The importance of establishing the victim's age and consent, and the requirement for proof beyond reasonable doubt in cases of alleged sexual assault.

This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 09.10.1990 passed by IIIrd Additional Sessions Judge, Dehradun in S.T. No.117 of 1986 and S.T. No.43/1988, whereby the learned Sessions Judge has convicted the appellant/accused Shakur under Sections 366/376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him to seven years' R.I. u/s 366 IPC and further seven years' R.I. u/s 376 IPC. Both the sentences were directed to run concurrently. Co- accused Asgar @ Tota was also convicted u/s 366 IPC and was sentenced to seven years R.I. Another co- accused Shakila was acquitted of the offences punishable u/s 363/366 IPC.

2. Co-accused Asgar @ Tota also preferred a criminal appeal No.496/2001 (Old No.1928/1990) against the aforesaid judgment and order dated 09.10.1990. During the pendency of the said appeal, co-accused Asgar @ Tota had died, therefore, the said appeal stood abated vide order dated 25.07.2005 passed by this Court.

3. I have heard Sri Anoop Kumar, Adv. holding brief of Sri C.D. Bahuguna, learned counsel for the appellant/accused and Sri M.A. Khan, learned brief holder for the State and perused the entire material available on record.

4. In brief, the prosecution case is that complainant Fateh Din (P.W.3) lodged the FIR with the averments that in the village Dhaki adjacent to his house, co-accused Asgar was living and present appellant/accused Shakur used to come in the house of co-accused Asgar. It was also averted that in the complainant's absence, appellant/ accused Shakur used to entice his daughter Ruksana who was aged about 15-16 years. On 12.11.1985 at about 7:00 P.M., when the complainant had gone to Sahaspur, then the appellant/accused took his daughter towards Herbertpur. When the complainant came back house at about 8:00 P.M., then he was informed by his wife Smt. Muna Khatoon (P.W.5) that Ruksana (P.W.1) was not at home. After that when the complainant started searching for his daughter, then Shakila, Shabira and Suleman informed him that they had seen his daughter Ruksana while going on foot along with appellant/ accused Shakur towards Herbertpur. Thereafter, the complainant along with his family members searched his daughter but when he could not be successful in doing so, then with the same averments, P.W.3 Fateh Din lodged the report at P.S. Sahaspur, Distt. Dehradun on 13.11.1985 at 9:30 A.M., i.e. Ex.Ka-2. On the basis of this report (Ex.Ka.2), Chik FIR was prepared by Constable Clerk Krishan Gopal, i.e. Ex.Ka-8. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-9. The investigation of this case was initially entrusted to S.I. B.S. Sharma and after that it was transferred to S.I. Bhullan Singh (P.W.6). Later on the investigation was entrusted to S.I. Charan Singh (P.W.4) on 19.7.1986, who during the course of investigation recovered the victim Ruksana (P.W.1) on 2.8.1986 at Inter-State Bus Stand, Shimla (Himachal Pradesh). The recovery memo was also prepared by the I.O., i.e. Ex.Ka-3. The victim Ruksana was also sent for medical examination and her medical examination was conducted by P.W.2 Dr. D.P. Goel on 4.8.1986 at 12:20 P.M. and medical report was also prepared, i.e. Ex.Ka-1. After that the prosecutrix was given in the Supurdgi of her father and a Supurdginama was also prepared, i.e. Ex.Ka.4. During the course of investigation, the I.O. also inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-10. The statement of the victim Ruksana was also u/s 164 Cr.P.C., i.e. Ex.Ka.15. The I.O. during the course of investigation recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused Shakur and co- accused Tota @ Asgar u/s 363/366/376 IPC, i.e. Ex.Ka.13. Against co-accused Shakila (acquitted by trial court) charge sheet was also