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2. Facts relevant for disposal of the appeal are that on 15.03.2000, report was lodged by the prosecutrix in Police Station - Darbha, District - Bastar stating there in that on 14.03.2000 at about 8.00 PM, after taking her dinner, while she was going to get Tobacco from his brother Sonsai, appellant came and caught hold of her, gagged her mouth, forcibly took her to nearby bushes and committed forceful sexual intercourse with her. At the time of incident, mother of the prosecutrix Sukari (P.W.-2) came there, who saw the appellant committing offence with prosecutrix. She assaulted the appellant by means of club upon which he ran away from spot. On the basis of the report, offences under Section 376 of I.P.C. and Section 3 (XII) of the Act, 1989 were registered against appellant. He was arrested on 17.03.2000. After completion of investigation, charge-sheet was filed, before Court of competent jurisdiction.

12) and arrest memo (Ex.P-14). The statement of appellant recorded under Section 313 of Cr.P.C., he denied all the incriminating evidence appearing against him, pleaded innocence and false implication. No witness was examined in defence. After conclusion of trial, learned trial Court arrived at a conclusion that on the date of incident, appellant committed forceful sexual intercourse with prosecutrix, who was a member belonging to Scheduled Tribe community, and was below 16 years of age, convicted appellant for commission of offences and sentenced him as mentioned here-in- above.

4. Mr. Prafull N. Bharat, learned Sr. Advocate appearing on behalf of the appellant would submit that impugned judgment of conviction passed against appellant is without proper appreciation of evidence available on record. He contended that though the prosecutrix is stated to be below 16 years of age on the date of incident, but the prosecution has failed to produce any documentary and admissible piece of evidence in this regard in support of proof of age of prosecutrix. He contended that learned trial Court took note of age of the prosecutrix as 13 years mentioned in MLC report by Dr. Smt. B.A. More (P.W.-5), but there was no medical and scientific examination to ascertain the age of prosecutrix. The age recorded is only on the basis of assumption. The learned trial Court has also taken note of one document in the form of birth certificate available on record but the said birth certificate was not proved in accordance with law. In absence of any proof, age stated by the prosecutrix before the trial Court as also mentioned in MLC report can not be taken into consideration to establish that on the date of incident the prosecutrix was below 16 years. He next contended that prosecutrix was a consenting party as appearing from material available on record. Prosecutrix in the FIR (Ex.P-1) did not mention that at the time when she was going to get Tobacco from her brother, some other person is accompanied along with her. As per case of the prosecution brother of prosecutrix saw appellant taking prosecutrix forcefully, but he did not intercept or objected the act of appellant and he was not examined as prosecution witness, before the trial Court. Doctor, who examined the prosecutrix has not mentioned about any external injury on person of the prosecutrix when the allegation is of commission of forceful sexual intercourse with the prosecutrix in open place more so behind the bushes. Dr. Smt. B.A. More (P.W.-5) did not find any internal injury over the private part of the prosecutrix and it is mentioned in her report that prosecutrix was habitual of sexual intercourse, hence the allegation leveled against appellant, prima-facie appears to be false and fabricated. Finding of the learned trial Court with regard to age of the prosecutrix are without admissible piece of evidence. In support of his contention, he placed reliance on the judgment passed in case of Alamelu And Another Vs. State represented by Inspector of Police, reported in (2011) 2 SCC 385.

5. Shri Himanshu Sharma, learned counsel for State opposes the submissions made by the learned counsel for appellant and would submit that the incident is of 8.00 PM, when prosecutrix was going to get Tobacco from his brother. It is specifically mentioned in the FIR that appellant came from behind of prosecutrix, caught hold of her, gagged her mouth and took her to nearby place and thereafter committed forceful sexual intercourse. The incident was witnessed by her mother Sukari (P.W.-2). Prosecutrix was examined before the trial Court as (P.W.-1) and her statement regarding commission of forceful sexual intercourse, remained unshaken in the cross- examination. Sukari (P.W.-2) is an eye-witness to this incident, who saw the appellant committing sexual intercourse with prosecutrix. She also assaulted her and thereafter, appellant ran away from spot. He submits that prosecutrix complained some injuries over her person, breaking of bangles and the police also seized some pieces of red bangles from spot. He contended that even if the age of the prosecutrix is not proved, the fact remains that appellant committed forceful sexual intercourse with a woman without her consent. The learned trial Court has not committed any error in convicting appellant for offence under Section 376 of the Indian Penal Code and Section 3 (1) (XII) of the Act, 1989. It is submitted that only because the prosecutrix is reported to be habitual of sexual intercourse in the MLC report in itself would not be a ground to establish the fact that the prosecutrix was a consenting party at the time of incident. Learned trial Court upon appreciating the entire material and evidence available on record, have rightly convicted appellant for offences and sentenced him as mentioned above, which does not call for any interference.