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2006 DIGILAW 1041 (GAU)

Paban Biswas v. State of Tripura

2006-11-24

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. This criminal appeal is directed against the judgment dated 22.7.2005 passed by the learned Sessions Judge, West Tripura, Agartala in ST 96 (WT/A) of 2002 convicting the Appellant under Section 376(1) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years with a fine of Rs. 10,000/-, in default to suffer further rigorous imprisonment for three months. It was also directed therein that fine money, if realized, should be paid to the victim by way of compensation. 2. The case of the prosecution, in a nut shell, is that the informant Smt Maya Debnath lodged a written complaint to the Officer In-charge, Airport Police Station alleging that on 29.6.2001 at about 5.30 p.m., when her minor daughter Ratna Debnath, (hereinafter called as "prosecutrix"), went to fetch water from a nearby stream, the Appellant dragged her to the jungle, gagged her mouth and committed rape on her and after commission of rape, took her to the house of his maternal uncle and thence to the house of his sister to create pressure upon the prosecutrix for marriage. The Appellant is alleged to have threatened the prosecutrix that if she did not agree to his proposal for marriage, he would kill her father, namely Gopal Debnath. On 1.7.2001, the prosecutrix managed to escape from the clutch of the Appellant and reached the house of her aunt, namely, Kamala Debnath (P. W.3), who thereafter brought her to the house of her parents. It is the further case of the prosecution that after returning home, the prosecutrix disclosed the incident to her mother (P.W. 1), whereafter her mother i.e. the informant and her father informed the incident to the village leaders for taking appropriate action and that when the village leaders did nothing, the informant lodged the FIR, whereupon the police registered Airport P.S. case No. 40 of 2001 under Section 376 of the Indian Penal Code. 3. After registration of the case, the Airport Police Station started investigation of the case. 3. After registration of the case, the Airport Police Station started investigation of the case. In the course of investigation, the police examined the available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure, got the prosecutrix medically examined and produced her before the Judicial Magistrate who recorded her statement under Section 164 of the Code of Criminal Procedure, and after completion of the investigation, the Appellant was charge-sheeted under Section 376 IPC. It is also stated by the prosecution that the accused Appellant could not be arrested despite rigorous efforts made by them as he was absconding. Since the offence alleged against the accused Appellant was exclusively triable by the Court of Sessions, the learned Judicial Magistrate committed the case to that court for trial. On receipt of the case record and after hearing the learned P.P. and the learned Counsel for the defence, the learned Sessions Judge, West Tripura, Agartala found a prima facie case and thereupon framed the charge against the Appellant under Section 376(1) IPC. The Appellant pleaded not guilty to the charge so framed and claimed to be tried. The learned Sessions Judge thereafter proceeded with the trial of the case. In the course of the trial, the prosecution examined thirteen witnesses to bring home the charge against the Appellant, but no evidence was adduced on behalf of the Appellant. The defence taken by the Appellant was that of total denial. At the conclusion of the trial, the learned Sessions Judge by the impugned judgment found the Appellant guilty of the charge and returned the verdict of conviction and sentence as noted earlier. 4. According to the learned Sessions Judge, the prosecutrix was not more than 14 years old at the time of incident and, as such, a minor. In reaching this finding, the trial court took into account the opinion of the medical officer (P.W. 11) who opined that she was below 17 years or, at any rate, was in between 14 and 16, and of the fact that the prosecutrix being a student of Class-VII on the date of the incident, could not be above 14 years as generally a child got admitted to Class-I at the age of six years and of further fact that her mother (P.W. 1) has stated that on the day of incident, the prosecutrix was thirteen years old. The Sessions Judge was also of the view that the delay in lodging the FIR i.e. 19 days was satisfactorily explained by the prosecution inasmuch as the village leaders to whom the parents of the prosecutrix sought for justice could not settle the case and informed the parents of the prosecutrix to lodge a complaint to the police only after 19 days. According to the trial court, when the prosecutrix, who was a minor girl of 13/14 years deposed before the court vividly describing how she was dragged by the Appellant by force and was then raped by him, her evidence is enough to convict the Appellant. The trial court also found that there was no major contradiction in the evidence of P.W. 1, P.W.3, P.W.4, P.W.7, P.W.8 and P.W. 9 and also in the medical evidence (Exhibit-6) which corroborated the evidence of the prosecutrix in material particulars. The trial court thus held that the prosecution has proved to the hilt that the Appellant committed rape upon the prosecutrix. 