The court established that the benefit of doubt must favor the accused in cases of uncertain age and lack of corroborative evidence for sexual offences.

JUDGMENT :

Ganesh Ram Meena, J.

1. The present criminal appeal has been preferred by the accused-appellant against the judgment of conviction and sentence dated 26.11.1993 passed by the Court of learned Sessions Judge, Jhalawar (Rajasthan) [for short ‘the learned trial court’] in Sessions Case No.64/1991, whereby, the accused appellant has been sentenced as under:-

U/s. 363 IPC :

Fire years Rigorous Imprisonment and a fine of Rs.2,000/-. In default of payment of fine, the accused appellant has to further undergo six months Rigorous Imprisonment.

U/s. 376 IPC :

Five years Rigorous Imprisonment and a fine of Rs.2,000/-. In default of payment of fine, the accused appellant has to further undergo six months Rigorous Imprisonment.

Both the sentences were ordered to run concurrently.

2. As per the case of the prosecution, on 03.11.1990 complainant Kesar Singh (PW2) lodged an FIR No. 2341990 (Ex.P18) at Police Station Jhalrapatan, District Jhalawar for the offences under sections 363 and 366 IPC. The FIR reads as under:-

^^dy fn- 02-11-1990 dks esjh cPph larks"k daoj mez 14&15 lky esjs HkkHkh lk- o xkao ds vU; 10&12 cPpksa ds lkFk esyk ikVu dkfrZd Luku djus vkbZ Fkh tc 'kke dks esjs HkkHkh lk- o vU; cfPp;ksa o esjk cPpk tqxjkt flag okil xkao lksgu[ksMh igqaps rks esjh cPph larks"k daoj muds lkFk ugha igqaph rks cPpksa us crk;k fd ckbZ larks"k esyk ikVu esa dqbZ;ka ds ;gka ;g dgdj gekjs ikl ls xbZ Fkh fd eSa nkark ls iSls ys vkrh gwa rkfd vkSj lkeku [kjhndj ys pywaxh ysfdu dkQh nsj rd mldk bartkj fd;k ysfdu og okil ugha vkbZ irk ugha og dgka xqe xbZA bl ij eSa o esjk HkkbZ lk- izrki flag] j?kqohj flag oxSjg us ikVu esa vkdj vc rd dkQh ryk'k dh ysfdu larks"k daoj dk vHkh rd dksbZ irk ugha pyk blfy, eSa fjiksVZ dks vk;k gwaA^^

3. The police after investigation submitted chargesheet against the accused appellant along-with co-accused Raghuraj Singh for the offences under sections 366 and 376 IPC in the concerned Court.

4. The learned court framed the charges against the accused appellant for the offences under sections 363, 366 and 376 IPC. The accused appellant denied the charges and opted for trial.

5. From the prosecution side, the statements of thirteen witnesses were recorded and certain documents were exhibited.

6. The statement of the accused appellant was recorded under section 313 CrPC. The accused appellant in his statement has denied about the allegations levelled against him and deposed that no recovery has been effected at his instance. In defence the accused appellant did not produce any witness but exhibited four documents.

7. The learned trial court vide its judgment 26.11.1993 convicted and sentenced the accused appellant for the offences as mentioned above.

8. Counsel appearing for the accused appellant argued and submitted that the impugned judgment of conviction and sentence passed by the trial court is contrary to the provisions. Counsel further submitted that from the statement of PW1 Santosh Kanwar it is prima facie proved that the said case is not in regard to enticing any girl nor it is in regard to commission of rape. Counsel further submitted that from the statement of this witness it is clear that victim went with the accused appellant voluntarily and at the most it is a case of mutual consent. This witness has made several material contradictions in her statement.

9. Counsel further submitted that the material witness in this case is PW5 Dr. Gauri Shankar Chauhan.

This witness in his statement deposed that the victim was major at the time of alleged incident as she was 16-18 years of age. Thus, the conviction of the accused appellant for the offence under section 363 IPC is bad in law and cannot be sustained at all. This witness in his statement further deposed that neither the victim was having any injury on her private parts nor there was any external injury on outer side of her body nor there was any semen or spot on her clothes. Thus, prima facie the case for the offence under section 376 IPC against the ac