ORDER

1. This appeal has been preferred against the impugned judgment and order dated 4.11.2006 in Criminal Appeal No.1228 of 1992 of the High Court of Madhya Pradesh at Jabalpur, by way of which it reversed the judgment and order of the Sessions Judge, Seoni, Madhya Pradesh dated 16.7.1992 in Sessions Trial No.82 of 1990, by which the appellant stood acquitted of the charges punishable under Sections 376 and 450 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’).

2. Facts and circumstances giving rise to this appeal are that :-

(A) The appellant is younger brother of the brother-in-law of the prosecutrix-Diplesh. The appellant came to the house of the prosecutrix on 13.6.1990. Her parents and elder brother left for the market leaving the prosecutrix and her younger brother in the house. The appellant found the prosecutrix alone as her brother was merely a child and raped her. The prosecutrix fainted and on regaining her consciousness, the prosecutrix narrated the incident to her father who lodged the FIR with the police on the same day.

(B) The appellant was arrested on 15.6.1990 and after investigation, the prosecution filed chargesheet against the appellant under Sections 376 and 450 IPC.

(C) The Sessions Court in Sessions Trial No. 82 of 1990 acquitted the appellant vide judgment dated 16.7.1992, on the ground that the prosecution failed to prove that prosecutrix was below 16 years of age, and secondly that she had consented for having sexual intercourse with the appellant.

(D) Aggrieved, the State preferred Criminal Appeal No.1228 of 1992, before the High Court. The High Court reversed the judgment of the Sessions Court, convicted the appellant for the said offences and awarded punishment of 7 years on both counts. The State appeal has been allowed.

Hence, this appeal.

3. Shri Ashok Mahajan and Shri B. Sridhar, learned Amicus Curiae have submitted that there is nothing on record to show that at the relevant time, the prosecutrix was below 16 years of age. The trial Court had rightly came to conclusion that it was a case of consent and such a finding was based on evidence on record. There was no occasion for the High Court to reverse the said finding as there was no perversity in it. Hence, the appeal deserves to be allowed.

4. Per contra, Ms. Vibha Datta Makhija, learned Standing counsel for the State has submitted that the trial Court erred in understanding the meaning of consent and reached a wrong conclusion that the prosecutrix was not below 16 years of age. The High Court has considered the case in correct perspective and reached the correct conclusion that the prosecutrix was below 16 years of age. Thus, the consent, even if it was so, looses its significance. Thus, the appeal is liable to be dismissed.

5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

6. Sawan Lal (PW-2), father of the prosecutrix while lodging an FIR stated that the prosecutrix was 15 years of age. The Investigating Officer inspected the place of occurrence and found bangles and also recovered blood stained underwear, saree and petikot of the prosecutrix and also the blood stained earth and plain earth. Dr. Kiran Katre (PW-8) examined the prosecutrix medically and opined that the prosecutrix was about 14-15 years of age. According to Dr. Katre, it was difficult even to put the little finger in the vagina of the prosecutrix. She was referred to the Radiologist, however, no such report was made available. The prosecutrix was examined in the Court on 12.11.1991 as PW-1 and the learned Sessions Judge assessed her age on the basis of her appearance as about 14 years. In addition thereto, one Kabir Das (PW-4) who was a Teacher in the night school where the prosecutrix was studying, deposed that according to the school register, her date of birth was 7.3.1975 and thus, her age was about 14 years. The said date of birth had been recorded several years prior to the incident. It