It is not mentioned as to in which class the prosecutrix was admitted in the said school in the year, 2010 nor the school admission register was produced before the Court. Hence, the letter cannot be treated as a prove of exact date of birth of the prosecutrix. It was said in the case of Anil Chaudhary v The State of Bihar [CRIMINAL APPEAL (SJ) No. 280 of 2018] by Mr. Justice Birendra Kumar in the High Court of Bihar
The facts of the case are that the Trial Court found both the appellants guilty for offence under Section 366-A of the Indian Penal Code. Appellant Rajesh Chaudhary was further found guilty for offence under Section 376 of the India Penal Code. Assailing the conviction and sentence order of the Trial Court, the appellants filed an appeal
Appellants submitted that statement of the victim-girl is totally inconsistent with her previous statement before the Magistrate under Section 164 Cr.P.C. and she has been confronted with her previous statement. Moreover, a perusal of her entire testimony would reveal that she is not consistent in her testimony, rather has changed her entire statement which makes her testimony unworthy of credence. Futher, the prosecution has failed to prove that the victim was a minor, by adducing evidence of exact age. According to informant P.W. 2, he learnt that the appellants had kidnapped to the victim but the source of his learning is not disclosed nor any prosecution witness claims to have seen the victim along with the appellants.
On the other hand, learned counsel for the State contends that on the date of alleged occurrence, the victim was a minor. Hence, her consent or no consent is wholly immaterial. Corroboration of testimony of the victim is not the mandate of law and in material particular, she is wholly consistent. Therefore, the judgment of conviction requires no interference.
The Court referred to the case of Rajak Mohammad V. State of Himanchal Pradesh [(2018) 9 SCC 248], the case was of consensual intercourse and the prosecution had failed to prove that the victim was a minor on the date of occurrence. Hence, the Supreme Court set aside the judgment of conviction recorded by the High Court and said that “While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused”.
Furthermore, the Court said that “What noteworthy infirmities and discrepancies in the prosecution case and evidence are that the prosecutrix is not consistent in the matter of manner of occurrence, nature of occurrence and place of occurrence. The prosecution has led evidence of only approximate age of the prosecutrix. The expert, who performed radiological examination, did not appear before the Court to substantiate his conclusions. Due to aforesaid infirmity and in absence of any corroboration, in my view, conviction of the appellants would not be safe”. Hence, the appeal was allowed.
