P. S. NARAYANA, J. ( 1 ) THE appellant-A1 in S. C. No. 82 of 1996 on the file of the Sessions Judge, Mahila Court, visakhapatnam, had preferred this Criminal appeal, aggrieved by the judgment dated 21-09-1998. ( 2 ) A-1 was charged with Section 376 of the indian Penal Code (hereinafter in short referred to as IPC for the purpose of convenience) and A-1 to A-3 were charged with Section 506 IPC and the learned Judge on appreciation of the evidence of P. Ws. 1 to 13, D. Ws. 1 to 3, Exs. P-1 to P-14 and Exs. D-1 to D-5, conyicted A-1 and sentenced him to undergo rigorous imprisonment for seven years and also to pay a fine of Rs. 5,000/- and in default to undergo rigorous imprisonment for six months and the fine amount shall be given to the victim P. W. 1 after appeal time. But, however, since there is no sufficient material to find A-1 to A-3 guilty of offence punishable under Section 506 IPC they were acquitted of the said charge. ( 3 ) THE Inspector of Police, Circle III L and O, visakhapatnam City, laid charge sheet against appellant-A-1 and also A-2 and A-3 for the offences referred to supra. The version of the prosecution is that A-1 is the cousin brother of P. W. 1 who was aged below 16 years and while she was studying VII standard and while he was giving tuition to her by putting her in fear of danger to her life, had sexual intercourse with her in a portion of the house of his elder brother Dasu in the year 1994 and continued to have sexual intercourse with her for about two years that is till one month prior to giving of the ex. P- report dated 10-01-1996 and hence, appellant A-1 is punishable under section 376 IPC and A-1, his father A-2 and his elder brother A-3 threatened her that she would face dire consequences, if she reveals the illegal intimacy between her and A-1 and hence, A-1 to A-3 are punishable under section 506 IPC. P- report dated 10-01-1996 and hence, appellant A-1 is punishable under section 376 IPC and A-1, his father A-2 and his elder brother A-3 threatened her that she would face dire consequences, if she reveals the illegal intimacy between her and A-1 and hence, A-1 to A-3 are punishable under section 506 IPC. The same was registered as p. R. C. No. 8 of 1996 and in view of the fact that this case is exclusively triable by the court of Session, committed the same to the court of Session and the same was made over to the Mahila Court while it was in the cadre of the Assistant Sessions Judge, for disposal, according to law and the learned assistant Sessions Judge framed charges and after upgrading the Mahila Court, the said case was tried by the learned Sessions Judge, mahila Court, Visakhapatnam. ( 4 ) SRI C. Praveen Kumar, learned counsel representing the appellant had pointed out several inherent improbabilities in the prosecution case and would submit that the age of P. W. 1 itself is doubtful and even the learned Judge had recorded clear findings that the prosecutrix P. W. 1 was a consenting party and in view of the doubt relating to the age, inasmuch as two views are possible, the view favourable to the accused may have to be preferred and hence, the appellant A-1 is entitled for acquittal. The learned counsel had taken this Court thoroughly through the evidence available on record and placed strong reliance on the evidence of P. W. 10 in relation to the age of P. W. 1. The counsel also commented on the evidence of P. W. 11, Head mistress that except Ex. P-8 and the evidence of P. W. 11, there is no other corroborative evidence in relation thereto and hence, the medical evidence of P. W. 10 had to be preferred. The learned counsel also had taken this Court through the other evidence available on record and also would contend that the evidence of D. Ws. 1 to 3 would go to show that there is enmity and hence, this case had been foisted. The learned counsel placed reliance on certain decisions to substantiate his contentions. The learned counsel also had taken this Court through the other evidence available on record and also would contend that the evidence of D. Ws. 1 to 3 would go to show that there is enmity and hence, this case had been foisted. The learned counsel placed reliance on certain decisions to substantiate his contentions. ( 5 ) ON the contrary, the learned Additional public Prosecutor would contend that the difference between the age as spoken to by p. W. 1-and P. W. 2, the mother of P. W. 1, and also as revealed by Ex. P-8 and the evidence of P. W. 11, the margin is not narrow and in such cases, there is no question of preferring the medical evidence when the other evidence is available on record. The learned counsel