The legal principle established is that in cases of rape, the age of the victim and the validity of consent obtained through fraud and deception are crucial factors in determining the guilt of the accused.

JUDGMENT - BATTA R.K., J.:---The appellant was tried for committing rape on the prosecutrix who was stated to be less than 16 years under section 376 of the Indian Penal Code. The prosecution had examined in all six witnesses in support of the charge. The learned Additional Sessions Judge, Nagpur, vide judgment dated 7th April, 1999 has held the appellant guilty for the offence under section 376 of the Indian Penal Code and has sentenced him to undergo R.I. for seven years and fine of Rs. 1,000/-, in default, R.I. for four months. The appellant had been in custody in connection with the said offence from 2-7-1998 and the benefit of set off under section 428 of Cri.P.C. has been given to the appellant.

2. The prosecution case, in brief, is that the appellant had sexual intercourse on various occasions with the prosecutrix on account of which she became pregnant. According to the prosecutrix, the appellant had sexual intercourse with her on promise of marriage, but later he refused to marry the prosecutrix who had become pregnant and delivered a child. According to the prosecution case, the prosecutrix was less than 16 years of age at the time of commission of offence by the appellant.

3. The case of the appellant is total denial and according to him he has been falsely implicated.

4. Learned Advocate for the appellant argued that the prosecution has failed to prove that the prosecutrix was below 16 years at the time of commission of the offence and in this respect my attention has been drawn to the evidence of prosecutrix (P.W. 1), evidence of her mother (P.W. 3) and evidence of Headmistress (P.W. 6) of the school where the prosecutrix was studying. According to the learned Advocate for the appellant, considering the evidence of the said witnesses there is considerable doubt as to the age of the prosecutrix. Besides this, it has been argued by him that the primary evidence relating to birth as also ossification test has not been produced before the Court. Therefore, in view of the doubt regarding the age of the prosecutrix no case of rape against the appellant has been made out and that the appellant is entitled for acquittal. Alternatively, it is argued that the appellant has been in custody for almost four years and the period undergone till to date be treated as sufficient punishment.

5. Learned A.P.P., on the other hand, argued that not only the prosecutrix was below 16 years at the time of commission of the offence but the appellant had sexual intercourse with the prosecutrix on four to five occasions on the promise that he would marry her and subsequently when the prosecutrix became pregnant and delivered a male child, the appellant refused to marry her. Thus, according to the learned A.P.P., consent, if any, was obtained by playing fraud and deception on the prosecutrix to the effect that the appellant would marry her and in such circumstances, it cannot be said to be free consent. He, therefore, contends that the appellant has been rightly convicted and no interference is called for.

6. The prosecutrix has stated that when her mother and father were not in the house and she was alone the appellant caught her and had sexual intercourse with her. The appellant told her not to disclose the same to anyone and he promised to marry her. Subsequently also the appellant is said to have had sexual intercourse with the prosecutrix on four to five occasions. The prosecutrix became pregnant and delivered a child. The appellant refused to marry her. The prosecutrix was unable to give the date of her birth, but, in cross-examination, she stated that she remembers having seen her birth date on some document that she was born in 1982. The incident had been taken place somewhere in the year 1997 and even at the time of said incident, the prosecutrix was less than 16 years. The version of the prosecutrix that the accused had caught her and had intercourse with her and she was born in the year 1982 was not even challenged during the cross-exam

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