S. P. D. GHOSE, J. ( 1 ) THIS is an appeal against an order of convicted and sentence passed by the learning Assistant Sessions Judge, 4th Court, Alipore, in Sessions Trial No. 3 (7) of 1978. ( 2 ) THE respondent No. 2, Smt. Maya Rani Biswas, Filed a petitioner of complaint in the court of the learned Sub-Divisional Judicial Magistrate, Bongaon 24-Parganas, on ill 19-7-1976 alleging, inter alia, that towards the tit first part of Magh, 1382 B. S. , i. e, on or about 7th or 8th Magh (corresponding to January, 1976), the appellant, Sachindra Nath Biswas, committed rape on her at about 7/8 p. m. at their hut forcibly against her consent and had subsequently cohabited with her and that she became ultimately pregnant and was carrying for five months. It was stated in the petition of complaint that previously the appellant, Sachindra, had allured her (Maya Rani) in various ways by saying that he would marry her and would give her 4 bighas of land and that the respondent No. 2 did not pay any heed to these assurances by the appellant. This petition of complaint was sent by the - learned Sub-Divisional Judicial Magistrate, Bongaon, to the 0/c, Bagdah Police Station on 19-7-1976 for treating it as F. I. R. and for investigation of the case. Accordingly, Bagdah Police Station Case No. 22 dated 26-10-1976 was started against the appellant under section 376, Indian Penal Code on drawing up a formal F. I. R. , Ext. 2. The case was investigated by S. I. , Amiya Kumar Dey (P. W. 9), who submitted charge-sheet in the case on 23-12- 1977 under section 376, Indian Penal Code. ( 3 ) THE prosecution examined nine witnesses. P. W. 1 is Maya Rani Biswas, the victim girl, who has spoken about the occurrence. P. W. 2, Makhanlal Das, P. W. 3 Pramatha Ranjan Bawali, P. W. 4, Sarat Chandra Biswas, who happens to be the brother of P. W. 1, and P. W. 5, Abhimonyu Sarkar, have spoken about a salish being held in the village, Ghat Patila, under Police Station Bagdah, after Maya Rani (P. W. 1) disclosed the factum of her pregnancy through the appellant to the wife of Sarat Chandra Biswas and this fact was disclosed by the wife of Sarat Chandra Biswas to her husband (P. W. 4 ). P. W. 6 is a practising lawyer, who drafted the petition of complaint, Ext. 1, on 19-7-1976. P. W. 7 is Dr. R. Adhikary. who examined the appellant as well as Maya Rani on 28. 10-1976 at Bongaon Sub. Divisional Hospital as Sub-Divisional Medical Officer and had subsequently examined the girl radiologically on 1-8-1977, on being brought and identified by constable. Nani Gopal De (P. W. 8), P. W. 9, Amiya Kumar De, was the Investigating Officer of the case. ( 4 ) THE appellant stood charged under section 376, Indian Penal Code on the allegation of committing rape on Maya Rani on or about the beginning of Magh, 1382 B. S. at Ghat Patila, Police Station Bagdah. On the basis of the evidences of the aforesaid P. Ws. , the materials on record as well as the defence of innocence, as transpiring from the examination of the appellant under section 313, Criminal Procedure Code, the learned Judge held that the prosecution proved the charge against the appellant beyond reasonable doubt. He was pleased to convict the appellant under section 376 Indian Penal Code and to sentence him to suffer rigorous imprisonment for eight years and to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for two years. Being aggrieved be this order of conviction and sentence passed on the, appellant, the present appeal has been filed. ( 5 ) MR. Mukherjee, appearing for the appellant, has submitted that the charge under section 376. Indian Penal Code has not been proved by the prosecution beyond reasonable doubt, due to absence of satisfactory explanation by the prosecution regarding the delay in the lodging, of the complaint, Ext. 1, absence of any evidence of association of Maya Rani with the appellant, unsatisfactory evidence regarding the alleged salish, absence of clinical data to test the age of the victim girl as well as suspicious nature of the radiological report. He has further submitted that in view of the decision of the Honble Supreme Court in the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir one is to take judicial notice that the margin of error in age ascertained by radiological examination can be two years on either side. He has further submitted that in view of the decision of the Honble Supreme Court in the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir one is to take judicial notice that the margin of error in age ascertained by radiological examination can be two years on either side. The contention is that, as the finding of the doctor (P. W. 7) on the basis of radiological examination is that Maya Raniwas between 16 and 17 years, the appellant is to be acquitted if a margin of two years is given to the