JUDGMENT : K.P. Mohapatra, J. - This appeal is directed against the judgment passed by the learned Chief Judicial Magistrate and Assistant Sessions Judge. Sundargarh, acquitting the Respondents of gang rape u/s 376 and further acquitting Respondent No. 1 of the charge u/s 366-A, I.P.C. 2. The prosecution case, in brief is that Amarmani (hereinafter referred to as 'the victim girl'), aged about 15 years, was serving as a waitress in the canteen of Utkal Machineries Ltd. of Kansbahal, under Rajgangpur Police Station of Sundargarh district, of which Respondent No. 1 was the contractor in the months of February and March, 1979. On 5-3-1979 at about 2.00 p. m. while she was working in the canteen, Respondent No. 1 asked her to go to a local market at some distance in order to purchase some vegetables. Accordingly she left the canteen premises alone and proceeded towards the vegetable market. Soon thereafter, Respondent No. 1 followed her in his motor-cycle. When both of them met, he proposed to the victim girl to come with him to his house at Rajgangpur for the purpose of cleaning and sweeping. Though at first she refused to accompany him apprehending that before sun-set she would not be able to return to her village Nuagaon, yet Respondent No. 1 gave her to understand that he would bring her back to Kansbahal in the motorcycle and there shall be no difficulty for her return to the village before sun-set. Accordingly, she accompanied Respondent No. 1 in the motor-cycle and arrived at his house at Rajgangpur. She engaged herself in cleaning the household materials and sweeping the house. At about evening a car came near the house of Respondent No. 1, the occupants of which were Respondent Nos. 2 and 3 who were officers of Utkal Machineries Ltd. Respondent No. 1 asked the victim girl to come inside the car so that all of them will leave for Kansbahal. The victim girl, however, had her own apprehensions to accompany the Respondents alone in the car, but she was forcibly put inside it by Respondent No. 1. Respondent Nos. 2 and 3 sat on the front seat and the latter drove the car Respondent No. 1 sat with the victim girl on the rear seat. Although the car proceeded towards Kansbahal, after a little distance it was turned towards the opposite direction and was driven towards Sundargarh. Respondent Nos. 2 and 3 sat on the front seat and the latter drove the car Respondent No. 1 sat with the victim girl on the rear seat. Although the car proceeded towards Kansbahal, after a little distance it was turned towards the opposite direction and was driven towards Sundargarh. On the way Respondent No. 1 came away to the front seat and Respondent No. 2 went to the rear seat. Once he found himself near the victim girl, he not only started fondling her, but despite protest and struggle he, committed sexual intercourse with her. After he finished he came to the front seat and drove the car Respondent No. 3 came to the rear seat and similarly committed rape on the victim girl. After he finished, Respondent No. 2 again came over to the rear seat and for the second time raped her. After him, Respondent No. 1 similarly ravished her. Thereafter, they came back to Rajgangpur, took liquor and drove in the same direction to the same spot and all three of them repeated the performance and ravished the victim girl one after the other. After they had satisfied their lust, they came back to Rajgangpur and leaving Respondent No. 1 and the victim girl, they drove away towards Kansbahal Respondent No. 1 brought her with him walking all the way to her village Nuagaon covering a distance of 10 miles. With great difficulty, she traversed the distance because of pain and exhaustion. 3. In the house father of the victim girl was absent. Her mother was ailing and bedridden. There was no other male member. She narrated the incident of the previous night to her. But the mother was helpless. She was unable to come for duty in the canteen. Finding her absent, some fellow-workers came to her village to enquire. She narrated the unfortunate incident to them. In their turn, they informed one B. Bada, Joint Secretary of Adivasi Association, who lodged F.I.R. (Ext. 8) on 8-3-1979, after which investigation was taken up, she was sent for medical examination. After arrest of the Respondents, they were also medically examined. Her wearing apparels were sent for chemical examination and serologist report. The car was seized. After completion of investigation, charge-sheet was submitted against the Respondents u/s 376 and against Respondent No. 1 u/s 366-A, I.P.C. 4. After arrest of the Respondents, they were also medically examined. Her wearing apparels were sent for chemical examination and serologist report. The car was seized. After completion of investigation, charge-sheet was submitted against the Respondents u/s 376 and against Respondent No. 1 u/s 366-A, I.P.C. 4. The defence, plea was denial of the allegations of kidnapping and rape. It was stated that the workers of the canteen, all Adivasis wanted it to be managed directly by the company so