The age of the prosecutrix is critical in rape cases; if she is below 16, consent is irrelevant, establishing the accused's guilt under Sections 363 and 376 RPC.

JUDGMENT :

1) The appellant has challenged the impugned judgment of conviction dated 17.07.2023 and order of sentence dated 22.07.2023 passed by learned 1st Additional Sessions Judge, Baramulla, whereby he has been convicted for offences under Section 363 and 376 of RPC. In proof of offence under Section 363 RPC, the appellant has been sentenced to undergo rigorous imprisonment for a period of two years and in proof of offence under Section 376 RPC, he has been sentenced to undergo rigorous imprisonment for a period of five years. The appellant has also been sentenced to a fine of Rs.2,000/ and in default of payment of fine, he has been ordered to undergo further imprisonment of three months.

2) Briefly stated, case of the prosecution is that on 27.07.2004, complainant Manzoor Ahmad Gooru submitted a written report with Police Station, Sopore, alleging therein that on 23.07.2004, his cousin sister (hereinafter referred to as “the prosecutrix”), who is a minor, has been kidnapped by the appellant herein with a view to commit sexual intercourse with her. It was further alleged in the report that the appellant is a married person having three children and despite launching a search, the prosecutrix could not be traced. On the basis of this written report, FIR No.250/2004 for offences under Section 363 RPC came to be registered and investigation of the case was entrusted to PW-11, Sub Inspector Wali Mohammad Hakeem. During investigation of the case, the prosecutrix was recovered from the custody of the appellant at Bypass Tarzoo Road. She was subjected to medical examination. After recording statements of the witnesses under Section 161 of Cr. P.C and completing investigation of the case, offences under Section 363 and 376 RPC were found established against the appellant and, accordingly, charge sheet was laid before the trial court.

3) In her statement recorded under Section 161 of Cr. P.C, the prosecutrix narrated that on 23.07.2004, she was enticed by the appellant to go with her, whereafter he kidnapped her. She further stated that while she remained with the appellant, for the first two days he did not commit any sexual intercourse with her but on 25.07.2004, she was taken by him to a room at unknown place and subjected to forcible sexual intercourse. She further stated that she is a minor and that the appellant is related to her and that he is married to her cousin sister having three children. It is pertinent to mention here that during investigation of the case, date of birth of the prosecutrix was ascertained from her school and in this regard certificate, Ext-NG, was obtained from Government Boys Middle School, Hatishah Sopore, according to which the date of birth of the prosecutrix is 15.01.1989, which shows that she was less than 16 years of age at the time of the occurrence.

4) The learned trial court, in terms of order dated 24.11.2005, framed charges for offences under Section 363 and 376 RPC against the appellant who denied the charges and claimed to be tried. Accordingly, the prosecution, in order to prove its case, examined as many as 11 witnesses, whereafter the statement of the appellant/accused under Section 342 of J&K Cr. P. C was recorded. The appellant entered his defence and examined three witnesses in defence.

5) It appears that the prosecution made an application under Section 540 of J&K Cr. P. C for summoning Headmaster Government Boys Middle School, Hatishah, Sopore, so as to prove the certificate, Ext-NG. The said application was allowed and the statement of the headmaster was recorded after the trial of the case had been completed.

6) The learned trial court, after hearing the parties and after appreciating the evidence on record, came to the conclusion that the prosecution has been able to bring home the guilt of the accused beyond reasonable doubt and, accordingly, the appellant/accused has been convicted of the offences under Section 363 and 376 RPC in terms of the impugned judgment.

7) The appellant has