State of U.P V/s Chhoteylal

Information Type: Judicial Information
Court: Supreme Court
Date of Judgment(s): 2011-01-14
Case No: 769 OF 2006
Case Type: Appeal (Criminal)
Judge Name: Aftab Alam & R.M.Lodha
Subject: Criminal Law-Corruption
Statutes / Acts: Indian Penal Code 1860 (IPC), Code of Criminal Procedure 1973
Section: PENAL CODE, 1860 : ss. 363, 366, 368 and 376 &164 Cr. P.C.
Bench Strength: Double Bench
State of Appellant(s): Uttar Pradesh
History of Case No: the Judgment AND Order dated 11.03.2003 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Appeal No. 484 of 1990
Case Note / Description :

Allowing the appeal, the Court HELD: 1.1. The expression `with or without her consent, when she is under sixteen years of age' in s. 375, Clause `Sixthly' of the Penal Code, 1860 assumes importance where a victim is under sixteen years of age. In the instant case, the prosecutrix had no formal education and, therefore, there is no school certificate available on record. In the FIR, the age of the prosecutrix has been stated to be 13 years. The prosecutrix in her statement u/s 164, Cr.P.C., and her elder brother (PW-1) in his deposition stated her age as 13 years at the relevant time. However, the doctor (PW-5), on the basis of the X-ray as well as physical examination of the prosecutrix, opined that she was 17 years of age. The trial court on consideration of the entire evidence recorded a categorical finding, and rightly, that the prosecutrix was about 17 + years of age at the time of occurrence and, therefore, Clause Sixthly of s.375 IPC is not applicable. [para 10] [419-H; 420-A-C] 1.2 The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by PW-5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. In the instant case, the brother of the prosecutrix has been examined as PW-1 and, therefore, it cannot be said that best evidence has been withheld. 

 
 
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