JUDGMENT S.K. Palo, J. 1. Both the above-mentioned appeals have arisen out of the same judgment, therefore, they are being dealt with by this common judgment. 2. Criminal Appeal No. 597/2001 has been filed under Section 374 of CrPC by the appellant-accused, aggrieved by the judgment dated 08-11-2001 passed by the Second Additional Sessions Judge, Ashok Nagar, (then District Guna) in Sessions Trial No. 35/2000, by which the learned Second Additional Sessions Judge has convicted the appellant- accused for the offence under Section 376 of IPC and sentenced him to undergo three years rigorous imprisonment and imposed a fine of Rs. 1,000/- in lieu of fine the accused- appellant is to undergo simple imprisonment for nine months. 3. Criminal Appeal No. 76/2002 has been filed under Section 377 of CrPC by the State, through Police Station Kachnar, District Guna against the same judgment, requesting for enhancement of sentence. 4. It is not disputed that the accused and his colleague Naresh Kumar Sharma (PW-1), Keshavdas Tyagi and Pratap Narayan Mathur were Assistant Teachers at Government Girls Primary School at village Tumen. The accused- appellant admitted that he was on leave on 11th, 13th, 22nd and 28th in the month of January, 1999 and in all other working days he attended the school. He was arrested by the police vide Panchnama Ex.P-20 and was sent for medical examination vide application Ex.P-21. In the medical examination, he was found capable of performing sexual intercourse. 5. The prosecution story, in brief, before the learned Sessions Judge was that, the prosecutrix aged about 14 years, the daughter of Shanker Kori (PW-5), was a student of Class-V at Government Girls Primary School, Tumen. At the relevant time, accused Jaisingh Ahirwar was posted as Assistant Teacher in that school. In the year 1999 about 8 days after Makar Sankranti (i.e. 14-01-1999) at about 4:00 pm when the school time was over, students were leaving for their homes. The prosecutrix was also leaving for the home. The accused asked her to gather the Tatpatiyan (canvasses) to keep in the Office. When the prosecutrix gathered the Tatpatiyan and was keeping them in the Office room, at that moment, the accused came there, caught her and removed her undergarments. When prosecutrix tried to shout, the accused gagged her by putting a handkerchief in her mouth. Removing his own clothes the accused committed sexual intercourse with the prosecutrix. When the prosecutrix gathered the Tatpatiyan and was keeping them in the Office room, at that moment, the accused came there, caught her and removed her undergarments. When prosecutrix tried to shout, the accused gagged her by putting a handkerchief in her mouth. Removing his own clothes the accused committed sexual intercourse with the prosecutrix. The accused also threatened to kill her, if she narrates this incident to anyone. Because of fear, she did not disclose the incident to anyone. Later, in this fashion, the accused committed sexual intercourse with her three-four times. Because of which, she became pregnant. (ii) When her stomach became larger in size, her parents asked her the reason. She narrated the incident to them. (iii) On 16-07-1999, she suffered from dysentery, therefore, she was taken to Ashok Nagar Government Hospital and then to Dr. Sadhna Pandey (PW-7) for examining her. After examining, the doctor confirmed that she is pregnant. For resolving the issue the accused was called by sending a message through Ramcharan, a teacher in that School. The accused agreed to bear the expenses of abortion. But he did not cooperate. Therefore, on 26-07-1999, the prosecutrix went to Police Station Ashok Nagar and lodged report Ex.P-13. As the incident was within the territorial jurisdiction of Kachnar Police Station, after conducting preliminary investigation, sent the case diary to Police Station Kachnar. (iv) Crime No. 76/99 Ex.P-22 was registered on 27-07-1999. After due investigation, on 17-12-1999, charge-sheet was filed. On committal to the Sessions Court the case was transferred to the Court of Second Additional Sessions Judge, Ashok Nagar. 6. On framing of charge the accused abjured guilt. He submitted written statement under Section 233(2) of Cr.P.C. He explained that prior to 11-09-1998 he had been teaching the students of Class VII and Class VIII in other school. He was not trained for teaching the students of Class I to Class V. Even though on 11-09-1998, he was posted at the Government Girls Primary School, Tumen. In that school, the girl students are taught up-to 3:00 pm and after that, they are being given Physical Education training. On the date of incident (i.e. 22nd January, 1999), he was on casual leave. The room in which it is allegedly sexual intercourse was committed, was very small and in that room, every where articles were kept. The window in the room always remains open. On the date of incident (i.e. 22nd January, 1999), he was on casual leave. The room in which it is allegedly sexual intercourse was committed, was very small and in that room, every where articles were kept. The window in the room always remains open. A large number of people are being used to fetch water from the tube well, from which direction the room is completely visible through it. Nearby the school there is a temple where the people often to go. The main road of Ashok Nagar-Sahbajpur is situated in front of the school, where the people use it as a bus stand. The other teachers along-with accused were commuting from their own village to village Tumen. 