A conviction for rape requires clear evidence of the victim's age and consent; mere allegations without supporting evidence cannot sustain a guilty verdict.

JUDGMENT :

Sanjay Kumar Jaiswal, J.

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 11-06-2008, passed by learned 2^nd Additional Sessions Judge Balodabazar, District Raipur (C.G.), in Sessions Trial No.02/2008, whereby the appellant-accused has been convicted as under:-

2. As per prosecution story, in the month of July 2007 at 12.00 pm the victim (PW-3) aged 14 years was alone in her house. Her father (PW-4) and mother (PW-5) had gone to work in the garden. At 12.00 pm, the accused/appellant came to the victim's house and forcibly removed her clothes and committed sexual intercourse with her, and threatened to kill her if she told her parents. Due to fear of the accused, the victim did not tell anyone about the incident. When the victim became 5 months’ pregnant with the accused, her mother questioned her about her pregnancy, then the victim told her mother that accused/appellant Jitendra did bad thing with her in the month of July due to which she became pregnant. Then the victim’s mother informed her husband about the incident. Then the victim’s father also informed one Gaulochan of the village about the incident. Then the victim along with her parents went to Police Station Kasdol on 27-10-2007 and filed a report against the accused regarding the incident. Thereafter, the victim was medically examined. Her X-ray was also done regarding her age. A map of the incident was also prepared. After recording witness statements and completing the investigation, the accused was arrested and charge sheet was filed against him.

3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 8 witnesses and exhibited 6 documents. 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 the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal.

5. Learned counsel for the appellant submits that in this case there is no clear evidence regarding the date of birth of the victim (PW-3). The trial Court has determined her age to be less than 16 years on the basis of oral evidence only, whereas no witness was able to tell the date of birth of the victim. The date of birth of the victim is also not mentioned in the Kotwari register. The ossification test report (Exhibit P-3) given by Dr. Mamta Thakur (PW-2) states the age of the victim to be 18 years, which has not been considered by the trial Court. Thus, the prosecution has completely failed to prove that the victim was a minor at the time of incident. In support of his argument, learned Counsel has cited a judgment in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 . Learned counsel also submits that the trial Court has also found that the victim was mentally weak and was not in a position to give consent. Therefore, the appellant has been convicted even though in the entire prosecution case, no medical evidence was collected to show that the victim was mentally weak and was not in a position to give consent. In this regard, no reference was made in the charge framed by the trial Court against the appellant. Therefore, the conclusion of the trial Court that the victim was not in a posi