JUDGMENT - D.G. DESHPANDE, J.:---This is an appeal against acquittal of the accused from offences under section 376 of Indian Penal Code against accused No. 1 and under sections 354 and 376 against accused No. 2. 2. The victim in this case was one girl by name Sunanda. The incident occurred on 27-10-1984 between 12 p.m. to 3 p.m. in the bungalow of accused No. 2 situated in the land within the limits of village Diggewadi Tanda. The role of accused No. 1 was to nab the minor Sunanda to the aforesaid bungalow so that the accused No. 2 to commit rape upon her. The trial Court acquitted both the accused on the ground that the prosecution did not prove that Sunanda was a minor. That there were no medical signs of rape upon her, that the medical evidence was not conclusive so far as the age on the victim is concerned and however according to the trial Court the witnesses did not inspire confidence. Therefore both the accused came to be acquitted of the charges framed against them and hence this appeal by the State. 3. At the outset the learned Counsel for the accused contended that since this is an appeal against acquittal, the Court was required to find out whether the judgment of the trial Court was full of perversity or whether the conclusions arrived upon by the trial Court were not based on legal evidence and contrary to the facts. He contended that merely because this Court can take a different view of the matter would not be a ground to interfere with the order of acquittal. There cannot be any dispute about the legal and settled position that Appellate Court can interfere with the order of the acquittal only if the legal requirements are satisfied. 4. The learned A.P.P. on the other hand contended that the judgment of the trial Court is perverse in as much as the trial Court has not at all considered why a minor girl of 12 years age should implicate a person in such a heinous offence. 4. The learned A.P.P. on the other hand contended that the judgment of the trial Court is perverse in as much as the trial Court has not at all considered why a minor girl of 12 years age should implicate a person in such a heinous offence. Further according to the learned A.P.P. the trial Court did not take into consideration the fact that F.I.R. was lodged very promptly, the names of the accused were named in the F.I.R. that there was no question of identifying the accused and the evidence of the complainant consistent with the evidence given by the other two witnesses. So far as medical evidence is concerned, the learned A.P.P. contended that if the evidence of the minor was inspiring confidence and if the defence has no explanation at all as to why they should be implicated falsely than the case of the prosecution was liable to be accepted. The learned A.P.P. further contended that absence of injuries on the person of victim in a rape case was not at all conclusive of innocence of the accused or was not at all indicative of falsity of the charge of the prosecution. He further contended that approach of the trial Court is one sided and important and vital aspects have not at all been given their due and legally permissible weightage. 5. The prosecution examined in this case the victim Sunanda. She was supported by her mother to whom she has immediately narrated the incident and also to one Mathura Vishwanath Hugge (P.W. 7). 6. P.W. 3 Sunanda has stated her age to be 12 years on the date of deposition. She stated that she was living with her mother, brother Jagannath and sister Surekha at Hasapur Road i.e. in the house of accused No. 1. Herself and her mother were earning their livelihood by working on daily wages. On the date of the incident she was alone in her room as the mother had taken her brother Jagannath to doctor to treat him for dog bite. Sister Surekha had also gone with her mother. Sunanda was alone in her house when at about 10 a.m. accused No. 1 Hanmanta came to her room and called her by her name and asked her to accompany him to bring onions from the field of accused No. 2. Sister Surekha had also gone with her mother. Sunanda was alone in her house when at about 10 a.m. accused No. 1 Hanmanta came to her room and called her by her name and asked her to accompany him to bring onions from the field of accused No. 2. Sunanda refused to go and told him that her mother was not at home. However, accused No. 1 Hanmanta persuaded her and therefore she went with him. On way also she resisted on different pretexts but ultimately she went with him to the bungalow of accused No. 2. 7. Accused No. 2 thereafter remained outside the bungalow and gave a bag to Sunanda asking her to fetch onions. Sunanda got frightened and perhaps she suspected some foul play. However, accused No. 1 again persuaded her to go inside. Therefore she went inside the bungalow and noted that in one room, there were onions. 8. While she was collecting onions or while she was inside the room, she heard that the door of the room was being shut. She saw back and found accused No. 2 inside the room. Accused No. 2 was only wearing a red underwear and thereafter accused No. 2 raped her. During the rape she shouted because of pain but accused pressed her mouth, when she wanted to go out she was held by the accused No. 2, thereafter she came out running and crying. She saw accused No. 1 standing by the side of the road and she told him that accused No. 2 had molested her. However, accused No. 1 advised her not to disclose anything to her mother as accused No. 2 was very rich person known as Digge Sawakar and he would give her big amount. 