5. Assailing the findings of the trial court, Mr. A. K. Bhowmik, learned senior Counsel for the Appellant contends that the inordinate delay of eighteen days in lodging the FIR by the informant, which could not be satisfactorily explained by the prosecution, is fatal to the case of the prosecution and the impugned judgment is liable to be set aside on this count alone. The learned senior Counsel seriously disputes the findings of the trial Court on the age of the prosecutrix which are based on the ossification test report, the opinion of the medical officer and the evidence of the P.W. 1, and vehemently submits that the trial Court committed illegality in not drawing adverse inference from the non-production of birth certificate, school certificate and school admission register of the prosecutrix, which could have been easily obtained by the prosecution. The learned Counsel also draws attention of this Court to the perverse findings recorded by the trial Court that the allegation of rape was supported by the medical evidence (Exhibit 6) which categorically stated that there was no evidence of rape. Resultantly, contends learned senior Counsel, the evidence of P.W. 7, P.W.3, P.W. 1 and P.W. 2 are full of contradiction, which could not be relied upon for sustaining the conviction of the Appellant, and, as such, nothing short of hon'ble acquittal is called for on the evidence on record. Resultantly, contends learned senior Counsel, the evidence of P.W. 7, P.W.3, P.W. 1 and P.W. 2 are full of contradiction, which could not be relied upon for sustaining the conviction of the Appellant, and, as such, nothing short of hon'ble acquittal is called for on the evidence on record. 6. On the other hand, Mr. R.C. Debnath, learned P.P. In-charge of the case, supporting the impugned judgment, submits that the evidence of the prosecutrix, which is otherwise reliable and consistent throughout, are sufficient to sustain the conviction of the Appellant and, moreover, her evidence is also sufficiently corroborated by the evidence of P.W. 1, P.W. 4, P.W. 7 and P.W. 8. The contradictions pointed out by the learned Counsel for the Appellant, according to the learned P.P. In-charge, are minor in nature which can be ignored and that such minor variations are natural and only expected when these prosecution witnesses are mostly village folks, who are not sophisticated or not well acquainted with the technicality of a criminal trial and, more so, when they were pitted against trial lawyers. On the contrary, urges the learned P.P. In-charge, these minor variations are demonstrative of the truthfulness of the prosecution witnesses. According to the P.P. In Charge, the delay of 19 days has been sufficiently explained by the prosecution and a delay per se cannot be a ground for disbelieving the case of the prosecution when the evidence, which were led by the prosecution, during the trial, are trustworthy, cogent and consistent throughout. In support of his submission, learned P.P. In-charge heavily relies on the decision of the Apex Court in State of Rajasthan v. N.K. reported in (2000) 5 SCC 30 . 7. I am not unmindful of the well-settled proposition of law that a prosecutrix complaining of having been a victim of the sexual offence is not an accomplice after the crime and that there is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. Therefore, this Court must be guard itself against unmerited acquittals. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. Therefore, this Court must be guard itself against unmerited acquittals. Having said that, however, it is also an equally settled law that the prosecution is under an obligation to prove its case beyond reasonable doubt. "Proof beyond reasonable", is, however, a guideline, not a fetish and the prosecution, is not required to meet any and every hypothesis put forward by the accused nor is a reasonable doubt an imaginary, trivial or merely possible doubt, but a fair doubt based on reason and common sense. In the words of the Apex Court, the golden thread which rules throughout the cobweb of the administration of justice in criminal cases is that if two views are plausible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from on the conviction of an innocent is no less than from the acquittal of guilty. It is against the backdrop of the aforesaid legal principle that I propose to examine the rival contention advanced by the learned Counsel for the parties. 8. The questions which fall for consideration in this appeal are whether the prosecution story, as alleged, inspires confidence of the Court on the evidence adduced, or, whether the testimony of the prosecutrix is worthy of reliance or whether it stands in need of corroboration. There is no rule of thumb that the sole testimony of a prosecutrix cannot be acted without corroboration in material particulars. The rules for appreciating the evidence of prosecutrix in a case of this nature has been explained by the Apex Court in State of Punjab v. Gurmit Singh (1996) 2 SCC 384 in the following manner: ...If evidence of the prosecutrix inspires confidence, it must be retired upon without seeking corroboration of her statement in material particulars. The rules for appreciating the evidence of prosecutrix in a case of this nature has been explained by the Apex Court in State of Punjab v. Gurmit Singh (1996) 2 SCC 384 in the following manner: ...If evidence of the prosecutrix inspires confidence, it must be retired upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the back ground of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. 