T.P.Sharma, J. - (1.)CHALLENGE in this appeal is to the judgment of conviction and order of sentence dated 16.1.1991 passed by the Additional Sessions Judge, Kanker, in Sessions Trial Nos. 200/89 and 202/89, whereby and whereunder learned Additional Sessions Judge after holding the appellants guilty for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code sentenced them to undergo rigorous imprisonment for three years, rigorous imprisonment for four years and rigorous imprisonment for five years, respectively.
(2.)CONVICTION is challenged on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality.
Case of the prosecution, in brief, is that on 12.5.1989 at early part of the night the prosecutrix (PW-1) aged about 14 years (name not mentioned) was playing in her village Chichgaon, Police Station Bhanupratappur where appellant Shambhoo met her and told to accompany him which she refused, then appellant Shambhoo dragged her, he took her to his house where he committed forcefully intercourse with her and told her that he will marry with her. At morning at about 4 a.m. they woke up, then they were boarding in truck with other labourers which was driven by co-accused Dileep, they went to Sambhalpur and again they proceeded for Dhamtari where they unloaded bags. Co-accused Dileep took the prosecutrix towards bus stand and committed rape with her. Appellant Shambhoo took her in different places and finally she was recovered. Kanhaiya (PW-2), father of the prosecutrix, lodged the F.I.R. vide Ex.P/6. The prosecutrix was sent for medical examination, she was examined by Dr. Smt. R. Yadu (PW-6) vide Ex.P/7 and she was found that the prosecutrix was accustomed to sexual intercourse. During the course of investigation, marksheet of the prosecutrix Ex.P/1 was seized along with letter Ex.P/3 and underwear vide Ex.P/2. Spot map was prepared vide Ex.P/4. Truck was seized from Santosh vide Ex.P/8. Accused Shambhoo was examined by Dr. S. Yadu (PW-7) vide Ex.P/10 and was found that he was capable for committing sexual intercourse. Undergarment of accused Shambhoo was seized vide Ex.P/12. Numberi F.I.R. was lodged vide Ex.P/17. Accused Dileep was also examined by the doctor vide Ex.P/21 and he was found capable for committing sexual intercourse.

Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code') and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Bhanupratappur, who in turn committed the case to the then Court of Sessions, Bastar, from where learned Additional Sessions Judge, Kanker received the case on transfer for trial.

In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 9 witnesses. The accused/appellants were examined under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question.

After providing opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned.

(3.)I have heard learned Counsel for the parties, perused the judgment impugned and record of the trial Court.
Learned Counsel for the appellants vehemently argued that as per evidence of the prosecutrix and other witnesses, the prosecutrix was consenting party. The Court has assessed the age of the prosecutrix as 14 years. In case of marginal age of 16 years, the prosecution is under obligation to prove the age of the prosecutrix below 16 years by adducing cogent and reliable evidence, but in the present case, the prosecution has not proved the age of the prosecutrix below 16 years. As per medical evidence, the prosecutrix was accustomed to sexual intercourse, she was able to understand what is good and what is bad, she herself has left her parental shelter and has accompanied the appellants, therefore, conviction of the appellants under Sections 363, 366 and 376 of the Indian Penal Code is not sustainable under the law.

Learned Counsel placed reliance in the matter of Sudhari alias Shivadhari Singh v. State of C.G.1 in which this Court has held that father of the prosecutrix could not tell the date of birth of the prosecutrix, radiological examination of the prosecutrix for confirmation of her age was not done, Kotwari register was also not produced, prosecutrix admitted in her statement recorded on 25.7.2001 that she was aged 17 years, the possibility that the prosecutrix was aged 16 years or more on the date of occurrence cannot be ruled out. Learned Counsel further placed reliance in the matter of Sunil v. State of Haryana2 in which the Apex Court has held that in the absence of cogent evidence and statement of father giving age of prosecutrix only approximately, conviction of the accused on such evidence would not be proper.