( 1 ) THE appellants, having been convicted for offence punishable under S. 376, I. P. C. and sentenced to five years' R. I. each, by judgment dated 9-4-1982, passed by Shri S. L. Gupta, Additional Judge to the Court of Sessions Judge, Chhatarpur, in Sessions Trial No. 140 of 1981, have preferred this appeal challenging their aforesaid conviction and sentence.

( 2 ) THE appellants were put on trial for having committed sexual intercourse on Smt. Santu against her will on 3-4-1981 at village Shahgarh. It was alleged that on the date of incident, Smt. Santu, had gone to pick up Mahuwa flowers along with her father, uncle and cousin sister. While in the jungle, her father and uncle moved little ahead of them, and she, along with her cousin Munni, were left behind. At about 9. 00 a. m. when both these girls were picking up Mahuwa flowers, the two appellants came on the spot. Appellant Billa asked the prosecutrix to permit him to commit sexual intercourse, on which she said that she would report the matter home. On this appellant Billa felled her on the ground and appellant Vinod committed sexual intercourse with her. After Vinod, appellant Billa also did the same. During this period, they put her own Sari in her mouth and, therefore, she could not even shout. Her cousin Munni, who was witnessing the incident, however, shouted, on hearing which Smt. Shyambai came on the spot. On seeing Shyambai coming towards the place of incident the appellants ran away. The two girls reported the matter to Jagannath brother of the prosecutrix. A report of the incident was lodged and prosecutrix was sent for medical examination. Broken pieces of bangles were seized from the spot vide Ex. P 4. After investigation the appellants were put on trial as aforesaid.

( 3 ) THE learned Judge, relying on the evidence of Smt. Santu (P. W. 1) and Munnibai (P. W. 2), held that the prosecutrix had been subjected to sexual intercourse. Appreciating the evidence on record, the learned Judge held that the prosecutrix was above 16 years of age. The learned Judge however did not agree with the defence version that the rape had been committed with the consent of the prosecutrix. That is how the appellants have been convicted and sentenced as aforesaid.

( 4 ) SUBMISSION of the learned counsel for the appellant is that all circumstances of this case, including the expert opinion of Dr. (Mrs.) Khare, pointed to the consent of the prosecutrix to the sexual intercourse. The circumstances giving rise to the aforesaid inference are said to be opinion of Dr. (Mrs.) Khare that sexual intercourse was not forcible (para 10), absence of injuries and the fact that the incident was not narrated to Shambai, who had come on the spot after hearing shouts of Munnibai.

( 5 ) BEFORE examining the aforesaid in detail we may consider the value of the opinion of Dr. (Mrs.) Khare in the matter. She had admittedly examined the prosecutrix Santu on 4-4-1981 and had given her report (X. P-12-A ). According to her, there was "no mark of external injury on any part of the body. " On internal examination, she found hymen of the prosecutrix freshly torned at 5 O'clock position and bleeding on touch. In her report (Ex. P-12-A), she had opined that intercourse had taken place within about 12 hours. Dr. (Mrs.) Khare also repeated these facts in her statement in the Court and had clearly and specifically told that prosecutrix had been subjected to sexual intercourse within 24 hours. In cross-examination, she further stated that she found no sign of previous sexual intercourse. Her opinion was based on absence of old tears in the hymen. At the end of her cross-examination she, however, gave the opinion that because there was no external injury on the girl's person, she was of the opinion that the girl was not subjected to sexual intercourse forcibly. It is this part of the expert opinion which is said to be crucial and conclusively establishing consent. There can be no dispute that evi