9. At about 5 p.m. Sunanda came to her house. Her mother was already there. On seeing her mother Sunanda started weeping and then when her mother asked her what had happened Sunanda asked her to come inside the room and then disclosed the incident. Her mother called one neighbour by name Najukma and disclosed everything to her. Najukma gave a slap to Sunanda as to why she had gone to the bungalow. Then the matter was reported to the police and investigation started. Her mother called one neighbour by name Najukma and disclosed everything to her. Najukma gave a slap to Sunanda as to why she had gone to the bungalow. Then the matter was reported to the police and investigation started. Sunanda was subjected to cross-examination but nothing worthwhile or fruitful could be brought in the cross-examination, neither her integrity could be shattered nor any doubt to be created about her testimony. No motives are attributed to Sunanda or to her mother or to any other witnesses why they are deposing falsely in this case against the accused. Three sequences appearing in the evidence of Sunanda P.W. 3 which have come spontaneously and the most natural sequence of the events give high degree of credence to her testimony. Firstly when accused No. 1 asked her to accompany him, she refused. On way also she expressed her desire to go back and when accused No. 1 asked her to go in the bungalow and gave bag to her she expressed fear for going in the room. She also questioned accused No. 1 how he was to get onions free of cost. Secondly when Sunanda met her mother she started crying. Mother asked her what had happened and then Sunanda said "I asked my mother to come inside the room. I disclosed my mother the incident....." Thirdly she has stated that when mother called Najukma narrated the incident Najukma gave slap to Sunanda questioning as to why she went there. The first instance quoted above clearly shows the apprehension in the mind of Sunanda being a minor girl to go with the accused No. 1 and her fear to enter the bungalow of an unknown person. Secondly asking her mother to go inside the room clearly show that she was aware that the incident of rape was the matter to be disclosed in confidence and in privacy to her mother, and thirdly Najukma's slapping her is a natural reaction of any women who has any concern for a minor girl. These three aspects of the evidence of Sunanda have been totally disregarded by the trial Court. The F.I.R. was also immediately lodged and evidence of Shakuntala P.W. 4 who is the mother of Sunanda, strongly supports the prosecution case in that regard. These three aspects of the evidence of Sunanda have been totally disregarded by the trial Court. The F.I.R. was also immediately lodged and evidence of Shakuntala P.W. 4 who is the mother of Sunanda, strongly supports the prosecution case in that regard. She i.e. Shakuntala P.W. 4 also states that when she called Najukma and told her what had happened Najukma gave a slap to Sunanda questioning her as to why she went there. In the cross-examination of P.W. 4 Shakuntala also nothing worthy of consideration in favour of the defence is brought. Though the cross-examination is very short and cryptic, no motives are attributed, no enimity is shown why a woman labourer earning her livelihood should take the courage and state against the moneyed man Digge accused No. 2. P.W. 5 Najukma has also stated that when Shakuntala went with her son Jagannath and daughter Surekha in the morning of the incident, Shakuntala asked her to look after Sunanda and also asked accused No. 1 to look after her which shows that accused No. 1 came to know that Sunanda was alone in the home. Shakuntala returned home at about 2 p.m. and asked about Sunanda, and Najukma P.W. 5 told her that accused No. 1 Hanmanta had taken her to Digge's house. Shakuntala immediately sent son of Hanmanta to bring Sunanda. Hanmanta's son returned alone as Sunanda and Hanmanta did not meet him. Sunanda came at about 5 O'clock crying loudly in the room. Thereafter she learnt about the rape being committed by Digge Savakar accused No. 2 upon Sunanda. Cross-examination of this important witness is also absolutely short and cryptic and has not yielded anything favourable to the accused. It is tried to be suggested that she has not paid the rent. That it was also suggested that accused Hanmanta also lodged complaint against her in Municipality about flow or sanitation water. She however denied this suggestion. Another witness of the prosecution is P.W. 6 Vaijayanti Sadashiv Khisti, M.D. who examined Sunanda and gave her opinion about the age but about rape no definite opinion could be given about forcible intercourse. 10. It will be clear that oral evidence is fully and strongly supports the prosecution case. She however denied this suggestion. Another witness of the prosecution is P.W. 6 Vaijayanti Sadashiv Khisti, M.D. who examined Sunanda and gave her opinion about the age but about rape no definite opinion could be given about forcible intercourse. 