9. It is evident from the evidence of the prosecutrix (P.W.2) that she was at the time of incident aged 13 years and was a student reading in Class VII at Gandhigram H.S. School and that on 29.6.01 at about 5/5.30 p.m. she had gone to a stream nearby to their house towards western direction to fetch water and that at that time her parents were in Durgabari Chowmohani in their tea stall while her younger brother, Biplab, and their tenant-Smti Niyati Debnath (P.W.4) were at their house. She deposed that when she went to the stream, the Appellant suddenly appeared there and told her to go with him otherwise he would kill her parents and that he would marry her by force. According to her deposition, the Appellant thereafter took her from the stream to a nearby lunga at the point of knife, pressed her mouth and then raped her. She went on to depose that he took her from the place of occurrence to the house of his maternal uncle at Damdamia and instructed her not to divulge the incident to Ors.. It is the further deposition of P. W. 2 that the incident took place on Friday and they spent that night at the house of his maternal uncle and that on Saturday, he took her to the house of his sister at Narayanpur and from there, she somehow managed to escape and reached the house of her Aunt at Durgabari. She also testifid that the friends of the Appellant proposed her to marry him and she refused proposal. She also testifid that the friends of the Appellant proposed her to marry him and she refused proposal. In her deposition, P.W. 2 stated that she narrated the incident to her aunt whereafter she took her to her house where she (her aunt) informed the incident to her parents. The prosecutrix also deposed that the incident was reported to the villagers and when they took no action, her mother informed the police station. She also in her deposition mentioned that she was taken to the Medical Officer after the institution of the case and the Magistrate recorded her statement 10. The aforesaid statement of the prosecutrix in the examination-in-chief cannot be taken in isolation and must be read with her cross-examination. In the cross-examination, it came to light that in her statement before the Magistrate under Section 164 Code of Criminal Procedure, she had stated that she went to the well to fetch water which is at variance with her statement in court that she went to a nearby stream to fetch water. This statement was duly exhibited. It is also found during her cross-examination that her statement in Court that the Appellant told her to accompany him and when she refused to do so, he threatened her by saying that he would kill her parents, was never stated by her in her previous statement recorded by the I.O. under Section 161 Code of Criminal Procedure. So is her statement in court that the Appellant took her in a near lunga forcibly at the point of knife. These statements are the core of the prosecution story, yet it is interesting to note that she did not disclose those facts in her previous statements. It is also interesting to note that she never informed the incident to anybody or raise any alarm during her movement to the house of the maternal uncle of the Appellant or from the house of the maternal uncle of the Appellant to the house of his sister. On the contrary, though she denied of ever making any statements to the I.O. that after committing rape upon her by the Appellant, she had washed her wearing apparels out of fear of her parents, which portion is marked as Exbt. D/1, the I.O. (P.W. 13) duly proved the making of this statement by her. On the contrary, though she denied of ever making any statements to the I.O. that after committing rape upon her by the Appellant, she had washed her wearing apparels out of fear of her parents, which portion is marked as Exbt. D/1, the I.O. (P.W. 13) duly proved the making of this statement by her. The conduct of the prosecutrix, in not raising alarm during her movement or at the time of the incident or from time of the occurrence till she was taken to the house of the sister of the Appellant, is rather surprising. From the time of the alleged incident till she reached the house of her aunt (P.W. 3), she was all day keeping silent. Moreover, her omission to state in her previous statement that the Appellant told her to accompany him to which she refused or that he threatened to kill her parents, if she did not accompany him or that the Appellant took her to a near by lunga forcibly at the point of knife, are material omission or improvement of her statement, which can be said to strike at the substratum of the prosecution case. Taking all these factors into consideration, serious doubt has been created on the entire prosecution case. In the result, the evidence of the prosecutrix becomes suspect and cannot be relied upon unless there are evidence from the prosecution witnesses which can lend assurance to her testimony which necessarily leads me to examine the evidence of the other prosecution witnesses. 