as to secure regular wages. As their attempt was frustrated by Respondent Nos. 2 and 3 who introduced Respondent No. 1 as the contractor, out of revenge a false case was foisted against them by setting up the victim girl. 5. The learned trial Judge accepted the prosecution case that Respondent No. 1 had taken the victim girl to his house, at Rajgangpur on the date of occurrence. Despite the aforesaid finding, he came to hold, (i) the prosecution failed to prove that she was a minor girl aged less than 16 years, but, on the other hand, according to the medical evidence, her age was between17 and 19 years; (ii) the Medical Officer who examined her did not find a single injury either on the private part or on any other part of the body, but, on the other hand, it was found that she was accustomed to regular sexual intercourse; and (iii) the story of gang rape on the rear seat of a moving vehicle was inherently improbable, and even if it was probable, the victim girl was a consenting party thereto. Therefore, he found that the Respondents were not guilty of the offences they were charged with and so he recorded an order of acquittal. 6. On the arguments advanced by the learned Counsel appearing for both parties, the following points require examination: (i) Whether the victim girl accompanied Respondent No. 1 from Kansbahal to Rajgangpur and was made to wait in the house till evening; (ii) Age of the victim girl on the date of occurrence namely, 5-3-1979; (iii) Whether the victim girl was gang raped by the Respondents or she was a consenting party to the sexual intercourse: and (iv) Whether the delay in lodging the F.I.R. was satisfactorily explained or time was taken by some others to concoct a false case against the Respondents through the agency of the victim girl. 7. 7. After considering the evidence of P.Ws. 10, 12, 15 and the victim girl (P.W. 18), the learned trial judge came to the conclusion as follows: Thus, it is established that on the relevant date at about 2.30 p. m. Amarmani was seen going on Mahataba road to Bilaigarh and accused Barla following her. Again accepting the evidence of P.Ws. 17 and 18 read with the evidence of P.W. 13 who was, however, declared hostile to the prosecution, it was held as follows: ... Thus, the evidence of P.W. 18 supported by the evidence of P.W. 17 finds support from the evidence of P.W. 13 that accused Barla was living alone in his house at Rajgangpur and his family members were not there and the house was usually being kept under lock and key. This might have given an opportunity to the accused Barla to keep P.W. 18 for some time in his house. The learned Additional Standing Counsel took me through the evidence of P.Ws. 10, 12, 13, 15, 17 and 18, and on consideration of evidence of these witnesses who were all young Adivasis, I find no reason to differ from the conclusions drawn by the learned trial Judge, which have been quoted above. It is thus clear that on 5-3-1979 in the afternoon Respondent No. 1 took the victim girl from Kansbahal to his house at Rajgangpur and kept her there till the evening. 8. No document was produced by the prosecution proving that the age of the victim girl was 15 years on the date of occurrence. Obviously she was not admitted into any school nor was her horoscope prepared. The father of the victim girl was not examined as a prosecution witness to speak of her age. P.W. 14. her mother stated that her age was 15 years. She denied the suggestion that her age was 20 to 21 years. But when questioned about her own age in cross- examination, she could not say as to how old she was. She was an illiterate Adivasi woman of a village unable to speak of her own age. So, the age of the victim girl given out by her was guesswork. Similarly, the victim girl (P.W. 18) stated that she was aged 15 years. She attained puberty 3 years back. She was not reading in any school. She was an illiterate Adivasi woman of a village unable to speak of her own age. So, the age of the victim girl given out by her was guesswork. Similarly, the victim girl (P.W. 18) stated that she was aged 15 years. She attained puberty 3 years back. She was not reading in any school. She could not say if there was her horoscope in the house. She denied the suggestion that she was 21 years of age. In the absence of any documentary evidence, the statement of age given out by the victim girl herself was guesswork. Nevertheless, if there was no other convincing evidence as to the age of the victim girl her own evidence as well as the evidence of her mother on the point of age could not have been easily discarded, because mother of a child intuitively known his/her age and the person concerned is also a natural witness so far as his/her age is concerned. There is, however, strong medical evidence in this case. 9. P.W. 1 was the Medical Officer of Laing P.H.C. She examined the victim girl on 8-3-1979. On examination of her secondary sexual character, she opined that she was 14 to 18 years of age. The opinion, however, was tentative because she stated that the definite age could be said by, X-Ray of elbow joints and the expert opinion on it. Therefore, the above evidence as to age was probable but indefinite (vide Ext. 1/l). 