10. It will be clear that oral evidence is fully and strongly supports the prosecution case. Sunanda's evidence so also evidence of other witnesses have not at all been shattered in cross-examination because the cross-examination as observed by us of all the witnesses was very short and cryptic and except minor exceptions and omissions nothing fruitful could be brought on record. 11. Learned Counsel for the accused led emphasis on the fact that if no signs of rape were detected by the doctor and no positive opinion could be given by doctor, then the case of the prosecution about rape was liable to be rejected. We are in total disagreement with this submission. Medical evidence is for supporting the case of the victim but it is not that the case of the prosecution can be accepted only if the medical evidence of rape is present. There are absolutely no reasons for Sunanda to falsely implicate the accused and the manner in which she has narrated the incident rules beyond reasonable doubt that it was accused No. 1 who enticed away Sunanda and it was accused No. 2 who raped her. 12. Learned Counsel for the accused contended that when P.W. 6 Dr. Vaijayanti has given the age of victim Sunanda between 12 to 14 years and has admitted that such an opinion was variable by two years then Sunanda would become major and in that case the prosecution will have to prove that rape was committed by the accused without her consent. 13. We are in total disagreement with this submission. Sunanda has given her age as 12 years. P.W. 6 Dr. Vaijayanti has fixed her age between 12 to 14 years based on radiological data. Doctor has nowhere admitted that Sunanda could be a major on the date of the incident. Though doctor has admitted that ossification test for ascertaining age admits margin of 2 years on either side. No doubt that benefit of every circumstance is to be given to the accused but no such benefit can be given in this case because nowhere accused have pleaded that it was intercourse by consent. That is not their defence. Though doctor has admitted that ossification test for ascertaining age admits margin of 2 years on either side. No doubt that benefit of every circumstance is to be given to the accused but no such benefit can be given in this case because nowhere accused have pleaded that it was intercourse by consent. That is not their defence. In fact their defence is of total denial and therefore even if it is accepted for the time being that Sunanda could be of 16 years, no inference whatsoever and of whatever nature can be drawn that she has consented to rape. Story given by her of accused No. 1 taking her and the subsequent narration of the incident by her which completely rules out the possibility of consent. There is no rule of law that because the victim is major the Court should assume or presume consent. 14. Counsel for the accused relied upon the judgment of this Court reported in 1996 Cri.L.J. 2799 (Domnic Misquita and etc. v. The State)1. In that case there were three accused and they were convicted under section 376 of the Indian Penal Code. Accused were acquitted not only because the prosecution has failed to prove the age of the accused but also because from the evidence on record and circumstances this Court came to the conclusion that the prosecutrix was subjected to sexual intercourse of her own free will and consent. 15. This judgment is therefore of no use to this accused. Not a single circumstance neither even a suggestion is given by the accused to the witnesses that the intercourse was by consent. Therefore, as observed by us merely because the age of the minor could be touching 16, inference of consent cannot be drawn by the Court. If however circumstances brought on record were suggestive of consent then the benefit could have been given to the accused. 16. While recording the statements under section 313 of the Criminal Procedure Code, the trial Court had put all the incriminating circumstances to the accused in order to seek their explanation. 26 questions were put to the accused No. 1 whereas similar number of questions were put to accused No. 2. So far as accused No. 2 Digge Sawakar is concerned answer to all of the questions from question Nos. 1 to 20 is that it is false. 26 questions were put to the accused No. 1 whereas similar number of questions were put to accused No. 2. So far as accused No. 2 Digge Sawakar is concerned answer to all of the questions from question Nos. 1 to 20 is that it is false. He has absolutely no explanation to offer nor any motive is attributed to victim and the witnesses in the case. When he was asked whether he wants to examine himself on oath or examine any defence witness, his answers were in the negative and when he was asked as to whether he has to say anything, he files written say. The written say will show that accused No. 2 has no explanation at all about the charges levelled against him much less satisfactory explanation regarding the incriminating circumstances appearing against him in the evidence. Written statement under section 313 of the Criminal Procedure Code of accused No. 2 is as under: The evidence