11. P.W. 1, who is the mother of the prosecutrix, deposed that she was informed by her son at around 6.30 p.m. in her tea stall that the prosecutrix, who had gone to fetch water from a stream nearby their house, was found missing and on learning this, she and her husband (P.W. 7) rushed to their house and learned from Niyati Debnath (P.W. 4) that the prosecutrix was missing after she went to fetch water from the stream. According to her deposition, P.W. 1 informed the villagers and the gaon pradhan and subsequently came to learn that the prosecutrix was forcibly taken by the Appellant from the stream. She also deposed that the prosecutrix reached the house of her aunt, Smt. Kamala Debnath (P.W.3) on Sunday and the said Kamala Debnath brought the prosecutrix to their house and the prosecutrix told her that the Appellant raped her. She also deposed that the prosecutrix reached the house of her aunt, Smt. Kamala Debnath (P.W.3) on Sunday and the said Kamala Debnath brought the prosecutrix to their house and the prosecutrix told her that the Appellant raped her. She further testified that she informed the occurrence to the village matabbar who assured that they would look into the matter, but did nothing, whereafter she lodged FIR to the police. In her cross-examination, it was revealed that her statement in court, that it was her son Biplab who informed her in her tea stall that the prosecutrix was missing, was never mentioned in the FIR or in her previous statement before the police. She also admitted that she could not name the person from whom she learned that the Appellant forcibly took her daughter. She also admitted that she did not have any well nearby her house. Her cross-examination further revealed that her statement in court that she informed the pradhan namely Khokan Debnath (P.W. 9) and Aswini Sarkar was never stated in her statement recorded under Section 161 Code of Criminal Procedure She also admitted in the cross-examination that there were altogether 10/12 houses nearby her house and that in the event of raising any alarm in her house, at least it would reach 2/3 houses, and further that the distance between her house and the other houses would be around one and half kani. 12. Smt. Kamala Debnath, aunt of the prosecutrix is examined as P.W. 3. In her deposition, she admitted that the prosecutrix came to her house and told her that she was taken by the Appellant three days back from the house of the sister of Appellant and that the prosecutrix told her that she had come from that house by fleeing, whereafter she took her to her house. She deposed that the prosecutrix told her that while she went to the stream to fetch water, she was taken by the Appellant. This witness was subsequently declared hostile by the prosecution. Besides, nothing in her deposition seems to support the case of the prosecution. P.W. 4 is Smt. Niyati Debnath, who, at the material time, was the tenant of the informant (P.W. 1). This witness was subsequently declared hostile by the prosecution. Besides, nothing in her deposition seems to support the case of the prosecution. P.W. 4 is Smt. Niyati Debnath, who, at the material time, was the tenant of the informant (P.W. 1). In her statement, this witness deposed that on the day of the occurrence, the prosecutrix had asked her if she would go with her to fetch water from the stream, to which she replied that she would go later and then the prosecutrix proceeded to the stream. It is her testimony that she had heard the alarm of prosecutrix saying "Mashi, Mashi I was being taken" and that she was telling that the prosecutrix was being taken by the Appellant, Pawan and then she went down the hill, she saw the prosecutrix being taken by the Appellant. According to her, she then returned to her house and told Biplab, the brother of the prosecutrix to inform his parents about the occurrence, who were in their tea stall. She further deposed that Biplab immediately rushed to his parents, who returned home and searched for the prosecutrix, which was joined by her and that they also went to the house of the Appellant, but did not find her there. She further testified that the prosecutrix returned to the house of the aunt after two days and her aunt brought her to her parents. She also deposed that the prosecutrix told her that she was taken to the house of the maternal uncle of the Appellant and thence to the house of the sister of the Appellant and that the Appellant forcibly raped her. Interestingly, in the cross-examination, it is revealed that her statements in court that the prosecutrix asked her whether she would go with her to fetch water from the stream; that the prosecutrix went alone to the stream; that after hearing the alarm, "Mashi Mashi, I was being taken", she saw Ratna, the prosecutrix, being taken by the Appellant and that she told Biplab, the brother of the prosecutrix, that the Appellant took away the prosecutrix, were never stated by her in her statements recorded under Section 161 Code of Criminal Procedure These omissions pertain to the very foundation of the prosecution case. Such vital facts could not have been omitted by P. W. 4 when her statements were recorded by the I.O. if the incident actually took place as alleged by her. These are contradictions of serious magnitude and cannot be termed as an elaboration of the story originally stated. 