on this case. First, a brief resume of the facts and then on to the crucial points.

( 2 ) THE prosecution alleges tlhat oft februny 17, t999 the appellant was found to be in possession of I Kg. and 909 grains of Chars He WM put up on trial and the learned Additional Sessions Judge findil^ him guilty returned a judgment of conviction and an order of senteftce. Aggrieved by the said judgment and order he preferred an appeal (rmn Jail and since he was not represented by a Counsel the Court appointed Mr. R. P. Luthra as an Amicus Curles. Mercifully he has been brief but incisive.

( 3 ) THE first contention of Mr. Luthra is that thetr C. P. S. L. Form was deposited in the Malkhana nor is there any evidence M to where it was kept and that the prosecution has also not proved that it was taken to the Central Forensic Science Laboratory by the Police Officer who had taken the sample parcel to the said Laboratory. He submils that this being the position the benefit of doubt must go to the appellant.

( 4 ). Undoubtedly, Head Constable Yad Ram, Moharrar, Malkhana who has entered the witness box as (Public Witness -7) has no where stated that the C. F. S. L. Form was also deposited in the Malkhana or that he had ever handed over the same to the A. S. I. Balbir Singh (Public Witness -8) who had taken the sample parcel to the Central Forensic Science Laboratory. Even A. S. I. Balbir Singh is silent about it. My attention has been drawn to two judgments of this Court namely, Chaimli Devi v. State, 1993 JCC 293 and Moot Chand v. State, 1993 (2) Delhi Lawyers 14. Both the judgments do go to show that if the C. F. S. L. Form is neither deposited in the Malkhana nor sent to the C. F. S. L. alongwith the sample it would entitle the accused to benefit of doubt and acquittal. In Moot Chand s case the learned judge has placed reliance on Lachho Devi v. State, 1990 (2) CC cases 395 and Anoop Jostri v. State, 1992 (2) CC cases 314.

( 5 ) IT has next been contended that the offer given to the appellant with regard to his search was partial. He has drawn my attention to the evidence on the record which does go to show that the only offer made to the appellant before his search was that he, if he so wished, could be produced before a Gazetted Officer for his search. There was no offer to get him searched in the presence of a Magistrate. Two judgments of this Court would go to show that this partial offer is a clear violation of Section 50 of the Narcotic Drugs and Psycotropic Substances Act. Reference in this connection may be made to Chameli Devi v. State (supra) and Satish alias Bombaiya v. State 1991 JCC 617. Both these judgments lay down that a mere offer to get the person searched in the presence of a Gazetted Officer is a partial offer limiting the choice and that it is incumbent upon the officer concerned to offer alternative choice also and that such a partial offer would invite an order of acquittal. 426. THEDELHILAVVTIMI-:s 1994 III \ ww of what has bi"cn notii-ej by mi iibovc drid following the prvccdi r> ts of this Court d^ nutik:i d Jbovl , I do J^fof vvith Mr. Luthra that it is a casi when thr appeal deserves to be allowed. The dpp al, consequently, is allowed and the appellant is ac. iuitted of the charge. Copy of thr judgment mav br sent to the Superintendent jail, Delhi for information. A word betore I condude. The Court is indebted to Mr. Luthra for tin labour putinbyhim. Appeal allowed. 54 (1994) DELHI LAW TIMES 42b ;, DELHI HIGH COURT Pi e sent: Mr. Jaspal Singh,j. ^ ^ PANNA LAL -Appellant , " -- vei sus "" - -" . . STATE-Respondent ^ . . ^ Cri. A. No. 57 of 1977- Decided on 4. 5. 1994 . ^lfaldian Penal Code, 1860 - Sections 363, 366 and 376 - Rape -Minor- Allied rape committed in the night - Appellants wife was admitted by sleeping nearby - Gaged the victims mouth - Violated -Finds support from the medical evidence - Recorded from the custody of the appellant - Consent -