Deepak Gupta, J.

This appeal by the convicted accused-Appellants is directed against the judgment dated 12.08.2009 delivered by the learned Additional Sessions Judge, Janjgir, District Janjgir-Champa, in Sessions Trial No. 20 of 2009, whereby the Appellants have been convicted for having committed an offence punishable under 376(2)(g) of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 10 years with fine of Rs. 500/- each. In default of payment of fine, the Appellants were ordered to undergo further rigorous imprisonment for three months.

2. Briefly stated facts of the case are that on 01.10.2008 at about 10:30 am, the First Information Report (Exhibit P/7) was lodged at the instance of the prosecutrix (name withheld). In this FIR, the prosecutrix complained that on 01.10.2008 itself, when she was returning from near the pond after answering the call of nature, she was accosted by Raju Suryawanshi and Nand Kumar Suryawanshi near the house of Kamal Suryawanshi. Nand Kumar caught hold of her hands and took her behind the house of Kamal. Raju took off her Salwar and lifted her Kurta, forcibly made her to lie down on the ground and committed forcible sexual intercourse with her. At that time, Nand Kumar had caught hold of her both hands. She tried to scream but Nand Kumar had covered her mouth and prevented her from screaming. After she was raped, both Raju and Nand Kumar went towards the pond. She went weeping towards her house and reported the matter to her mother. Thereafter, the mother consulted some other ladies and finally the prosecutrix along with her mother and maternal grandfather went to police station where the FIR was lodged. The police investigated the matter and as per the police, the prosecutrix was got medically examined by Dr. Rashmi Dahire (PW-7). Thereafter, the accused were charged for having committed an offence of gang rape upon the prosecutrix. The accused denied the charges and prayed for trial. After trial, they have been held guilty and have been convicted and sentenced, as aforesaid. Hence, this appeal.

3. I have heard learned counsel for the Appellants.

4. The main grounds raised are that, (i) the medical evidence does not support the version of the prosecutrix. It is stated that in fact both the prosecutrix and her mother state that she was never medically examined and therefore, no reliance can be placed on the medical evidence; (ii) there is no evidence of rape and it is a false case made out against the accused; (iii) the prosecutrix is more than 16 years of age, and lastly; (iv) assuming that there was sexual intercourse, the same was consensual in nature. In this regard, it is urged that the place of occurrence is supposed to be a house under construction with no doors and windows which was situated within the village itself and the fact that no alarm was raised itself indicates that this is a case of consent.

5. First I shall take up the issue with regard to the age of the prosecutrix. The prosecutrix has stated that she was 14 years of age but when cross-examined, she has stated that she has not studied and does not known her age and she has given her age by approximation. The mother of the prosecutrix appeared as PW-6 and she also could not give any age of the prosecutrix. In fact, the mother states that when she had got the girl admitted in the school, she had got the date of birth verified from the Kotwar. However, no record under the Birth and Death Registration Act has been produced, that is the primary evidence. Only school record from the school has been produced but the school record is based on the record which was produced by the Kotwar and that is the primary piece of evidence. No reliance can be placed on the school record, till the prosecution proves on what basis entry was made in the school record. Therefore, in my view, the prosecution has failed to prove that the prosecutrix was below 16 years of age at the time of occurrence.

6. Having held so,