2^ ! JBT np /"[ ATHi >ina!e Bencd: I- 'bie Sh Deo ftaj @ Debu Versus State of Chhattisgarh Shrj Ashok Pati!, iesrned counsel for the appellant Shri Ashish Shukia, ieflrned 5tcte/respo"ident. (Passed on 27t'" of April, 2006) This appeai is directed against the judgrnent dated 3.6.02.2006 dsjlvsred by Shri V.N. Pancfey, learned 2"° Addl. District and Sessjons Judge, Distt. t>urg (C6) in Sessions Trial No. 208/2004 whereby the cppellant was convicted under Sections 3&3, 366 and 376 IPC and was sentenced to underoo rigorous imprisonment for 3 years and to pay fine of Rs. 1,000/- for each offen.se una'er Section 363 anc' Section 366 IPC and to R.I. foi" 7 years and a fine of Rs. 3,000/- under Ssction 376 IPC. Al! the sentences were ordered to run concurrentiy. 2. 8riaf!y statec' the prosecution story is that on 2.8.2004, the appeliant lured the prosecutrix Ku. Shabnam Banu, o; gjr! aged cbout 15 years to accompany him to his friend's house with a" inl-e.ntion to sub.ject her to sexual intercour-se. The prosecutrix accompanied the appellant to the house where the appeilant coi'flniitteo' rape on the prosecutrix. F.I.R. was lodged ^) on 3.8.2004 vide Ex.P-3 by Mehmood Ali P.W. 3. father of the prosecutrix at P.S. SupeSa. The prosecutrix was sent for mec'ical exurniiiation. br'. Kavita Srinivasan P.W. 7 examined the prosecutrix on 3.8.2004 and found that secondary sexual •iho.racter's ws"e wsi! deveioped. There was no mark of any yiolei-ice on he" body or on tiie inner parts of thighs. Hymen was ruptu.'ed. There was no bleeding in the vagina. No definite opinion about any recent sexuai intercourse could be given by Dr, Kayito. Si-i'iivasai'i P.W. 7. Vagina! slides were prepared and the prosecutrix was referred for radiological examination for CQrifirn'iation of age. Radiologica! examination was conducted by AX. Sahu P.W. 5 vide Ex.P-11 who opined that age of the prosecutrix was estimated to be 15 years. For proof of age of the prosecutrix, mark list for the year 1997-98 was seized yide Ex.P-5 showing the date of birth of the prosecutrix to be 1.6.1990. The Schoo! Admission Register Ex.P-9 (C) also showed the date of birth of the prosecutrix as 1.6.1990. The appellant was ..•ssdica'iy examined by Dr-. b.C. Jo.in P.W. 8 who found that the cppeliant was capable of performing sexual intercourse. However, no definite opinion could be given about recent sexual intercourse having been done by the appellant. After completion ef inyestigation, the appeilant was prosecuted. The cppellant abjured the guiit, pleaded innocence and T'L led no evidencs in defence. The prosecution examined as many as 8 witneases. Tne learned tr'ial Judge relying upon the e'v'idence led by the prosecution, convicted and sentenced the appe!!snt o.s aforesaid in para 1. 4. l^g-- A!: r>\^.f "? i /iii r.vif. a i para 2 was referred while ar'guing ti Learned counsel for the appeilant has argued that the eyidence !ecl by the prosecution does not estabtish t'ne guilt of the appel'ant under Section 363, 366 and 376 of IPC. It was angued tliat the prosecution has failed to establish the age of the pi'osecutrix by leo.ding primary evidence as to prove the 0'c.te of birth of the prosecutrix. The testimony of Mehmood the testimony of Salma Begum P.W. 3 in both the parents had absoiute!y no knowledgs about the date of birth of the pi"osecutrix. Tne testirnony of the prosecutrix in para 5 was a!so referred to show that the prosecutrix had admitted that her sge was 18 to 20 yesrs. It was also contended that the evidence of the prosecutr'ix left no manner of doubt that she was in iove with tsie appsiiant and wanted to marry her. Para 6 of her tes-i-iinony aiso revea!ed that she was pressurized to Sodge the F.I.R. against the appellant. On thess premises, learnsd counssl for the appellcnt argued that conviction and sentence awarded by the learned trial Judge deserves to be set aside. On the othe" hand, 5'nri Ashish Shukla, counsei uppear'ing 1 or Stcs-te argued in support of . the impugned judgrt-'ent. 5. 'naving considered the riva! contentions, I have perused fne re:co,-d of Sessions Tria! No. 208/2004. Proof of age of the prosecutrix in an offer.ee under Sections 363, 366 & 376 IPC is a material fact to be established by the prosecution by Seading legai and cogent evidence. Mehmood Ali P.W. 3, Salma segurn P.W. 2, the parents of the prosecutrix have expressed ignor'o.nce about the date of birth of the prosecutrix. Prosecutrix Ku. Shabnam Banu P.W. 1 made d positiye assertion that 'ner age on ths date of evidence was 18-20 years. It is true that &r. A.K.Sahu P.W. 5 has proyed the report of ossification test conducted on the prosecutrix by performin; radiologica! examination which shows an estimation o.f the age of the. prosecutrix as 15 yeai-s. It is we!l settied that there is a iegoJiy perrnissible margln of error of 2 years on either side in the estiirio.tlon of age given ir, the ossification test report. Medlcai examination repor-t of the prosecutrix by Dr. Kavita Srinivasan P.'il'. 7 a!so shows that at the time of exnmination, she found that ai! secondar'y sexual characters of the pi-osscutrix were weli developed. T'ne primary evidence i.e. the '<otwa!''i Register of Birth re'ating to proof of the dote of birth of the p"os&cutr-ix has not 'oeen producect by the prosecution. So far as the entry in the Schoo! Admission Register Ex.P-9 (C) of the rnark list Ex.P-o is concerned, it is usholiy inconsequentiai a-id does not lend any support to the prosecution in vtew of the fac'i that both parents have shown compSete ignorance about t'ne datei of birth of the Drosecutr-ix. It cannot, therafore, be r'ulsd out t'no.t the age as mentioned in the above documents is a mere estimation or guess work by the parents. In view of the abova facts and circumstances, t'ne possibility that the pt'osecutrix was aged 18 years or mors on the date of occurrence cannot be ruled out. 6. So fa" o.2 the factum of the alleged rape is concerned, the testimony of the prosecutrix clearly d&molishes the @ prosecu'tioi'i case. In examination, she has admitted that she is ifi love with the appeHant and wan+s to marry him. She has also admitted that s.he had loo'ged t.he report against the appsiiant upon undue pressure exercised by her parents. She has also aQmitted in par-a 7 that she had gone wlth the appeliant of her cwn vo!i"ion. In view of the above statsment on oath by the p?''osecutr'ix, the possibEiity that sexual intsrcourse, if any comniitted on the prosecutrix by the appeilant was with consent. cannot be ruleo out. /. Hc.ving thus considered th® prosecution in its entirety, I am of the considered opinion that the prosecutiopi hss ut-teriy failed to proye the guiit of the Qppe'lant unde" Sections 363, 366 and 376 of IPC. Conyiction of the appe.!!ant for the aforesaid offences and the sentences w.vorded thereunder by ths learned tria! Judge therefore, dessrves to b®sat aside. 8, In the result, this appeal is allowed. Conviction of the appellant under Sections 353, 366 & 376 IPC is sst aside. The qjpelbnt is acquitted and shall be set at liberty forthwith, if not requirsd in any other case. Fine if paid shall bs refunded to +l,ths appeilant. Sd/- Dilip Raosaheb Deshmukh Judge '4.