IMPORTANT POINT
Where accused had sexual intercourse with victim girl who was below 18 years of age as per medical evidence but no evidence that intercourse was without consent & by force, conviction u/s. 376 IPC, could not be sustained.

JUDGMENT AND ORDER

I.A. Ansari J.

1. This revision is directed against the judgment and order dated 14-12-1992, passed by the learned Sessions Judge. Barpeta, in Criminal Appeal No. 4(B-2)/1992, upholding the judgment and order dated 11-3-1992, passed by the learned Assistant Sessions Judge. Barpeta, in Sessions Case No. 74(B)/1990, convicting the accused/petitioner under section 376 IPC and sentencing him to undergo Rigorous Imprisonment for one year and also to pay a fine of Rs. 1000 and in default to suffer further Rigorous Imprisonment for 3 months.

2. The case against the accused/ petitioner. as unfolded in the trial may in brief, be stated as follows:

On 23-9-1989 at about 9.00 p.m., when the complainant Ali Akbar was away from his house the accused/petitioner, namely, Allauddin with his three brothers, namely, Jallaluddin, Antu Mia and Rahamat Ali entered into the house of the complainant and forcibly took away complainant's daughter. Sakurjan Nessa, despite resistance offered by her mother. Hasna Khatun. The accused/petitioner also took away with him some clothes and ornaments from the house of the complainant. When the complainant returned home, his wife reported the occurrence whereupon the complainant searched for his daughter in the village but on failing to trace her whereabouts lodged a complaint in the Court on 25-9-1989, against all four accused aforementioned. After holding an enquiry under section 202 Cr. P.C. the learned Magistrate who was in seisin of the case issued a search warrant and in execution thereof, the victim girl, namely, Sukurjan was recovered by the police and. upon her production before the Magistrate her statement under section 164 Cr. P.C. was recorded. The victim girl was, thereafter, medically examined. After appearance of the accused before the learned Magistrate the case was committed to the Court of Sessions for trial.

3. During the course of trial charge under section 376 IPC was framed against the accused/petitioner. but the petitioner pleaded not guilty thereto. The remaining 3 accused persons were discharged and the trial proceeded against the present petitioner.

4. In all, the prosecution examined 4 witnesses in support of their case. The accused was, then, examined under Section 313 Cr. P.C. In his examination aforementioned, the accused denied that he had committed rape on the victim.

5. On conclusion of the trial, the learned trial court by its judgment and order, dated 11-3-1992, aforementioned held the accused guilty of the charge framed against him and convicted him accordingly and passed the sentence against him as hereinabove indicated. The accused/petitioner preferred an appeal, but by Judgment and order, dated 14-12-1992, aforementioned, the appeal was also turned down. The accused-petitioner has, now, come before this Court with the present revision petition.

6. I have perused the available material on record including the impugned judgments. I have heard Mr. A.B. Choudhury, learned counsel, appearing for the accused/petitioner. None has appeared for the opposite party.

7. Upon perusal of the impugned judgments and the evidence on record, what attracts my eyes is that the victim girl, namely, Sukurjan (PW-3), admittedly, could not give her precise age and deposed that it was her father, who could say as to what her actual age was. As far as the victim girl's parents, namely, Ali Akbar (PW-1) and Hasua (PW-2) are concerned, they were unable to give, on account of their illiteracy, the correct age of the victim girl. This aspect of the matter was taken note of by the learned trial Court as well as the appellate Court. However, it was the evidence of the Doctor (PW-4) that the X-ray of the victim girl revealed that ossification of lower end of right radius and ulna bone was incomplete. The Doctor, therefore, concluded that the victim was below the age of 18 years. Though the opinion with regard to age given medically may suffer, from marginal error of 2 years, as has been