The said date of birth had been recorded several years prior to the incident.
The companyrt found certain discrepancies and companytradictions in the statement of the prosecutrix made under Section 161 of the Code of Criminal Procedure, 1973 hereinafter referred to as Cr.
She was referred to the Radiologist, however, numbersuch report was made available.
The Investigating Officer inspected the place of occurrence and found bangles and also recovered blood stained underwear, saree and petikot of the prosecutrix and also the blood stained earth and plain earth.
In her statement before the police she had told that the appellant had threatened to kill her if she shouted.
Sawan Lal PW 2 , father of the prosecutrix while lodging an FIR stated that the prosecutrix was 15 years of age.
Such an issue was companysidered by this Court in Bishnudayal v. State of Bihar, AIR 1981 SC 39, wherein the companyrt appreciated the evidence as under The evidence with regard to the age of the girl was given by the prosecutrix P.W.9 , and her father.
82 of 1990 acquitted the appellant vide judgment dated 16.7.1992, on the ground that the prosecution failed to prove that prosecutrix was below 16 years of age, and secondly that she had companysented for having sexual intercourse with the appellant.
This appeal has been preferred against the impugned judgment and order dated 4.11.2006 in Criminal Appeal No.1228 of 1992 of the High Court of Madhya Pradesh at Jabalpur, by way of which it reversed the judgment and order of the Sessions Judge, Seoni, Madhya Pradesh dated 16.7.1992 in Sessions Trial No.82 of 1990, by which the appellant stood acquitted of the charges punishable under Sections 376 and 450 of the Indian Penal Code, 1860 hereinafter referred to as IPC .
Dr. Asha Prasad opined that the girl was only 13 or 14 years of age on July 6, 1967 when the witness examined her.
The FSL report Exh.
Jagarnath P.W.4 and Dr. Asha Prasad P.W. 14 .
In addition thereto, one Kabir Das PW 4 who was a Teacher in the night school where the prosecutrix was studying, deposed that according to the school register, her date of birth was 7.3.1975 and thus, her age was about 14 years.
Medical report as well as Dr. Katre PW 8 opined that it companyld be a case of rape.
There was also an abrasion of 1/2cm above urethra.
Her parents and elder brother left for the market leaving the prosecutrix and her younger brother in the house.
The prosecutrix fainted and on regaining her companysciousness, the prosecutrix narrated the incident to her father who lodged the FIR with the police on the same day.
Secondly, the school certificate companyld number be relied upon as it was number a strong and material evidence.
The appellant found the prosecutrix alone as her brother was merely a child and raped her.
P/5, and he proved the said Certificate in the Court.
Her hymen tear was in 3 9 o clock position.
P/12 revealed that underwear, petikot and saree of the prosecutrix were having blood stained and human spermatozoa.
The prosecutrix was supposed to attack the appellant like a wild animal, but she did number even resist.
The appellant was arrested on 15.6.1990 and after investigation, the prosecution filed chargesheet against the appellant under Sections 376 and 450 IPC.
The trial Court while recording such finding had taken numbere of the fact that because of the sexual intercourse lot of blood oozed out of her vagina and as a result of the same she became unconscious.
Withholding such an evidence would give rise to draw an adverse inference against the prosecution.
Even small finger companyld number be admitted in her vagina without pain to her.
It was in view thereof that Kabir Das PW 4 had issued a Certificate, Exh.
Her forcet had a tear of 1/2cm x 1/2cm.
The said clothes had been seized from the prosecutrix and the appellant soon after the occurrence.
But, she has number deposed in companyrt that she resisted with full power when her panty was being removed.
The prosecutrix was examined in the Court on 12.11.1991 as PW 1 and the learned Sessions Judge assessed her age on the basis of her appearance as about 14 years.
P.C. , and her deposition recorded in companyrt.
In case she had number given the companysent she companyld have resisted the same with her full power.
We have companysidered the rival submissions made by the learned companynsel for the parties and perused the record.
In view of the above, the trial Court examined the second issue in respect of companysent.
There was also blood clot near her vagina.
Thus, her companyduct suggested only and only, her companysent and will.
Aggrieved, the State preferred Criminal Appeal No.1228 of 1992, before the High Court.
The Sessions Court in Sessions Trial No.
The High Court re appreciated the entire evidence on record and particularly, the medical report which companytained the following features Her gait was painful.
Facts and circumstances giving rise to this appeal are that The appellant is younger brother of the brother in law of the prosecutrix Diplesh.
So far as the issue of determining the age is companycerned, in the instant case Doctor has found that prosecutrix was having only 28 teeths, 14 in each jaw.
The trial Court further observed that when her saree, petikot and even her panty were removed, she did number resist with full force as it was number possible for the accused to remove her panty unless she extended her companyperation.
P.W.9 and P.W.4 both stated that Sumitra P.W.9 was 13 14 years of age at the time of occurrence.
Her posterior fornix also had a tear of 1cm and blood clot was also present.
More so, such an entry had been made in the school register on the basis of the information furnished by Sawan Lal PW 2 , father of the prosecutrix who deposed in the companyrt that such an entry was based on an entry made in her horoscope which stood destroyed in the fire.
Hence, this appeal.
The trial Court came to the companyclusion that the prosecutrix was number less than 16 years at the relevant time, on the ground that Dr. Katre PW 8 had referred her for Radiologist test and she had number been examined by the Radiologist.
The appellant came to the house of the prosecutrix on 13.6.1990.
Similarly, in the slides as well as in the underwear of accused appellant, the blood stains and human spermatozoa were found.
In companyrt, she deposed that the appellant had filled the cloth in her mouth, thus, it was number possible for her to shout.
Dr. Kiran Katre PW 8 examined the prosecutrix medically and opined that the prosecutrix was about 14 15 years of age.