also placed reliance on certain decisions in this regard. The counsel would submit that in any view of the matter inasmuch as the evidence is clear that the prosecutrix P. W. 1 was below the age of 16 years, consenting is immaterial. ( 6 ) HEARD the counsel on either side and perused the oral and documentary evidence available on record. ( 7 ) P. W. 1 the prosecutrix was examined it on 03-07-1998 and she had specifically deposed that she was aged 16 years on the date of examination and she also deposed that her date of birth is 06-08-1982 and A-1 is the son of her senior paternal uncle and she had further deposed that she was studying vii Class at Madhavadhara High School in 1994 and then A-1 approached her parents and informed them that he would give tuition to her and her younger sister, and her parents agreed for the same and he used to give tuition to them in a room in the house of kerry Dasu, the elder brother of A-1 between 7 p. m and 10 p. m daily and he used to send away her younger sister Parvathi at 8 p. m daily from the said room and continued to give tuition to her till 10 p. m. A-1 was working as Driver of Tipper during the said period. ( 8 ) P. W. 1 also further explained that A-1 expressed his intention on a particular day then she informed him that she was his cousin sister and it was not good on his part to have such an intention. But he did not heed her words. One month after starting of the tuition, at about 8 p. m, he had sent away his younger sister and expressed his intention to have sexual intercourse with her and in spite of her protest he did not change his attitude and committed rape on her by putting her in fear of death by showing a knife. A-1 expressed his intention for the first time in that night, and committed rape on her on the same night. After committing rape, A-1 threatened her that he would kill her, if she reveals the above said incident to anybody. Then she kept quite due to the fear of A-1. She specifically deposed that she was aged 11 years by the date of the said incident and she attained puberty five months prior to the above said incident. She had further deposed all the other aspects and had narrated how things had happened and also explained that after writing the VII Class Examinations, her menstruation was stopped and A-1 informed her that she should intimate to him whenever the menstruation work was stopped and when A-1 enquired her about the same, she informed him in the year 1995 relating to the same, then he gave tablets and then she got regular menses. ( 9 ) SHE further deposed that on 24-05-1995, her parents-in-law along with their son came to their house and got fixed her marriage with their son one Saripalli nagaraju, which was celebrated on 24-05-1995 and no doubt the witness again says that she could not remember the date on which her marriage was fixed, but her marriage was celebrated on the aforesaid date. She also deposed about what transpired subsequently and A-1 threatening that he would kill her, if she gives consent to her husband for cohabitation and due to the said fear, she did not give her consent to her husband and ultimately since she was not cooperating due to threats from A-1 to have marital life, her husband complained to her parents and the same was reported to Police and she had informed that she is not willing to lead the marital life, and Panchayat was held and customary divorce was given. Subsequently, she joined in VIII Class after obtaining divorce and A-1 continued to give tuition to her in the same room and continued to have sexual intercourse with her. When a-l informed her that he would like to marry one Gali Lakshmi, studying VIII Class and also asked her not to reveal his sexual contacts with her to anybody. P. W. 1 also deposed that by that time she was carrying, A-1 came to her and gave 8 tablets to her and she consumed 3 tablets and her pregnancy got aborted. Subsequent thereto, A-2 and A-3 approached her when she was alone and threatened her while she was weeping in the house. Then on the threats of her father, she informed every thing to her parents and they gone to the Police Station and reported the matter. ( 10 ) THE evidence of P. W. 1 is so elaborate relating to all the events. No doubt she was cross-examined at length and suggestions were put to her, which no doubt she had denied. It was suggested to her that due to influence of the movies and T. V. programmes, she developed sexual contacts with several boys of her locality and foisted this case against A-l. The said suggestion also was denied. ( 11 ) P. W. 2, the mother of P. W. 1 was examined on 03-07-1998 and she