JUDGMENT R.K. Rastogi, J.
1. Heard learned counsel for the revisionist and the learned A.G.A. For the State.
2. 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 (he accused filed this revision in this Court.
3. 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 Anr. v. 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 Anr. v. State of U.P.' . 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.
4. 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.
5. 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 Ekkartalu 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.
6. 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.