S. S. BYAS, J. - (1.) THIS is an appeal by accused Puran Singh against the judgment of the learned Sessions Judge, Merta dated December 8, 1981 convic-ting the appellant under section 376, IPC and sentencing him to four years rigorous imprisonment.
(2.) BRIEFLY stated the prosecution case is that the prosecutrix P. W. 6 Mst. Bhanwari aged about 14-15 years was grazing her live-stock in the field of Sheojiram Jat situate in Moza Chitai in the afternoon of 20. 6. 80. At about 4 p. m. the accused suddenly appeared there and caught hold of the prosecutrix. He pushed her down and started committing sexual intercourse with her. The girl resisted and raised cries. Hearing her out-cries, P. W. 7 Gordhan, P. W. 8 Purkharam and P. W. 10 Nandsingh came there. The prosecutrix sustained some injuries on her body including the private parts. When the accused left her, she straight way went to her house and narrated the incident to her mother P. W. 4 Mst. Jadawati. Her father P. W. 5 Dhanna was not there. When he returned in the evening, the incident was narrated to him also. He went to police station, Peelwa and lodged written report Ex. P/5 on 22. 6. 80. The police registered a case and proceeded with investigation. The medical examination of the prosecutrix was conducted at 10 am. on 23. 6. 80 by P. W. 2 Dr. S. N. Sharma the then Medical Officer-in-charge, Government Dispensary, Harsor. He noticed some injuries on the person of the prosecutrix. He also noticed some stains on the petti-coat of the prosecutrix. He took the cutting of that portion and sealed it. He prepared slides of the smear and swab taken from her vagina and sealed them. He sent these packets to the investigating officer for chemical examination. He was of the opinion that the prosecutrix had been raped. The ossification test of the prosecutrix was made in J N. Medical College, Ajmer. On the basis of this test, Medical Jurist Dr. B. K. Mathur (P. W. 1) gave the opinion that the age of the prosecutrix was 15 16 years. The police seized the petti-coat and the blouse of the prosecutrix, which she was wearing at the time of the occurrence. The accused was arrested on 7. 7. 80 and the under-wear, he was wearing at the time of the commission of offence was recovered in consequence of the information furnished by him on 10. 7. 80. The slides and the clothes of the prosecutrix and the accused, were sent for chemical examination to the Forensic Science Laboratory, Jaipur. Human semen was detected on all of them. On the completion of investigation, the police submitted a challan against the accused in the court of Munsif and Judicial Magistrate, Parbatsar, who in his turn committed the case for trial. The learned Sessions Judge framed charges under sections 323, 324 and 376, IPC against the accused to which he pleaded not guilty and claimed to be tried. The defence taken by him was that of complete denial. It was averred by him that there were factions in the village on account of elections. One Gulabchand was on inimical terms with him. He has, thus, been falsely implicated at the behest of Gulabchand. During trial, the prosecution examined 11 witnesses while in defence no evidence was adduced. On the conclusion of trial, the learned Sessions Judge found the accused guilty under section 376. IPC. He further held that the injuries sustained by the prosecutrix were on account of the struggle, she put at the time of the commission of rape. As such, no separate conviction was recorded for offences under sections 323 and 324, IPC. The accused was, accordingly, sentenced under section 376, IPC. Aggrieved against his conviction and sentence, the accused has taken this appeal. I have heard the learned counsel for the accused-appellant and the Public Prosecutor. I have also gone through the case file carefully. In assailing the conviction of the accused, the first contention raised by the learned counsel is that the court-below crept into an error in taking the prosecutrix to be below sixteen years of age. It was argued that as per medical evidence, the age of the girl was 15 or 16 years. The estimate of the age on the basis of the ossification test is not conclusive. There is always a margin of one or two years either side. It was argued that in these circumstances, the age of the girl should be taken above 16 years. The question of age of the prosecutrix, in the instant case is of much importance because it has been alleged that she was under 16 years of age. As such, her consent, even if it was there, is no consent in the eye of law. Now under Clause Fifth of Section, 375, IPC, sexual intercourse with a woman under the age of 16 years is rape irrespective of any consent on her