Hon'ble S.C. Chaurasia,J.
Heard learned counsel for the appellant, Sri Ravi Chandra Srivastava, learned counsel for the complainant and the learned A.G.A. for the State.
Prayer for bail has been made in this Criminal Appeal on behalf of the appellant against his conviction and sentence to imprisonment for life and fine of Rs. 50,000/- under section 376 (2) (d) IPC in S.T. No. 90 of 2009, P.S. Marihan, Dist. Mirzapur.
It is argued by the learned counsel for the appellant that although the alleged rape of prosecutrix was said to have been done from 8.9.2005 to 20.5.2007, but during that period no F.I.R. or complaint was filed by the prosecutrix. It is further submitted that the prosecutrix has herself given an application to the Police Station Marihan alleging that she was raped by her father also. The F.I.R. was lodged on 6.7.2007 after a delay of 2 years by the complainant. There is no reasonable explanation for this delay. Medical evidence does not corroborate the allegation of rape. As per the medical report, the age of the girl was about 19 years, which controverted the allegation that the victim was minor on the date of incident. The appellant was on bail during trial.
Learned counsel for the complainant, however, argued that this was a grave case and as per the High School certificate the date of birth of victim was 10.5.1991, therefore, she would have been about 14 1/2 years in September 2005 when the rape is said to have commenced with the victim. The High School certificate is to be preferred to the age certified by the doctor. As the appellant was a doctor, it was a case of doctor betraying his trust and committing rape on a minor victim after taking advantage of her hapless position.
Learned counsel for the appellant refuted the allegation of minority, by pointing out that epiphysis of most of the concerned bones had taken place. As per the family register her date of birth was 21-22 years. In view of the conflict of her age between the medical report, the School Certificate and the family register, it could safely be assumed that the age of the victim was at least 16 years, which is the material age below which consent is immaterial in view of section 375 sixthly of the IPC.
In view of the submissions made by the learned counsel for the parties, without expressing any opinion on the merits of the case, we are of the view that the appellant Dr. Kamla Shanker Patel convicted and sentenced in S.T. No. 90 of 2009, arising out of Case Crime No. 364 of 2007, under sections 376 (2) (d) & section 506 IPC, Police Station Marihan, district Mirzapur, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned.
Order Date :- 10.5.2010 HSM