7. On 27-03-1999 in between 7:30-10:00 am, brother of the complainant- prosecutrix Mahesh, Ranjit Singh, Ku. Leela and Ramveer were caught using malpractices in the examination. In-charge Examination Centre let them go by warning them. On the same day, another person Raghuveer Singh who was helping the students in using malpractices, was stopped by the accused. But he did not pay any heed. Therefore, the accused complained the same to Block Education Officer. On the same day (i.e. 28th March, 1999), the accused caught cousin brother of the prosecutrix-Ramveer unfair means in the examination. The students and family members threatened the accused of bare consequences. 8. Because of this, Block Education Officer changed his duty and posted him at Ashok Nagar. The father of the prosecutrix was working as a labourer in the house of the father of Ranjit Singh who was caught using malpractices in the examination. A large number of students who were doing malpractices, failed in the examination and only three-four students passed the examination. On 16-07-1999, the uncle (elder brother of the father of the prosecutrix) called the accused to the Nursing Home of Dr. Sadhna Pandey by sending a wrong message that the relative of the accused is ill. They blackmailed the accused by insisting to pay Rs. 20,000/- for bearing the expenses of abortion of the prosecutrix and threatened that if he does not pay the amount he will be implicated in a rape case. The accused complained to the District Magistrate, Guna on 17-07-1999. Even after that, the father of the prosecutrix Sankar Koli, Manko Bai, Ramcharan and others came to the house of accused and insisted on payment of Rs. The accused complained to the District Magistrate, Guna on 17-07-1999. Even after that, the father of the prosecutrix Sankar Koli, Manko Bai, Ramcharan and others came to the house of accused and insisted on payment of Rs. 20,000/- in furtherance of their blackmail. A registered letter in this regard was sent on 20th July, 1999 to the Station House Officer, Police Station Ashok Nagar, SDOP and SDM, Ashok Nagar. 9. After ten days of this incidence, the father of the prosecutrix lodged a false report, alleging the commission of rape. During investigation, the prosecutrix gave birth to a baby girl. For bringing the truth into light, the accused requested the police to conduct DNA test of the accused, which was turned down. At the time of incident, the prosecutrix was 18 years old. The police without conducting the investigation fairly under the influence of Thakur Families belonging to village Tumen, falsely implicated him. 10. Learned Trial Court after adducing evidence of prosecution and affording opportunity to the accused for adducing his defence, pronounced the impugned judgment on 08-11-2001. Learned Trial Court held the accused guilty under Section 376 of IPC and sentenced him to undergo rigorous imprisonment for three years, exercising the proviso (1) of Section 376 of IPC and also imposed a fine of Rs. 1,000/- failing which the accused has to undergo simple imprisonment for nine months. 11. The accused in Criminal Appeal No. 597/2001 has assailed the impugned judgment on several grounds and at the other hand, the State in Criminal Appeal No. 76/2002 has assailed the sentence part of judgment and requested for enhancement of sentence. 12. We have heard learned counsel for both the parties at length and perused the record. 13. Before examining the evidence on record, we would like to first ascertain the age of the prosecutrix, which has got an important bearing in the case. 14. As per statement of Naresh Sharma (PW1) Assistant Teacher at Government Girls Primary School, Tumen, he was working in that school since 1995. According to him, the prosecutrix was admitted into Class I on 5th December, 1992. On that date, her date of birth was entered as 20th August, 1985. According to the prosecution story, the incident took place on 22nd January, 1999, that means on the date of incident the prosecutrix was 13 years 5 months 2 days old. According to him, the prosecutrix was admitted into Class I on 5th December, 1992. On that date, her date of birth was entered as 20th August, 1985. According to the prosecution story, the incident took place on 22nd January, 1999, that means on the date of incident the prosecutrix was 13 years 5 months 2 days old. For remaining absent from the class her name was deleted from the scholar register on 31st August, 1995. On 09-07-1996 she was again enrolled. At this time, her date of birth was entered as 13th August, 1990 and this information was given by Ramcharan, the uncle of the prosecutrix. If her date of birth is reckoned as 13.08-1990, on the date of incident she was 08 years 05 months and nine days old, which is highly improbably. 