lead so far is false. I have not committed any offence. Sunanda and his mother together with collision have filed this false case against me in order to extract money from me. Witness is the friend of Shakuntala. She has deposed falsely against me at her instance. Panch and police and the complainant have deposed falsely against me at the instance of police. I am married. I have wife, two sons and one daughter. My son is Engineer. My daughter has passed B.A. examination. This statement is given on 13-9-1985. So far as accused No. 1 is concerned he has also given negative replies to all the questions and had filed a written say. In this written statement under section 313 of the Criminal Procedure Code he has contended that Shakuntala and her daughter the complainant were living on-chasty life or life of un-chastity. In other words according to him they are characterless women and that Shakuntala has not paid rent, therefore, there was enmity. It will therefore be clear that the accused have no explanation to offers. We have pointed out this aspect of the evidence only to show that nowhere in their defence accused have pleaded that it was an intercourse by consent. It will therefore be clear that the accused have no explanation to offers. We have pointed out this aspect of the evidence only to show that nowhere in their defence accused have pleaded that it was an intercourse by consent. Even at the risk of repetition, it has to be stated that defence of consent is not at all put to any witnesses right from witness No. 1 to last witness nor any suggestion is put in that regard. 17. Counsel for the accused also contended that in the F.I.R. the name of accused No. 2 Digge does not appear at the place where it should have been F.I.R. is at Exhibit 19. It is statement of Sunanda and perusal of the same will show that she has narrated the incident in the manner it took place and in the last paragraph she has stated that it was accused No. 2 Digge Sawakar who has molested her. So far as accused No. 1 is concerned his role is given in the initial paragraph so also his name. Therefore not giving name of the accused at the place where the defence wants cannot be a ground to reject the F.I.R. Accused No. 2 and I have been specifically and clearly named in the F.I.R. and a girl who has been raped is not likely to forget the person who has spoiled her life. 18. Counsel for the accused relied upon the judgment of Supreme Court reported in 1996(10) S.C.C. 79 (Dhanna v. State of M.P.)2, wherein Supreme Court has laid down the guidelines for deciding appeals against acquittal. In para 11 the Supreme Court has observed that: "While dealing with an appeal against acquittal the Appellate Court has to bear in mind; first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the Appellate Court also. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the Appellate Court also. Thus, the Appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed." We are in fully agreement with the aforesaid observation of the Supreme Court. However, the evidence as discussed above clearly indicates the guilt of the accused and nothing else. The accused has not been able to create any doubt about the prosecution case. The approach of the trial Court was obviously and clearly perverse. The trial Court did not weigh the evidence properly and disregarded the most important and vital aspects of the case as discussed above. 19. Coming to the part of the conviction, the accused No. 1 was charged for offence under sections 366 and 109 read with 376 of the I.P.C. and accused No. 2 was charged for offence under sections 376 and also 354 of I.P.C. Counsel for the accused contended that accused No. 2 is now 65 years of age and accused No. 1 is 76 years of age and therefore minimum sentence should be awarded. 20. So far as accused No. 2 is concerned, the age is given in the memo of appeal as 45 years in 1986, adding 16 year from the date of filing appeal, the age of accused No. 2 is about 61-62 years and accused No. 1 is about 75-76 years of age. 21. We place on record and do appreciate the valuable assistance rendered by learned A.P.P. Mr. Singhal for the State and learned Counsel Mr. Nitin Jamdar for the respondents in this case in disposing of the appeal. Considering, therefore, the circumstances we pass the following order: ORDER Appeal is allowed. Accused No. 2 is convicted under section 376 of I.P.C. and is sentenced to suffer R.I. for four years and to pay fine of Rs. 5,000/- in default R.I. for 3 months. Accused No. 1 is convicted under section 363 of I.P.C. and is sentenced to suffer R.I. for one year and to pay a fine of Rs. 1,000/- in default R.I. for three months. 5,000/- in default R.I. for 3 months. Accused No. 1 is convicted under section 363 of I.P.C. and is sentenced to suffer R.I. for one year and to pay a fine of Rs. 1,000/- in default R.I. for three months. If the fine is realised, the entire fine amount should go to the victim Sunanda Shankar Sonkamble. Accused to surrender before the trial Court within five weeks from the date of this order. Office to immediately communicate this order to the trial Court. The trial Court to take appropriate steps accordingly. Certified copy expedited. Appeal allowed. -----