P. Sam Koshy, J.

1. The present appeal has been preferred against the judgment of conviction dated 26.09.2012 passed by the Sessions Judge, Bastar place Jagdalpur in Sessions Trial No. 170 of 2011 whereby the appellant has been convicted for the offence punishable under Sections 363, 366 and 376 of IPC and sentenced to undergo rigorous imprisonment for three years with fine of Rs. 500/- for each of the offence u/s 363 and 366 of IPC and rigorous imprisonment for seven years with fine of Rs. 1,000/- u/s. 376 of IPC with default stipulations.

2. Counsel for the appellant submits that the impugned order of conviction is bad in law for the reason that the prosecution in the instant case has not been able to establish the fact that the prosecutrix at the time of incident was a minor. According to him, the prosecution has failed to provide any cogent evidence by which it could be determined that the prosecutrix PW-1 was a minor. He submits that so far as reliance placed on the Dakhil Kharij Register to establish the date of birth is concerned, the prosecution has failed to establish the date of birth by leading evidence of the person who had made entry in the Dakhil Kharij Register or at least lead evidence of the person on whose information the entry was made in the said Register. So far as the date of birth mentioned in the mark sheet and the other Transfer Certificate is concerned, PW-2 Vimla Nag, the teacher of the school has stated that the same was made on the basis of the entry found in the Dakhil Kharij Register. Therefore, the version of PW-2 would not be acceptable. Counsel for the appellant submits that in the absence of any proof establishing the age of the prosecutrix, it has to be presumed that she for all practical purposes at the time of incident was a major. So far as the conduct of the prosecutrix being a consensual party is concerned, counsel for the appellant submits that the prosecutrix had left her home voluntarily on 08.10.2011 and the FIR was lodged on 14.11.2011 i.e. after more than one month. In between, the appellant and the prosecutrix are said to have travelled to different places and there was ample opportunities for the prosecutrix to raise an alarm and even protested from having any sort of relationship with the present appellant. That not reacting and protesting or raising any alarm or seeking for relief by itself gives a clear indication of she being a consenting party. It is also the contention of the counsel for the appellant that the prosecutrix had not even intimated anybody at the place where she was residing with the appellant in respect of she being forcefully kept by the appellant which also leads to draw an inference of the prosecutrix being a consenting party. Thus, counsel for the appellant prays for setting aside of the impugned order and seeks for the acquittal of the appellant.

3. State counsel however, opposes the petition on the ground that the statement of the prosecutrix is paramount which has to be considered and in the instant case she has categorically levelled allegation against the appellant of having forcefully committed sexual intercourse with her. State counsel submits that the prosecutrix has stated that she was subjected to threat of dire consequences if she informed anybody and that the appellant was always carrying a knife in his pocket. Thus, on the statement of the prosecutrix alone the offence alleged against the appellant is made out and therefore the appeal does not warrant any interference. State counsel also referred to the statement of PW-2 who is a teacher and has proved the Dakhil Kharij Register and the mark sheet of the prosecutrix for proving the age of the prosecutrix. Likewise, the prosecutrix was also subjected to radiological examination wherein also the prosecutrix was found to be over 13 years but below 16 years of age. Therefore, the minority of the prosecutrix stands established both from the documents as well as from the medical evidence.

4.