ORAL JUDGMENT 1. By this appeal, the appellant takes exception to the judgment and order dated 20th March, 1998 passed by 2nd Additional Sessions Judge, Washim, in Sessions Trial No. 36 of 1996 convicting the appellant ( hearinafter referred to as accused ) for the offence punishable under Section 376 of the Indian Penal Code and sentencing him to suffer R.I. for three years and to pay fine of Rs. 5,000/-, in default, to suffer R.I. for six months. 2. Briefly, the prosecution case is as under : The prosecutrix was staying with her parents at village Sawargaon and the accused was her neighbour. Before one year of lodging of the report on 29.1.1996, the accused came to her house and taking advantage of her loneliness had forcible sexual intercourse and told her not to disclose the said fact to anybody and promised that he would marry her. Thereafter both of them were living as husband and wife. On 29.1.1996, the prosecutrix lodged report against the accused inter alia stating that the accused had forcible sexual intercourse with her and he had promised to marry her. Pursuant to the said report lodged by the prosecutrix offence under Section 376 of the Indian Penal Code was registered against the accused and the investigation was taken up which culminated into filing of the charge sheet. In Sessions Trial No. 36 of 1996, the prosecution examined four witnesses namely PW 1- Dr. Mrs. Khuteja Begum, PW 2 . the prosecutrix, PW 3- P.S.I. Shri Sanebrao Deshmukh, Investigating Officer and PW 4-Subhash Khanhed, the Head Master of the School in which the prosecutrix was studying at the relevant time. Upon appreciation of the evidence, the Trial Court convicted and sentenced the accused as above. 3. I have heard Mr. V. G. Wankhede, learned counsel appearing for the appellant/accused and Mr. S. Y. Deopujari, learned APP for the respondent. I have also perused the records. 4. Mr. V. G. Wankhede, learned counsel for the appellant/accused submitted that the prosecution has not been able to establish that the accused had forcible sexual intercourse against the consent of the prosecutrix. He further submitted that the prosecution has not been able to establish conclusively the age of the prosecutrix. I have also perused the records. 4. Mr. V. G. Wankhede, learned counsel for the appellant/accused submitted that the prosecution has not been able to establish that the accused had forcible sexual intercourse against the consent of the prosecutrix. He further submitted that the prosecution has not been able to establish conclusively the age of the prosecutrix. The evidence on record clearly establishes that at the time of the alleged intercourse, the prosecutrix was more than 16 years and having regard to the prosecution evidence it is difficult to accept the prosecution evidence that the intercourse was without the consent of the prosecutrix. He submitted that the medical evidence clearly discloses that the prosecutrix at the time of her medical examination was aged between 14 to 17 years. He further urged that having regard to the medical evidence, the prosecution has not established that the age of the prosecutrix was less than 16 years and therefore, even if it is established that there was intercourse between the accused and the prosecutrix, the accused is entitled to benefit of doubt since the prosecution evidence if accepted establishes intercourse by the accused with the consent of the prosecutrix. In support of his submissions, the learned counsel for the appellant, relied upon the judgment of the Apex Court in the case DEELIP SINGH ALIAS DILIP KUMAR vs.. STATE OF BIHAR reported at (2005) 1 Supreme Court Cases 88. 5. Per contra, Mr. Deopujari, learned APP for the respondent submitted that the findings recorded by the trial Court are based upon proper appreciation of the evidence on record and prosecution has been able to establish that the accused had sexual intercourse with the prosecutrix, who was less than 16 years at the relevant time. Mr. Deopujari, therefore, submitted that the question of consent does not arise at all and no interference is called for in the present appeal against conviction and sentence imposed upon the accused. 6. Having regard to the rival submissions and the evidence given by the Trial Court, the following points arise for determination in this appeal. (i) Whether the prosecution has proved beyond reasonable doubt that the accused had forcible intercourse with the prosecutrix against her consent ? (ii) Whether at the time the accused had first intercourse with the prosecutrix, the prosecutrix was less than 16 years? 7. (i) Whether the prosecution has proved beyond reasonable doubt that the accused had forcible intercourse with the prosecutrix against her consent ? (ii) Whether at the time the accused had first intercourse with the prosecutrix, the prosecutrix was less than 16 years? 