ORDER :

1. This appeal arises out of judgment of conviction and sentence dated 9.9.2000 passed by the learned 2nd Additional Sessions Judge, Ambikapur, District Surguja in S.T. No.245/99 thereby convicted accused/appellant under Sections 363, 366, 342 & 376 (1) of the Indian Penal Code (for short 'the IPC') and sentenced him to undergo RI for 03 years; RI for 03 years, RI for 06 months and RI for 06 years and fine of Rs.200/-, in default to undergo additional RI for 01 year, respectively. All the sentences were directed to run concurrently.

2. Case of the prosecution, in brief, is that on 6.6.1999 when the prosecutrix along with her friends Hiramani (PW-2) and Virjita (PW-3) was returning her home from Kanki village market. On the way, appellant came on bicycle and caught hold of hand of prosecutrix near an agriculture field in between Kakni & Gangoli and started dragging her from her hairs. When PW-2 & PW-3 asked him not to do so, he threatened them due to which they fled from there. Thereafter, appellant forcibly took the prosecutrix with him to village Chitpur and kept her whole night in the house of one Bokhibai. Next morning appellant took the prosecutrix to his village where he kept her for two days and during this period, he committed sexual intercourse with her saying that he will keep her as his wife. Father of prosecutrix came to house of appellant, freed her daughter from custody of appellant and thereafter prosecutrix lodged report of incident on 10.6.99. Based on aforementioned report, police registered crime for offence defined under Sections 363, 366, 342 & 376 of IPC against appellant.

3. After completion of investigation, police filed charge sheet before the Court of competent jurisdiction. The trial Court framed charges under Sections 363, 366, 342, 376 (1) of IPC against appellant. So as to hold appellant guilty, prosecution examined 12 witness in all and exhibited 13 documents in all. Statement of accused/appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence & false implication. He examined one witness namely Bishu Dev (DW-1) in his defence.

4. After conclusion of trial, trial Court upon appreciation of oral and documentary evidence available on record, convicted and sentenced appellant vide impugned judgment in the manner as mentioned above, by recording finding that on the date of incident, prosecutrix was less than 16 years of age; appellant committed forcible sexual intercourse with her.

5. Learned counsel for appellant would submit that impugned judgment of conviction passed by trial Court is per se illegal, perverse to evidence available on record and also contrary to law laid down by Hon'ble Supreme Court with regard to determination of age of prosecutrix. He submits that on the date of incident, prosecutrix was about 16 years of age, as determined by the Radiologist in report of Ex.P-26 wherein Radiologist (PW-11) has opined that as per test conducted by him, he found the prosecutrix to be in between14 to 16 years. He contended that if ossification test shows age of a person to be 14-16 years then maximum age, as opined by the Radiologist in report Ex.P-26 is to be taken into consideration. He also submits that though Radiologist in report Ex.P-26 has mentioned the range of error in age to be two years on either side but as per law laid down in Subelal vs. State of MP (Now CG) reported in (2011) 4 CGLJ 424, the range of error may be up to 03 years on other side. In the given facts of case, considering range of error in the age as three years, the prosecutrix on the date of incident was more than 16 years. In case at hand, as per report of Radiologist, age of prosecutrix was above 16 years. He further submits that as per statement of prosecutrix herself, after being kidnapped, she was taken by appellant to the house of one lady in village Chitpur. She also admitted that in the house where she stayed in f