R.N. Biswal, J.
1. The appeal is directed against the judgment and order dated 14.9.1992 passed by the Sessions Judge, Keonjhar in Criminal Appeal No. 24 of 1989 setting aside the judgment and order dated 2.5.1989 passed by the C.J.M.-cum-Asst. Sessions Judge, Keonjhar in Sessions Trial No. 35/16 of 1987/88 wherein he convicted the accused (respondent) for the offence under Section 376 of I.P.C. and sentenced him thereunder to undergo R.I. for three years and to pay a fine of Rs. 5,000/- and in default to undergo R.I. for six months more.
2. Succinctly stated, the prosecution case is that accused is a distant relative of the alleged victim (P.W.1) and as such he had visiting term with the family members of the victim. It is alleged that some time in the month of Jyestha of the year 1986, while the victim, a girl of less than 16 years was alone in her study room, accused came there and without her consent and against her will squeezed her breasts and forcibly lifted her to a room and committed sexual intercourse on her. After satisfying his lust, while he was sitting in another room, the victim questioned him as to why he defiled her, while answering to it he assured to marry her. In two other occasions also he committed sexual intercourse on her in her house and in consequence she conceived. When the gestation period was about 20 weeks and her pregnancy could be known by the family members, because of the shape and size of her belly, she disclosed the incident to her elder sister, who in turn informed it to her father, Ainthu (P.W.13). Hearing this, P.W.13, went to Keonjhar where the respondent was working as an Advocate-Clerk and charged him as to why he impregnated his daughter. The accused took the responsibility of terminating the pregnancy and in fact he himself, the victim (P.W.11) and her father went to some doctors to terminate the pregnancy, but as the pregnancy was at an advanced stage of about 20 weeks, they refused to terminate it. Ultimately, the accused asked P.W.13 to get the pregnancy terminated through a quack, but when he did not agree to it, he did not take any interest in the matter and asked P.W.13 to do whatever he liked. Thereafter, on 20.4.1987 P.W.13 lodged a written report before the O.I.C., Sadar P.S., Keonjhar (P.W.14). As the allegation contained in the F.I.R. revealed a cognizable case, P.W.14 registered the case and took up investigation. In course of investigation, he examined the witnesses, visited the spot, prepared spot map as per Ext. 5, sent the alleged victim to Padampur P.H.C. for medical examination, arrested the accused, sent him to the same P.H.C. and after his medical examination was over, forwarded him to Court and on conclusion of the investigation, finding a prima facie case against the accused, submitted Charge Sheet against him.
3. The plea of the accused is completely denial of the occurrence. It is his further plea that the victim was conceived through her brother-in-law. The case having been committed to the Court of Session Judge, Keonjhar, it was transferred to the Court of C.J.M.-cum-Asst. Sessions Judge, Keonjhar who conducted the trial of the case.
To establish its case prosecution examined as many as 14 witnesses as against 5 witnesses examined on behalf of the defence. After assessing the evidence on record, the trial Court found the accused guilty for the offence under Section 376 of I.P.C. and sentenced him thereunder, as mentioned earlier. It was held by the trial Court that the age of the victim was less than 16 years and as such, even if she had consented to sexual intercourse, yet the accused would be guilty of the offence under Section 376 of I.P.C. Such a conclusion was arrived at on the basis of the horoscope (Ext.4) and the oral testimony of P.W.11, the victim and her father (P.W. 13). Being aggrieved with the order of conviction and sentence as passed by the trial Court, the accused challenged it before the Sessions Judge, Keonjhar in Criminal Appeal No. 24 of 1989 wherein the appeal was allowed and the order of conviction and sentenced passed by the trial Court were set aside, holding that the defence proved a probable case that the victim was more than 16 years at the time of alleged incident and that the sexual intercourse, if at all was committed on her it was with her consent. The present appeal has been preferred by the State of Orissa, challenging the order of the appellate Court, allowing the appeal and setting aside the order of conviction and sentence passed by the trial Court.
