This appeal by special leave is directed by the high court of Himachal Pradesh, in this, the appellant has been convicted under section 376 of the Indian Penal Code and sentenced to imprisonment of 4 years each of then.
In this case, there was a girl name Saroj Kumari in high school. she had said that she had been raped by an appellant name Harpal singh and another who was acquitted by a trial court, according to a prosecutrix, the incident took place on the nights of 20 and 21 August and the first information report (FIR) wrote on 31 August.
Getting late in the complaint has a reasonable explanation because in Indian families this type of information is hidden by the Indian parents and, they need time to decide whether to complain or not? The prosecutrix, told everything matter related to this in front of the magistrate and the session judge, leaving aside all the things here and there her testimony is consistent.
Mr. hardy said that on the basis of circumstances that no injury was detected on her private parts and it seems to be that she was found used to be sexual intercourse and said that it was a case of sexual intercourse by consent.
This argument is not valid for the appellants if once it is proved that the girl age was below 16 years of age because in this argument the question of consent is wholly irrelevant.
The girl needs to prove his age, that is below 16 years.
according to the dr. Jagdish Rai (PW14) is a radiologist and the one who examine a girl on x-ray after examination he found that the girl was the age of 15 years. the school maintained the register which proves that he was a high school student in Samnoli. and which is established by the headmaster.
Mr. hardy submitted that in the absence of examination of the chokidhar concerned who recorded the entry it was inadmissible in evidence and it is admissible under the 35 of THE INDIAN EVIDANCE ACT. and it is not necessary for the prostitution to examine the author /chowkidar.
From whatever the view of the evidence, the conclusion is inescapable that Sarojani Kumar was below 16 years of age at the time of incidence, hence we agree with the judgment of the court below and see no merit in this appeal which is dismissed. https://indiankanoon.org/doc/481711/