JUDGMENT : K.B. Panda, J. - The five Appellants stands convicted u/s 366, India Penal Code and each of them has been sentenced to undergo R.I. for 2 years and to pay a fine of Rs. 1000/-, in default, to undergo R.I. for a further period of one year. Appellants 1, 2 and 3 have also been convicted u/s 376, Indian Penal Code and sentenced as above, the sentence to run consecutively. It was reported while taking up the appeal that Appellant No. 5 Ghasia Barado has died in the meanwhile on 27.9.1972. 2. Initially 7 persons were facing trial under Sections 366/376/342/34/149, Indian Penal Code on the allegation that on 30-7-68 night the Appellant with others (since acquitted) in furtherance of their common object kidnapped Palka Sabitri (p.w. 4), who was alleged to be a minor under 18, from Krishna Cinema house at Parlakimedi in a rickshaw beyond the river Mahendratanaya and crossing Patapatanam Travellers? Rest House in an isolated place in a mango-grove, the first three Appellants successively raped her. The story further goes that while Appellant P. Krishna proceeded to rape her, she implored to be saved as she could not stand any further criminal assault. Thus while the party was returning to Parlakimedi town, on the way they met A.S.I. of Police Narasingh Padhi (p.w. 1) before whom p.w. 4 complained that she had been kidnapped and criminally assaulted. Accordingly F.I.R. (Ext. 8) was drawn up and the case proceeded after examination of p.w. 4 medically at Parlakimedi and then at Berhampur by p.w. 3. 3. The defence was that p.w. 4 was found in a suspicious circumstances under a bridge and when questioned by the Appellants, she threw the blame on them though in fact somebody-else, who fled away seeing them, had some sexual contact with her. 4. There are ten witnesses for the prosecution and one for the defence. The learned Sessions Judge disbelieved the evidence of the alleged victim girl (p.w. 4) and her story of having been kidnapped and raped. In fact, he held that though she was a consenting party and a fallen girl yet her age being below 18, the accused Appellants had to suffer the consequences. 5. There is absolutely no corroborative evidence to the fact of kidnapping and raping: The two witnesses to the kidnapping (p.ws. 7 and 8) had turned hostile. In fact, he held that though she was a consenting party and a fallen girl yet her age being below 18, the accused Appellants had to suffer the consequences. 5. There is absolutely no corroborative evidence to the fact of kidnapping and raping: The two witnesses to the kidnapping (p.ws. 7 and 8) had turned hostile. The lady doctor, who examined p.w. 4 on 31-7-1968, had not been examined. Her report was substantially to the effect that there was no sign of criminal assault on her and that she was a girl who appeared to be used to sexual intercourse. Even p.w. 4 herself did not implicate the first three Appellants in the act of raping at subsequent stages of the trial. From her evidence it is clear that she is a clever girl who has given herself up to a promiscuous sex life. It is in evidence that she had ran away from the house on two occasions and had passed several nights with two strangers. She admits to be now a concubine of some body at Palasa. Her story that she had come from her village Narayanpur at a distance of 12 miles from Parlakimedi that evening with Rs. 6/-. (Rs. 4) to purchase medicine for her father and finding that the shop from which she used to purchase medicine closed, she intended to go to evening show picture, after which she was forcibly taken to a mango tope in a rickshaw and ravished, does not inspire confidence in view of the subsequent developments in the case. Even before the committal Court and in the sessions Court she has given prevaricating statements which dub her to be an utterly unreliable witness who has no qualms of conscience. The learned Judge had endeavoured to find out some explanation to the drawbacks in the prosecution case and has finally convicted the Appellants on the theory that consent or no-consent, the victim girl, (p.w. 4) being a minor, the Appellants must be found guilty. 6. True, the approach of the learned Judge is proper; but it has to be seen whether the prosecution has been able to prove that p.w. 4 is a girl below 18. For that, as will be discussed hereafter, the learned Judge has entirely based his judgment on the evidence of p.w. 3, that is, the doctor who. examined p.w. 4 on 5-8-1968. Mr. For that, as will be discussed hereafter, the learned Judge has entirely based his judgment on the evidence of p.w. 3, that is, the doctor who. examined p.w. 4 on 5-8-1968. Mr. Rath, appearing on behalf of the Appellants contends that the learned Sessions Judge has misplaced the onus and a reading of his judgment will leave an impression as though the learned Judge felt that it was the duty of the Appellants to establish that p.w. 4 was beyond 18 years. 