JUDGMENT : Sanjay Kumar Jaiswal, J. 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 11-06-2008, passed by learned 2 nd Additional Sessions Judge Balodabazar, District Raipur (C.G.), in Sessions Trial No.02/2008, whereby the appellant-accused has been convicted as under:- Conviction Sentence & Fine U/s 376 of the IPC R.I. for 7 years and fine of Rs.100/-, in default thereof, RI for 1 month U/s 450 of the IPC R.I. for 7 years and fine of Rs.100/-, in default thereof, RI for 1 month 2. As per prosecution story, in the month of July 2007 at 12.00 pm the victim (PW-3) aged 14 years was alone in her house. Her father (PW-4) and mother (PW-5) had gone to work in the garden. At 12.00 pm, the accused/appellant came to the victim's house and forcibly removed her clothes and committed sexual intercourse with her, and threatened to kill her if she told her parents. Due to fear of the accused, the victim did not tell anyone about the incident. When the victim became 5 months’ pregnant with the accused, her mother questioned her about her pregnancy, then the victim told her mother that accused/appellant Jitendra did bad thing with her in the month of July due to which she became pregnant. Then the victim’s mother informed her husband about the incident. Then the victim’s father also informed one Gaulochan of the village about the incident. Then the victim along with her parents went to Police Station Kasdol on 27-10-2007 and filed a report against the accused regarding the incident. Thereafter, the victim was medically examined. Her X-ray was also done regarding her age. A map of the incident was also prepared. After recording witness statements and completing the investigation, the accused was arrested and charge sheet was filed against him. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 8 witnesses and exhibited 6 documents. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal. 5. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. After hearing the parties, the trial court passed the impugned judgment of conviction and order of sentence. Hence, this appeal. 5. Learned counsel for the appellant submits that in this case there is no clear evidence regarding the date of birth of the victim (PW-3). The trial Court has determined her age to be less than 16 years on the basis of oral evidence only, whereas no witness was able to tell the date of birth of the victim. The date of birth of the victim is also not mentioned in the Kotwari register. The ossification test report (Exhibit P-3) given by Dr. Mamta Thakur (PW-2) states the age of the victim to be 18 years, which has not been considered by the trial Court. Thus, the prosecution has completely failed to prove that the victim was a minor at the time of incident. In support of his argument, learned Counsel has cited a judgment in the matter of Sunil v. State of Haryana (2010) 1 SCC 742 . Learned counsel also submits that the trial Court has also found that the victim was mentally weak and was not in a position to give consent. Therefore, the appellant has been convicted even though in the entire prosecution case, no medical evidence was collected to show that the victim was mentally weak and was not in a position to give consent. In this regard, no reference was made in the charge framed by the trial Court against the appellant. Therefore, the conclusion of the trial Court that the victim was not in a position to give consent due to being mentally weak is not appropriate. Along with this, it is clear from the statement of the victim herself that she was a consenting party. The incident has been reported with a delay of about 03 months. The victim and her family witnesses have stated that the victim was pregnant but the fact of her being pregnant has not been confirmed by medical evidence. There is a serious contradiction in the statements of the victim herself, her parents and village resident Gaulochan (PW-6) regarding when her child was born. The victim and her family witnesses have stated that the victim was pregnant but the fact of her being pregnant has not been confirmed by medical evidence. There is a serious contradiction in the statements of the victim herself, her parents and village resident Gaulochan (PW-6) regarding when her child was born. There is no evidence of the birth date of the child or the date of his/her death. Thus, the entire case of prosecution against the appellant is doubtful and hence his conviction is not based on valid evidence. Hence, the appellant may be acquitted of the charges leveled against him by setting aside the impugned judgment of conviction and order of sentence. 6. On the other hand, learned counsel for the State submitted that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. Heard learned counsel for the parties and perused the record with utmost circumspection. 8. It is clear from the evidence produced in the case that when the incident was reported on 27/10/2007, it was stated that the incident with the victim took place in the month of July, 2007, i.e. the incident was reported with a delay of about 03 months. In the prosecution case, the age of the victim has been estimated to be about 14 years at the time of the incident. But neither the complainant herself nor her father (PW-4) and mother (PW-5) have been able to tell the date or year of birth of the victim. No documentary evidence has been proved regarding her date of birth. 