JUDGMENT 1. - This is an appeal filed by Pur Singh through the Superintendent, Central Jail, Kota, against the judgment of the Sessions Judge, Jhalawar, dated August 31, 1981, by which the appellant was convicted under sections 363 and 376, IPC and was sentenced to undergo imprisonment for three years and to pay a fine of Rs. 500/- in default of payment of fine to suffer further rigorous imprisonment for six months on the first count and on the second to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/-, in default of payment of fine to suffer further rigorous imprisonment for six months. Both the substantive sentences were, however, ordered to run concurrently. 2. The incident that led to the prosecution of the appellant may be briefly stated as follows:- On June 29, 1978, at about 8 or 9 p.m. Mst. Umrao Bai daughter of Kalu Singh was sitting alone inside her house. Her parents had gone outside in search of their mare. At that time Umrao Bai's aunt Smt Samad Bai came to her house and asked Umrao Bai to accompany her to the jungle for passing stools in the dark. Umrao Bai readly agreed to go with her aunt to ease herself in the jungle outside the village. When both of them were going outside the village, they met Pur Singh appellant, brother of Smt. Samad Bai, who gave the hand of Umrao Bai into the hands of Pur Singh, Umrao Bai protested against the highhanded action of her aunt but her aunt gagged her mouth with a piece of cloth. Pur Singh then asked Umrao Bai at the point of knife to accompany him to the place of his choice. Umrao Bai refused to go with the appellant. Thereupon, the latter dragged her and forcibly removed her from there. Nawalsingh and Karan Singh, who were going towards Bada Kharpa village, saw her being dragged by the appellant but they did not intervene because,on account of her mouth being gagged,Umrao Bai could not raise a hue and cry. The appellant forcibly dragged her to an out-house situated at the well of Hadmatiya. Inside the outhouse, Pur Singh took out the piece of cloth from the mouth of Umrao Bai and after closing the doors committed rape upon her. The appellant forcibly dragged her to an out-house situated at the well of Hadmatiya. Inside the outhouse, Pur Singh took out the piece of cloth from the mouth of Umrao Bai and after closing the doors committed rape upon her. Umrao Bai put up resistance and raised an outcry but nobody came to her rescue. Then again Umrao Bai was subjected twice to forcible sexual intercourse. On the next day early morning, the appellant asked Umrao Bai to wash her clothes which she was wearing on her body, because the clothes had received stains of semen and blood on them in the course of sexual intercourse. Umrao Bai washed her clothes under fear of being killed. Then she was forcibly taken to village Kharpa and was kept in confinement inside a house. In that house also the appellant ravished her in the night. At about mid-night, the appellant went out of the house leaving Mst. Umrao Bai weeping. On the next day after sun-rise one old man heard her cries of weeping. On hearing the cries, he opened the door of the house in which Umrao Bai was wrongfully confined. The old man made necessary enquiries as to the parentage and residence of Umrao Bai and the cause of her weeping. Umrao Bai related the whole of the incident to the old man and ran away from there towards her village. When she was taking rest at the well of Samda, her parents were seen coming from the side of village Kharpa. Her parents reached there after a short while and made enquiries from her about her disappearance from the village. Mst. Umrao Bai narrated the whole of the incident to them also. The parents of Umrao Bai then took her to the police station for making a first information report. The police recorded the first information report made to them by Umrao Bai on July 1, 1973 at 8.30 p.m. and on the basis of the report the police registered a criminal case under section 363, 379 and 342, I P.C. and took up usual investigation into the matter. In the course of investigation, Mst. Umrao Bai was sent to the Primary Health Centre, Pirawa, for medical examination as to her age and rape, Dr. In the course of investigation, Mst. Umrao Bai was sent to the Primary Health Centre, Pirawa, for medical examination as to her age and rape, Dr. Chandra Kishore Shrivastava examined Umrao Bai on July 1, 1978 and found no external injury on her body except a small scratch on the right breast near the nipple. In the opinion of the Doctor, Mst. Umrao Bai was habituated to sexual intercourse as her hymen was ruptured and could admit two fingers easily. The Medical Officer took vaginal swab and smear and the clothes of Umrao Bai for the purpose of sending them to the Chemical Examiner for chemical analysis. As there were no injuries on the private parts of Mst. Umrao Bai, and, as she was accustomed to sexual inter course, the Doctor could not give definite opinion whether or not she was recently subjected to sexual intercourse. He reserved his opinion till the receipt of the result of the chemical examiner. 3. As to her age, the Doctor noticed physical characteristics and general physical development of her body and on that data came to the conclusion that she was approximately 16 years of age. The police collected other necessary evidence in the case and, eventually, filed a charge-sheet against the appellant under sections 366, 376 and 342, IPC in the court of the Munsiff and Judicial Magistrate, Jhalawar. The learned Magistrate, finding a prima facie case, exclusively triable by the court of Sessions, committed the appellant to the court of the Sessions Judge, Jhalawar, for trial under the aforesaid offences The learned Sessions Judge tried the appellant for all the charges but found him guilty of the offences punishable under sections 376 and 363, IPC only, He accordingly convicted and sentenced the appellant in the manner stated above. Aggrieved by his convictions and sentences, the appellant has preferred this jail appeal. 