deposed that P. W. 1 was aged 16 years by that date. She had narrated events in detail, which had ultimately let to the report being given. In cross-examination, no doubt she deposed that she did not mention the date of divorce as 02-11-1995 to the police as in Ex. D-1. She had narrated events in detail, which had ultimately let to the report being given. In cross-examination, no doubt she deposed that she did not mention the date of divorce as 02-11-1995 to the police as in Ex. D-1. ( 12 ) P. W. 3 is the sister of P. W. 1 who had also corroborated the evidence of P. W. 1 up to some extent relating to the series of events. She was cross-examined and some contradictions like Ex. D-5 were put to her. ( 13 ) P. W. 4 is the Panchayatdar, who has settled the matrimonial disputes between p. W. 1 and her husband. No doubt this witness in cross-examination stated that to his knowledge, A-1 never gave tuitions to anybody. Submissions, at length, were made on the ground that this would probablise the improbability of A-1 giving any tuitions since he himself is not having good education. ( 14 ) P. W. 5 is the husband of P. W. 1 who had deposed about what happened in relation to the matrimonial tie between P. W. 1 and himself. P. W. 6 is one Lakshmi and she is the person who A1 proposed to marry but because of the case pending against him, the said marriage was postponed. P. W. 7deposed about Ex. P-2, the Observation Report of the scene of offence, which contains his signature. P. W. 8 is the Doctor who had examined P. W. 1 and issued Ex. P-3 certificate. She deposed that she found that P. W. 1 s general condition was fair and no external injuries. Hymen has caruncula myritiformes. It means that there were old tears in the hymen, indicating that she was habituated to sexual intercourse. She reserved her opinion awaiting FSL report. Ex. P-4 is the F. S. L. Report and basing on the said report she gave her final opinion Ex. P-5, stating that she is used to have sexual intercourse. PW-9 is the Casuality Medical officer, who examined A-1 and issued ex. P-6 Impotency Certificate. ( 15 ) P. W. 10 is the Professor and Head of the Department of Forensic Science. On the evidence of P. W. 10, a strong reliance was placed by the counsel representing the appellants. P-5, stating that she is used to have sexual intercourse. PW-9 is the Casuality Medical officer, who examined A-1 and issued ex. P-6 Impotency Certificate. ( 15 ) P. W. 10 is the Professor and Head of the Department of Forensic Science. On the evidence of P. W. 10, a strong reliance was placed by the counsel representing the appellants. This witness deposed that he examined P. W. 1 on 29-01-1996 and after physical, dental and radiological examinations, he determined her age about 18 years and the error of minus or plus one year can be added to the age determined by him and no doubt the further examination of the witness was deferred at the request of the additional Public Prosecutor and the x-rays relating to P. W. 1 were not traced and this witness was further examined. This witness also deposed that on dental and radiological examinations, the age of P. W. 1 would be 18 years. The fusion of upper end of arm bone will occur at the age of 17 to 18 years and some times from 18 to 20 years and the approximate age of fusion of the above said bone is from 17 to 19 years with a margin of error of plus or minus one year. He further deposed about Ex. P-7 Age Determination certificate. ( 16 ) P. W. 11 is the Head Mistress who produced the certificate Ex. P-8, issued by her on 04-07-1998, showing the date of birth of P. W. 1 as 06-08-1982. This is the certificate based on the Admission Register of madhavadhra High School (Municipal corporation High School ). P. W. ll produced the original Admission Register. P. W. 12 worked as Inspector of Police at the relevant point of time who deposed that P. W. 1 gave ex. P-1 oral report and the same was reduced to writing and obtained her signature on it and registered a case in Crime No. 9 of 1996 under Sections 376 and 506 IPC. P. W. 13 is the Investigating Officer who had deposed about the investigation in detail. This witness also was cross-examined at length. D. Ws. 1 to 3 were examined to establish that there was similar enmity between these families. P. W. 13 is the Investigating Officer who had deposed about the investigation in detail. This witness also was cross-examined at length. D. Ws. 1 to 3 were examined to establish that there was similar enmity between these families. ( 17 ) IT is no doubt true that the learned judge had recorded certain findings from the facts and circumstances, since