15. These entries go to show that the date of birth of students are being endorsed in the school register according to the information given by the parents or guardians of the students. The school authorities seems to have not strictly asking for any documents such as Kotwar register, date of birth certificate, etc. 16. Dr. (Smt.) Lekha Tiwari (PW2) who medically examined the prosecutrix, has noted her age is 14 years. However, she advised X-ray for ascertaining the radiological age of the prosecutrix. Dr. R.K. Jain (PW3), the Radiologist who examined X-ray plates, right elbow and wrist of the prosecutrix, has opined that the radiological age of the prosecutrix is about 15-16 years. X-ray plate is Ex.P-12 and report is Ex.P-11. The doctor has given an opinion on the finding that the epicondile part of humerus bone was completely fused and the upper part of radius was fused completely. The right radius and ulna bone were not fused on the lower side. 17. We are aware of the fact that the radiological age is not the exact age. There is always a chance of variance of 2 to 3 years on either side. We can refer a ruling of this High Court. In Ramdayal Vs. State of M.P. reported in 2008(1) MPWN SN 85 Page 257, it is held that:- “Age-- no evidence except ossification test--- it is not sure test- ---there is variance of 2 to 3 years on either side.” This view has been adopted in a catena of judgments by different High Courts. In Manharan Vs. In Ramdayal Vs. State of M.P. reported in 2008(1) MPWN SN 85 Page 257, it is held that:- “Age-- no evidence except ossification test--- it is not sure test- ---there is variance of 2 to 3 years on either side.” This view has been adopted in a catena of judgments by different High Courts. In Manharan Vs. State of M.P. reported in 2000 (3) MPHT 114 , the benefit of age has been given three years. In Rajendra Chandra Vs. State of Chhattisgarh and Others reported in 2001 (2) BLJ 181 and State of Karnataka Vs. Suresh Babu Pukh Raj Porral reported in 1994 Cr. L. J. 1216 SC, it is held that:- “In case of doubt regarding the age, if two views are possible, the view favourable to the accused, should be adopted.” Similar view has also been expressed by this High Court in Suresh Vs. State of M.P. reported in 2011 (2) JLJ 316 . This view has also been adopted earlier by Hon'ble the Supreme Court in Harchand Singh and Another Vs. State of Haryana reported in AIR 1974 SC 344 . 18. Reverting back to the age of the prosecutrix, in the present case, on the basis of ossification test report (Ex.P-11), we can reckon the age of the prosecutrix as 12 years on the lower side and 19 years on the upper side. 19. In criminal practices also, when two views are possible, the view favourable to the accused should be adopted. In this regard case of Sanjay Rai Vs. State of M.P. reported in 1997(2) JLJ 141 can be referred to. 20. Prosecutrix (PW5), in her statement, deposed that she was studying in Class IV at Government Girls Primary School, Tumen. The incident took place 8 days after Sankrati (14th January, 1999) means the incident took place on 22nd January, 1999. According to her version, when the school time was over, the students left for their homes by taking their school bags. The accused was a teacher asked her to take out Tatpatiyan (small canvasses used for sitting on the floor) and keep them in the office room. When she took out the canvasses and kept them in the office room, the accused caught her and committed rape. When she tried to shout, the accused gagged her by putting a handkerchief in her mouth. When she took out the canvasses and kept them in the office room, the accused caught her and committed rape. When she tried to shout, the accused gagged her by putting a handkerchief in her mouth. The accused also threatened her not to disclose to anyone and if she tells to anyone he will kill her. Because of fear, she did not inform this incident to anyone. As per her version, it was the only time the accused committed sexual intercourse with her. In paragraph 5 of her cross-examination, also she repeated that the accused committed sexual intercourse once only. 21. In case of sexual offences, the offences are generally committed in remote secured places. Therefore, witnesses are seldom available. Hence, the evidence of the prosecutrix gains enormous important. 22. For proving offence of sexual intercourse, medical evidence is to be analyzed minutely. It is the domain of medical expert report, if in fact, there were coitus or not. 23. In the present case, Medical Officer Dr. Lekha Tiwari (PW2) has examined the prosecutrix. She has given an opinion vide Ex.P-9 that on 26-07-1999 when she examined the prosecutrix, she found her pregnant of 26 weeks, that means roughly the prosecutrix must have conceived in the second week of January, 1999 (approximately on 11th January, 1999). Another important aspect is that the medical officer has opined that the prosecutrix was habitual to sexual intercourse. 