Point of Law: Offence of rape - Acquittal confirmed - Determination of age of prosecutrix - Medical report determining age of a person has never been considered by courts of law as also by medical scientists to be conclusive in nature - After certain age it is difficult to determine exact age of person concerned on basis of ossification test or other tests.

JUDGMENT :

1. This acquittal appeal by the State is directed against the order and judgment dated 31.12.2013 passed in File No.78/Challan titled State v. Jameel Ahmed and others, whereby the Court of learned Sessions Judge, Udhampur [“the trial court”] has acquitted respondent Nos. 1 to 3 of the charges under Section 376/506 RPC. Respondent No.3 having died during pendency of the appeal, has already been deleted from the array of respondents in terms of order of this Court dated 11.02.2020.

2. Briefly stated, the facts leading to the filing of this appeal by the State are that PW-Jamal din, father of the prosecutrix, lodged a complaint before the Police Station, Ramnagar that his daughter, 16 years old and a student of 8th class in the High School Chagotra Tehsil Ramnagar, had given birth to a female child and wass admitted in the hospital. It was alleged that the accused Asif and his brother Jameel Ahmed had raped her, as a result whereof, she had conceived and delivered a child. The accused-Asif being a married person had refused to marry the prosecutrix. On the basis of this statement, FIR No.03/2013 under Sections 376/506/109 RPC was registered and investigation commenced. During investigation, the Investigating Officer recorded statements of the prosecution witnesses and also statement of the prosecutrix under Section 164-A Cr.P.C. The Investigating Officer collected all the relevant documents including those pertaining to the delivery and admission of the prosecutrix in the hospital. The new born baby of the prosecutrix was also handed over to the mother of the prosecutrix. DNA sample of the new born child and accused in the presence of Magistrate was taken for DNA testing. On investigation, the Investigating Officer found that on the date of occurrence, the accused Jameel and Asif, both sons of Mohd. Sharif R/o Balota Tehsil Ramnagar intercepted the prosecutrix when she was going to school, took her to an isolated place and committed rape upon her and have also threatened to kill her in case she would narrate the incident to anyone. The prosecutrix later gave birth to a female child. On conclusion of the investigation, challan was presented before the trial court for offences under Sections 376(2)/G/506/34 RPC against Jameel and Asif, whereas accused Mohd. Sharief was challaned for offence under Section 376/109 RPC. The trial court vide its order dated 19.03.2013 charged the respondents-accused for the offences aforementioned. Respondent No.3-Mohd. Sharief was, however, charged for offences under Section 202 RPC instead of 376/109 RPC. With a view to substantiate its case, the prosecution recorded statements of prosecutrix, PW-Jamal Din, the father of the prosecutrix, PW-Hans Raj, PW-Rashma Bibi, mother of the prosecutrix, PW-Rano Devi, PW-Dr. Talib Hussain, PW-Dr. Manisha Langar and PW-Vikram Kumar, Sub Inspector. After closure of the evidence of the prosecution, statements of the accused under Section 342 Cr.P.C. were recorded. The accused pleaded innocence but chose not to lead any evidence in defence.

3. The trial court considered the entire prosecution evidence, particularly, the statement of PW-Dr. Talib Hussain and PW-Dr. Manisha Langar and came to the conclusion that the age of the prosecutrix on the date of occurrence was more than 18 years and sexual intercourse that had taken place between her and accused-Mohd. Asif was consensual and, therefore, the offences alleged against the respondents-accused were not established or proved. He, accordingly, set free all the three accused and acquitted them of all the charges levelled against them. The father of the prosecutrix i.e. PW-Jamal Din along with his wife and daughter feel aggrieved of the judgment of acquittal recorded by the trial court and have invoked the revisional jurisdiction of this Court to set aside the impugned judgment and order and convict the respondents for offences under Section 376/506 RPC.

4. The impugned judgment has been assailed by the petition