The central legal point established in the judgment is the requirement for conclusive evidence to establish the age of the prosecutrix and the significance of the prosecutrix's conduct in determining consent.

1. This appeal is directed against the judgment dated 23rd of December, 1994 passed in Sessions Trial No. 6/94 by the Additional Session Judge, Dhamtar. By the impugned judgment, the appellant has been convicted and sentenced in following manner with a further direction to run the sentences concurrently:-

Conviction Sentence

u/s 363 IPC R.1. for 3 years and fine of Rs.200/-, in default S.1. for 6 months

u/s 366 IPC R.1. for 5 years and fine of Rs.500/-, in default R.1. for 1 year

u/s 376 IPC R.1. for 7 years and fine of Rs.500/-, in default R.1. for I year .

2. The facts, briefly stated, are as under:

The appellant and co-accused- Mahesh were trial by the Session Court for the aforesaid offences. The allegations are that on 23.1.92, they abducted the prosecutrix (PW -I), who was a minor. She was taken to various places and was recovered on 28.1.92. In between this period, the appellant committed repeated sexual intercourse against the prosecutrix. The Session Court held that the prosecutrix was a minor below 16 years and the appellant committed forcible sexual intercourse against her, after abducting her from the lawful guardianship of her father, therefore, he was liable for punishment u/ss 363, 366, 376 IPC. The appellant was accordingly punished. However, co-accused- Mahesh, who was prosecuted u/ss 363 & 366 IPC, was acquitted.

3. Mr. Aditya Tiwari, learned counsel appearing on behalf of the appellant, argued that the finding relating to age is perverse; the prosecution could not establish that the prosecutrix was a minor; the prosecutrix accompanied the appellant on her own and visited many places on bicycle and bus; she never made any complaint; therefore, she was a consenting party with the appellant.

4. On the other hand, Mr. R.R. Sinha, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.

5. I have heard learned counsel for the parties at length and have also perused the records of the session case.

6. The learned Session Judge has recorded the find of age on the evidence of the prosecutrix (PW -I); the evidence of In-charge Headmaster Premlal Mishra (PW-IO); the clinical observation of Dr. (Smt.) S. Singhal (PW4); and finding of Dr. S.C. Visnoi (PW-6) who performed the ossification test.

7. Prosecutrix (PW - I) deposed that she was aged about 18 years on the date of her examination which took place in the month of March 1994. They were 2 brothers and 2 sisters and she was eldest among them. She deposed that at the time of incident, she was a regular student of Class-8th in Middle School Joratarai.

8. Premlal Mishra (PW - I 0) was the In-charge Headmaster of the School. He produced the admission register (Ex.-PII 3-C) and attendance register of the School. In the admission register there is entry of the name of the prosecutrix at serial No.3 I 7, according to which, her date of birth is 12.6.1976. He admitted to issue transfer certificate (Ex.-P/I 5), in which, the date of birth of the prosecutrix has been shown as 12.6. I 976. Premlal Mishra (PW -10) admitted in the cross-examination that the entry in relation to admission of the prosecutrix in admission register was not made by him. He further admitted that while making entry in admission register in Ciass-6th (middle section), they make entry on the basis of entries in the certificate of Class-5th pass. The admission register (Ex.-P/13-C) would show that the prosecutrix was admitted in the concerned Institution, in Class-6th and the entries were made at serial No. 317. It is thus clear that the above entries in admission register (Ex.-P/ 13-C) were made by concerned person on the basis of certificate of Class 5th passed and not on the basis of any declaration made by father or guardian of the prosecutrix. The earlier transfer certificate or Class-5th passed certificate have not been proved by the prosecution. PW -10 clearly deposed that he did not make the entry in admission register