JUDGMENT 1. - The appellant has been convicted for the offence under Section 376, IPC and sentenced to four years rigorous imprisonment and a fine of Rs. 2,000/-. In default of payment of fine he has been ordered to rigorous imprisonment for one year. Against this conviction and sentence by the Sessions Judge, Jhalawar dated 23rd Sept. 1982, the appellant has preferred this appeal. 2. I am constrained to observe that a prosecution was launched by the SHO of Police Station Bhalta but no steps were taken to bring the facts straight and complete before the Court in case where the age of the prosecutrix borders of 16. It is very essential that the doctor who examined her makes a complete examination and given an opinion which may not be vague and confusive. Secondly, where the physical examination of the prosecutrix does not reveal marls of injuries, then the report of the Chemical Examiner becomes very relevant, because the commission of sexual intercourse with her very much depend upon the findings of the Chemical Examiner, in this case the cloths of the girl were seized and sent to Chemical Examiner, but what happened thereafter is not known to anybody. Neither the report of the Chemical Examiner was received nor it was tendered before the Sessions Judge. 3. Dr. Manohar Singh Singhvi, who conducted the medical examination of the girl Sugna Bai. Considering the height, weight, leels and sex characteristic and on this basis he gave approximately age as 14 to 15 years. He suggested X-rays of elbow joint and wrist joint and these X-rays were taken and the result as entered by him is that lower end of radius not found. He has not said anything about the upper end which is linked to the elbow. On this finding he gave the age as below 17 years. He has not fixed any lower age limit, on the basis of which it could be said that her age was between 13 and 17 years or 15 and 17 years, or 16 and 17 years. While in the witness box he admitted in cross examination that the age is below 17 and that she could have been 16 and half years of age. 4. After examination the doctor was not able to give any opinion about the rape. While in the witness box he admitted in cross examination that the age is below 17 and that she could have been 16 and half years of age. 4. After examination the doctor was not able to give any opinion about the rape. A letter was written to him to clarify whether the girl Sugna had been subjected to intercourse and he replied that there was nothing on physical examination to indicate and confirm fresh intercourse. In view of this report it was essential to look into the findings of the Chemical Examiner, but for the reasons best known to the prosecution the same were not placed before the court. 5. Having seen that the opinion of the expert is either not available or is not clear, I propose to look into the facts and circumstances of the case. 6. PW 1 is the girl Sugna, who is said to have been raped. According to her she was at her field along with Kesya and Puriya when the accused left his own field & came to her. He caught hold of her by the neck and took her away in the nearby field of her and committed rape upon her. She started weeping and the accused put his safi into her mouth. Kesye and Puriya came there and the accused left. She narrated the incident first to Kesya and Puriya & then to her parents in the village when she came alone. PW2 Kesyal who is a cousin of Sugna is a child witness and according to him he kept on watching the accused committing sexual intercourse with Sugna. He did not shout and he even saw the accused stuffing a cloth in the mouth of Sugna. He admitted that Puriya was also with him. When this Puriya came in the witness box as PW 4, he did not support the prosecution version. According to him, three of them, namely, Sugna, Kesya and he, were getting channas and the accused came there and slap sugna for doing this (accused claims that these persons were eating and plucking channas from his field). 7. As seen above there were no injury-marks on the body of Sugna. From the oral evidence it is to be seen whether the commission of the rape can be said to be proved. 7. As seen above there were no injury-marks on the body of Sugna. From the oral evidence it is to be seen whether the commission of the rape can be said to be proved. First of all the improbability in the story is that appellant is said to have committed rape in the presence of two boys and even on seeing this. The boys did not cry or try for help. May be Sugna was under pressure and her mouth was nothing to prevent the two boys from shouting and calling for help. The prosecution wants to make out a case of forceful rape and not rape because the girl Sugna was below the consenting age, but there is no evidence about physical violence or resistance on the body of Sugna. Her torn of stained clothes have also not been produced to make out a circumstance in support of the theory of the prosecution. 8. The oral evidence in the case does not inspire confidence and had there been some corroboration by circumstantial evidence, the matter would have been different. I am not able to arrive at the conclusion that sexual intercourse was committed with Sugna by the accused as to come to the next points whether she was above 16 years of age so as to give her consent. Her father Kajod has given her age as 10 years to 11 years. But there is no basis for the same. He gave his own age as 55 and in cross examination he said that he was 40 years old and his estimate is based on the difference in the age of different child. When the age of prosecutrix has not been proved by cogent evidence and the doctor has admitted that she could be 16 and a half years of age then it cannot be said that she could not have given consent. Any how this is not relevant because I have already stated that in this case it has not been proved that sexual intercourse was committed with Sugna. 9. On the facts and circumstances of the case, the judgment of the learned Sessions Judge cannot be upheld. This appeal is accepted. The conviction and sentence of the accused is set aside. He is on bail, his bail bonds shall stand discharged.Appeal Accepted. *******