JUDGMENT
Chandrashekhara Das, J.
1. These three Appeals arise out of a Judgment passed by the Asst. Sessions Judge, South Goa, Margao dated 30th March, 1995 in Sessions Case No. 6/93, whereby the three accused were convicted under Section 376 of I.P.C. Consequently, the accused Nos. 1 and 2 were sentenced to suffer Rigorous Imprisonment for 10 years and to pay a fine of Rs. 2000/- each, in default to suffer R.I. for one year, whereas accused No. 3 was sentenced to undergo R.I. for five years and to pay a fine of Rs. 1000/-, in default to suffer R.I. for six months. The accused No. 2 filed Criminal Appeal No. 9/95, accused No. 1 filed Criminal Appeal No. 10/95 and accused No. 3 filed Criminal Appeal No. 12/95 assailing the aforesaid Judgment passed in Sessions Case No. 6/93. Since the appeals emerge from one judgment, we propose to deal with the Appeals by this common judgment.
2. According to the charge, the allegations against the appellants were that during the period from 3rd September, 1991 to 11-10-91 the appellants had sexual intercourse with the minor servant girl named Fatima Agnelo Godinho in the house of the Complainant Shri Lume Mesquita amounting to rape on different occasions.
3. The Court below examined eight witnesses. Except P.W. 4 Dr. Madhukar Usgaonkar, all other witnesses have spoken about the various circumstances of the incident. The complaint made by P.W. 1 reveals the details of the events which culminated to sexual intercourse with the prosecutrix by the appellants. The evidence of all these witnesses and the complainant will go to show that the prosecutrix was subjected to sexual intercourse by the accused of her own free will and consent. She showed no resistance to any of the accused. It seems that she was at their beck and call. The world knew about the occurrence at the instance of her employer. Before that she has not told anybody about the incident. It shows that she was willing to do such things with the accused. The learned Public Prosecutor before us also has not disputed this position of facts. The lower Court also proceeded with the case on the premise that the sexual intercourse had been done with the volition and free will of the prosecutrix. Needless to say that in such circumstances in order to establish the offence under S. 376, it is the bounden duty of the Prosecution to establish that at the time of occurrence the prosecutrix was below the age of 16 years. It is in this circumstance that the evidence of Dr. Madhukar Usgaonkar, P.W. 4 becomes very important and relevant. The Court below has solely and wholly relied on P.W. 4 and came to the conclusion that the prosecutrix was below the age of 16 years at the time of occurrence of the offence and based its judgment for convicting the appellants.
4. Mr. Desai, learned counsel for the appellants has vehemently criticised the evidence of P.W. 4 and his expert opinion and also the Report filed by P.W. 4 before the Court. It has come out in evidence that P.W. 4 Dr. Madhukar Usgaonkar had examined the prosecutrix Miss Fatima Agnelo Godinho. It has also come out in his evidence that she was subjected to radiological test and on the basis of that test and on general examination of the girl, P.W. 4 came to the conclusion that the girl was below the age of 16 years. We had the benefit of perusing the Report filed by P.W. 4. After the aforesaid prosecutrix was subjected to radiological test, P.W. 4 has prepared a report P.W. 4/B. P.W. 4 says in his report that iliac crest appeared not fused. In cross-examination this P.W. 4 has admitted that it is possible that iliac crest may appear even at the age of 17 years depending upon general condition and nutrition of the body. So even based on his Report and the aforesaid finding it cannot be ruled out that at the time of examination the prosecutrix might have been 17 years of age. The Report P.W. 4/B also says that the epiphysis of radius and ulna had not fused. On the basis of finding in this Report, P.W. 4 deposed that the lower end of radius and ulna fused from the age of 17 to 18 years. This may mean that she might have not crossed 17 or 18 years of age. It is also seen from the Report that all other bones had fused. It therefore appears that even P.W. 4 was not sure about the age of the prosecutrix. He is not definite about her age. Assuming, that the prosecutrix is below 14 to 15 years as stated by P.W. 4, it is laid down by the Apex Court that certain amount of margin has to be given in fixing the age of the victim on the basis of the medical opinion which was found after the Radiological test. In Jaya Mala v. Home Secretary Govt. of Jammu and Kashmir in in paragraph 9 the Apex Court observed thus :
“….. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This young school going boy may be enthusiastic about the students’ rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed.”
If this margin is to be attributed to the finding entered by P.W. 4 it can be said that the prosecutrix on the date of examination could very well have been above the age of 16 years. In this ambiguous state of affairs about the age of the prosecutrix, the lower Court was not justified to rest its judgment solely and wholly on the medical evidence of P.W. 4 to find out the age of the prosecutrix. We find that the lower Court has committed a serious miscarriage of justice in appreciating the evidence of P.W. 4 and the medical evidence. As pointed out by the Supreme Court, the benefit of the margin as aforesaid has definitely to go to the accused.
5. Our conclusion therefore is that the prosecution has not established the age of the prosecutrix being below the age of 16 years to sustain the conviction. As we pointed out earlier, the intercourse by the accused was with the will and consent of the prosecutrix and in the absence of clear and unambiguous evidence about her age, we are of the opinion that the appellants are entitled to acquittal.
6. In the result, the appeals are allowed. The appellants are acquitted. Their Bail Bonds stand discharged.
7. Appeal allowed.