7. The prosecutrix in her evidence has substantially corroborated the first information report. She deposed that the accused had sexual intercourse with her and he promised to marry her and thereafter also he has sexual intercourse with her. She candidly stated that since the accused refused to marry her, she lodged a report ( Exh. 17). She also stated that after lodging of the report she delivered female child. In cross-examination, she admitted that she had not stated before the police that when the accused had sexual intercourse with her she had cried thereafter accused promised her that he will marry and not to lodge report. PW-1 Dr. (Mrs) Khuteja Begum, in her evidence has deposed that she examined the prosecutrix on 29.1.1996 and at that time, the prosectrix was carrying pregnancy of 24 to 26 weeks. She further deposed that X-ray of elbow wrist and illiac-crest were taken to determine the age of the prosecutrix and on general examination and as per radiological findings, the age of the prosecutrix was above 14 years but below 17 years. She has identified and confirmed the contents of certificate ( Exhibit No.13 ). In cross-examination she admitted that period of fusion and union of bones are different in difference state and it depends upon climatic condition. She denied the suggestion that the period of fusion and union vary according to hereditary. PW 3 - Shri Sahebrao Deshmukh, the Investigating Officer, has deposed about the various steps taken by him during the investigation of the crime. The contradiction in the statement of the prosecutrix has been duly proved in the cross examination of the said witness. PW 4 - Subhash Khanhed, was serving as a Head Master in Primary Zilla Parishad School, Sawargaon, has deposed that since 27/6/1997 he was serving as a Head Master and as per admission register, the date of birth of the prosecutrix was 01/05/1980. He has identified the certificate ( Exhibit No.25). PW 4 - Subhash Khanhed, was serving as a Head Master in Primary Zilla Parishad School, Sawargaon, has deposed that since 27/6/1997 he was serving as a Head Master and as per admission register, the date of birth of the prosecutrix was 01/05/1980. He has identified the certificate ( Exhibit No.25). In cross examination, this witness admitted that the date of birth in the register was recorded as per say of parents of the students and he could not tell whether the date of birth was correct or incorrect. 8. Upon close scrutiny of the evidence of the prosecutrix and Dr. Khuteja Begum, it is clear that the accused had sexual intercourse with the prosecutrix on several occasions which ultimately resulted in the prosecutrix getting pregnant and delivering female child. It would be necessary to find out whether the prosecution has established that the age of the prosecutrix was less than 16 years at the time the accused had first sexual intercourse with the prosecutrix. No doubt, the certificate produced by PW-4 Shubash Khanhed, the Head Master, mentions that the date of birth of the prosecutrix is 01/05/1980. However, the medical evidence led by prosecution through Dr.(Mrs) Khuteja Begum, establishes that the age of the prosecutrix as on 29/01/1996, was between 14 to 17 years, on which date, the prosecutrix was carrying pregnancy of 24 to 26 weeks. Considering the period of pregnancy of the prosecutrix and in the absence of exact date having been mentioned by the prosecutrix of the first sexual intercourse by the accused, the only conclusion which can be drawn is that at the time of first intercourse by the accused, the prosecutrix could be aged above 16 years. Insofar as the birth certificate is concerned, although, PW 4- Subhash Khanhed, has proved the same, in cross examination he has candidly admitted that he could not say whether the date of birth is correct or not. It is also pertinent to note that the mother of the prosecutrix, who could have been the best witness to prove the exact age of the prosecutrix, has not been examined by the prosecution. That being the position, the ratio in Deelip Singh's case is squarely applicable in the present case. It is also pertinent to note that the mother of the prosecutrix, who could have been the best witness to prove the exact age of the prosecutrix, has not been examined by the prosecution. That being the position, the ratio in Deelip Singh's case is squarely applicable in the present case. In Deelip Singh's case, the Apex Court held that if medical evidence establishes age of the girl was 16 and above at the time of the alleged commission of the crime, the accused is entitled to the benefit of doubt, even if the certificate mentions that the age of the prosecutrix is less than 16 years, in the absence of any other cogent evidence to prove the exact date of birth of the prosecutrix. In the present case, the medical evidence clearly supports the accused. Therefore, having regard to the prosecution evidence, the prosecution has not established beyond reasonable doubt that the age of the prosecutrix was less than 16 years at the time of first sexual intercourse by the accused. The evidence of the prosecutrix clearly suggests that the prosecutrix had consented and she did not submit herself to the accused on account of promise of marriage made by him. 9. In view of the above discussion, I hold that the prosecution has not been able to establish that the prosecutrix was less than 16 years at the time the accused had first intercourse with the prosecutrix and that intercourse was without the consent of the prosecutrix and further that the prosecutrix had intercourse with the accused on account of promise of marriage made to her. 10. In the result, the appeal is allowed. The conviction and sentence imposed upon the appellant/accused for the offence punishable under Section 376 of the Indian Penal Code in terms of judgment and order dated 20th March, 1998, by the 2nd Additional Sessions Judge, Washim, in Sessions Trial No. 36 of 1996, is quashed and set aside and the accused is acquitted of the offence punishable under Section 376 of the Indian Penal Code. Bail bond executed by the appellant/accused stands discharged. Fine, if paid by the accused shall be refunded to him.