the series of incidents had spread over from 1994 to 1996 just prior to Ex. P-1 or for sufficient period, it cannot be said that the sexual intercourse was without the consent of P. W. 1 the prosecutrix and hence, P. W. 1 should be taken to be a consenting party though initially there must have been some internal resistence in the year 1994. ( 18 ) THE crucial question that may have to be decided in the present case is one of age of the prosecutrix P. W. I. In the year 1994, she was studying VII class. The evidence of p. W. 11 and also Ex. P-8 is clear, relating to the date of birth of P. W. 1 the prosecutrix. This is not the only evidence available, the evidence of P. Ws. 1 and 2 also is available relating to the age. ( 19 ) THE learned counsel representing the appellant placing strong reliance on the evidence of P. W. 10, would state that a statement was made by the prosecutrix herself relating to her age and apart from this, the medical evidence of P. W. 10 on all tests, opined that her age would be 18 years, no doubt with some margin and hence since two views are possible, the margin of error should be read only in favour of the defence definitely, not in favour of the prosecution and hence, the conviction cannot be sustained. ( 20 ) THE learned counsel representing the appellant placed strong reliance in Brij Mohan singh v. Priya Brat Narain Sinha wherein the apex Court held:"in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive. " ( 21 ) THE learned counsel further placed strong reliance in Jaya Mala v. Home Secy. Govt. of J and K at page1779, paragraph-9, wherein it was stated:"detenu was arrested and detained on oct. 18,1981. The report by the expert is dated May 3,1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in Oct. , 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed. " ( 22 ) RELIANCE also was placed on a decision of the Division Bench of Bombay High Court in Balasaheb v. State of Maharashtra at page 3048, wherein it was observed:"the next point on which the learned advocate for the appellant has harped is the question of the age. On that count, the learned A. P. P. has drawn our attention to the age certificate produced by (PW9) Shankar Vithoba hinge. He claims to be the Head Master of Zilla Parishad Primary School, pratappur since 1968. He admitted nanda on 15-06-1981 and issued a certificate at Exh. On that count, the learned A. P. P. has drawn our attention to the age certificate produced by (PW9) Shankar Vithoba hinge. He claims to be the Head Master of Zilla Parishad Primary School, pratappur since 1968. He admitted nanda on 15-06-1981 and issued a certificate at Exh. 40, as Nanda left the school in 1987. On the question of age, according to him, the entry in the register shows that the birth date of nanda was 01-10-1975. Obviously, therefore, if that date is taken into consideration, on the date of the incident, Nanda was certainly less than 16 years. But according to Hinge, this date is based on the slip given by the guardian of Nanda. This date is, therefore, not fortified by any certificate of birth by the Gram Panchayat. It would be obviously strange that according to Hinge, the child could not be admitted to the school unless the child has completed six years of age. If that be so, it would be evident that nanda would not be admitted on 15-06-1981. On the other hand, her admissidon to the school itself shows that the date indicated in the slip was not taken as a basis of her age. It was an approximate age which was being considered and despite this, she was admitted in the school. Hinge has admitted that at present the practice is to admit the student on the basis of the birth extract supplied by the Gram panchayat. We are unable to fathom ourselves as to what was the situation in 1981. It could be judicially noticed that the Gram Panchayat have been in existence for the last several years and in the ordinary course of nature, such a certificate would have been available to the guardian of Nanda. We are, therefore, inclined to observe that the age shown in certificate Exh. 40 cannot be treated as exclusive to establish the age of Nanda as being less than 16 years on the date of her admission to the school. We may repeat that had she been below six years of age, she could not have been admitted in school on 15-6-1981. The learned advocate for the appellant in this behalf has drawn our attention to the evidence of Dr. Khot at Exh. 24. According to Dr. We may repeat that had she been below six years of age, she could not have been admitted in school on 15-6-1981. The learned advocate for the appellant in this behalf