H.C. Goel, J.
(1) This is an appeal by Dharam Raj accused/appellant against his conviction under sections 366 and 376 Indian Penal Code and sentence of three years' Ri and a fine of Rs. 250.00 under section 366 and four years Ri and a tine of Rs. 250.00 under section 376 Indian Penal Code passed by Shri J.D. Kapoor, Additional Sessions Judge, New Delhi, by the impugned judgment and order of sentence dated July 17, 1984 and July 18, 1984 respectively. The prosecution case stated in brief is that the appellant Dharam Raj and the prosecutrix Kumari Mani are neighbours and were known to each other. On February 19, 1981 at about 4.00 p.m. Kumari Mani aged 15-16 years was waiting at the bus stop of Sant Nagar for going from there to her house after doing the house-hold duties as a maid servant in some houses. The appellant came there. He told Kumari Mani that her father was seriously ill and was admitted to Safdarjang Hospital and her mother had sent him to bring her at the hospital. Kumari Mani accompanied the appellant in a three-wheeler scooter for going to the hospital. The appellant, however, told the scooter driver to take them to Gulmohar Park and the scooter driver took both of them to a house in Gulmohar Park. One woman by the name Marry was preset in that house. She, however, went away from there. The appellant is alleged to have committed rape with Kumari Mani during the night between February 19/20, 19.51 twice or thrice. He had threatened Kumari Mani that if she resisted she would be killed. He also told her that he would marry her. The father of Kumari Mani lodged a report with the police on the next day of the disappearance of Kumari Mani. Si Samarpal Singh, Investigating Officer of the case, accompanied by the father of the prosecutrix went to house no. 18, Gulmohar Park where the appellant had detained Kumari Mani and she was recovered from there. The appellant was arrested and was challaned in the case. As regards the age of the prosecutrix the prosecution relied on the report of the Radiologist wherein the Radiologist had opined the age of Kumari Mani as between 15 years and 15 years and 8 months. Then Kumari Mani supported the prosecution version regarding the main occurrence and about her being recovered from the custody of the appellant as alleged by the prosecution. The appellant in his statement under section 313 Cr.P.C. gave his age as 21 years as on February 18, 1984. He stated that Kumari Mani was elder to him in age. His parents had refused to arrange marriage between him and the prosecutrix i.e. that they had declined the offer of the prosecutrix side to marry the appellant with the prosecutrix as she was elder to him and the appellant was, thereforee, falsely implicated in the case.
(2) The learned trial court as regards the question of age of the prosecutrix observed that since the medical officer who had radio logically examined the prosecutrix did not come in the witness box it could be assumed that the prosecutrix was about 16 years old. The learned Additional Sessions Judge then believed the version of the prosecutrix Kumari Mani (Public Witness 4) that she was induced by the appellant to go to the house in Gulmohar Park on the said pretext and that she was subjected to rape by the appellant there against her will and consent and under threat of her being killed by the appellant in case she did not submit to sexual intercourse by the appellant. The appellant was accordingly convicted both under section 366 and 376 IPC.
(3) I may say at the very outset that the conclusions of the learned Additional Sessions Judge and the entire approach and the reasoning for reaching the said conclusion are wholly wrong. As regards the age of the prosecutrix which was most material for determining as to whether the offence under section 376 and/or section 366 Indian Penal Code stood proved against the appellant the prosecution did not lead any cogent evidence such as a birth certificate or a certificate from the school record of the prosecutrix etc. The only evidence of the prosecution consisted of the statement of Mutuswamy, father of the prosecutrix, who just stated that the age of his daughter Kumari Mani was about 16 years when he gave his statement in the court and that the age at the time of the occurrence was 13 years, and the final conclusion of Dr. A K. Singhal as given in his so-called report Ex. Public Witness 2/A proved by Shri Nandan Singh, Record Clerk of the All India Institute of Medical Sciences (Public Witness 2) which is reproduced below :
'WRIST,elbow and pelvis for bone age : bone age is between 15-15.7 years.'
So far as the statement of Mutuswamy (Public Witness 7) is concerned, he did not give any basis for giving the age of the prosecutrix as 13 years on the date of the occurrence. He did not give the date, month or the year of birth of the prosecutrix, nor the basis for his giving the age of Kumari Mani as 13 years such as the year in which he was married and the number of children born out of his loins and their months and years of birth etc. Further the statement of Mutuswamy is contradicted by the said report of Dr. A.K. Singhal itself. The statement of Mutuswamy which even otherwise had no intrinsic value, being in conflict with the said medical evidence had to be discarded.