4. Learned Addl. Government Advocate submits that, as found from the evidence of P.W.13, father of the victim and P.W.11, the victim herself the age of the latter was less than 16 years at the time of occurrence. The horoscope, Ext. 4 also corroborates the oral testimony of P.Ws. 11 and 13, where it is mentioned that the date of birth of the victim was 8.2.1971. He further submits that as found from the evidence of the prosecutrix, since the accused (hereinafter referred as 'respondent') assured to marry her, she gave her consent for sexual intercourse. As such, even if it is admitted that the victim allowed the respondent to have sex with her, the consent was not voluntary. So the lower appellate Court should not have allowed the appeal. On the other hand, learned Counsel for the respondent supported the judgment of the lower appellate Court.
5. Horoscope is a private document which has to be proved by the person preparing it, particularly when it is scribed on palm leaves. It can also be proved through a person competent to read the writing in the horoscope, prepared in palm leaves and is acquainted with the style of writing of the author. But in the case at hand, the astrologer who prepared the horoscope (Ext.4) in palm leaves, has not been examined. So the lower appellate Court rightly held that the trial Court was wrong in relying on the horoscope (Ext.4) and coming to the conclusion that the age of the victim was less than 16 years at the time of alleged occurrence. Learned Counsel appearing for the respondent submits that as transpired from the evidence of D.W.1, the date of birth of the alleged victim was 20.7.1969 vide Entry No. 53/567 (Ext.A) of the Admission Register of Santhe Bhanja High School, where P.W.11 was studying. So she was aged more than 16 years at the time of alleged occurrence. No signature, either of the pupil (P.W.11) or her father or guardian is there in the relevant entry of the Admission Register. Again, as found from the evidence of D.W.1, basing on the School Leaving Certificate issued by the Headmaster of Patung M.E. School, her date of birth was entered in the Admission Register vide Entry No. 53/567. The person who got P.W.11 admitted to the said M.E. School ought to have been examined to prove the date of birth of P.W.11, but he had not been examined. So, Ext. A, the relevant entry in the Admission Register has not been proved in accordance with law. As stated earlier, the horoscope (Ext. 4) produced on behalf of the prosecution was also not proved as required under law. It is the cardinal principle of Criminal Jurisprudence that the prosecution has to prove its case beyond all reasonable doubt. The accused is not required to prove that he is innocent, but if he can give a probable case about his innocency, then that should be accepted by the Court. In the instant case the appellate Court rightly held that even though Ext. A had not been proved as required under law, still then the date of birth of the victim as entered therein is a probable one, particularly when there is no ossification test of the victim and the doctor (P.W.5) on the guess work deposed that her age was 16 to 17 years at the time of her examination.
6. On perusal of the evidence of P.W. 11, it is found that the respondent forcibly took her to a room, undraped her and committed sexual intercourse on her. Subsequently, while answering to the query of the alleged victim, he agreed to marry her. So, it cannot be held that the alleged victim allowed the respondent to have sexual intercourse with her, as he promised to marry her. Moreover, the victim did not disclose the incident before anybody till it was known to others from the shape and size of her belly. Neither P.W.11 nor P.W.13 was also interested to lodge F.I.R. against the respondent, rather as per his (respondent) advice they tried to terminate the pregnancy through qualified doctors, albeit failed in their attempt. At last the respondent suggested them to take the help of a quack for termination of her pregnancy. As P.W.13 denied to do it, the respondent did not take any interest in the matter, for which the F.I.R. was lodged. So, the possibility that P.W.11 was a consenting party to the alleged sexual intercourse cannot be denied. The alleged occurrence took place in the year 1986. The respondent faced the ordeal of trial till 2.5.1989. The sword of Damocles also hanged over his head till the Criminal Appeal was allowed and he was acquitted on 14.9.1992. This appeal is pending since 1993.
7. Taking into consideration all these facts and circumstances of the case, I am not inclined to set aside the order of the lower appellate Court and as such, the present appeal stands dismissed and the judgment and order of acquittal passed by the appellate Court are hereby confirmed. The bail bond of the Respondent shall be cancelled.