R.S. Sarkaria, J.
1. This appeal is directed against a judgment, dated August 8, 1974, of the High Court of Patna. The material facts are as follows: Saraswati, one of the daughters of Jagarngth (P.W. 4) is married to Debnandan of Village Bahera, Police Station Sileo, District Patna. Ganga Prasad, who was accused 1 in the trial Court, is the elder brother ofDebnandan, and Kameshwar accused 2 is his nephew. Bhateoi Devi, who was accused 4 in the trial Court, in the sister of Debnandan and Ganga Prasad. Bishnudayal, who was accused 3 and is now the appellant before us, is the husband of Bhatani Devt. Bishnu dayal is a resident of village Lawapur, Police Station Mahnar, District Muza-ffarpur, Bisbnudayal and Bhatani Devi have no issue. Jagarnath younger daughter, Sumitra (P.W. 5) is unmarried.
2. On May 19. 1967, there was a puja in the house of Jagarnath (P.W. 4) He had invited a good many person including the accused, Ganga Prasad and Katreshwar Prasad. Bishnudyal and his wife, Bhatani Devi were also invitees at the puja. Saraswati Devi the elder daughter of Jagarnath could not go and be present there on account of her illness. On May 20,1969, after the Puja when the guests were preparing to depart for their respective villages, a request was made on their behalf that Sumitra (P.W. 9) should be sent to village Behera to look after her ailing sister, Siraswati, as the letter had to be taken to Patna for treatment Taken in by this misrepresentation and the assurance held out by Ganga Prasad, the acquitted accused, that the younger daughter Sumitra would be sent back within a week. Jagarnath allowed Sumitra to go with the accused persons to village Bahera, Thereafter, he received a letter from the accused stating that Saraswati Devi, who was suffering from mental ailment had considerably improved on account of the care taken by Sumitra. The complainant Jagarnath awaited the return of Sumitra for more than a week, but the was nor sent back. Worried, he wrote two letters to Ganga Prasad accused requesting him to send the girl back. He received no reply. Jagamath thereupon went to village Bahera, bat did not find his daughter there There, he learnt from two persons who were among those who had attended the puja at his house, that his daughter, Sumitra had been 'married' to Bishnudayal appellant. When Jagarnath protested, they said that they had done so and he was at liberty to take whatever action he liked. Thereafter, Jagarnath on June 10, 1967, lodged a report at Police Station, Sahabganj at 4.30 p.m. alleging that the four named accused had kidnapped his daughter, to sedue or force her to have illicit inter course with Bishnudayal. The Station House Officer, Parasnath Mishra (P.W. 15) went to the house of Jagarnath, informant and seized some letters. On June 24,1967, the investigating Police Officer, in the presence of P W. 16 and P.W, 17, recovered the girl Sumitra from the house of the appellant.
3. The additional Sessions Judge convicted Ganga Pradsad under Sections 356 and 376/109, Penal Code and sentenced him to four years' rigoroui imprisonment on each count He convicted Bishnudayal appellant under Sessions 376 and 366, Penal Code and sentenced him to five years' rigorous imprisonment on the first count and four years' rigorious imprisonment under Section 365 of the Code, KH mesh war Prasad accused was also convicted under Sections 366, 376/109 and 366 of the Code and sentenced to four years rigorous imprisonment. Bhatani Devi accused 4, was acquitted.
4. A learned Single Judge of the High Court accepted the appeal of Ganga Prasad and Kameshwar Prasad and acquitted them, He, however, maintained the conviction and sentence of Bishnudayal under Section 376, but act aside his conviction under Section 366, Penal Code. Hence this appeal by Bishnudayal.
5. The prosecution case hinged around these questions. Whether this prosecution prosecutrix (P.W 9) was subjected to sexual intercourse against her will or consent What was her age at the time of occurrence If the preceding questions are found in favour of the prosecution, whether it was the appellant who has raped her? (The principal witness of the prosecution in regard to these facts in issue, in Sumitra Devi (P.W 9) hereseif. She testified that she was forcibly raped repeated by Bishnudayal appellant for several nights in a house at village Lawapur. It is further an undisputed fact that she was recovered by the police from the house of Bishnudayal. Her testimony with regard to the factum of rape was corroborated by the medical testimony rendered by Dr. Asha Prasad (P.W. 24). The Doctor testified that there was a paraurethrat tear on the vagina of Sumitra Devi and her hymun was also found ruptured on the basis of these facts, the Doctor opined that Samitra Devi (P.W. 9) had been subjected to forcible sexual intercourse.
6. As before the High Court, here also it was contended that the girl, Sumitra has been willingly given by her father in marriage to the appellant and she had sexual intercourse with the appellant with her consent. The prosecution case however, was that at the time of the intercourse she was hardly 13 or 14 years old. If that be true, the question of consent was immaterial as the offene would fall within clause 'fifthly' of the definition of 'rape' given in Section 375 of the Penal Code.
7. The evidence with regard to the age of the girl was given by the prosecutrix (P.W. 9) and her father, Jagarnath (P.W. 4) and Dr. Asha Prasad (P.W. 14). PW 9 and P.W. 4 both stated that Sumitra (P.W 9) was 13 14 years of age at the time of occurrence. Dr Asha Prasad opined that the girl was only 13 or 14 years of age on July 6 1967 when the witness examined her. The Doctor based this opinion on physical facts namely, that the examinee (P.W. 9) bad 28 teeth, 14 in each jaw, smooth pubic hair and auxiliary hair, which means the hair, according to the opinion of the Doctor, had just started appearing at the age of 14.
8. The Courts below have, on the basis of this testimony, came to the firm conclusion that, at the time of occurrance, Sumitra was about 14 years of age, only. We do not find any good reason to disagree with at that finding.
9. In regard to the appellant being the perpetrator of the raps, Sumltra's evidence has been found to be trustworthy by the Courts below. Her evidence in regard to this fact stood corroborated by the other evidence on the record. Thus, the appellant was rightly convicted under Section 376 Penal Code.
10. As regards the sentence, Counsel for the appellant stated that even after the occurrence, the prosecutrix has been living in the house of the appellant and has given birth to children from the liaison. Counsel, however, wanted time to verify this information. We therefore, reserved orders in this case and adjourned announcement of the judgment. In spite of the ample thus granted, neither the appellant nor anybody else has produced any material or evidence in regard to their post occurrence developments which, if established, could be taken into account in fixing the quantum of punishment.
11. For the foregoing reasons, we dismiss Bishnudaya's appeal and maintain his conviction and sentence under Section 376 Penal Code.
12. The appellant shall surrender his bail bound and be taken into custody to serve out the sentence awarded to him.