According to the supplementary report, on record, prepared by lady Dr. Shakuntala, PW-5, PW-2 was aged about 17 years. During the cross-examination, PW-5, has stated in para 9 of cross-examination that there could be a difference of 6 months both ways in the age of PW-2. Thus PW-2 can be said to be aged 17 ½ years at the time of the occurrence.” We find ourselves in agreement with the view of the trial court regarding the age of the prosecutrix. The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have been done by adding two years to the age opined by PW-5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. We are supported by a 3-Judge Bench decision of this Court in State of Karnataka v. Bantara Sudhakara wherein this Court at page 41 of the Report stated as under: “Additionally, merely because the doctor’s evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years’ age has to be added to the upper age-limit is without any foundation.” Learned counsel for the respondent relied upon a decision of this Court in the case of M. Ahmed v. State of Assam in support of his submission that the best evidence concerning the age of prosecutrix having been withheld, the finding of the High Court that the prosecutrix could be 19 years of age cannot be said to be erroneous. In the present case, the brother of the prosecutrix has been examined as PW-1 and, therefore, it cannot be said that best evidence has been withheld. The decision of this Court in M. Ahmed has no application at all. In our view, the High Court fell in grave error in observing that the prosecutrix could be even 19 years of age at the time of alleged occurrence. Be that as it may, in our view, clause (6) of Section 375 IPC is not attracted since the prosecutrix has been found to be even 16 years (although below 18 years). In the facts of the case what is crucial to be considered is whether clause first or clause Second (5) of Section 375 IPC is attracted. The expressions ‘against her will’ and ‘without her consent may overlap sometimes but surely the two expressions in clause first and clause Second have different connotation and dimension. The expression against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression without her consent would comprehend an act of reason accompanied by deliberation. The concept of ‘consent in the context of Section 375 IPC has come up for consideration before this Court on more than one occasion. Before we deal with some of these decisions, reference to Section 90 of the IPC may be relevant which reads as under: (a) “Consent known to be given under fear or mis-conception.-A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception: (b) Consent of insane person.- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; (c) Consent (8) of child.- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” This Court in a long line of cases has given wider meaning to the word ‘consent’ in the context of sexual offences as explained in various judicial dictionaries. A woman’s consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is “consent”. In Words and Phrases, Permanent Edition, (Volume 8A) (9) at pages 205- few American decisions wherein the word ‘consent’ has been considered and explained with regard to the law of rape have been referred. These are as follows: “In order to constitute “rape”, there need not be resistance to the utmost, and a woman who is assaulted need not resist to the point of risking being beaten and, if she resists to the point where further resistance would be useless or her resistance is overcome by force. (800)
