Lekh Ram vs State

Surya Prasad, J.—This is a criminal appeal against the judgment and order passed by the then learned v. Addl. Sessions Judge, Bulandshar dated 17th October, 1979 in Session Trial No. 153 of 1979 State v. Lekh Ram convicting the Appellant u/s 376 IPC and sentencing him to three years Rigorous Imprisonment.

The prosecution case briefly stated is that the Appellant accused Lekh Ram has committed rape on the prosecutrix Km. Jagriti daughter of Bhuley Gujar resident of village Madhaiya Noorpur, police station Gulaoti, District Bulandshahr on 14-12-78 at about 4.30 P.M in the Barseem field of her father, where she had gone to watch Barseem Corporation. She made hue and cry at the time of rape alleged to have been committed by Lekh Ram. Consequently Ramu and Lakhmi Gujar rushed to the place of occurrence. Seeing them, the accused ran away The prosecutrix accompanied by her father Bhuley and Lakhmi went to the police station, where she lodged an oral report on the basis of which a case was registered against the accused u/s 376 IPC. From the police station she was sent to the hospital for medical examination. The Lady Dr. Smt. Manjula Sharma medically examined her and submitted her report vide Ex. Ka-2. Investigation ensued. After the completion of the investigation of the case, a chargesheet was submitted against the accused.

The prosecution examined prosecutrix Km. Jagriti PW 1, Ramu PW 2, Lakhmi PW 3, Dr. Smt. Manjula Sharma PW 4, S. I. Baboo Lal PW 5, Dr. H. U. K- Juberi PW 6 and Satya Pal Singh PW 7 and relied upon certain document in support of its case.

The accused pleaded not guilty: He has stated that all the allegations levelled against him are wholly wrong and incorrect. He has also stated that he has been falsely implicated by the prosecutrix at the instance of her father on account of enmity. He has examined Ravindra Singh Advocate DW 1, Kundiya Singh Ahalmad DW 2, Hukum Singh DW3, Mahendra Singh Advocate DW 4 and Sri Bheekha Lal, C.J.M. Bulandshahr DW 5 and relied upon certain documents in support of his contentions.

Having heard the learned Counsel for the parties and having carefully considered the evidence on record, the learned v. Additional Sessions Judge, Bulandshahr convicted and sentenced the accused vide his impugned judgment and order deted 17-10-79 as already mentioned above.

Heard the learned Counsel for the parties and perused the evidence.

The learned Counsel for the Appellant-accused has, at the very out, set, expressed that the Appellant-accused has no case on merits. He has, however, argued that the Appellant-accused was minor at the time of the occurrence and therefore, he cannot be sentenced to any imprisonment nor can he be sent to jail.

The incident is said to have taken place on 14th December, 1978. His statement u/s 313 Code of Criminal Procedure was recorded on 28-4-79, wherein he has categorically stated that he is aged about 12 years meaning thereby that he was aged about 11 years 2 months on the date of occurrence. His statement on the point of his age has not been challenged by the prosecution in any manner what-so-ever. The learned Counsel for the Respondent has, however, drawn the attention of the Court to the observation made by the learned v. Additional Sessions Judge while recording the statement of the accused u/s 313 Code of Criminal Procedure. His observation is that the accused is not less than 18 years of age in any case. This observation cannot be treated as that of any Expert. No importance or sanctity can be attached to this observation especially when the statement of the Appellant-accused u/s 313 Code of Criminal Procedure on the point of his age goes unchallenged and unrebutted. The learned Counsel for the Appellant-accused has placed reliance upon Jayendra and another Vs. State of Uttar Pradesh, , wherein it has been inter-alia observed by the Hon''ble Supreme Court as under ;-

Section 2(4) of the Uttar Pradesh Children Act, 1951 (U- P. Act No. 1 of 1952) defines a child to mean a person under the age of 16 years. Taking into account the various circumstances on the record of the case we are of the opinion that the Appellant Jayendra was a child within the meaning of this provision on the date of the offence. Section 27 of the aforesaid Act says that notwithstanding anything to the contrary in any law, no court shall sentence a child to imprisonment for life or to any term of imprisonment. Section 2 provides, in so far as it is material, that if a child is found to have committed an offence punishable with imprisonment, the court may order him to be sent to an approved school for such period of stay as will not exceed the attainment by the child of the age of 18 years. In the normal course. we would have directed that the Appellant Jayendra should be sent to an approved school but in view of the fact that he is now nearly 23 years of age, we cannot do so.

In the present case the Appellant-accused Lekh Ram is also now nearly 23 years of age and was minor on the date of incident and therefore, I cannot direct that he should be sent to jail.

In view of the aforesaid observations made by the Hon''ble Supreme Court and in view of the facts and circumstances of the instant case, the appeal is partly allowed. The conviction is mintained. But the sentence imposed upon him is hereby quashed. He is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender.