N.L. Tibrewal, J.
1. The appellant stood convicted Under Section 376 IPC by the learned Sessions Judge, Balotia, in Sessions Case No. 34/78 and was sentenced to two years R.I. and a fine of Rs. 500/-. In default of payment of fine the appellant was further required to undergo three months R.I.
2. The prosecution case as, given out in the report Ex. P/1, is that in the afternoon of 12-9-1977 Mst. Premi was returning to her house from the filed after handing over the meals to his brother Jetha. It is alleged that the accused Rekha Ram caught hold of her in the way and committed sexual intercourse without her consent. The prosecution case further is that P.W. 4 Labu and P.W. 5 Mukna heard the noise of Mst. Premi and they rebuked the appellant.
3. It is note worthy that no report was made about the occurrence on 12-9-77, though Mst. Premi is said to have narrated the story to her mother on the same day in the evening and his brother Jetha had also come at the house on the same day. The report of the incident was made by P.W. 1 Jetha on 13-9-1977 and it is also strange that the prosecution did not get the said report exhibited as the said report has been marked as Ex. D/1.
4. It is also note worthy that in the report Ex.D/1, the informant Jetha has given his age as 19 years, while the age of Mst. Premi has been given as 16 years. Mst. Premi was medically examined by the Medical Officer, Primary Health Centre, Baitu. In the report the age of Mst. Premi has been given as 16 years and the doctor found that the height of Mst. Premi was 156 Cms, weight was 40 Kgs. and the breast was developed. Axillary hairs were also present and Public hair was partly shaved. The doctor also found that the vaginal cannot of Mst. Premi was admitting two fingers and the hymen was having old tears. No injury was found on any part of the pro-secutrix. The doctor further stated that no definite. opinion about recent sexual intercourse can be given. She vaginal swab and public hair were sent for clemical examination. This report was apparently against the prosecution and the opinion of the medical officer was sufficient to destroy the prosecution case that Mst. Premi was subjected to sexual intercourse without her consent. As this report was not favoring the prosecution, the prosecution did not examine the doctor in the trial court. Even the Investigating Officer was not examined The report of the Chemical Examiner was also not got exhibited as it was negative for blood and smear.
5. The learned trial court, after recording, the clothes of Mst. Premi were not form and she had not sustained any injury on her body. So it appears to be a case of consent.
6. On the other hand, the learned Public Prosecutor supports the findings as well as the judgment of the learned Trial court and contends that the report Ex, P/6 given by Dr. Dilip Sankhia is conclusive to prove that the age of Mat. Premi was below 16 years at the time of the occurrence and even though it may be a case of consent, but for the age of Mst. Premi being less than 16 years of age the offence Under Section 376 IPC is clealy made out against the accused.
7. I have given my thoughtful consideration on the rival contentions made by the learned Counsel for the appellant as well as the learned Public Prosecutor.
8. The learned trial court has not ruled out the possibility of con-sent and the learned Public Prosecutor has not challenged the said finding by the learned trial court. Therefore, the crucial question for determination is as to what was the age of Mst. Premi at the time of the occurrence.
9. In this connection a reference can be made to the report Ex. D/1 which had been made by Jetha, the real brother of Mst. Premi. It is further not worthy that Mst. Premi was as also present at the time of making the report, In this report the age of Premi has been narrated as 16 years, while the age of Jetha has been given as 19 years. It is the prosecution case that Mst. Premi was 2 years lesser in age than Jetha, as admitted by Jetha as well as by Mst. Premi herself. The doctor who had examined the injuries of Mst Premi had also given her age as 16 years, though the said doctor has been withheld by the prosecution for the obvious reason that the report given by the doctor was not favorable to the prosecution. It is no doubt true that Dr. Dilip Sankhia, P.W. 7 has stated that he had given the report Ex. P/6 on the basis of X-ray plates, the age of Mst. Premi was between 12 to 18 years. However, this doctor did not take the X-ray plates, though he examined Mst. Premi for the purposes of a scertaining her age. The opinion of this doctor, in my view, is a were opinion and in no case it can be conclusive, specially when the prosecution case itself is that the age of Mst. Premi was 16 years at the time of the incident. Otherwise also, there may be difference of 2-3 years from, the opinion about the age based on medical examination is the cordial principle of human Criminal Jurisprudence that the prosecution must prove the guilt against the accused beyond reasonable doubt and if a reasonable doubt is created then the benefit should go to the accused. In the instant case, a reasonable doubt is created about the age of Mst. Premi that she was below 16 years of age at the time of the occurrence and his possibility cannot be ruled out that she was 16 years of age or above 16 years of age at the time of occurrence specially when the doctor who examined Mst. Premi opined that Mst. Premi's breast were developed and vaginal canal was admitting two fingers loosely and there was old tear in the hymen The medical report Ex. P/6 cannot be said to be conclusive as the doctor himself has not examined Mst. Premi and it was a mere opinion, based on X-ray report Ex. 2 and Ex. 3. It is further note worthy that the doctor who had taken the X-ray plates Ex. 2 & Ex. 3 bad not given any report or opinion about the age of Mst. Premi. Thus, in my view, the prosecution has failed to prove that Mst. Premi was below 16 years of age at the time of the occurrence.
10. After the aforesaid finding about the age of Mst. Premi, the con-vinction of the appellant Under Section 376 IPC cannot be sustained. The learned Sessions Judge has not ruled out the possibility of a consent case and this finding has not been challenged before me by the learned Public Prosecutor I need not, therefore, enter into the merits of the case as to whether the statements of P.W. 2 Mst. Premi, P.W. 6 Labu and P.W. 5 Mukna are believer not as contended by the learned Counsel for the appellant. On the findings of that learned trial court itself the possibility of a consent case cannot be ruled out and as I have already held that the prosecution has failed to prove that the age of Mst. Premi was below 16 years of age at the time of occurrence, the conviction of the appellant Under Section 376 IPC cannot be sustained.
11. Consequently, the appeal is allowed. The conviction and sentences of the appellant passed by the learned trial court are set aside. The appellant is on bail, hence he need not surrender. The bail bonds are cancelled.