10. P.W. 5 was. the Assistant Surgeon of the Head quarters Hospital, Sundargarh, in-charge of X-Ray. He stated that on 13-3-1979 he-examined the victim girl by taking X-Rays of the wrist joint, elbow joint and each pelvis (X-Ray plates M. Os. 1 to IV). By making the X-Ray test which he called ossification test, he gave a definite opinion that the age of the victim girl was above 17 and below 19 years vide Ext. 7. The veracity of his evidence was not tested in the cross- examination. In fact there was no cross-examination as to the determination of the age. 11. By making the X-Ray test which he called ossification test, he gave a definite opinion that the age of the victim girl was above 17 and below 19 years vide Ext. 7. The veracity of his evidence was not tested in the cross- examination. In fact there was no cross-examination as to the determination of the age. 11. In the absence of any documentary evidence, such as, horoscope, birth register or school admission register where date of birth is generally recorded, the nature of evidence of P.Ws.14 and 18 and the tentative nature of evidence of P.W. I, there is no other way than to accept the evidence of P.W. 5 which has some scientific basis, such as, ossification test. For the above reasons, the learned trial Judge came to hold that the prosecution failed to prove the age of the victim girl to be below 16 years. In agreement with the learned trial Judge and, in the facts and circumstances of the case, accepting the evidence of P.Ws. 5, I hold the age of the victim girl to be above 17 and below 19 years. In this connection, I refer to Ram Murti Vs. State of Haryana where it was held that in cases under Sections 366 and 376, I.P.C., age of prosecution is always of importance, particularly so where according to medical evidence she was found to have been used to sexual intercourse and there was old rupture of hymen. 12. The most important point is, whether the victim girl was gang raped by the Respondents without consent. Findings have already been recorded that in the afternoon of the date of occurrence, she was in the house of Respondent No. 1 at Rajgangpur and her age, was above 17 years and below 19 years. In any event her age was not 16 years or below. P.W. 17 a young girl living in the neighbour-hood of the residence of Respondent No. 1 at Rajgangpur stated that on 5-3-1979 in the afternoon she saw a car coming to the house of Respondent No. 1. The inmates of the car were Respondent Nos. 2 and 3 Respondent No. 1 was standing near the house. All of them along with the victim girl drove away in the car. She could not properly identify the victim girl, because she saw her from the back side. The inmates of the car were Respondent Nos. 2 and 3 Respondent No. 1 was standing near the house. All of them along with the victim girl drove away in the car. She could not properly identify the victim girl, because she saw her from the back side. Her evidence hag to be read with the evidence of the victim girl herself (P.W. 18). She stated that in the evening she was forced to accompany the Respondents in the car. Instead of the car being driven from Rajgangpur towards Kansbahal, on the way it was turned towards the opposite directions of Sundargarh, While the car was being driven, Respondent No, 2 forcibly committed sexual intercourse with her thrice and the other two Respondents committed similar acts twice each. She was not a consenting party to the sexual act. She not only struggled but cried. She found herself helpless in the clutches of three persons. She could not seek for help, because it was evening and the car was on the move. As a result of gang rape, she sustained pain in her waist, thighs and private part. There was also bleeding and discharge of semen which stained her saree and saya (petticoat). 13. The learned trial Judge found inherently improbable that repeated sexual acts could be committed on a struggling virgin girl unaccustomed to sexual intercourse on the rear seat of an Ambassador car. He was not wholly correct. Sexual act is possible on the rear seat of an Ambassador car which is spacious enough, particularly if it is with consent. Even without consent, if force is 'applied and/or' threats are held out and the perpetrators are numerically more than one, there is no reason why it should not be possible. Therefore, I am unable to agree with the learned trial Judge and bold that it was not inherently improbable to have sexual intercourse with a girl on the rear seat of an Ambassador car. It was possible in the circumstances narrated above. 14. The learned trial Judge seems to have disbelieved the prosecution story of repeated sexual intercourse with the victim girl by the Respondents. It is true that there was no eye witness and there could not be any. It was possible in the circumstances narrated above. 