appellant on the basis of the radiological examination, ( 6 ) AS for the delay in the lodging of the complaint, Ext. 1, the case in the petition of complaint is that Maya Rani requested the, appellant to marry her on several occasions and that the appellant was adopting dilatory tactics. It is stated in the petition of complaint that when Maya Rani brought the incident to the notice of the other accused persons mentioned in the petition of complaint, viz, the father and mother of the appellant, the appellant brought her, some medicines in order to terminate her pregnancy and that she did not take medicines and instead, related the incident to her brother's wife, Sanchita Biswas, who in turn related the incident to her elder brother, Sarat Chandra Biswas (P. W. 4 ). These averments in the petition of complaint are not substantive evidence. Even then, the learned Advocate for the appellant in the court below thought it wise to take from the victim girl (P. W. 1) in her cross-examination that she thought that the appellant would marry her and that with that understanding, she mixed with the appellant. When this fact has been elicited by the defence from Maya Rani in her cross-examination the appellant I cannot now complain about the delay in the lodging of the complaint, Ext. 1, in the court of the learned Sub-Divisional Judicial Magistrate, Bongaon. ( 7 ) AS for the second contention of Mr. Mukherjee regarding absence of the evidence about association of Maya Rani with the appellant, it is to be stated that it is in. the evidence of Maya Rani (P. W. 1) and Abhimanyu Sarkar (P. W. 5) that Maya Rani was the maid-servant of the accused. ( 7 ) AS for the second contention of Mr. Mukherjee regarding absence of the evidence about association of Maya Rani with the appellant, it is to be stated that it is in. the evidence of Maya Rani (P. W. 1) and Abhimanyu Sarkar (P. W. 5) that Maya Rani was the maid-servant of the accused. It was, also taken from P. W. 1 in her cross-examination that P. W. 1 mixed with the appellant on the understanding that the appellant would marry her. It is not disputed that the hut of Maya Ranis brother is beside the house of the appellant. In these circumstances, it cannot be stated that there is no evidence of association of Maya Rani with the appellant, though Maya Rani used to work in the house of the appellant as a maid servant. ( 8 ) AS regards the third contention of -Mr. Mukherjee about the unsatisfactory evidence regarding salish as stated by P. Ws. 2, 3, 4 and 5, it is no doubt true than he case in the petition of complaint in the matter has been given a go by at the time of adducing evidence by the prosecution. The case in the petition of complaint is that after disclosure of the factor of pregnancy by Maya -Rani to the wife of Sarat (P. W. 4) and subsequent disclosure of this fact by Sanchita wife of Sarat, to her husband, Sarat (P. W. 4) sent for the other witnesses, mentioned in the petition of complaint and related the entire incident to them. It is stated in the petition of complaint that the witnesses sent for the accused persons and enquired about the incident and that the appellant and the other accused persons, viz. , the father and mother of the appellant, agreed to the proposal for marriage and that only yesterday, i. e. , on 18. 7-1976, the appellant had refused to marry her. It is further stated in the petition of complaint that had Maya Rani known that the appellant would play drakes and dykes with tier, she would never have cohabited with him. , This case about the alleged salish as narrated in the petition of complaint, does not find support in the evidences of P. Ws. 2 to 5, inasmuch as there is no evidence by any of these P. Ws. , This case about the alleged salish as narrated in the petition of complaint, does not find support in the evidences of P. Ws. 2 to 5, inasmuch as there is no evidence by any of these P. Ws. that the appellant was present at the salish or had agreed to the proposal for the marriage of Maya Rani with him. It has transpired in the evidences of these P. Ws 2 to 5 that at the salish, which was held towards the end of 1976 (vide P. W. 3), Jagabandbu, the father of the appellant, agreed to pay compensation and to make a gift of 2 bighas of land to the sister of Sarat, if any offence was committed by his son. Out of these P. Ws. 2 to 5, P. W. 5 did not tell the Investigating Officer that Jagabandhu told that he would make a gift of 2 bighas of land to the girl as compensation, if his son committed any offence. The unsatisfactory nature of evidence by P. Ws, 2 to 5 as regards salish, as compared with the case made out in the petition of complaint, cannot, however, entitle the appellant to have an order of acquittal, in case the prosecution can prove that there was rape on Maya Rani by the appellant. ( 