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Sundar v. State Of U.P. - CRIMINAL REVISION No. 780 of 1987 [2005] RD-AH 7710 (16 December 2005)


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                                  Criminal Revision no. 780 of 1987

                        Sunder  . . . . .  Versus  . . . . .  . State of U.P.


Hon'ble R.K.Rastogi,J.

Heard learned counsel for the  revisionist and the learned A.G.A. For the State.

The prosecution case is that on 31.7.1984 the revisionist Sunder committed rape  upon a minor girl Maya aged about 11 years. The trial court  after hearing of the case came to the conclusion that charge under section 376 I.P.C. was proved against the accused, so he was convicted under section 376 I.P.C. and was sentenced to four years R.I. and to a fine of Rs.500/- by the  learned II Assistant Sessions Judge, Saharanpur vide his judgment  dated 5.9.1985. Aggrieved with that judgment and order the accused filed Criminal Appeal no. 226 of 1985 in the court of the Sessions Judge, Saharanpur which was heard and  decided by Sri S.K. Bhatt, then learned IV Addl. Sessions Judge. He dismissed the appeal on merits  and confirmed the conviction order as well as the sentence passed against the accused. Then the accused filed this revision in this Court.

At the time of arguments learned counsel for the revisionist made only one submission before me. His contention was that in the statement of the accused under section 313 Cr.P.C. his age has been described as 14 years. As such he was a child on the date of incident and so no order  of sentence could be passed  against him even if the charge under section 376 I.P.C. was proved, and since now he has become major, the only course open to the Court is to  release him without any order of sentence even after confirming the conviction order passed against him. He further contended that there is no evidence in the  entire file of the case to show that  the age of the accused   as described in his statement under section 313 Cr.P.C. was not correct and that he was major and so  there is no reason to disbelieve the  unrebutted statement of the accused on this point and so the order of sentence passed against him should be set aside. He cited before me a ruling of this Court in 'Chhotey  and another Vs. State' reported in  1998 (36) ACC page 716. In this ruling  Hon'ble B.K. Sharma,J. relying upon the statement of the accused under section 313 Cr.P.C. in which he had described his age as 20 years ,had held that he was aged less than sixteen years on the date of the incident and so he was entitled to the benefit of the provisions of the U.P. Children Act. His Lordship  had placed reliance  upon a ruling of Hon'ble Supreme Court  in 'Jayendra and another Vs. State of U.P.' reported in 1981 SCC (Crl.) page 809: 1981(4) SCC 149.  In this case  the accused  had stated in his statement under section 313 Cr.P.C. that he was  about 15 years of age on the date of incident. However, his plea of being child was not  accepted by  the court below. The matter  went to Hon'ble Supreme Court. The Hon'ble Supreme Court called for a report from  the  doctor incharge of  jail regarding his age. The doctor after his physical and radiological examination  assessed the age of the accused-appellant as 23 years.  The incident had taken place about six years and eight months ago and so according to the medical assessment his age came to be on the date of  incident  about sixteen years  and four months. The Hon'ble Supreme Court  was of the opinion that in view of the above medical assessment  of age, there was no reason to disbelieve the statement of the accused that he was a child on the date of  the incident.

It is to be seen that in the present case  the accused did not take  the  plea at the initial stage that his age was 14 years. After the  entire prosecution evidence was over, statement of the accused was recorded  under section 313 Cr.P.C. and in the column of name, parentage and address of the accused his age was written to be  14 years. The above statement regarding age was given at such a stage when the prosecution evidence had been closed and there was no opportunity for the prosecution to rebut this allegation. Moreover, the statement of the accused under section 313 Cr.P.C.  is never taken on oath and so it cannot be taken to be a piece of evidence. The accused could have  produced  documentary or  oral evidence of the witnesses in support of his allegation that  he was a child on the date of incident, which was not done by him. In the case before  Hon'ble Supreme Court, opinion of the doctor  was obtained regarding the age of the accused and since that medical  opinion materially corroborated the allegation regarding age  of  the accused  made in his statement under section 313 Cr.P.C. it was held by Hon'ble Supreme Court  that there was no reason  to disbelieve the statement of the accused  on this point. There is no  such corroboration from medical evidence  in the present case. Hence, I am of the  view that it is not possible to  record any finding on the basis of  mere statement of the accused under section 313 Cr.P.C. that he was a child  on the date of incident and I am of the  view  that it is essential to have medical opinion on this point.

I, therefore, order that medical opinion regarding the present age of the accused-revisionist should be  obtained. So, the  accused-revisionist Sunder son of Ram Lal, who is resident of Ekkartala Police Station Jawalapur district Saharanpur,  is directed  to appear before the Chief Medical Officer, Saharanpur on 6.2.2006 for his medical examination for  ascertainment  of his present age.  The prosecution shall  inform  the complainant about this  date of medical examination of the accused so that  the complainant, if he so desires, may remain present in the office of the Chief Medical Officer, Saharanpur  to verify this fact that  the accused of the present case  is being medically examined.The Chief Medical Officer shall also affix  an attested photograph of the accused  on his medical examination report which shall be supplied to him by the accused himself. A copy of this paragraph of the order shall be sent to the Chief Medical Officer Saharanpur by post and copies of this paragraph shall also be issued to the prosecution counsel and the counsel for the  accused  free of charge for necessary compliance.

Let this revision be listed for further hearing  after receipt of the report of the Chief Medical Officer, Saharanpur regarding the age of the accused revisionist Sunder.




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