4. As the appellant was not represented by any counsel, Mr. Shankar Birmiwal was appointed as Amicus Curiae to argue the appeal on his behalf. 5. I have carefully perused the record and heard Mr. Shankar Birmiwal, learned Amicus Curiae and Mr. G.G. Sharma Public Prosecutor for the State. 4. As the appellant was not represented by any counsel, Mr. Shankar Birmiwal was appointed as Amicus Curiae to argue the appeal on his behalf. 5. I have carefully perused the record and heard Mr. Shankar Birmiwal, learned Amicus Curiae and Mr. G.G. Sharma Public Prosecutor for the State. It has been strenuously urged before me by the learned counsel for the appellant that in the absence of corroboration of the testimony of the prosecutrix in essential particulars, the trial Judge committed an error in convicting the appellant under sections 363 and 376, IPC. It was further argued that the evidence of the prosecutrix is of no sterling worth and is full of infirmities, such as material contradictions, omissions and exaggerations and does not fit in with the probabilities of the case, Mr. G.G. Sharma, learned Public Prosecutor, on the other hand, contended that in a case of rape and other sexual offences, it is open to the court to convict the accused on the basis of the uncorroborated solitary statement of the prosecutrix if it comes to the conclusion in the peculiar circumstances of the case that corroboration is not essential. According to the Public Prosecutor, the learned trial Judge was satisfied, upon close and careful scrutiny of the solitary evidence of Mst. Umrao Bai prosecutrix, that the appellant kidnapped her and raped her many a time and so no interference with his finding as to the guilt of the appellant is called for unless it is shown by the other side that the conclusions drawn by the trial Judge from the evidence are wholly erroneous, unreasonable and perverse. In short, the Public Prosecutor supported the judgment of the trial court. 6. I have given my earnest consideration to the rival contentions mentioned above. At the outset, I may observe that the prosecution examined Karan Singh and Nawal Singh to corroborate the testimony of the prosecutrix in some essential particulars but these two witnesses turned hostile to the prosecution case and were cross-examined by the Public Prosecutor with the leave of the trial court. Both Karan Singh, PW 6, and Naval Singh, PW 7, did not claim to have seen Umrao Bai being dragged by the appellant from the jungle towards the outhouse situated at the well of Harmatiya. Both Karan Singh, PW 6, and Naval Singh, PW 7, did not claim to have seen Umrao Bai being dragged by the appellant from the jungle towards the outhouse situated at the well of Harmatiya. Likewise, the prosecution failed to examine the old man, namely, Kan Singh who, upon hearing the cries of weeping of Umrao Bai in village Kharpa, had opened the door of the house in which she was wrongfully confined and made necessary enquiries from her as to the cause of her weeping. The prosecuting could not afford any reasonable explanation for non-production of this material witness whose evidence would have gone a long way to corroborate the version given out by the prosecution in the trial court. It is all the more surprising that the prosecution could not produce the report of the Chemical Examiner to whom the clothes of the prosecutrix and her vaginal swab and smear were sent for analysis. The presence of spermatozoa in the vaginal swab or stains of semen and blood on the clothes would have been a good corroborative evidence in this case, but no explanation is forthcoming from the side of the prosecution why the result of the analysis made by the Chemical Examiner, if any, was not produced or placed on the record. 7. Even the testimony of the Medical Officer does not lend support to the evidence of the prosecutrix, because Dr. Chandra Kishore Shrivastava found no injuries on the body and private parts of Umrao Bai except a superficial scratch on her right breast near the nipple. Had she been subjected to forcible sexual intercourse many a time by the appellant despite her stiff resistence, she would have surely sustained some injuries on her body. Hence, I may say that there is solitary uncorroborated evidence of the prosecutrix in this case. 8. Now it has to be considered whether in the circumstances of this case the appellant could be convicted of kidnapping and rape on the only uncorroborated testimony of Umro Bai; and whether it is safe to dispense with corroboration. In my opinion, the evidence of Umrao Bai does not inspire confidence and is not free from serious infirmities. In the course of arguments, I have been taken through her statement. Upon careful review thereof I am of the view that her evidence is of no value. In my opinion, the evidence of Umrao Bai does not inspire confidence and is not free from serious infirmities. In the course of arguments, I have been taken through her statement. Upon careful review thereof I am of the view that her evidence is of no value. In her cross-examination she was confronted with and contradicted by portions marked Ch to Chh in the first information report and her statement before the police,wherein she stated that while she was sitting alone in her house, her aunt Samad Bai came to her for the purpose of taking her to the jungle for passing stools. She agread to accompany her aunt to the jungle & went with her outside the village. In her statement in the trial court, she changed her above version and told a different story that the appellant had come to her house and induced her to go with him on the false pretext that her mare was grazing at some distance from her house. When confronted with the first information report and her subsequent statement before the police on this point, she could not afford any reasonable explanation for the referred-to-above inconsistency. Hence, it is highly doubtful whether Mst. Umro Bai left