9 ) THE fourth contention of Mr. Mukherjee about absence of clinical data to support the evidence of the doctor (P. W. 7) about the age of the girl cannot be accepted. It bas been held by this Court in the case of Hiswanath Ghosh v. State2 that finding as regards age can be based on evidence regarding the state of ossification. It bas been stated in that case of Hiswanath (supra) that in the present state of development of the medical science and the present state of knowledge, the court must proceed on evidence of age as furnished by the ossification test. It catipot, thus, be stated that when the evidence of the doctor (P. W. 7) does not show the age of the girl on the basis of clinical data, the age of the girl, as found by him by ossification test, should not be accepted by the court. ( 10 ) THE contention of Mr. Mukherjee about the alleged Tsuspicious nature of the radiological report cannot also be accepted. Mr. ( 10 ) THE contention of Mr. Mukherjee about the alleged Tsuspicious nature of the radiological report cannot also be accepted. Mr. Mukherjee took us through the evidences of the Investigating Officer (P. W. 9) and argued at first that there should have been, in all probabilities, radiological examination before the sending of the blood of the girl to Forensic Science Laboratory for examination after the taking of the blood of the girl on 21-4-1977. This contention cannot be accepted. There is n8 bar in, holding radiological examination after taking of blood of the girl for forensic examination. It has next been contended by Mr. Mukherjee that there is no evidence by the Investigating officer as to when he got report of radiological examination. It has also been argued that there is no mention of date in the report submit by the doctor (P. W. 7) regarding radiological examination. These contentions cannot also be accepted. The order-sheet of the Magistrates Court, Ext. 3, shows that the learned Magistrate passed an order on 9-12-1976 for sending the girl for ossification test and that on 18-12-1976, the girl was returned to her brother on furnishing a bond which was accepted. It is no doubt true that in his evidence the Investigating Officer did not state as to when he received the report of radiological examination.- It is also true that in the report of radiological examination, the doctor (P. W, 7, did not mention any date, though he mentioned the date of his examination of both the appellant and Maya Rani in the reports submitted by him in the matter, after examining them on 28-10-76. Even then, it is not alleged by Mr. Mukherjee that the copy of the report regarding radiological examination was not given to the appellant under section 207, Criminal Procedure Code. We perused the report of radiological examination appearing in the record of the court below, and found mentioned in the report that the victim girl was brought and identified by a constable on 1-8-1977. The evidence of P. W. 8, Nani Gopal De, is also that on 1-8-1977, he identified Maya Rani before the S D. M. O. Bongaon, with a baby, There can be, thus, no doubt that a radiological examination was held on 1-8-1977 on identification of Maya Rani by constable, Nani Gopal De. The evidence of P. W. 8, Nani Gopal De, is also that on 1-8-1977, he identified Maya Rani before the S D. M. O. Bongaon, with a baby, There can be, thus, no doubt that a radiological examination was held on 1-8-1977 on identification of Maya Rani by constable, Nani Gopal De. Grievance has been made of the fact there is no order passed by the learned Magistrate in the order-sheet of the case in the court below for sending of the victim girl on 1-8-1977 for radiological examination. There cannot be such an order by the learned Magistrate in the record of the case in the court below, it as much as the victim girl was returned to her brother on a bond by an order passed by the learned Magistrate on 18-12- 1976. An order was passed by the learned Magistrate on 9- i2-1976 for sending the girl, for ossification test. Accordingly, on the basis of this order dated 9-12-1976, if a constable (P. W. 8) is sent for identifying the victim girl, then in the custody of her brother, before the S. D. M. O. Bongaon Sub-Divisional Hospital, for radiological examination, adverse inference cannot be drawn against the prosecution for absence of any order in the matter in the order-sheets of the case in the court of the learned Magistrate. ( 11 ) AS for the contention of Mr. Mukherjee on the basis of the case of Jaya Mala, it is to be stated that the Honble Supreme Court observed in the case that one would take judicial notice that the margin of error in age ascertained by radiological examination was two years on either side, The case of Jaya Mala arose out of a petition for writ of habeas corpus of a person detained under