13. Coming now to the statement of P. W. 7, who is the father of the prosecutrix, it was deposed by him that on the date of the incident, the prosecutrix was aged 13 years old. He further deposed that at the time of the incident, Niyati Debnath (P. W.4) and her husband were staying at their house as tenant. He testified that on that day, in the after noon, the said Niyati Debnath (P.W.4) came to his tea stall and informed him that the prosecutrix who sent to fetch water in Cherra did not return home and that he and his wife immediately rushed to the house by closing the tea stall and searched for the prosecutrix, but failed to trace her out. His further testimony is that his sister (P. W. 3) brought the prosecutrix to his house after two days, in which he was told by the prosecutrix that when she went to fetch water in cherra, the Appellant dragged her in the jungle, gagged her mouth and committed rape upon her and thereafter with protect of marrying her, took her to the house of his maternal uncle. But the prosecutrix managed to escape from the Appellant and went to the house of P.W. 3. He further testified that after the return of the prosecutrix, he informed the incident to the village leaders, who assured that they would settle the matter, but when nothing was done, his wife lodged the FIR with the police. What is noteworthy in the deposition of the P.W. 7 is that his statement that it was P.W. 4 who had informed him that the prosecutrix was missing, had not been supported by the P.W. 4. On the contrary, according to the P.W. 4, she told Biplab to inform her parents and there was no statement in her deposition that it was she who informed P.W. 7. This becomes apparent from the statement of the P.W. 1 that such information was given to her by her son Biplab Debnath and not by Smt. Niyati Debnath (P.W.4). On the contrary, according to the P.W. 4, she told Biplab to inform her parents and there was no statement in her deposition that it was she who informed P.W. 7. This becomes apparent from the statement of the P.W. 1 that such information was given to her by her son Biplab Debnath and not by Smt. Niyati Debnath (P.W.4). Such contradictory statement of P.W. 7 and P.W. 4 or P.W. cannot be overlooked while judging their truthfulness. It must be noted that as per the prosecution story, both P.W. 7 and P.W. 1 were at their tea stall when they were informed about the taking of the prosecutrix by the Appellant. Such contradictory statements of P.W. 7 and P.W. 4 or P.W. 1 cannot be overlooked while examining their truthfulness. That apart, the explanation of delay in lodging the FIR also does not inspire confidence. It is true that a mere delay in lodging the FIR cannot itself be a ground for throwing out the entire prosecution case. The court has to seek an explanation for delay and test the truthfulness and possibility of the reason assigned. If the delay is explained to the satisfaction of the court, it cannot be counted against the prosecution. In the instant case, there was a delay of 19 days in lodging the FIR. The delay has been sought to be explained by the fact that the village leaders, to whom the matter was taken for necessary action, could not settle the matter, which resulted in the delay. The prosecutrix as well as P.W. 1 and P.W. 7 in their respective deposition have stated that the matter was brought to the notice of the village leaders for settlement of the case. P.W. 1 in her cross-examination specifically mentioned the names of pradhan members, namely, Khokan Debnath (P.W. 9) and Aswini Sarkar to whom the case was taken for appropriate action. 14. P.W. 8, Jatindra Roy also supported the case of the prosecution on this aspect of the matter. According to this witness, the matter was informed to the village leaders and the village leaders summoned the Appellant, who refused to attend the meeting and as a result, the matter could not be settled. He, however, did not disclose as to whether he had actually attended the meeting in which the Appellant refused to attend. According to this witness, the matter was informed to the village leaders and the village leaders summoned the Appellant, who refused to attend the meeting and as a result, the matter could not be settled. He, however, did not disclose as to whether he had actually attended the meeting in which the Appellant refused to attend. To support the case of the prosecution, the said Khokan Debnath has been examined as P.W. 9. This witness deposed that he had tried to settle the matter and asked the Appellant to attend the meeting, but he did not do so and that when the matter could not be settled, he advised the father of the prosecutrix to take the shelter of law. Curiously, the statement of this witness about his attempt to settle the matter or of his summon to the Appellant, was never