Point of Law: Court cannot determine age of a person on basis of any declaration about age.

JUDGMENT :

K. SURENDER, J.

1. This Criminal Appeal is filed by the appellant/accused aggrieved by the conviction recorded by the I Additional Assistant Sessions Judge, Warangal, in S.C. No. 75 of 2006, dated 16.04.2007, convicting the appellant/accused for the offence punishable under section 376 of Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of ten years.

2. The case of the prosecution is that the appellant was following PW-1 and promised to marry her and on account of the said promise made by the appellant, PW-1 permitted the appellant to have sexual intercourse with her. As a consequence of the physical relation, PW-1 became pregnant and was carrying 6th month of her pregnancy. When she confronted the appellant/accused to marry her, the appellant/accused asked PW-1 to get aborted and refused to marry PW-1. Dejected by the said refusal, PW-1 lodged complaint Ex.P1.

3. However, there was a ‘Panchayat’ held and the appellant/accused was asked to pay an amount of Rs. 70,000/- but, PW-1 and her family members refused to take the amount. Since the compromise was not agreeable, PW-1 preferred to prosecute the appellant/accused and filed a complaint as stated above.

4. The police after investigation filed charge sheet against the appellant for the offences of Section 417 and 376 of Indian Penal Code, for the reason of cohabiting with PW-1 on the premise of getting married, and later cheating her when she was carrying pregnancy. The Sessions Judge also framed charges under the said provisions.

5. The prosecution examined PWs. 1 to 9 and marked Exs.P1 to P5. The appellant/accused examined one witness i.e. K. Veeraiah who was the Tahasildar of Dharmasagar. During the course of his examination Exs.D1-Births and Deaths register and Ex.D2-entry in the register showing that a child was born to PW-1 in February, 1985 were marked.

6. Learned Counsel for the appellant would submit that the learned Sessions Judge having found that there was no element of cheating by the appellant erred in convicting the appellant under Section 376 of Indian Penal Code. He also submits that the learned Sessions Judge found that PW-1 was less than 18 years, however, as seen from the Register-Ex.D1 and the entry about the birth of PW-1, PW-1 was major and aged around 20 years by the date of complaint dt.26.05.2005. Even according to her admission during trial she had consensual sexual intercourse with the appellant/accused.

7. Further, DNA test was done on the child born to PW-1 and it was found that the appellant was not the biological father, however, the Sessions Judge found the appellant guilty of the offence of rape. The said finding of the Sessions Judge in the background of the FSL report and the age of the PW-1, it cannot be said that any offence is made out against PW-1.

8. Learned Public Prosecutor on the other hand submits that the prosecution has collected the Date of Birth certificate of PW-1 which is Ex.P2 and it shows that PW-1 was born on 02.02.1989, as such, PW-1 was below 18 years as on the date of filing complaint. The learned Sessions Judge has come to the correct conclusion that the appellant/accused was guilty of the offence of rape on a minor.

9. The evidence of PW-1 is that the appellant was roaming around PW-1 and promised to marry her. Due to the said promise, PW-1 states that she permitted the appellant to have sexual intercourse with her. Nowhere in her evidence, she stated that there was any kind of force that was used by the appellant/accused to have physical intimacy with PW-1.

10. The entire case rests upon Ex.P2-Date of Birth Certificate provided by the school which shows that PW-1 was born on 02.02.1989. However, the Tahasildar of the village had produced Ex.D1-Register maintained in the office in which it was shown that PW-2 was blessed with a child in the month of February, 1985. According to DW-1, the said register is the record of Registration of Births and Deaths that would be maintained in the Tahasi