The failure to establish the age of the prosecutrix and the reliability of her testimony can lead to the acquittal of the accused in sexual offense cases.

Radhe Shyam Sharma, J.

1. This appeal is directed against judgment dated 24-7-2003 passed by First Additional Sessions Judge, Baloda Bazar in Sessions Trial No. 492/2002. By the impugned judgment, accused/respondent No. 1 Dipak Kumar has been acquitted of the charges framed against him under Sections 342, 376(1) and 506 IPC and accused/respondent No. 2 Kiran Bai has been acquitted of the charges framed against her under Sections 342, 376 (1) read with Section 109, 376(1) read with Section 114 IPC.

2. Case of the prosecution, in brief, is as under:

On 15-9-2002, at about 9:00 P.M., prosecutrix (PW-7, daughter of Sadhuram Ratre {PW-9}), aged about 15 years, along with her brother Ravi Kumar and cousin brother Shankar (PW-1) had gone to watch video near her house. At about 10:00 P.M., the prosecutrix (PW-7) went for urinal in the Byoltra and when she was returning to watch the video, respondent No.1 Dipak Kumar caught her hand and forcibly took her into his house and committed sexual intercourse forcibly with her in the closed room of his house. At that time, respondent No.2, Kiran Bai (mother of respondent No. 1 Dipak Kumar) was present there and she had closed the door. Ravi Kumar (brother of prosecutrix) seemed that the prosecutrix (PW-7) did not come back from urinal, therefore, Dashrath (PW-8), Janaki Bai (PW-10) and Pawan Kumar searched for the prosecutrix (PW-7). At that time, they heard the noise of the prosecutrix (PW7) from the house of respondent No. 1 Dipak Kumar. They opened the door of the house of the respondents where they recovered the prosecutrix. The prosecutrix narrated the incident to her family members. Sadhuram Ratre (PW9) made written complaint (Ex.P-11) against the respondents in Police Station Palari. On the basis of written complaint (Ex.P-11), First Information Report (Ex.P-12) was recorded in Police Station Palari. The prosecutrix was sent to Primary Health Centre, Palari vide Ex.P-6A for medical examination. Dr. N. Bajpai (PW-6) examined the prosecutrix and gave her report (Ex.P-6). She found that the hymen of the prosecutrix was old ruptured and she opined that the prosecutrix (PW-7) had undergone act of sexual intercourse and there were definite signs which could be caused by act of intercourse within 12 to 24hrs back. Dr. N. Bajpai (PW-6) advised for X-Ray examination. After X-Ray, Dr. N .Bajpai (PW-6) opined that the age of the prosecutrix (PW-7) was between 16 ½ to 17 years. Slide of vaginal swab of the prosecutrix (PW-7) was also prepared. Respondent No. 1 Dipak Kumar was sent to Primary Health Centre, Palari for medical examination vide Ex.P-4A. Dr. F.R. Nirala (PW-5) examined respondent Dipak Kumar and gave his report (Ex.P-4). He found that respondent Dipak Kumar was competent to perform sexual intercourse.

In further investigation, birth certificate (Ex.P-13) of the prosecutrix (PW7) was seized vide Ex.P-10. Blue colour panty of prosecutrix (PW-7) was seized vide Ex.P-3. A Janghiya (underwear) of respondent No. 1 Dipak Kumar was seized vide Ex.P-9. The seized articles were sent to Forensic Science Laboratory, Raipur for chemical examination vide Ex.P-17. Report (Ex.P-20) was received there from.

After completion of the investigation, charge sheet was filed against the acquitted persons /respondents in the Court of Judicial Magistrate First Class, Baloda Bazar, who, in turn, committed the case to the Court of Session, Raipur, from where, it was received on transfer by the First Additional Sessions Judge, Baloda Bazar, who conducted the trial and acquitted the respondents as above.

3. Shri Akhil Mishra, learned Deputy Government Advocate for the appellant/State argued that on the date of incident age of the prosecutrix was below 16 years. He further argued that the prosecutrix (PW-7) was a reliable witness. He further argued that the finding recorded by the trial Court is perverse. Learned trail Judge fell into error while not relying the testimony of the prosecutrix. It was proved that re