The determination of consent in cases of sexual offenses requires a thorough examination of the evidence, especially regarding the age and mental state of the victim.

ORDER

1. The accused appellant who has been convicted under Sections 376 and 448 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years is in appeal.

2. We have heard the learned counsels for the parties.

3. The prosecution case, in short, is commission of series of forcible intercourse with the victim by the accused and thereafter promise of marriage. The victim did not report any of the incidents at any earlier point of time prior to the institution/lodging of the F.I.R. in question. The plea of consent has accordingly been raised in defence. Therefore, the crucial point to be determined is the age of the victim, namely, whether she was a minor at the relevant point of time.

4. The learned trial Court has held the victim to be a minor on the basis of the fact that on the date of deposition in Court she had given her age as 17 years. Taking into account the fact that the incident had occurred two years earlier, the trial Court held the victim to be a minor. The said view has been upheld in appeal by the High Court.

5. The aforesaid view overlooks the fact that the victim herself had stated that she was not aware of her age. Again the statement in this regard of PW-1, mother of the victim, cannot lead to any positive conclusion that the victim was a minor at the relevant point of time.

6. It also appears that according to the prosecution the prosecutrix was of unsound mind. No positive evidence in this regard is forthcoming except the statement of the mother that she had taken her daughter for treatment by a particular Doctor. The details of the treatment are conspicuously missing. The name of the Doctor and the area of specialization also is not mentioned.

7. In the aforesaid situation we will have to hold that the finding recorded by the Courts below that the victim was a minor is unwarranted and liable to be set aside which we hereby do.

8. On the aforesaid finding that we have thought it proper to record, the impugned conviction and sentence imposed on the accused-appellant is legally unsustainable. We, therefore, set aside the same and acquit the accused of the charges levelled against him.

9. The Appeal consequently is allowed. Order of the High Court is set aside. The accused be set at liberty forthwith unless he has been released in the meantime and his custody is not required in connection with any other case.