JUDGMENT :

Indrajit Mahanty, J.

1. Present appeal under S. 378(1) Cr. P.C. 1973 has been filed by the State of Maharashtra against the order of acquittal dated 24.7.1997 passed by the learned 2nd Additional Sessions Judge, Nashik, of the offences punishable under S. 376 and 342 of the Indian Penal Code.

2. The prosecution case in brief is that on 1.12.1996 the victim, who claims to be of 11 years of age, i.e. at the time of occurrence, was alone in her house, while her father had taken her elder brother to a hospital, since he had sprain in the back. Her mother, a farm labourer, had gone to work and to collect firewood. At that time, the victim having no money had a severe headache and finding no alternative, went to the village grocery shop and requested the accused, for some medicine at around 1.30 p.m. The accused finding the victim to be alone closed doors of his shop and took the victim into the house and committed rape on her.

3. It is further case of the prosecution that after commission of the crime, the accused forcibly threw the victim out of his house and the victim having no other alternative, walked back to her house and sat in front of her house. It appears from the evidence of the informant (PW-3) Khandu Mali (father of the victim) who returned home at 3.00 p.m. that he found the victim sitting in front of his hut with blood stained clothes. Some time later, the mother of the victim (PW-5) Shahabai Mali, returned home from the place where she was working as labourer, and after collecting the firewood. When she came home, she noticed that her daughter/victim was bleeding and lying on the ground. Immediately, the victim was taken by her parents in their landlord's tractor to Manmad, initially to one Dr. Joshi and since his dispensary was not open, they took her to the hospital where Dr. Tuse examined the victim and PW-5 Shahabai, learnt from Dr. Tuse that her daughter/victim (PW-4) had suffered from a case of rape and she was advised to take the victim to the municipal hospital. It is further case of the prosecution that PW-5 Shahabai on learning the possibility of rape of her daughter, inquired from the victim about her condition and it is only then, that the victim is stated to have informed her mother PW-5 Shahabai that she had been raped by the accused and that the incident had occurred in the afternoon. It is thereafter that PW-3 Khandu Mali, father of the victim, narrated the event in detail in the Manmad Police Station.

4. In the light of the aforesaid circumstances, the accused faced the trial for the offences punishable under S. 376 and 342 of the Indian Penal Code. During the course of trial, learned trial court framed following two points:

(i) Whether the accused person committed rape on the victim?

(ii) Whether the accused person wrongfully confined victim in his house?

5. The aforesaid points were answered in the negative and order of acquittal was passed in favour of the accused. Hence, the present appeal is filed by the Appellant-State.

6. Insofar as reasons for acquittal of accused given by the learned trial court is concerned, the first point that he dealt with was the "determination of age" of the victim.

7. In order to arrive at a conclusion, the learned trial Judge has taken into consideration following aspects:

(a) The father of victim PW-3 and the victim PW-4 stated on oath that the prosecution was approximately 11 years old and they could not recollect the date of birth;

(b) Admittedly, the victim has no birth certificate, no school leaving certificate or any other documentary evidence to prove the age of the victim;

(c) The only evidence placed on record is the certificate issued by the Medical Officer from Civil Hospital, Nashik. The said certificate is issued by Dr. Chavan, who is a Radiologist and even though he was not examined in the trial court, the said report was submitted by Dr. Chavan to D