ORDER

1. This appeal is directed against the impugned judgment of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.1395/1994 by which the conviction and sentence imposed on the appellant under Section 376 IPC to undergo rigorous imprisonment for seven years apart from a fine amount of Rs.500/- and in default of payment of fine, to under one months' additional rigorous imprisonment was confirmed.

2. According to the prosecution on 11.4.1991 the victim P.W.4, an agricultural labourer was in the field of Moti Singh Darbar and loading the wheat on the vehicle. After the field work, she was proceeding to her village which was 1½ miles away. The appellant was following P.W.4 who was proceeding alongwith minor girl Manju, aged 10 years in his motorcycle. On the way, P.W.4 suffered thorn bite in her foot and while she was removing the thorn, Manju left her and proceeded towards her home. Taking advantage of the lonliness of P.W.4, the appellant stated to have grabbed her hand against her will, took her near the bushes at Kauve near the drain and had forcible sexual intercourse for about ½ an hour. According to the victim P.W.4, sexual intercourse was carried out by the appellant near the drain and again after taking her to his house under the threat of knife point and performed the same evil act in the house also. Subsequently at about 3.00 in the midnight, he took her in his motorcycle and dropped near the community well and after threatening her at knife point that if she reveal any of the act committed by him, she would kill her, left that place. P.W.4 felt humiliated and having ashamed of loss of modesty, jumped into the community well while the appellant stated to have fled away from that place. Though P.W.4 jumped into the well, according to her, she was able to grab the rope which was present inside the well and she cried for help. On hearing her distress call, the villagers stated to have turned up and rescued her. Thereafter, her father and grand father stated to have reached that place whereafter she was taken to her house and after change of cloth she went to the Police Station and lodged the FIR.

3. The appellant was charged for the offence under Section 376 read with Section 506 B,IPC. The trial Court after a detailed consideration of the evidence placed before it concluded that the FSL report, Exhibit P.14 established that in the peticoat of P.W.4, in her private parts as well as the vagina, human sperms was found present and therefore the plea of ignorance pleaded by the appellant was not true. The trial court however, concluded that the intercourse was with the consent of P.W.4. Based on the expert evidence and applying the principles for ascertaining the age of the victim, the trial court has concluded as under:

“14. For ascertaining the age the position of gums, private part and under arms are of great help. According to the statement of Dr. Smt. Saluja (P.W.2) 7 teeth in the right and 6 teeth in the left total 13 teeth were found in the upper jaw. In the lower jaw 7-7 teeth in the right and left sides were found. Therefore, total 14 teeth were found in the lower jaw. It is clear from the position of the teeth that third molar in the right upper jaw did come and second and third molar in the left side was not present and like this in the lower jaw third molar was not present in the right and left side. It is clear that in this situation that in abssence of third molar in the jaw age was below 17 years. Therefore, according to the chart given in the Modi's book at page No.29 according to the situation of the teeth in the jaw the age of the girl must be 14 to 15 years.

4. The conclusion of the trial court was that the victim P.W.4 was aged 14 years on the date of occurrence and since sexual intercourse carried out by the appellant though with the consent fell within the four corners of the offence falling under Section 376 and convicted the appellant for the said act. The High Court having examined t