the house of her parent at the instance of her aunt or on account of deceitful means adopted by the appellant. She was again confronted with and contradicted by portion K to Khe wherein she did not disclose the name of the old man who had come to her rescue or claimed to recognise him by face. In her statement before the court she, on the other hand, stated that the name of the old man was Kanji and that she had mentioned this name to the police. Again,she was confronted with and contradicted by her first information report wherein she omitted to state the material fact that the old man Kanji by name had brought her from village Kharpa and left her near Kotri village. When she was asked why she did not state this material fact before the police, she asserted that she did not know why it was not written by the police although she had mentioned this fact to them. When she was asked why she did not state this material fact before the police, she asserted that she did not know why it was not written by the police although she had mentioned this fact to them. Likewise, she did not state in the first information report and in her subsequent statement before the police that the appellant had taken her to the house of his daughter at village Kharpa although in her statement before the court she stated this fact. When confronted with the first information report and her subsequent statement before the police on this point, she merely replied that she did not know why this fact was written by the police. Another circumstance which throws considerable doubt on the version is that in her first information report and in her subsequent statement before the police she clearly stated that Nawal Singh and Karan Singh of Chota Kharpa had seen her being dragged by the appellant. In her cross-examination she gave a good by to the above statement and categorically denied that Nawal Singh and Karan had seen her being taken outside the village. When asked to explain away this inconsistency in her two statements, she merely stated that she did not state before the police that these two persons had seen her being dragged by the appellant. Upon critical examination of her testimony I may say that she has no respect for truth and felt no compunction for changing her version, in the manner she liked best. No reliance can be placed on her uncorroborated testimony. Reference in this connection may be made to an authority of the Supreme Court Ram Murti v. State of Haryana, AIR 1970 SC 1029 , wherein the following observations were made emphasising the necessity for corroboration in material particulars from some independent source in a case where the prosecutrix proved to have been used to sexual intercourse made a statement that she was compelled, threatened or induced by deceitful means to go with the accused: "The prosecutrix has made several divergent statements. Keeping in view the medical evidence which shows that the prosecutrix had been used to sexual intercourse, in order to accept her statement that she was compelled, threat ended or otherwise induced to go with the appellant, there should, in our opinion, be corroboration of some material particular from some independent source and her hare statement cannot be considered sufficient to sustain the appellant's conviction." The Public Prosecutor vehemently contended before me that Mst Umrao Bai was a minor girl below 16 years of age when she was kidnapped & raped by the appellant and so her consent to her removal and to the act of sexual intercourse, if any, was immaterial. The above contention has no force, because the prosecution could not lead satisfactory evidence in proof of minority of Mst. Umrao Bal. The Doctor, who medically examined her as to her age, gave his opinion merely on the basis of physical characteristics and general development of her body. No ossification test even was held in this case. Statements of the girl and the evidence of her parents as to her age are highly unsatisfactory, because the parents have no idea in which year or Samvat Umrao Bai was born. They could not even tell the year or Samvat in which their other children were born. The parents are illiterate and their evidence as to the age of their daughter Mst. Umrao Bai is based on mere conjectures Besides owing to variations in climatic, dietic hereditary and other factors affecting inhabitants of different States in India, a fairly close estimate about the age within a range of 2to3 years can possibly be made about the age of an individual unto 22 or 23 years or at the most 25 years on the basis of general physical characteristics and development of the body of an individual, and on the progress of the union of ephises, but no exact determination of age is possible on the aforesaid basis. In the present case the Doctor, after noticing the physical characteristics and general development of the body of the prosecutrix, gave his opinion that she was approximately 16 years of age. His opinion is not entitled to much weight because it is not based even on the progress of the union of ephiphises which is very helpful for determining the age until ossification is completed. His opinion is not entitled to much weight because it is not based even on the progress of the union of ephiphises which is very helpful for determining the age until ossification is completed. Consequently, I have no hesitation in holding that the prosecution could not prove minority of the girl beyond reasonable doubt. It appears from the evidence of the prosecutrix that she was a consenting party to her removal and to the act of sexual intercourse, if any, committed by the appellant. 9. The result of the above discussion is that the jail appeal filed by Pur Singh is accepted, his convictions and sentences under sections 363 and 376, IPC are set aside and he is acquitted of the said offences. The appellant is in jail. He shall be released forthwith, if not required in connection with some other case.Appeal accepted. *******