the Jammu and Kashmir Public Safety Act, 1978. The grounds of detention in that case were alleged refusal by the detenu to pay the conductor of a mini-bus the fare for traveling in the mini-bus, attack of the conductor subsequently by the detenu along with 7 or 8 other persons with a dagger with the intention to kill him and causing of injuries to his person, taking of lemon water subsequently by the detenu in company of 3 or4 other associates after about seven months and refusal by the detenu to pay for the value of the lemon water as well as threat by the detenu by taking out a dagger on further demand of the value of the lemon water. The normal procedure of investigation, arrest and trial Was not resorted to for thwarting the criminal activities of the detenu. The case of the detenu was that he was a minor aged about 17 years at the time of his arrest and detention and that it was difficult to conceive that the school-going minor boy would indulge and such activities as to be a serious threat to the maintenance of public order. To dispute the age of the detenu, reliance was placed by the Government of Jammu and Kashmir upon a report submitted by one Dr. T. R. Sharma on radiological examination to the effect that the radiological age of the detenu was between 18 and 19 years. It was in this context that it was observed by Their Lordships of the Honble Supreme Court that it was notorious and one would take judicial notice that the margin of error in age ascertained by radiological examination was two years on either side and accordingly, the detenu was a young school-going boy, In the case of Jaya Mala, there was no cross-examination of Dr. T. R. Sharma, who found the radiological age of the detenu. T. R. Sharma, who found the radiological age of the detenu. Had this been a case like the case of Jaya Mala wherein the age of a person was to be determined on the basis of affidavits or counter-affidavits, there should be a margin of two years on either side for ascertaining the age on the basis of radiological examination, as held by the Honble Supreme Court: But when in a case like the present one, where the doctor, who held the radiological examination, is subjected to cross-examination, it will be for the cross-examining Advocate to have it in cross-examination from the doctor as to why his evidence of age on radiological examination should not be accepted. A person, who holds radiological examination, is an expert under section 45 of the Evidence Act. It has been held by the Honble Supreme Court in the case of Sundar Lal v. State of M. P. 3 as well as in the case of Bhagwandas v. State of Rajasthan4 that opinions of authors are to be put to the medical witness before medical evidence is discredited on the ground that it did not accord with the opinion expressed in books- In the present case, the learned Advocate for the appellant failed to show by referring to any book on Medical Jurisprudence at the time of cross-examining the doctor (P. W. 7) that the age of the girl, as found by him by radiological examination, was not correct and that the age of the girl would vary from 16 to 19 years, as suggested in only one sentence in cross-examination. In these circumstances, in the absence of sufficient materials being brought out duringt cross-examination of the doctor (P. W. 7), we are unable to disagree with the opinion of the doctor (P. W. 7) that the age of the girl was between 16 and 17 years on the date on holding the radiological examination on 1-8-1979, which was about one year And six months after the date of the alleged commission of rape on 7th or 8th Magh, 1382 B S. ( 12 ) MR. Mukherjee has argued that when commission of sexual intercourse by resorting to deceitful means is not mentioned in any of the clauses to section 375, Indian Penal Code and when the age of the girl was above 16, the appellant should be acquitted. Mukherjee has argued that when commission of sexual intercourse by resorting to deceitful means is not mentioned in any of the clauses to section 375, Indian Penal Code and when the age of the girl was above 16, the appellant should be acquitted. We have already shown that the age of the girl was below 16 years at the time of commission of rape on 7th or 8th Magh, 1382 B. S. It is no doubt true that deceitful means are not mentioned in any of the clauses in section 375, Indian Penal Code. The evidence of the victim girl (P. W. 1) is that before the occurrence, she did not have any sexual intercourse with anybody and that she mixed with the appellant on the understanding that the appellant would marry her. If a man commits sexual intercourse with a girl-acting under this understanding, it cannot be stated that there was any misconceptions and absence of consent under section 90 of the Indian Penal Code, as stated by the learned