has drawn our attention to the evidence of Dr. Khot at Exh. 24. According to Dr. Khot, the age of Nanda, on the date of her examination, might be between 14 to 16 years. We may indicate that menarche was noticed since 15th June 1990. Now according to modi s Medical Jurisprudence and toxicology (21st Edition), it is observed that the error in case of age based on ossification test may be + 3 years. In this case, we find that even Dr. Khot has stated that the age of Nanda could be 16 years. Adding one year to the same, it can be safely held that the age of Nanda could be even 17 years. The appellant is, therefore, entitled to advantage of this marginal error based on the ossification test. Now under S. 375 (6), it is laid down by way of inference that if a person is having a sexual intercourse with a female with her consent when she is not under 16 years of age, the sexual intercourse shall not tantamount to rape punishable under S. 376, IPC " ( 23 ) FURTHER strong reliance was placed in kondapalli Laxman Rao v. State of A. P. at page 1931, paragraph 11, wherein it was held:"thus the evidence of age based on school records cannot be accepted particularly so as it is in conflict with the medical evidence as to the age of p. W. 1 It is necessary to examine medical evidence in this case. The age of the prosecutrix on the basis of the dental and ossification tests has to be determined where school certificate cannot be accepted and there is no oral evidence as to the age. In such a case, the opinion of radiologist by allowing certain margins can be accepted. Such a view has been taken by the Delhi high Court in the case of Kanchan dass v. State, 1991 Cri. LJ. 2036. P. W. 7 dr. K. Shankara Narayana has examined p. W. 1 and based on physical, dental and radiological examination opined that the age of P. W. 1 was "about 15 to 17 years". Ex. P3 is the certificate issued by him. LJ. 2036. P. W. 7 dr. K. Shankara Narayana has examined p. W. 1 and based on physical, dental and radiological examination opined that the age of P. W. 1 was "about 15 to 17 years". Ex. P3 is the certificate issued by him. In his cross-examination, he has stated about X-ray photographs for determination of the age which are ex. P4 in respect of hip joint, Ex. P-5 shoulder joint, Ex. P6 elbow joint, ex. P-7 in respect of wrist joint. The findings recorded in his certificate ex. P-3 are not seriously challenged in the cross-examination of this witness except eliciting that these X-rays were not taken by him personally, obviously it is the radiologist or technician who takes the X-rays. A bald suggestion was made that P. W. 7 has not examined p. W. 1 at all which he denied. It is true that medical evidence in respect of age cannot be exact and the determination of age is with reference to certain lower and higher margins. In this case, P. W. 7 stated that the age of P. W. 1 was between 15 to 17 years. At the lowest it could be 15 years and at the highest it could be 17 years. As held by the Delhi High Court in Kanchan Dass v. State, (1991 Cri. LJ 2036) (cited supra) the benefit of outer margin must be given to the accused. Based on this, the age of P. W. 1 must be held to be 17 years as on the date of her examination by P. W. 7. She was examined on 06-08-1990. Thus, the age of P. W. 1 can be taken as 17 years as on 06-08-1990. " ( 24 ) RELIANCE also was placed in State of karnataka v. Sureshbabu Puk Raj Porrap at para 6, wherein it was held:"shri S. S. Javali, learned senior counsel appearing for the respondent-accused, however, submitted that the age of the victim has not been satisfactorily proved to be 16 years and that on the other hand there is the Doctor s evidence who examined her, which shows that her age could be even above 18 or 20 years. We find considerable force in this submission. PW 21 was a Doctor and radiologist working in K. M. Hospital, hubli. PW 7 was referred to him for determination of her age. We find considerable force in this submission. PW 21 was a Doctor and radiologist working in K. M. Hospital, hubli. PW 7 was referred to him for determination of her age. He conducted all the necessary tests and then also took X-rays. From the Ossification test, according to him, her age could be under 18 years. But according to Isshial tuberosity, her age could be below 20 years. Like that, from the tests and examinations of Distal end femur and tibia etc. the Doctor gave the approximate age stating that it could be 16 years. But the data given would show that she could be aged 18 years also. In this context, the evidence of p. W. 5, the mother of PW 7 throws any amount of doubt about