9. Along with conducting the medical examination of the victim, Dr. Mamta Thakur (PW-2) has also given X-ray report (Exhibit P-3) as regards to her age, according to which the age of the victim is found to be more than 18 years. Along with this, the victim herself has stated in Paragraph-7 of her cross-examination that her father has her school certificate but she has attained 18 years of age, so her father did not produce that certificate. No such school certificate has been certified by the prosecution. Along with this, the victim herself has stated in Paragraph-7 of her cross-examination that her father has her school certificate but she has attained 18 years of age, so her father did not produce that certificate. No such school certificate has been certified by the prosecution. In all these circumstances, the trial Court has determined on the basis of oral evidence of the parents that the age of the victim is about 15 years, which is not based on legal evidence but on the examination report (Exhibit P-3) of Dr. Mamta Thakur (PW-2) and the statement of the victim herself reflected that she had attained 18 years of age. On the basis of above, this Court finds that the prosecution has failed to prove that the victim was below 16 years of age at the time of the incident. 10. As far as the question of the victim being pregnant is concerned, in this regard, the statement of the victim (PW- 3), her father (PW-4), mother (PW-5) and Gaulochan (PW-6) also reveals that when the victim was pregnant, she informed about the incident on being questioned and then a police report was lodged against the appellant on 27/10/2007. But there is contradiction in the statements of all the witnesses regarding at the time of lodging the report, the victim was carrying how many months’ pregnancy. All the witnesses have stated that the victim gave birth to the child after a few months, but there is contradiction in the statements of all the witnesses regarding when she gave birth and when the child died and there is no documentary evidence that can prove that the victim was pregnant. She gave birth to a child and her child died, on the contrary, Dr. Mamta Thakur (PW-2) who conducted the medical examination of the victim has not stated that the victim was pregnant at the time of medical examination, rather she has stated in paragraph 5 of the cross-examination that she had examined her for pregnancy and found that the victim was not pregnant. In this way, the statement of the victim and her family witnesses regarding her pregnancy becomes completely doubtful. 11.As far as the question of the victim being mentally challenged is concerned, her mother has certainly stated that the victim is not able to understand things properly and is not able to respond properly. In this way, the statement of the victim and her family witnesses regarding her pregnancy becomes completely doubtful. 11.As far as the question of the victim being mentally challenged is concerned, her mother has certainly stated that the victim is not able to understand things properly and is not able to respond properly. And even during the Court evidence, some variation has been observed in the pronunciation of words by the victim, for example, she mentions the name of the appellant as Hirendra instead of Jitendra. But there is no medical evidence to show that the victim is so mentally challenged that she is incapable of giving consent. Therefore, the conclusion of the trial Court that the victim was mentally challenged to the extent of giving consent is not found to be justified. It is also important that neither is there any evidence in the prosecution's case regarding her being mentally challenged nor was this brought to the notice of the appellant at the time of framing of the charge so that he could fully defend himself in this matter. Thus, the conclusion of the trial Court that the victim was mentally challenged and was not in a position to give consent is also not found to be valid. 12. The victim has admitted in her evidence that the appellant had physical relations with her more than once and she had not informed her family about this. She has admitted in cross-examination that the appellant's house is one house away from hers. She has stated that the incident took place at 12 noon whereas there are many houses and residences of people in the neighbourhood. 13. Dr. Mamta Thakur (PW-2) has stated that after the report, when she conducted a medical examination of the victim and has given the report (Exhibit P-2), according to that also no signs of forcible rape being done with the victim was found by her. The victim has also admitted that when the appellant had sex with her, she neither refused nor protested. She has also admitted that when the appellant had sex with her for the first time, he did not even cover her mouth. After having sex for the first time, she did not even report anything. The victim has also admitted that when the appellant had sex with her, she neither refused nor protested. She has also admitted that when the appellant had sex with her for the first time, he did not even cover her mouth. After having sex for the first time, she did not even report anything. She has also stated that if her belly was not big and she was not questioned by her mother, she would not have told anyone about the incident. She has also admitted that later on, the appellant used to come to have sex with her every day after finding her alone, and she did not refuse him. Thus, when the report was written after about 03 months, then looking at the statement of the victim, she is found to be a consenting party. 14. On the basis of the above discussion, this Court finds that the prosecution has failed to prove that the victim was minor on the date of the alleged incident. Since the victim has been found to be a consenting party, in such a situation, the conviction of the appellant is not based on clear, sufficient and convincing evidence. In such a situation, the “impugned judgment” is not found to be sustainable. 15. Therefore, the appeal is allowed . The “impugned judgment” is set aside and the appellant is acquitted. 16. It is reported that the appellant is on bail. He need not to surrender in this case. His bail bonds shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the Cr.P.C. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any.