Judge. As the evidence stand, we are rather of the view that there used Tto be Promiscuous intercourse between the appellant and Maya Rani. Without understanding that Maya Rani would be later on carrying and that when Maya Rani came to understand that she was carrying for five months, all the troubles ensued subsequently. Even then, though commission of sexual intercourse by the appellant with Maya Rani was with her consent, in spite of evidences to the contrary by Maya Rani, the fact remains that Maya Rani was aged below 16 years on the date of first commission of rape on her by the appellant on or about 7th or 8th Magh, 1382 B. S. and that the appellant would, accordingly, be guilty under section 376, Indian Penal Code on the basis of clause fifthly in section 375, Indian Penal Code. Mr. Mukherjee made grievance of the fact that there was discrepancy as to whether the alleged first commission of rape took place in the garden of the hut of the victim girl or in the, hut of the victim girl. The learned Judge discussed the matter and was of the opinion that the house, mentioned in the petition of complaint, included the garden. We do not find anything to iuterfere with this finding of the learned Judge. ( 13 ) MR. The learned Judge discussed the matter and was of the opinion that the house, mentioned in the petition of complaint, included the garden. We do not find anything to iuterfere with this finding of the learned Judge. ( 13 ) MR. Mukherjee dwelt upon the necessity of corroboration of the evidences of the victim girl. It is now well-settled that a woman, who has been raped, is not an accomplice. The rule is not that corroboration is essential before there can be conviction in a case of rape, but the necessity of corroboration, as a matter of prudence, except where the circumstances make it unsafe to dispense with it, must be present to the mind of the Judge. In the present case, the corroboration of the testimony of the victim girl (P. W. 1) is afforded by the doctor (P. W. 7), who opined, after examination of the victim girl on 28-10-1976, that the victim girl was in the state of pregnancy more than six months. In the case of Bishnu Dayal v. State of Bihar5, the factum of rape was stated to be corroborated by medical testimony. In the present case also, the evidence of the victim girl (P. W. 1) is corroborated by the medical testimony of P. W. 7. ( 14 ) CONSIDERING all the above facts and circumstances of the case and the materials on record, we find nothing to interfere with the finding of the learned Judge that the prosecution has been able to bring home the charge under section 376, Indian Penal code against the appellant beyond any reasonable doubt. ( 15 ) AS for sentence, in a case of this nature, wherein a girl did Dot resist sexual intercourse on the allurement of the appellant of marrying her, though the appellant was already married, we are of the opinion that a very severe sentence, as passed by the learned Judge, is not called for, though Maya Rani has already given birth to a child in the month of Agrahayan, as per her evidences. As Maya Rani did not resist sexual intercourse on her by the appellant out of her motive to have the appellant also as her husband, though the appellant was already married, we think that a sentence of rigorous imprisonment for two years and a sentence of fine to the extent of Rs. 3,000/-, in efault, rigorous. As Maya Rani did not resist sexual intercourse on her by the appellant out of her motive to have the appellant also as her husband, though the appellant was already married, we think that a sentence of rigorous imprisonment for two years and a sentence of fine to the extent of Rs. 3,000/-, in efault, rigorous. Imprisonment for six month's more will meet the ends of justice. ( 16 ) THE appeal is, accordingly, dismissed with the modification that the sentence of the appellant, Sachindra Nath Biswas, is reduced from a sentence of rigorous imprisonment for eight years to a sentence of rigorous imprisonment for two years and the sentence of fine to the tune of Rs. 5,000/- is reduced to a sentence of fine of Rs. 3. 000/-, in default, further rigorous imprisonment for six months. The order of conviction of the appellant under section 376, Indian Penal Code is affirmed. The appellant, Sachindra Nath Biswas, ill sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 3,000/:- in default, to suffer further rigorous imprisonment for six months. Fine, if realised, be-paid to the victim girl in its entirety. The, appellant do surrender to his bail-bond to serve the rest of the sentence. Let the period of detention of the appellant be set off under section 428, Criminal Procedure Code. Send a copy of this judgment along with the lower court record to the court below at once. B. C. Chakrabarti, J.- I agree. Sentence modified.