The determination of a victim's age is crucial in sentencing for sexual offenses, and lack of evidence can lead to a reduction in the imposed sentence.

JUDGMENT

Mehta, J. - The appellant herein has been convicted and sentenced as below vide Judgment dated 28.10.2013 passed by the learned Additional Sessions Judge, Women Atrocities Cases, Bharatpur in Sessions Case No.17/2013 (1/13):

2. Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.

3. The prosecution case is based on an allegation that the appellant, who is distantly related to the alleged victim Mst. 'R' (PW-9), subjected her to sexual assault on 26.10.2012. As is usual in the cases of rape, the prosecution case is based primarily on the testimony of the victim Mst. 'R'. The prosecution portrayed in the FIR and in the sworn testimony of the girl that her age was about 15 years. The FIR of the alleged incident dated 26.10.2012 was registered on 02.11.2012. The material prosecution witnesses viz. Savitri (PW-3) and Parashuram (PW-8) admitted that the victim was a student of 10th Standard. However, the prosecution did not place on record the school record of the girl for proving her age. The trial court, after appreciating the evidence available on record, held that the age of the victim was about 17? years on the basis of the medical examination report. The Medical Jurist (PW-11) Dr. Usha Gupta stated in her deposition that no marks of violence were noticed on the person of the victim when she was medically examined. On examination of the genital area of the victim, it was noticed that the hymen was old torn and no marks of violence were visible thereupon.

4. Learned counsel Shri Sharma representing the appellant, frankly conceded that he would not be challenging conviction of the accused as recorded by the trial court. However, his plea was that the trial court committed a grave error in holding that the girl was below 18 years of age on the date of the incident. He thus submitted that the trial court was not justified in awarding life imprisonment to the accused. He submitted that the accused appellant was arrested on 03.11.2012 and since then, he is in custody. Thus, he has suffered actual imprisonment of 8 years and 10 months. He thus urges that the sentence of life imprisonment awarded to the appellant by the trial court deserves to be reduced to the period already undergone by him. In support of his contention, Shri Sharma relied upon the Supreme Court Judgment in the case of Thongam Tarun Singh vs. The State of Manipur reported in 2019(2) WLC (SC) Cri. 177.

5. Learned Public Prosecutor, on the other hand, opposed the submissions advanced by the appellant's counsel. She pointed out that the appellant was more than 40 years of age and he subjected the child, which was related to him, to forcefully sexual intercourse and thus, as per learned Public Prosecutor, the accused does not deserve any leniency on the aspect of sentence.

6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned Judgment as well as the record.

7. Though it is true that the written report (Ex.P/6) was registered after a delay of 7 days but considering the sensitive nature of allegations and the fact that the parties are related to each other, the delay is well explained and cannot be considered prejudicing the prosecution case. Upon a perusal of the statements of Savitri (PW-3) and Parashuram (PW-8), the first informant complainant, it becomes clear that the victim was studying in the 10th Standard at the time of the incident. However, the prosecution made no effort whatsoever to bring on record the school record for proving that the victim was a minor on the date of the incident. The trial court held that the age of the girl was 17? year