14. The learned trial Judge seems to have disbelieved the prosecution story of repeated sexual intercourse with the victim girl by the Respondents. It is true that there was no eye witness and there could not be any. But the circumstantial evidence as well as the direct evidence of P.W. 18 was subjected to sexual intercourse, is enough material to enable the prosecution to establish that in the night of occurrence the Respondents committed repeated acts of sexual intercourse with her. After all she was brought by Respondent No. 1 to Rajgangpur and P.W. 17 saw a girl accompanying the Respondents in the car in the evening and the girl could not be anyone else than P.W. 18 herself. She had no axe to grind against the Respondents. She had no personal enmity or family feud with any of them. She know that the Respondents were influential. One of them was the contractor of the canteen and the two others were officers of Utkal Machineries Ltd. Being fully conscious of the above facts, she stated that she was subjected to repeated sexual intercourse by them. She was unmarried and unless the fact was true, she would not have disclosed a shameful affair. I have, therefore, no doubt in my mind that the Respondents in the night of occurrence subjected P.W. 18 to repeated sexual intercourse. 15. It is now to be considered if the sexual intercourse was with or without consent of the victim girl. According to Section 375 I.P.C. a man is said to commit "rape" who commits sexual intercourse with a woman with or without consent, when she is under 16 years of age. The age of P.W. 18 has been held to be above 17 and below 19 years. If she had been under 16 years of age, with or without consent, sexual intercourse with her would have come within the definition of "rape". But as she was above 17 years of age, the Respondents can be said to have committed gang rape, only, if the sexual act committed with her was without her consent. Whether the sexual act was with or without consent can be determined from the facts and circumstances of the case. But as she was above 17 years of age, the Respondents can be said to have committed gang rape, only, if the sexual act committed with her was without her consent. Whether the sexual act was with or without consent can be determined from the facts and circumstances of the case. It should be remembered at the outset that when a woman is caught for having committed illegal or extra-marital sexual intercourse, she would not ordinarily admit that it was with her consent on account of modesty. So P.W. 18 naturally stated that she was ravished without her consent but her consent to the sexual intercourse with the Respondents can be inferred from the following facts and circumstances. She accompanied Respondent No. 1 from Kansbahal to Rajgangpur as the pillion-rider of a motor-cycle. Ordinarily no young girl would have done so. If she was not a consenting party, she could have refused to accompany him. After having accompanied him, she stayed in his house till evening. In ordinary circumstances, she could have come back to Kansbahal even alone, because the distance between Rajgangpur and Kansbahal was not formidable. Above all, there was not a scratch either on her private part or on any other part of the body despite sexual intercourse in an inconvenient place like the rear seat of a moving car. In this connection, it is essential to scrutinise the evidence of the Medical Officer (P.W. 1). She examined P.W. 18 three days after the occurrence. She observed that there was no sign of recent sexual intercourse. No external injuries were detected on her person or private part. No spermatozoa were detected. The hymen was not intact which had been completely destroyed. There were small granular tags of tissues. It was not possible on her part to give probable age of the rupture of the hymen, because the vaginal orifice was big enough to admit two fingers. She was also accustomed to frequent sexual intercourse. It is to be remembered that she was fairly for a long time on the rear seat of the running car when the Respondents committed repeated sexual intercourse with her. If there was struggle on her part, in such a situation she ought to have at least some minor injuries. She was also accustomed to frequent sexual intercourse. It is to be remembered that she was fairly for a long time on the rear seat of the running car when the Respondents committed repeated sexual intercourse with her. If there was struggle on her part, in such a situation she ought to have at least some minor injuries. If she was a virgin and was for the first time subjected to sexual intercourse in such a situation, there should have been noticeable injuries on her vagina, thighs, buttocks and on other parts of the body. It was, however, remarkable that there were no signs of any injury whatsoever on any part of her body. The Respondents were examined by the Medical Officer a couple of days after the occurrence and no injuries were found on their person. No blood was detected in the wearing apparel of the victim girl. Semen found on her saya was insufficient for serological test. No semen was