IMPORTANT POINT
School leaving certificate has to be proved for determination of age.
In absence of examination of the doctor conducting ossification test, X-ray report alone will not be sufficient to prove age.

JUDGMENT

Pinaki Chandra Ghose, J.

1. This appeal, by special leave, is directed against the judgment and order dated 14th August, 2008 passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.776 of 1994, whereby the High Court allowed the criminal appeal filed by the respondent herein and acquitted him.

2. The brief facts necessary to dispose of this appeal are that the family of the prosecutrix (PW5) was the tenant of the father of the accused. As per the prosecution story, on 5th May, 1991, the prosecutrix, aged about 13 years, was sleeping in the night with her mother in the corridor of her house. At about 4:30 am, the respondent-accused entered into the house of the prosecutrix, took her to the adjoining room at the point of knife, bolted the door and committed rape on her. After committing the offence the accused and the prosecutrix remained in that room. Thereafter, the mother and sister of the prosecutrix came to that room in search of the prosecutrix and when the door was opened, the accused-respondent fled away. The prosecutrix lodged the FIR at Garha Police Station after which the Investigating Officer sent the prosecutrix for medical examination wherein the report was handed over by Dr. Nisha Sahu. The Investigating Officer received the date of birth of the prosecutrix. The respondent-accused was arrested on 6th May, 1991. The Ossification Test of the prosecutrix was conducted and the report was proved in the present case.

3. The charge under Section 376 of the Indian Penal Code was framed against the respondent. The respondent pleaded not guilty and claimed trial. After examining the witnesses and after hearing the counsel for the parties, the Trial Court found that the charge was proved beyond reasonable doubt. The Trial Court found the age of the prosecutrix to be less than 16 years, in which case the question of consent did not arise and the respondent having committed rape on a girl of less than 16 years of age, the offence clearly fell within the parameters of rape under Section 376 of IPC. Consequently, the respondent was convicted for the charge and was sentenced to seven year rigorous imprisonment by the Trial Court by its judgment and order dated 30.07.1994.

4. Being aggrieved by the judgment and order dated 30.07.1994, passed by the Trial Court, the respondent preferred Criminal Appeal No.776 of 1994 before the High Court of Madhya Pradesh. The High Court found that the school certificate was not proved without doubt. The medical evidence relied upon by the Trial Court was disbelieved by the High Court as the doctor who conducted the ossification test was not examined. X-ray report containing the opinion of the doctor was also disbelieved by the High Court as it was merely technical opinion and the doctor was not produced for examination by the Trial Court. The pivotal fact for overturning the judgment of the Trial Court was the deposition made by PW6 i.e. Malti Devi, mother of the prosecutrix where she stated that in the morning when she saw that the prosecutrix was not lying with her, she and her elder daughter started searching the prosecutrix and when they opened the door of the room, they found that the accused was standing with the prosecutrix behind the bags. The High Court, therefore, allowed the said appeal, set-aside the conviction of the respondent and acquitted him of the charge under Section 376 IPC.

5. The State is thus before us in appeal against the acquittal of the respondent. The learned counsel appearing for the State has attacked the judgment of acquittal passed by the High Court, mainly on two grounds. First is whether the sexual intercourse was consensual; and second, whether the age of the prosecutrix was below 16 years.

6. The High Court while setting aside the Trial Court judgment rightly appraised the evidence on record and held that the sexual intercourse was consensual. In her statement the prosecutrix (PW5) states that she was sleeping between her mot