JUDGMENT :

1. This appeal is directed against the judgment dated 30.9.1999 passed by the Additional Sessions Judge, Bemetara, District Durg in Sessions Trial No.189 of 1998 convicting and sentencing the Appellant as under:

Conviction Sentence

Under Section 363 of the Indian Penal Code Rigorous Imprisonment for 1 year and fine of Rs.100/- with default stipulation

Under Section 366 of the Indian Penal Code Rigorous Imprisonment for 5 years and fine of Rs.200/- with default stipulation

Under Section 376(1) of the Indian Penal Code Rigorous Imprisonment for 7 years and fine of Rs.500/- with default stipulation Sentences are directed to run concurrently

2. According to the case of prosecution, at the time of incident, age of the prosecutrix (PW1) was about 14 years. On 25.2.1998 at about 5 p.m., when the prosecutrix was going towards a nala (drainage) of her village and when she reached near the house of the Appellant, at that time, the Appellant along with co-accused Kamlabai (acquitted) came out of his house and they caught the prosecutrix. The prosecutrix tried to scream. It is alleged that she was taken inside the house and thereafter she was threatened. Thereafter both the accused persons bolted the door of the house and went out. At about 8 p.m., the Appellant returned home and thereafter he committed five times forcible sexual intercourse with the prosecutrix during that night. Thereafter, on 27.2.1998, the matter was reported by the prosecutrix vide First Information Report (Ex.P18). She was medically examined by Dr. Mamta Pandey (PW3). Her report is Ex.P1. To determine age of the prosecutrix, her ossification test was conducted by Dr. G.S. Thakur (PW10). His report is Ex.P23 in which he opined that at the time of examination, age of the prosecutrix was about 14 years. Statements of the prosecutrix and other witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed. The Trial Court framed charges against the accused persons.

3. To bring home the offence, the prosecution examined as many as 10 witnesses. Statement of the accused persons were also recorded under Section 313 of the Cr.P.C. in which they denied the guilt, pleaded innocence and false implication. No witness has been examined in their defence.

4. On completion of the trial, the Trial Court acquitted co-accused Kamlabai of all the charges, but convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that without there being any clinching and sufficient evidence on record, the Trial Court has wrongly convicted the Appellant. Referring to the statement of the prosecutrix (PW1) and her maternal grandfather Sukhdas (PW2), it was argued that after the incident, the prosecutrix did not tell anything about the incident to anyone. Next day, after coming out of the house of the Appellant, she straightway went to an agricultural field. Even thereafter, she did not make any complaint to anyone. At the time also when the Appellant was taking the prosecutrix to his house, she did not raise any alarm. When the Appellant bolted her inside his house and went out of the house for about 3-4 hours, at that time also, she did not raise any voice and did not try to run out of the house. The above conduct of the prosecutrix shows that she was a consenting party. It was further submitted that there is no documentary evidence available on record with regard to age of the prosecutrix. Both the prosecutrix and her maternal grandfather Sukhdas were unable to state date of birth of the prosecutrix. According to the ossification test report (Ex.P23), age of the prosecutrix was about 14 years. Radiologist Dr. G.S. Thakur (PW10) has admitted the fact that there could be error of 3 years on either side in determination of age of the prosecutrix. Therefore, there is no conclusive evidence on record on the basis of which it