found on the saree. It was not unlikely that there were semen stains on the saya on account of some previous sexual intercourse with some one else. In this connection, it is necessary to refer to State of Orissa and Anr. v. Pradip Kumar Gour and Ors. 47 (1979) C.L.T. 648. Relying upon Pratap Misra and Others Vs. State of Orissa. it was held that if a number of persons commit sexual intercourse forcibly in spite of resistance of the prosecutrix, some injuries must be found on her person as well as on the persons committing rape. All these facts convince me, beyond reasonable doubt that P.W. 18 was accustomed to frequent sexual intercourse, she had lost her virginity a long time ago and was a free and consenting party to the sexual intercourse with the Respondents. 16. In Ram Jag and Others Vs. The State of U.P.. Vol. 68 the following principle was laid down: The principles governing appeals against acquittal are thus firmly established and the issue cannot now be re- opened. The Code of Criminal Procedure by Section 423 has accorded parity to appeals against conviction and appeals against acquittal. The Code, makes no, distinction between the powers of the appellate Court in regard to the two categories of appeals and therefore the High Court has powers as full and wide in appeals against acquittal as in appeals against conviction. The Code of Criminal Procedure by Section 423 has accorded parity to appeals against conviction and appeals against acquittal. The Code, makes no, distinction between the powers of the appellate Court in regard to the two categories of appeals and therefore the High Court has powers as full and wide in appeals against acquittal as in appeals against conviction. Whether the High Court is dealing with one class of appeals or the other, it must equally have regard to the fundamental principles of Criminal Jurisprudence that unless the statute provides to the contrary, there is a presumption of innocence in favour of the accused and secondly that the accused is entitled to the benefit of reasonable doubt. Due regard to the views of the trial Court as to the credibility of witnesses 'in matters resting on pure appreciation at evidence and the studied slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing and bearing the witnesses where such seeing and hearing can be useful aids to the assessment of evidence, are well-known principles which generally inform the administration of justice and govern the exercise of all appellate jurisdiction. They are self-imposed limitations on a power otherwise plenary and like all voluntary restraints, they constitutes valuable guidelines. Such regard and slowness must find their reflection in the appellate judgment, which can only be if the appellate Court deals with toe principal reasons that influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a contrary view of the evidence. It is implicit in this judicial process that if two views of the evidence are reasonably possible, the finding of acquittal ought not to be disturbed. In a recent decision reported in State of U.P. Vs. Krishna Gopal and Another. it was held that the powers of the appellate Court, in an appeal against acquittal, are not different from or inconsistent with those that the appellate Court has in an appeal against a conviction. The difference is, as is sometimes stated mere in the manner of approach, and the perspective other than in the content of the power. it was held that the powers of the appellate Court, in an appeal against acquittal, are not different from or inconsistent with those that the appellate Court has in an appeal against a conviction. The difference is, as is sometimes stated mere in the manner of approach, and the perspective other than in the content of the power. The expressions "very substantial reasons", "substantial and compelling reasons", "strong reasons" used in several pronouncements which tend to qualify the power of the appellate Court do no more than to convey, the principles stated by the judicial committee in Shea Swarup's case 61 I.A. 398. It was, however, held that there is no immunity to an erroneous order from a strict appellate scrutiny. But the appellate Court should whatever it finds justification to reverse an acquittal must record reasons why it finds the lower Court wrong. This, in the ultimate analysis, is merely a reiteration of a principle which every exercise of appellate jurisdiction in the matter of reversal of an order under appeal is subject to. 17. Having regard to the aforesaid principles and after thorough scrutiny of the facts, circumstances and evidence, as well as the reasonings of the learned trial Judge. I cannot but arrive at the inescapable conclusion that the prosecution failed to prove kidnapping of and gang rape on the prosecutrix. On the other hand, being a girl of above the age of 16 years, she was subjected herself to sexual intercourse with consent. The order of acquittal cannot, therefore, be interfered with. 18. In the result, the appeal is dismissed. Appeal dismissed. Final Result : Dismissed