SUPREME COURT OF INDIA

Before:- R.P. Sethi, J. and Doraiswamy Raju, J.

Criminal Appeal No. 595/1995. D/d. 18.4.2002.

State of Maharashtra - Petitioner

Versus

Uddhav - Respondent

Indian Penal Code, 1860, Section 376 - Friendly intimacy between prosecutrix and accused - Accused on promise to marry prosecutrix indulging in sexual intercourse - Prosecutrix becoming pregnant - Accused declining to marry - Ossification test report showing prosecutrix below 16 years of age - Said test conducted after two years of commencement of investigation - Prosecution failed to prove that said report pertained to prosecutrix - Held, prosecution failed to establish beyond doubt that prosecutrix was less than 16 years of age on relevant date - Judgment of acquittal passed by High Court affirmed.

[Para ]

ORDER

1. For allegedly committing rape upon the person of Km. Deolabai the respondent was charged under Section 376 of the Indian Penal Code and after trial convicted for the commission of the said offence. He was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,000/- in default of which he was sentenced to undergo further rigorous imprisonment for six months. In appeal the judgment of the trial court was set aside and the respondent was acquitted by the High Court vide the judgment impugned in this appeal.

2. The prosecution case is that the prosecutrix and the accused had developed friendly intimacy and on account of this relationship the respondent had sexual intercourse with the prosecutrix. He had promised to marry her but ultimately declined. On account of the sexual intercourse which the respondent had with the prosecutrix, she became pregnant. As the respondent declined to solemnize the marriage with Km. Deolabai, an FIR was lodged alleging that the offence of rape had been committed with the prosecutrix when she was less than 16 years of age. The trial court found the prosecutrix to be less than 16 years of age and convicted and sentenced the respondent for the offence of rape. When the respondent filed the appeal, the High Court re-examined the evidence and upon its analysis acquitted the respondent as the prosecution had failed to prove beyond doubt that Deolabai was less than 16 years of age on the relevant date. The only evidence relating to the age upon which the prosecution relied was the ossification test report (exhibit-40) stated to have been conducted on 3.1.1991 i.e. after about two years of the commencement of the investigation. Moreover, the prosecution could not establish that the certificate-ossification test report (exhibit-40) pertained to Km. Deolabai. In para No. 8 of its judgment the High Court has given cogent and valid reasons for not relying upon the abovesaid certificate - ossification test report (exhibit-40) as the prosecution was held to have failed to establish that it pertained to the victim.

3. We do not find any illegality or infirmity in the judgment of the High Court requiring our interference as it is based on proper appreciation of evidence.

4. There is no merit in this appeal, which is accordingly dismissed. The bail bonds shall stand discharge.

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