The determination of the victim's age and its impact on the sentencing under Section 376 IPC.

1. - This appeal is directed against the judgment dated 25.8.93, passed by the Additional Sessions Judge, Jaipur District, Jaipur by which the learned Additional Sessions Judge convicted the accused- appellant for the offence under Section 376 I.P.C. and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to further undergo one year's simple imprisonment.

2. Appellant Babulal was tried by the learned Additional District & Sessions Judge, Jaipur District, Jaipur, for the offence under section 376 I.P.C. The case of the-prosecution is that on 16.1.1992, at about 2.00 p.m., accused Babu Lal took Miss Munni, aged about nine years, in the Bandha of Bhakar and committed rape upon her. She raised cries, which attracted P.W. 1 Fakir Mohammed, P.W. 8 Rajendra Singh and P.W. 11 Mst. Barkat, who came there at the place of the occurrence and rescued the prosecutrix. Mst. Barkat also, came there and saw the accused appellant committing rape upon the prosecutrix. The prosecution, in support of its case, examined fifteen witnesses. The accused appellant did not examine any witness in his defence. P.W. 5 Miss Munni is the prosecutrix, who was ravished by the accused. PW.1 Fakir Mohammed, P.W. 8 Rajendra Singh and P.W. 11 Mst. Barkat are the three eye witnesses, who came at the scene of the occurrence immediately after hearing the cries of the prosecutrix and saw the accused appellant committing rape upon Miss Munni. P.W. 2 Dr. N.K. Sharma is the Medical Jurist, who examined the injuries on the person of the prosecutrix. P.W. 3 Shashi Madhav is the Police constable who made the recoveries of the underwear and the pant of the accused vide Ex. P. 2. P.W. 4 Madhu Ram is a motbir witness to the preperation of the site plan Ex. P. 4. P.W. 6 Mst. Kamli, the aunt of the prosecutrix, P.W. 7 Rukma-the sister-in-law of the prosecutrix and P.W. 9 Laxmi Narain-the uncle of the prosecutrix are the persons, to whom the prosecutrix narrated the incident after the occurrence when she came to the house. P.W. 10 Gopal Singh was the Police Constable posted at Police Station, Sanganer, who took the samples for F.S.L. examination to the State Forensic Science Laboratory. P.W. 12 Bodu Ram was the Head Constable and was the Incharge of the Malkhana, in whose custody the sealed articles remained in the same sealed condition. P.W. 13 Motilal is the Sub-inspector who conducted the investigation and submitted the challan., P.W. 14 Dr. Y.R. Verma is the Medical Jurist posted at S.M.S. Hospital, Jaipur, who examined the accused and found him potent. P.W. 15 Dr. Kuldeep is the Radiologist, who took the X-ray plates Ex. P. 9 to Ex. P. 11 and determined the bonny age of the prosecutrix and as per his report the age of Miss Munni was found between nine to fourteen years.

3. The prosecution case mainly rests upon the statement of the prosecutrix P.W. 5 Miss Munni, P.W. 1 Fakir Mohammed. P.W. 8 Rajendra Singh and P.W. 11 Mst. Barkat, which is sought to be corroborated by the evidence of P.W. 6 Mst. Kamli, P.W. 7 Mst. Rukma and P.W. 9 Laxmi Narain. This evidence is further sought to be corroborated by the evidence of P.W. 2 Dr. N.K.Sharnia, who conducted the medical examination of Miss Munni P.W. 5 Miss Munni is the prosecutrix, who has stated that about thirteen months before, she had gone to gaze her cattles. The accused- appellant came there, caught-hold of her, took her to the place of the incident, made her naked and after opening his pant and underwear, fell upon her and committed rape upon her. According to her, on account of penetration, her vagina started bleeding; she raised cries and hearing her cries, P.W. 8 Raju came there and rescued her. She went to her house and narrated the incident to her aunt P.W. 6 Mst. Kamli. P.W. 1 Fakir Mohammed has stated that about ten months before, at about 2.00 p.m., he was watering his field. Some children were, also, grazing the cattles. He heard the cries that