24. As per the prosecutrix, the accused has committed sexual intercourse with her only once and that too, eight days after Sankranti i.e. 22nd January, 1999. The medical report of the doctor that the prosecutrix is habitual to sexual intercourse, creates a grave and reasonable suspicion in the prosecution case. In this regard, it would be pertinent to mention here that the accused had repeatedly requested the Court for a DNA test to ascertain the paternity of the girl child born to the prosecutrix. But his application was turned down not only by the trial Court but also by this Hon'ble High Court vide order dated 08-05-2001 passed in Criminal Revision No. 139/2001 (Jaisingh Vs. State of MP). 25. Had there been a test of paternity it could have been scientifically ascertained the paternity of the child born to the prosecutrix. Without such test, the allegation of the prosecutrix cannot be scientifically substantiated. 26. We should also examine the veracity of the prosecutrix. State of MP). 25. Had there been a test of paternity it could have been scientifically ascertained the paternity of the child born to the prosecutrix. Without such test, the allegation of the prosecutrix cannot be scientifically substantiated. 26. We should also examine the veracity of the prosecutrix. If the incident took place on 22nd January, 1999 to be very precise, on that day the accused who was working as Teacher in the school was on leave. 27. Narendra Sharma (PW1), in his statement, has admitted that on 22nd January, 1999 the accused was on leave. The attendance register is Ex.P-3, application of the accused for casual leave is Ex.P-4 to P-6. Ex.P.4 and 5 were sent to Sankul Strota Kendra, Tumen and Ex.P-6 addressed to him, was also sent to Sankul Pravari of the School. 28. Another aspect which can be overlooked is that there was only one room in the school in which the students of Class I to 5 were usually sit in different parts. A temple which is adjacent to the school at the distance of 15-20 feet, a hand pump was dug. A priest has been living in that temple and the devotees used to visit that temple. The people of village Tumen used to fetch the water from the hand pump. If anyone shouts in the school, it could easily heard by the priest in the temple or by persons who come to fetch the water. 29. In the FIR and in her statement, the prosecutrix has said that the accused committed sexual intercourse 4-5 times, in the same manner as he did for the first time. 30. Besides, Naresh Sharma (PW2) in his statement, admitted that the people of Tumen used to stand in front of the school for boarding the local buses and tempos to go Ashok Nagar as that place is being used as a bus stoppage. His also indicates that, had there been any such incident of shouting or crying, it could have easily brought to the notice of the priest in the temple or people at the tube well or bus stop. 31. Another aspect which needs special reference is the delay in lodging the FIR. The incident took place as per the prosecutrix on 22nd January, 1999. The parents of the prosecutrix did not report the matter nor the prosecutrix informed anyone till July 1999. 31. Another aspect which needs special reference is the delay in lodging the FIR. The incident took place as per the prosecutrix on 22nd January, 1999. The parents of the prosecutrix did not report the matter nor the prosecutrix informed anyone till July 1999. When she was escorted to medical check up for the first time, she came to know that she was pregnant of 26 weeks. On 16-07-1999, Dr. Sadhna Bhargava (PW7) a Private Medical Officer examined her and informed the same to the prosecutrix as well as her parents. Surprisingly, no report was lodged till 26th July, 1999 that means 10 days later the report was lodged. The delay was not satisfactory explained. The prosecutrix did not disclose such an incident to her parents or her colleagues or to anyone till she became pregnant of 26 weeks. The evidence of the prosecutrix does not create any confidence. In the circumstances, giving benefit of doubt to the accused, would be more appropriate. 32. We place reliance in Peeru Vs. State of M.P. reported in 1996 JLJ 132 , where this Court has held that:- "S. 376- Rape- Prosecutrix above 16 years of age- a consenting party- No offence made out- Once the Court comes to the conclusion that the consent is obvious on record and the age can safely be inferred to be more than 16 years at the time of the incident, the view of the circumstances mentioned above, the charge under Section 376 of the Indian Penal Code cannot be sustained.” 33. That being so, we allow the appeal filed by the accused and set aside the impugned judgment dated 8th November, 2001. Consequently, we disallow the appeal filed by the State against the impugned judgment for enhancement of sentence. The bail bonds and surety bonds of the accused shall stand discharged. Fine amount, if deposited, be refunded to the accused. Let copy of this judgment along-with record be sent to the trial Court concerned for necessary information.