Rekha Ram vs The State of Rajasthan

N.L. Tibrewal, J.—The appellant stood convicted u/s 376 IPC by the learned Sessions Judge, Balotra in Sessions Case No. 34/78 and was sentenced to two years R.I. and a fine of Rs.5000/-. In default of payment of fine the appellant was further required to under go three months R.I.

The prosecution case, as given out in the report Ex.D/1, is that in the afternoon of 12.9.77 Mst. Premi was returning to her house from the field after harding over the meals to his brother Jetha. It is alleged that the accused Rekha Ram caught hold of her in the way and committed sexual intercourse without her consent. The prosecution case further is that P.W. 4 Labu and P.W. 5 Mukna heard the noise of Mst. Premi and they rebuked the appellant.

It is note worthy that no report was made about the occurrence on 12.9.77, though Mst. Premi is said to have narrated the story to her mother on the same day in the evening and his brother Jetha had also come at the house on the same day. The report of the incident was made by P.W.I Jetha on 13.9.77 and it is also strange that the prosecution did not get the said report exhibited as the said report has been marked as Ex. D/1.

It is also note worthy that in the report Ex. D/1, the informant Jetha has given his age as 19 years, while the age of Mst. Premi has been given as 16 years. Mst. Premi was medically examined by the Medical Officer, Primary Health Centre, Baitu. In the report the age of Mst. Premi has been given 16 years and the doctor found that the height of Mst. Premi was 156 cm. weights was 40 Kgs. and the breast was developed. Axillary hairs were also present and pubic hair was partly shaved. The doctor also found that the vaginal canal of Mst. Premi was admitting two fingers and the hymen was having old tears. No injury was found on any part of the prosecutor. The doctor further stated that no definite opinion about recent sexual intercourse can be given. The vaginal swab and pubic hair were sent for chemical examination. This report was apparently against the prosecution and the opinion of the medical officer was sufficient to destroy the prosecution case that Mst. Premi was subjected to sexual intercourse without her consent. As this report was no favoring the prosecution, the prosecution did not examine the doctor in the trial court. Even the Investigating Officer was not examined. The report of the Chemical Examinar was also not exhibited, as it was negative for blood & smear.

The learned trial court, after recording the evidence in the case did not rule out the present case to be of consent. However, the learned trial court observed that the consent of Mst. Premi was irrelevant, as she was less than 16 years of age at the time of occurrence and if she was subjected to sexual intercourse even with consent then too the offence u/s 306, IPC was made out.

The learned Counsel for the appellant has vehemently argued that from the material on record it can be said that the age of Mst. Premi is not less than 16 years. According to the learned Counsel, in the report Ex.D/1 the age of Mst.Premi has been given as 16 years while the age of her brother Jetha has been given as 19 years. P.W.I Jetha has also admitted in his statement that his sister was about 1.5 years or 2 years lesser in age. In the medical report also the age of Mst. Premi has been given as 16 years. Thus, according to the learned Counsel for the appellant, the age of Mst. Premi cannot be said to be less than 16 years merely on the basis of ossification test, the possibility of difference of 2 to 3 years cannot be ruled out even in the case of ossification test. His contention is that when the prosecution case itself was that Mst. Premi was 16 years of age, and this fact has been mentioned in the report Ex.D/1, then the medical report Ex.P/6 given by Dr. Dilip Sankhla cannot be conclusive to hold that Mst. Premi was below 16 years of age at the time of the occurrence. His further contention is that the statements of P.W.4 Labu and that of P.W.5 Mukna are not believable as their conduct at the time of the occurrence after the occurrence was quite improved. He further contends that it is stated that Mst. Premi was found to be naked at the time of the occurrence and as per the prosecution case the clothes of Mst. Premi were not form and she had not sustained any injury on her body, so it appears to be a case of consent.

On the other hand, the learned Public Prosecutor supports the findings as well as the judgment of the learned trial court and contends that the report Ex. P/6 given by Dr. Dilip Snakhla is conclusive to prove that the age of Mst. Premi was below 16 years at the time of the occurrence and even though it may be a case of consent but for the age of Mst. Premi being less than 16 years of age the offence u/s 376 IPC is clearly made out against the accused.

I have given my thoughtful consideration on the rival contentions made by the learned Counsel for the appellant as well as the learned Public Prosecutor.

The learned trial court has not ruled out the possibility of consent and the learned Public Prosecutor has not challenged the said finding given by the learned trial court. Therefore, the crucial question for determination is as to what was the age of Mst. Premi at the time of the occurrence.

In this connection a reference can be made to the report Ex. D/1 which had been made by Jetha, the real brother of Mst. Premi. It is further note worthy that Mst. Premi was also present at the time of making the report. In this report the age of Premi has been narrated as 16 years, while the age of Jetha has been given 19 years. It is the prosecution case that Mst.Premi was 2 years lesser in age than Jetha, as admitted by Jeetha as well as by Mst. Premi herself. The doctor who had examined the injuries of Mst. Premi had also given her as 16years, though the said doctor has been withheld by the prosecution for the obvious reason that the report given by the doctor was not favorable to the prosecution. It is no doubt true that Dr. Dilip Sankhla, P. W.7 has stated that he had given the report Ex.P/6 on the basis of X-ray plates, Ex.2 and Ex.3, and as per his opinion, based on the X-ray plates, the age of Mst. Premi was between 12 to 14 years. However, this doctor did not take the X-ray plates, though he examined Mst. Premi for the purposes of ascertaining her age. The opinion of this doctor, in my view, is a mere opinion and in no case it can be conclusive, specially when the prosecution case itself is that the age of Mst. Premi was 16 years at the time of the incident. Otherwise also there may be difference of 2-3-years from the opinion about the age based on medical examination. It is the cordial principle of Criminal Jurisprudence that the prosecution must prove the guilt against the accused beyond reasonable doubt and if a reasonable doubt is created then the benefit should go to the accused. In the instant case, a reasonable doubt is created about the age of Mst. Premi that she was below 16 years of age at the time of the occurrence and this possibility cannot be ruled out that she was 16 years of age or above 16 years of age at the time of occurrence specially when the doctor who examined Mst. Premi opined that Mst.Premi''s breasts were well developed and vaginal canal was admitting two fingers loosely and there was old tear in the hymen. The medical report Ex.P/6 cannot be said to be conclusive as the doctor himself had not examined Mst. Premi and it was a mere opinion, based on X-ray report Ex. 2 and Ex. 3. It is further note worthy that the doctor who had taken the X-ray plates Ex.2 and Ex.3 had not given any report or opinion about the age of Mst. Premi. Thus, in my view the prosecution has failed to prove that Mst. Premi was below 16 years of age at the time of the occurrence.

After the aforesaid finding about the age of Mst. Premi, the convivtion of the appellant u/s 376 IPC cannot be sustained. The learned Sessions Judge has not ruled out the possibility of a consent case and this finding has not been challenged before me by the learned Public Prosecutor, I need not, therefore, enter into the merits of the case as to whether the statements of P.W.2 Mst. Premi, P.W.4 Labu and P.W.5 Mukna are believable or not as contended by the learned Counsel for the appellant. On the findings of the learned trial court itself the possibility of a consent case cannot be ruled out and as I have already held that the prosecution has failed to prove that the age of Mst. Premi was below 16 years of age at the time of occurrence, the conviction of the appellant u/s 376 IPC cannot be sustained.

Consequently, the appeal is allowed. The conviction and sentences of the appellant passed by the learned trial court are ser aside. The appellant is on bail, hence he need not surrender. The bail bonds are cancelled.