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10A. On the basis of the evidence on record the Addl. Sessions Judge in his impugned judgment has come to the conclusion that the age of the prosecutrix when she left the house of her parents on 16-2-1990 was 16 years and three months and 15 years and 10 months when the first coitus is said to have been done 5-6 months prior to 16-2-1990 as per the prosecution story. However, relying upon the judgment of the learned single Judge of this Court in Bittu alias Anand Singh v. State of Himachal Pradesh 1986 Sim LC 113, the Additional Sessions Judge has held that the age of the prosecutrix was a little short of her consenting age, hence no offence under Section 376, I.P.C. is made out, specially when the consent of the prosecutrix is clearly made out from the circumstances on record regarding the coitus. The skeleton age opined by the Radiologist has also not been accepted as decisive and uncontrovertible keeping in view that it admits error of three years on either side. As per the Additional Sessions Judge, even for the offence under Section 363, I.P.C. the requisite age of 18 years as on 16-2-1990 falls short and the accused has been acquitted. However, he has been convicted under Section 366, I.P.C. holding that the accused had induced the prosecutrix to leave her place by deceitful means. It is also held that the accused had been acting in a mala fide manner and he had created the circumstances for the prosecutrix knowing it to be likely that she will be compelled or forced to be seduced for illicit intercourse, thus she left her house to Chandigarh and accompanied the accused under compulsion and not of her own free volition.

13. Though, as per the statement of the prosecutrix she was 14 years of age when she was sexually assaulted by the accused, yet in view of her further statement that the accused had committed sexual intercourse with her about 5-6 months before taking her to Chandigarh on 16-2-1990 and the cross-examination on behalf of the accused of PW Sada Ram that the prosecutrix was pregnant by 61/2 months when she was taken to Chandigarh on 16-2-1990 and in view of the medical evidence on record that she gave birth to a male child on 15-5-1990 as stated by Doctor K. L. Rastogi (PW-10), it can be safely held that the prosecutrix was less than 16 years of age when first coitus had been committed, to be nearing exact, she was about 15 years and 9 months or 15 years 10 months.

16. In view of this background we are not in agreement with the Additional Sessions Judge that the consent of the prosecutrix is made out from the facts and circumstances on record regarding the coitus. Even If presumed, it is of no consequence, as she was definitely below 16 years of age at the time she was subjected to coitus and the offence under Section 376, I.P.C. is clearly made out. Therefore, we set aside the acquittal of the accused and hold him guilty for the continuous rape of the prosecutrix when she was less than 16 years of age, as a result of which she became pregnant and thereafter lost her free will arid consent to oppose and resist the accused from using her as an object of satisfying his carnal desires. By no stretch of imagination it can be said that the prosecutrix had surrendered to the accused voluntarily even after attaining the age of discretion i.e. 16 years.