In cases involving offenses under Sections 376 and 366 of the Indian Penal Code, the age of the prosecutrix is of utmost importance, especially when medical evidence indicates that she is habituated to sexual intercourse. Discrepant and unreliable evidence regarding the prosecutrix's age should be resolved in favor of the accused, and the benefit of doubt should be given to the accused.

Harmohinder Kaur Sandhu, J. - In this appeal Satish Kumar has assailed the judgment dated 14.5.1986 recorded by Shri M.K. Bansal, the learned Additional Session Judge, Chandigarh, whereby he convicted the appellant for offences under Sections 376, 366 and 363 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/- for the offence under Section 376 Indian Penal Code to undergo rigorous imprisonment for three years for the offence under Section 366 Indian Penal Code and for two years for the offence under Section 363 Indian Penal Code.

2. The facts of the case giving rise to this appeal are that Krishan Lal PW 9 lived in House No. 22, Sector 14, Chandigarh alongwith his wife and children including his eldest daughter Seema PW 5. On 3.7.1985 at about 8.00 p.m. Seema went to the common latrine, where Satish Kumar accused-appellant met her and asked her to accompany him Seema refused but she was compelled to sit on his cycle on the point of knife. She was taken to village Dhanas where she was kept in House No. 910 belonging to Girdhari PW 7. The accused raped her during the night. On the next date he took her on his cycle and both roamed about. They spent night in a temple at village Kahnpur and from there Seema was taken to Bhadi. She was kept in the house belonging to the uncle of the accused where she was again subjected to rape twice. She was then brought to the house of Girdhari in village Dhanas.

3. On 4.7.1985 when Seema did not return to the house, her mother Asha lodged report Ex. PG at the police station on the basis of which case was registered. A search was made for the prosecutrix by ASI Darshan Kumar who on getting information from Dev Raj went to House No. 910 at village Dhanas and recovered the prosecutrix from the custody of the accused. The accused was got medically examined from Dr. Brij Bhushan PW 3, who found the accused fit to perform the act of sexual intercourse.

4. Seema was got medically examined from Dr. Mrs. G.K. Dhillon, who issued certificate Ex PB according to which the tear of hymen was old and healed and vagina admitted two fingers easily. The doctor referred the prosecutrix for X-ray examination to determine her age.

5. Ossification test was conducted by Dr. B.N. Aggarwal who was examined as DW 7. The doctor submitted his report Ex. DW 7/A according to which the age of the prosecutrix was between 16-1/2 to 17 years. During investigation birth certificate and school living certificate of Seema were also taken into possession.

6. In support of the prosecution version 11 witnesses were examined. The prosecutrix appeared as PW 5 and made her deposition in support of the prosecution version, but her cross-examination revealed that she was not forced by the accused to accompany him. She did not raise any alarm. She roamed about while sitting on the cycle in front of the appellant. She was taken to a photographer and her photograph was taken. She wandered with the appellant in Chandigarh, Dhanas and Khanpur etc. but she never made any attempt to seek the help of any one for getting herself rescued from the clutches of the appellant. The trial Court found that the prosecutrix went with the appellant of her own free will and she was a consenting party to all the acts.

7. During trial the contention of the appellant was that Seema was known to him for the last one year and had been writing letters to him which were mark A to mark D. On 3.7.1985, she met him and told that she was to be sent to Jalandhar and as she could not live without him, he should take her to some place. She promised to meet him at 8.30 p.m. He was taking his meals when she came to his house and took him out. She asked him to take her away. At her insistence he took her on his cycle towards PGI and then they went to Dhanas. Girdhari PW slept outside and he and Seema slept in the room and Seema came to his bed of her own and forced him to do the sexual act. Next day the