her age. The courts below no doubt have relied on a transfer certificate Ex. P-1 in which the date of birth of P. W. 7 was given as september 5, 1961 and this certificate was obtained after the date of the offence namely on January 12,1977. That apart, the Headmistress simply stated that the entry was made on the basis of the information given by the parents. A lady Doctor, P. W. 20, who also examined P. W. 7 stated that she refused to get herself admitted or even be examined. But, however, she was again brought back and was examined. P. W. 20 did not find any injury on her body including private parts. The doctor deposed that P. W. 7 was used to sexual intercourse and in the cross- examination she stated that her age could extend to 16 to 17 years also. We are only pointing these aspects because regarding the age the evidence is not very convincing. " ( 25 ) LEARNED Additional Public Prosecutor placed strong reliance in D. Venkata Subba rao @ Seshu and others v. State, Inspector of police, CID, Hyd. at page 413, wherein this court, held:"the first question that arises for consideration is as to whether P. W. 3 is below 16 years on the date of incident. As per Section 375 IPC even if the sexual intercourse is with consent and if she is under 16 years of age, it is a rape. at page 413, wherein this court, held:"the first question that arises for consideration is as to whether P. W. 3 is below 16 years on the date of incident. As per Section 375 IPC even if the sexual intercourse is with consent and if she is under 16 years of age, it is a rape. It is the contention of the learned Counsel for the appellants that there is no birth extract of P. W. 3 and her date of birth is not entermany admission register of the school records and as per the statement of the parents only the date of birth of the victim girl was entered in the examination application form for the 7th class common examinations conducted by the Krishna District common Examination Board and therefore, the date of birth entered in the application form is not an authenticated one and the said documentary evidence viz. Ex. P6 and p-7 cannot prevail over the evidence of the doctors P. W. 15 and D. W. 1. If there is a definite opinion of the doctors to show that P. W. 3 is above 16 years, the trial Court could have considered the opinion evidence of P. W. 15 and D. W. 1. But the Doctors themselves stated that the date of birth given by them is arbitrary. That means it is not definite. As against the said opinion evidence, there is documentary evidence Exs. P-6 and P-7, which was supported by the oral evidence of P. W. 1, P. W. 3 and P. W. 8. P. W. 8 also stated that after examining p. W. 3 by a Civil Assistant Surgeon, gudivada, her date of birth was entered in the application form as it was tallied with the date of birth furnished by the parents of P W3. In view of the decisions cited by the learned Public Prosecutor and in view of the fact that there is no definite evidence or opinion given by the doctors in support of the contention of the learned Counsel for the appellant- a-1, I am of the view that the documentary evidence Exs. P-6 and P-7 coupled with the evidence of P. Ws. 1,3 and 8 prevails over the opinion evidence of P. W. 15 and D. W. I and it is safe to rely on the documentary evidence exs. P-6 and P-7 supported by the evidence of P. Ws. P-6 and P-7 coupled with the evidence of P. Ws. 1,3 and 8 prevails over the opinion evidence of P. W. 15 and D. W. I and it is safe to rely on the documentary evidence exs. P-6 and P-7 supported by the evidence of P. Ws. 1,3 and 8 rather than the opinion evidence of P. W. 15 and d. W. 1. " ( 26 ) RELIANCE also was placed in Updesh kumar and others v. Prthvi Singhand others wherein it was held:"in relation to the date of birth - correction of, in Matriculation certificate by the School Education board on the basis of medical certificate, held, must be presumed to have been done in accordance with law - More so when the date as corrected tallied with the date of birth of the siblings of the person concerned and was also supported by the entries in electoral roll and the correction was effected prior to the arising of the dispute regarding the age of the person concerned. "it was also further held, that:"the Birth certificate issued by Medical officer - Evidentiary value - Issuance of, although denied by the doctor concerned, in view of other evidence and the peculiar circumstances, compelling the doctor to deny the issuance of the certificate, held, the certificate could not be said to have been forged and fabricated document. " ( 27 ) RELIANCE was also placed in