part. The prosecution has examined the parents of the victim and adduced medical evidence to prove that she was below 16 years of age at the time of the commission of rape. P. W. 4 Mst. Jadawati is the mother of the prosecutrix. She deposed that the prosecutrix was nearly 13 years of age, when rape was committed upon her. In cross-examination, she deposed that she has three children. The eldest is a son, who was 16 years of age. Next to him is the prosecutrix, three years younger to him. The third again is a daughter, four years younger to the prosecutrix. P. W. 5 Dhanna is the father of the prosecutrix. He deposed that she was 13 years in age at the time of the commission of offence. He was not at all cross-examined on the question of her age. His statement, as regards her age, thus, stands unimpeached and unassailed. The ossification test of the prosecutrix was conducted on 28. 7. 80 in J. N. Medical College Hospital, Ajmer. The reports of the test are Ex. P/l and Ex. P/2. The Medical Jurist Dr. Mathur (P. W. I) stated that x-ray of the following joints of the prosecutrix was taken :- Pelvis - Iliac crest is separate. Elbow - Lateral spicondyle and olecranon have fused. But medial epicondyle head of radius have partially fussion. Wrist - Heads of meta-carpals are separate. Lower ends of radius and ulna are separate. Doctor Mathur stated that on the basis of the test of ossification of the joints of the prosecutrix he was of the opinion that she was 15-16 years of age. In cross-examination he refuted the suggestion that her age could be somewhere between 16 to 18 years. He was not cross-examined on any other point to shake his opinion. A Doctor is in a better position than a layman to form an opinion about the age of a person. Where he brings scientific knowledge to bear upon his opinion, his opinion, is entitled to weight and credit. The testi-money of an expert can not be lightly brushed aside simply because. What he states is merely an opinion. In Ramphool vs. State (1)it was observed by a learned Single Judge of this Court (as he then was) that the evidence of a Radiologist as to the age of the prosecutrix in a case of rape is conclusive and must be acted upon.
(3.) TAKING thus the two sets of evidence viz. parents of the prosecutrix and the opinion of Dr. Mathur {p. W. 1), it can be safely held that she was below 16 years of age, when rape was committed upon her. The next pertinent question that arises for deliberation and decision, is whether sexual intercourse was committed with the prosecutrix by the accused. The prosecutrix P. W. 6 Mst. Bhanwari deposed that she was grazing live-stock in the field of Sheojiram Jat on the day of occurrence. All of a sudden at about 4 p. m. the accused appeared there and caught hold of her in his arms. He felled her down and committed rape upon her. She resisted and raised cries. But the accused held her firmly and did not leave her. The accused gave teeth bites on her cheeks and breasts. Hearing her out-cries, P. W. 7 Gordhan and P. W. 8 Purkharam came there and tried to intervene. The accused slapped them and they went away. Just then, P. W. 11 Nandsingh came there and rescued her from the clutches of the accused. She got up and stright way went to her home, where she narrated the incident to her mother Mst. Jadawati (P. W. 4) She was cross-examined, but her testimony on the whole remained unshaken and unpunctured. There is nothing to put her statement at a discount. She is a rustic illiterate village girl. Her testimony is serene, pure and unblamished. It inspires confidence and is in itself sufficient to seek the conviction of the accused. She has no animus against the accused. It is beyond comprehension that she would make a false charge of rape against him. There is then ample corroboration from various independent sources to her testimony. Dr. Sharma conducted her medical examination and noticed the following:- 1. Marks of violence on the body-Marks of teeth bite on left cheek upper and lower teeth mark in circular area over 1" diameter. Teeth marks now heeling gradually with scab formation. Swelling present over the left side face around the teeth mark 2-1/2|" x 2-1/2" area, bluish in clour. 2. Abrasion 1-1/4" x 1/8" on the right hand dorsal aspect of right ring finger just below the proximal and middle phalanx joint scab formed over the abrasion. Examination of Genitals- (1) Pubic hair not matted send for separmato. No dried seminal stain found on the external genitaria. (2) No fresh blood found on exam, from the vagina. 3. Hymen teared having two radiate tears going towards peripherally on right side. Painful on touching edges are towards healing No bleeding from the eges. ;