The main legal point established in the judgment is the requirement for concrete evidence to establish the age of the victim in cases involving consent, as highlighted by the provisions of the IPC and relevant case law.

JUDGMENT

Sandeep K Shinde, J. - This appeal is directed against the judgment and order dated 20th February, 1998 passed by the IInd Additional Sessions Judge, Solapur in Sessions Case No.81 of 1996 whereby the appellant no.1 has been convicted of the offence punishable under Section 376 of the Indian Penal Code, 1860 ('IPC' for short) and sentenced to suffer simple imprisonment for three years and to pay fine of Rs.2,000/- with default stipulation; AND Appellant No.2 has been convicted of the offence punishable under Section 312/511 of the IPC and sentenced to suffer simple imprisonment for three months and fine of Rs.500/- with default stipulation.

2. Pending appeal, it is reported that the appellant no.2-Digambar Sadhu Bhosale, passed way. Appeal thus, abates, against him.

3. Brief facts necessary to dispose of this appeal are that :

Prosecutrix, P.W.1 fell in love with the appellant no.1 and voluntarily succumbed to his physical desires. As it appears from her testimony and the complaint that she was conceived from the appellant no.1 whereafter both approached, Dr. Saroj Mahajan, for terminating the pregnancy. Dr. Mahajan admits in evidence, that the appellant no.1, the victim and her mother had been to her clinic.

4. Be that as it may, the prosecution evidence has established that sexual relations were consensual, but at the material time, the trial Court found the victim was under 16 years of age and, therefore, consent was not material.

5. It seems, prosecutrix could not afford the fees of Dr. Mahajan and, therefore, victim and the appellant no.1 approached accused/appellant no.2- Digambar Bhosle, who then had administered 'Deshi Dava' (local traditional medicines) to abort fetus, which worsened her health condition. Whereafter, both approached Dr. Mahajan and thereafter Dr. Deshpande at Barshi. Possibly, Dr. Deshpande, reported this fact to the police whereupon the Head-Constable, Tamboli arrested appellant no.2 on 18th March, 1996. In the meantime, the statement of the prosecutrix was recorded whereupon crime under Section 376 of the IPC was registered against appellant no.1 at Karmala Police Station, Solapur on 6th January, 1996. Investigation culminated into final report whereupon the charge was framed under Section 376 of the IPC against the appellant no.1 and under Section 312 read with Section 511 against appellant no.2.

6. Upon appreciating the evidence, appellant no.1 has been convicted of the offence punishable under section 376 of the IPC and sentenced to suffer simple imprisonment for three years and fine of Rs.2,000/-.

7. Heard learned counsel for the appellant and the learned Additional Public Prosecutor for the State.

8. Evidence on record leads to inference that prosecutrix was consenting party. Section 375 of the IPC as it stood before the Criminal Law (Amendment) 2013 of the Penal Code, 1860 states:

"375. Rape.- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

Sixthly.- With or without her consent, when she is under sixteen years of age."

9. In the light of the aforesaid provision, it is to be ascertained whether prosecution has proved at the material time, prosecutrix was under 16 years of age and thus, her 'consent' was immaterial.

To prove its case, prosecution has produced evidence including the school leaving certificate of the prosecutrix, which has been proved by Sushila Mohite (P.W.3), In-charge Head-Mistress of Municipal School No.1, Karmala. School Leaving Certificate is marked as Exhibit 14, which shows, prosecutrix was born on 16th May, 1982 and at the relevant date, her age was between 13 to 14 years. This witness would testify, entries in the school leaving certificate, were made on the basis of entries in the school register no.1. Largely relying on the evidence of this witness, the Trial Court has held that at the relevant time, prosecutrix was under 16 years of