stated by him in his statement recorded under Section 161 Code of Criminal Procedure The omission to state such vital matter cannot but amount to material contradiction. Therefore, such statements, made for the first time in court, cannot be relied upon in any manner. What is also worth nothing is that the said Aswini Sarkar, Pradhan Member was not examined by the prosecution. When the evidence of PW 1, P.W. 2 and P.W. 7 regarding the taking up of the case by the village leaders are lacking in detailed particulars or are otherwise sketchy and suffer from material contradiction, they cannot be acted upon for holding that there is satisfactory explanation of the delay or that the prosecution case is genuine. Thus when the evidence of all the witnesses are wholly unreliable, the question of one witness corroborating the other would not arise, nor would the question of separating chaff from grain arise. 15. Assuming that there is evidence of consensual sexual intercourse between the Appellant and the prosecutrix, the next question arising for consideration is whether the prosecutrix was a minor at the time of the incident in question. This is important because under Section 375 IPC, a man is said to commit rape who has sexual intercourse with a woman with or without her consent, when she is under 16 years of age. In the instant case, P.W. 1 in her deposition claimed that the prosecutrix was aged about 15 years at the time of her deposition in court. In the instant case, P.W. 1 in her deposition claimed that the prosecutrix was aged about 15 years at the time of her deposition in court. Since her deposition was made on 14.8.2003, it can be taken that she was about 13 years as per the case of the prosecution at the time of the incident. From the evidence of the prosecutrix herself, and that of her father (P.W. 7), it is projected that she was 13 years old at the time of incident. The prosecutrix in her deposition also stated that she was reading class VII at Gandhigram H.S. School. The prosecution did not produce any birth certificate or school certificate or school admission register to bring her age. On the other hand, her age is sought to be proved by the prosecution from the evidence of Dr. Raichand Sana, retired medical officer, P.W. 5 and Dr. Ranjit Das, medical officer of Dr. B.R. Ambedkar Hospital (P. W. 11) and the ossification test report at Exhbt. P-4, according to which, the age of the prosecutrix as determined by radiological investigation was between the 14 years and 16 years at the time of her examination. The question is whether the evidence of these medical officers and the ossification test can be regarded as conclusive proof of the age of the prosecutrix. As noticed earlier, the prosecution did not exhibit any school certificate or birth certificate or school admission register showing the age of the prosecutrix. 16. In the State of Rajasthan v. N.K. (supra), the Apex Court observed that only on the basis of the doctor's testimony, no positive finding can be recorded that the prosecutrix was less than 16 years of age on the date of the incident. Where in the estimate made by the doctor he himself admits a variation of three years on either side being permissible, where the prosecutrix herself and her father are illiterate persons, where the prosecutrix had not taken any schooling and where there was no other satisfactory evidence as to her age available on record, the Apex Court held that it could not be positively established on the basis of the materials available that she was less than 16 years of age on the date of incident. It was the duty of the prosecution to prove its case clinchingly that the prosecutrix was a minor at the time of the alleged incident. It was the duty of the prosecution to prove its case clinchingly that the prosecutrix was a minor at the time of the alleged incident. No attempt was made by the prosecution to produce the birth certificate or school certificate even though these documents could have been easily procured from the school. That apart, from the evidence of P.W. 2, it was revealed that a proposal was made to her by the Appellant to marry her, which was refused by her. This shows that the prosecutrix might have already reached the age of marriage at the time of incident. If that is the case, the suggestion made on behalf of the Appellant that she was 17 years at the time of the incident could be a possible view. In the absence of any satisfactorily evidence led by the prosecution as to the age of the prosecutrix, it is not possible to hold that she was a minor or was below 16 years of age at the time of alleged incident. In the light of my aforesaid findings on the unsatisfactory nature of the evidence adduced on behalf of the prosecution, I hold that the prosecution is not able to establish clinchingly that the Appellant committed rape upon the prosecutrix. Consequently, it is not possible to sustain the impugned judgment of the conviction and sentence. 17. For the reasons stated in the foregoing, I have no alternative, but to allow this appeal. Resultantly, the impugned judgment is hereby set aside. The Appellant is acquitted of the charges. As he is on bail, he need not surrender to his bail bond. Appeal allowed