Parasaraja manikyala Rao v. State of A. P. wherein it was held:"this is a strange way of dealing with the accusations and considerations of the guilty or otherwise of the accused. How a person reacts in a given case may be the determinative factor so far as that case is concerned. That cannot be applied as a rule of universal application to all cases irrespective of the fact situation in that particular case. There can be no empirical formula as to how one reacts in a given situation and its effect and impact It would be almost like trying to put a square peg on a round hole. To imprint fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any or every other case notwithstanding dissimilarity in effect and the distinctive features is legally impermissible. To imprint fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any or every other case notwithstanding dissimilarity in effect and the distinctive features is legally impermissible. Each case, more particularly a criminal case depends on its own facts and 3 close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive. The vague and cryptic conclusion arrived at by the trial Court to treat their case differently from the manner it deal with that of A-1, despite its very observation that the evidence was as cogent against them too as it was against A-1 lack a judicious approach and determination and, therefore, rightly interfered with by the High court after an objective appreciation of the evidence independently and in the light of the relevant and guiding principles of law governing such determination. " ( 28 ) ON a careful analysis of the findings recorded by the learned Judge and also the evidence of P. W. I, P. W. 2 and P. W. ll and ex. P-8, the certificate issued by P. W. ll and also the production of Admission Register before the Court, despite the evidence of p. W. 10 which is the medical evidence and especially in view of the fact that even P. W. 10 had deposed that there can be some margin, this opinion evidence of the doctor cannot dislodge the clear proof in view of not only the evidence of P. W. 11, the evidence of P. Ws. 1 and 2 also in this regard. ( 29 ) IT is also pertinent to note that the commencement of the commission of this offence was in the year 1994, which continued till 1996. It is not in controversy that P. W. 1 was studying VII class at the relevant point of time, This aspect also may have to be taken into consideration while appreciating the other aspects. It is not in controversy that P. W. 1 was studying VII class at the relevant point of time, This aspect also may have to be taken into consideration while appreciating the other aspects. ( 30 ) HENCE, in the light of the clear clinching evidence available on record relating to the age of prosecutrix P. W. 1, the consent, if any, given by P. W. 1 to have sexual intercourse, would definitely fall into insignificance and it would amount to an offence within the meaning of Section 375 IPC which is punishable under Section 376 IPC. There cannot be any doubt or controversy relating to the same and this is not a case where two views are possible, in which the view preferable to the accused may have to be preferred. Here is a clear case relating to the age of the prosecutrix P. W. 1. Hence, this court is not inclined to rely on the medical evidence, the evidence of P. W. 10 and in preference thereto the evidence of P. W. ll, ex. P-8 and the evidence of P. Ws. 1 and 2 and other attending circumstances, especially, the study of P. W. 1 in VII class at the relevant point of time. On the strength of these aspects, the prosecution had clearly established that the prosecutrix P. W. 1 was below the age of 16 years and hence, the findings recorded by the learned Judge in any way need not be disturbed and accordingly, the said findings are hereby confirmed. ( 31 ) AT this stage, however, it is brought to the notice of this Court that the accused is young and there are dependants in the family and taking into consideration the said facts, the rigorous imprisonment for seven years is hereby reduced to five years, and as far as imposition of fine and in default to undergo rigorous imprisonment for 6 months is concerned, the same is hereby confirmed. Except to the modification of the sentence referred to supra, in all other respects, the findings of the learned Judge are hereby confirmed. The Appeal shall stand dismissed, except subject to the modification referred to supra. The bail bonds shall stand cancelled and the A-1 shall serve the rest of the sentence. It is needless to say that A-1 is also entitled to set off, if any, in accordance with law.