IMPORTANT POINT
The main legal point established in the judgment is the requirement for reliable and valid evidence to prove the age of the prosecutrix beyond reasonable doubt, especially in cases where the age is a crucial factor in determining the offenses under the IPC.

JUDGMENT :

1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 30-08-2002, passed by the Additional Sessions Judge, Korba (C.G.), in Sessions Trial No.355/2001, whereby the appellant-accused has been convicted as under:-

2. Briefly facts of the case is that in the night of 27-05-2001, the prosecutrix (PW-4) was at home with her mother. Her father-Mohit Ram Satnami (PW-1) had gone for his duty at N.T.P.C. The appellant herein came along with another person in the house of prosecutrix and took her with him on the point of knife. The appellant herein took the prosecutrix(PW-4) by train to the house of his friend at Village-Kapan, where he kept her for 2 days and then took her to Village-Manikpur, kept her in his sister's house and committed sexual intercourse with prosecutrix (PW-4). Later, on receiving information, Mohit Ram Satnami (PW- 1), father of prosecutrix and Babulal (PW-5), neighbor went to village Manikpur and brought the prosecutrix from possession of the appellant. Thereafter, on 01/06/2001, FIR (Ex.P-15) was lodged against the appellant at Police Station Darri, District Korba (C.G.). Medical examination of the appellant and prosecutrix have been conducted. Undergarments of appellant and prosecutrix were seized and sent for its chemical examination. Spot map was prepared. The school admission register of school of prosecutrix and report card were seized vide Ex.P-9. According to which, date of birth of the prosecutrix was recorded as 15/06/1985. On the basis of which, the prosecutrix had not attained 16 years of age on the date of incident i.e. 27/05/2001, but was 18-19 days are less than to be 16 years. According to FSL report vide Ex.P-24, semen and human sperm were found in the underwear of the appellant and no semen stains and human sperm were found in the undergarments of the prosecutrix.

3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 24 documents. In order to prove, the appellant has neither examined any witness nor exhibited any document. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication.

4. After hearing both the parties, the trial court passed the impugned judgment of conviction and order of sentence.

5. Learned counsel for the appellant submits that the date of birth of the prosecutrix (PW-4) is not certified. To authenticate the admission register and report card of the prosecutrix, no witness has been examined from the school. The prosecutrix herself and her father have been unable to state the date of birth of prosecutrix. Ossification test to determine the age of prosecutrix has not been conducted despite it was medically advised. Prosecutrix was consenting party. For the offence under section 363, 366 of the Indian Penal Code, 1860, it was necessary to prove that age of the prosecutrix was less than 18 years at the time of the incident. For the offence under section 376 of the Indian Penal Code, it was necessary to prove that the age of the prosecutrix was less than 16 years at the time of the incident, which the prosecution has failed to do so. In support of his submission, he referred the judgment rendered by the Hon’ble Supreme Court in the matter of Manak Chand alias Mani v. State o