NAVRANG LAL TIBREWAL, J. - (1.) THE appellant stood convicted u/s 376 IPC by the learned Sessions Judge, Balotra, in Sessions Case No 34/78 and was sentenced to two years R. I. and a fine of Rs. 500/- In default of payment of fine the appellant was further required to undergo three months R. I.
(2.) THE prosecution case, as given out in the report Ex. D/l, is that in the afternoon of 12. 9. 77 Mst. Premi was returning to her house from the field after handing over the meals to his brother Jetha. It is alleged that the accused Rekha Ram caught hold of her in the way and committed sexual intercourse without her consent. THE prosecution case further is that P. W. 4 Labu and P. W. 5 Mukna heard the noise of Mst. Premi and they rebuked the appellant. It is note worthy that no report was made about the occurrence on 12. 9. 77, though Mst. Premi is said to have narrated the story to her mother on the same day in the evening and his brother Jetha had also come at the house on the same day. The report of the incident was made by P. W. 1 Jetha on 13. 9. 77 and it is also strange that the prosecution did not get the said report exhibited as the said report has been marked as Ex. D/l. It is also note worthy that in the report Ex. D/l, the informant Jetha has given his age as 19 years, while the age of Mst. Premi has been given as 16 years. Mst. Premi was medically examined by the Medical Officer, Primary Health Centre, Baitu. In the report the age of Mst. Premi has been given as 16 years & the doctor found that the height of Mst. Premi was 156 Cms, weight was 40 kgs. and the breast was developed. Axillary hair were also present and Pubic hair was partly shaved. The doctor also found that the vaginal canal of Mst. Premi was admitting two fingers and the hymen was having old tears. No injury was found on any part of the prosecutrix. The doctor further stated that no definite opinion about recent sexual intercourse can be given. The vaginal swab and pubic hair were sent for chemical examination. This report was apparently against the prosecution and the opinion of the medical officer was sufficient to destroy the prosecution case that Mst. Premi was subjected to sexual intercourse without her consent. As this report was not favouring the prosecution, the prosecution did not examine the doctor in the trial court. Even the Investigating Officer was not examined. The report of the Chemical Examiner was also not got exhibited as it was negative for blood smear. The learned trial court, after recording the evidence in the case did not rule out the present case to be of consent. However, the learned trial court observed that the consent of Mst. Premi was irrelevant as she was less than 16 years of age at the time of occurrence and if she was subjected to sexual intercourse even with consent then, too, the offence u/s 306 IPC was made out. The learned counsel for the appellant has vehemently argued that from the material on record it can be said that the age of Mst. Premi is not less than 16 years. According to the learned counsel, in the report Ex. D/l the age of Mst. Premi has been given as 16 years while the age of her brother Jetha has been given as 19 years. PW 1 Jetha has also admitted in his statement that his sister was about 1 1/2 years or 2 years lesser in age. In the medical report also the age of Mst. Premi has been given as 16 years. Thus, according to the learned counsel for the appellant, the age of Mst. Premi cannot be said to be less than 16 years merely on the basis of ossification test, the possibility of difference of 2-3 years cannot be ruled out even in the case of ossification test. His contention is that when the prosecution case itself was that Mst. Premi was 16 years of age and this fact has been mentioned in the report Ex. D/l, then the medical report Ex. P/6 given by Dr. Dilip Sankhla cannot be conclusive to hold that Mst. Premi was below 16 years of age at the time of the occurrence. His further contention is that the statements of PW4 Labu and that of PW5 Mukna are not believable as their conduct at the time of the occurrence after the occurrence was quite improved. He further contends that it is stated that Mst. Premi was found to be naked at the time of the occurrence and as per the prosecution case the clothes of Mst. Premi were not torn and she had not sustained any injury on her body, so it appears to be a case of consent.
(3.) ON the other hand, the learned Public Prosecutor supports the findings as well as the judgment of the learned trial court and contends that the report Ex. P/6 given by Dr. Dilip Sankhla is conclusive to prove that the age of Mst. Premi was below 16 years at the time of the occurrence and even though it may be a case of consent; but for the age of Mst. Premi being less than 16 years of age the offence u/s 376 IPC is clearly made out against the accused. I have given my thoughtful consideration on the rival contentions made by the learned counsel for the appellant as well as the learned Public Prosecutor. The learned trial court has not ruled out the possibility of consent and the learned Public Prosecutor has not challenged the said finding given by the learned trial court. Therefore, the crucial question for determination is as to what was the age of Mst. Premi at the time of the occurrence. ;