(4) As regards the evidence of the opinion of Dr. A.K. Singhal as contained in the report Ex. Public Witness 2/A; the skiagrams of the prosecutrix as taken by him which was the basic material on which his opinion was based were not produced on the record of the case. The prosecution either did not obtain a detailed report from Dr. Singhal wherein he should have referred to the data including his observations of the skiagrams of the prosecutrix or the prosecution omitted to produce the detailed report of Dr. Singhal if Dr. Singhal had so recorded. Nothing is stated in the report Ex. Public Witness 2/A as to what was observed by Dr. Singhal in the skiagrams of the wrist, elbow and the pelvis of the prosecutrix as taken by him. By the non-placing of the skiagrams and the said data on the record the Court and the appellant had no means to know and to verify about the correctness of the said conclusion of Dr. Singhal and no value whatsoever could be attached to the final conclusion of Dr. Singhal as contained in his so-called report Ex. Public Witness 2/A, even though that may be admissible in evidence. Under these circumstances I am of the considered view that no value whatsoever could be attached to the said report Ex. Public Witness 2/A of Dr. Singhal. I find support in this conclusion-of mine from a decision of the Punjab and Haryana High Court in the case Hardip Singh v. State of Punjab, 1981 Ch. Lr 279 In that case the Radiologist had opined the age of the prosecutrix as between 14 and 16 years. The Radiologist was examined by the prosecution as Public Witness 2 in the case and the accused had the full opportunity to cross-examine him. However, no birth entry relating to the birth of prosecutrix was produced by the prosecution. The evidence adduced by the prosecution for determining the age of the prosecutrix was found to be not consistent as that varied between 14 and 18 years. It was held that in the absence of direct evidence such as the birth entry regarding the age of the prosecutrix, no safe conclusion could be based simply on the opinion of Dr. Malik, the Radiologist who had conducted the ossification test and had opined the age of the prosecutrix as between 14 and 16 years. It was held that it was not proved that the prosecutrix was in fact less than 18 years of age when the occurrence took place I accordingly hold that the prosecution had failed to prove on the record that Kumari Mani was below 18 years of age on February 19, 1981 when she was taken by the appellant out of the lawful guardianship of her parents. Thus the conviction of the appellant under section 376 Indian Penal Code cannot be sustained.
(5) As regards the conviction of the appellant under section 376 Ipc, the appellant having been found to be above 16 years or even 18 years of age on the date of the occurrence, the question for consideration would be as to whether the trial court was right in taking the view that the prosecutrix was not a consenting party to the commission of sexual intercourse by the appellant with her. Here again the conclusion of the learned Additional Sessions Judge that the prosecutrix was subjected to sexual intercourse by the appellant without her free consent is wholly un-sustainable as already mentioned by me above. Kumari Mani in her statement as Public Witness 2 stated that the appellant had told her that her mother had sent for her to be taken to Safdarjang Hospital where her father was lying seriously ill, but that the appellant took her to a house in Gulmohar Park instead of taking to her to the Safdarjang Hospital. There is nothing on the record to show that the prosecutrix protested against the appellant taking her in the three-whether scooter to a different place than Safdarjang Hospital. Had that been so, the prosecutrix would have obviously felt suspicious and objected to that and would have raised an alarm. There is, however, no evidence of the prosecution to suggest that the. prosecutrix made any such protest or raised an alarm either during her journey by the scooter right to the house in Gulmohar Park or why she was kept in the house at Gulmohar Park. The scooter driver Who is alleged to have taken the prosecutrix and the appellant in the scooter has not been examined by the prosecution. Marry who is alleged to have been present in the house in Gulmohar Park was cited as a prosecution witness. She was, however, also not examined by the prosecution. Apart from that the medical evidence, namely, the Mlc report of the prosecutrix Ex. PW2/B as also the examination of the appellant by Dr. S.S. Shah (Public Witness 3) shows that no mark of injury on the breast, chest, abdomen or velva of the prosecutrix was found, nor was there any evidence of any external injury on the person of the appellant. Had the prosecutrix not been a consenting party to the commission of sexual intercourse with her by the appellant she would have resisted the same and would have struggled with the appellant including causing injury to him by her nails or tooth bite etc. The total absence of any evidence of any kind of injury on the person of the appellant and that of the prosecutrix coupled with other facts and circumstances of the case clearly go to show that the prosecutrix was a consenting party to the commission of sexual intercourse with her by the appellant. The very version of the prosecution as narrated by the prosecutrix that the appellant had kidnapped the prosecutrix by playing a deception on her and committed rape under threat of killing her the prosecutrix) stood belied from the facts and circumstances as proved on the record. In conclusion I accept the appeal, set aside the conviction and sentences as awarded to the appellant under sections 366 and 376 Indian Penal Code and acquit him. The appellant be released forthwith if not required in any other case.