The judgment establishes the importance of unrebutted testimony, the presumption of lack of consent under Section 114-A of the Evidence Act, and the burden of proof on the prosecution regarding the age of the prosecutrix in cases of sexual offences.

( 1 ) THIS appeal is directed against the judgment dated 25/4/2006 delivered by Shri G. C. Bajpal, Sessions Judge, jashpur in Sessions Case No. 101/2005 whereby the appellant was convicted under sections 363, 366, 376 (1) and 341, IPC and was sentenced under Sections 363, 366, 376 (1) to undergo rigorous imprisonment for two years, five years and seven years respectively and also to simple imprisonment for one month under Section 341, IPC. The sentences were ordered to run concurrently.

( 2 ) BRIEFLY stated the prosecution case is that on 26/7/2005 the prosecutrix, aged about 13 years, was sent by her mother kaldina P. W. 2 for bringing Soyabeen chunks from Khan Shop. The prosecutrix left her house on a cycle and after purchasing soyabeen chunks from Khan Shop was returning home. Near the school, the appellant Pankaj Lakda stood with one Pratap, the cousin brother of the prosecutrix. Pratap called her and asked to give her cycle to him. The prosecutrix gave her cycle to Pratap who left the place. The appellant thereafter held the hand of the prosecutrix and dragged her inside the school room. She attempted to shout but the appellant gagged her mouth. Inside the kitchen room of Primary School, bhandri the appellant removed his underwear and also the underwear of the prosecutrix and committed rape on the prosecutrix.

( 3 ) IN the meanwhile, since the prosecutrix did not return home her mother sent her son Amol Bada in search of her. Amol returned with the cycle of the prosecutrix and told her that he had met Pratap who had given her cycle to him. Upon this information, Kaldina P. W. 2 herself went in search of the prosecutrix. When she entered the kitchen room of the school, she saw that the appellant was committing rape on the prosecutrix. She caught the appellant by his neck. The prosecutrix told her that the appellant was gagging her mouth whenever she wanted to shout and had forcibly committed rape on her. The appellant fled from the place of occurrence.

( 4 ) FIR was lodged by the prosecutrix on 27-7-2005 at 1. 30 p. m. in P. S. Kunkuri situated 10 kilometers east. On 28-7-2005 upon medical examination, Dr. Sangita Tirki P. W. 8, found that there was complete and fresh rupture of hymen of the prosecutrix who complained of pain in her private parts. It was opined that the prosecutrix had been subjected to sexcul intercourse. No external injury was found on her. Dr. S. Toppo p. W. (sic) medically examined the appellant on 1-8-2005 and opined that he was capable of performing sexual intercourse. Radiological examination of the prosecutrix for confirmation of age was conducted by Dr. George. It was estimated vide opinion dated 13-9-2005 that the prosecutrix was aged between 15 to 17 years.

( 5 ) AFTER completion of investigation, the appellant was prosecuted under Section 341, 363 and 376, IPC. The learned trial judge framed charge under Sections 341, 363, 366 and 376 (1) of the IPC. The appellant abjured the guilt. No evidence in defence was led by the appellant. The prosecution examined as many as 8 witnesses. Relying upon the evidence led by the prosecution, the learned Sessions judge convicted and sentenced the appellant as aforesaid in paragraph 1 after recording a finding that age of the prosecutrix was more than 16 years on the date of occurrence.

( 6 ) SHRI J. K. Shastri, learned counsel for the appellant has assailed the impugned judgment on the ground that the evidence of the prosecutrix clearly established her consent in the sexual intercourse committed by the appellant with the prosecutrix. It was urged that the learned trial Judge had recorded a clear finding in paragraph 9 that the prosecutrix was aged above 16 years on the date of occurrence. It was urged that the testimony of Dr. Sangita Tirkey P. W. 8 in paragraph 8 also established that the prosecutrix was aged more than 16 years on the date of occurrence. On this ground alone, it was contended that conviction of the appellant under Sections 363, 366, 376 (1)