7. The father of p.w. 4 is available but he has not been examined. The learned Judge explains this away by saying that as a rustic man he is not expected to know about his own age far less the age of his daughter. There is no birth register produced to clinch the issue regarding the date of birth of p.w. 4. None of her relations has been examined in that respect. p.ws. 7 and 8 who are busti people of p.w. 4, put the age of p.w. 4 beyond 20. p.w. 8 who himself is 18 years old, as per his statement as p.w. 4 in the committing Court, stated thus: I belong to Narayanpur. I know p.w. 1 (p.w. 4 in the Sessions Court) who is my villager. p.w. 1 has attained puberty for more than five years. p.w. 1 is aged 20 years. P.W. 7 was examined as P.W. 5 in the committing Court and was himself 18 years old. In cross examination he stated before the committing Court: p.w. 1 is older to. me by five years My house and that of p.w. 1 are in one Sahi. p.w. 1 was matured since 8 to 10 years back. The evidence of the alleged victim girl p.w. 4 in the committing Court is that she was born in the year the Britishers left India. She was being examined in the year 1968. So according to her, she would be 20 years old. In the F.I.R. she had stated that she had attained puberty for the last 4 months which in view of other evidence in the case is a black lie. The lady doctor (not examined) who examined her on 31.7.1968 estimated her age to be 17/18. So according to her, she would be 20 years old. In the F.I.R. she had stated that she had attained puberty for the last 4 months which in view of other evidence in the case is a black lie. The lady doctor (not examined) who examined her on 31.7.1968 estimated her age to be 17/18. The estimation of the committing Court regarding the age as found from the deposition sheet of the alleged victim girl is 18 years whereas the learned Sessions Judge puts it at 15 years. p.w. 4 stated that the lady doctor of Parlakimedi demanded bribe from her and therefore she has given a distorted report as she failed to oblige her. This part of her story is equally false. She admits to have stated this demand of bribe only to her father and none else. Therefore, the statement of the I.O. that the lady doctor demanded bribe from p.w. 4 falls through. The learned Judge, as has been stated before, has come to a finding about the age of p.w. 4 to be below 18 basing on the statement of p.w. 3 who held ossification test. In that context the learned Judge stated thus: After necessary detailed ossification test, the p.w. 3 came to the conclusion that the age of the girl must be more than 14 years and less than 16 year. The learned Advocate, appearing on behalf of the accused persons, simply challenged the opinion of the p.w. 3, evidently basing on the ossification test, asserting that the same would disclose the age of the p.w. 4 even above 17, that is, not below 18. The p.w. 3 very clearly and candidly told me the results of various tests, showing the age of the p.w. 4 in all tests, except in one, to be below 16. In the case of the ossification test for the left shoulder, he however claimed that there was indication that the girl was below 17 years. He correctly differed from various findings, mentioned in the Modi?s Medical Jurisprudence, he himself having written a thesis on this aspect, so as to secure on that basis his M.D. Degree. The p.w. 3 on the basis of his own thesis admitted that the eruption of the edge-ends of the 3rd molar tooth is 18 to 27 years, thus not erupting below 18 years of age. The p.w. 3 on the basis of his own thesis admitted that the eruption of the edge-ends of the 3rd molar tooth is 18 to 27 years, thus not erupting below 18 years of age. Of course, according to him, these four third molars grow one after another the first one develops at the age of 18, the second one thereafter, just to be completed by the age of 27. This would not however help the accused persons, since the p.w. 3, an authority on the subject, could know the process of teething, so as to consider the p.w. 4 to be below 16 years of age. It would appear from the evidence of this doctor (p.w. 3) that there was sufficient space after the second molar and the space was of the breadth of little finger. From this it would follow that the time for eruption of the third molar had become ripe, and that is a very significant factor which should weigh while determining the age of any body. But that seems to have been lost sight of. So far as ossification teat is concerned, we have before us only the findings of p.w. 3 but not the materials on which these findings are based, namely, X-Ray photos or plates. There is no explanation as to why they were Dot produced. The result is the Court is in dark as to whether the opinion given is in conformity with what appeared in the X-ray prints. That apart a medical evidence on age cannot be of mathematical precision and it is all the more risky to convict somebody solely on the basis of medical evidence which is likely to vary. Even authorities on the subject clearly say that whatever table is given is only an average in the nature of approximation but not mathematical exactitude. If of course there is a yawning gap, say something between 13 or above 18, medical evidence can be relied upon to say that it is not beyond 18. But in border line cases, as the present one, it would not be proper to solely rely on the medical evidence regarding the age. If of course there is a yawning gap, say something between 13 or above 18, medical evidence can be relied upon to say that it is not beyond 18. But in border line cases, as the present one, it would not be proper to solely rely on the medical evidence regarding the age. The table given in Modi?s Medical Jurisprudence regarding age on ossification teat supports thus: x x x an opinion should be given according to the following table; but it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owning to the eccentricities of development. (For table see pp. 33 to 36 of Modi?s Medical Jurisprudence 13th Edition). Even p.w. 3 minimises the age of p.w. 4 which does not accord with Modi and the learned Judge explains this away saying: But as already said, I have taken the p.w. 3 to be an authority on the subject, so as to accept the sum total of his findings that the p.w. 4 was below 16. The table given in Modi?s Jurisprudence regarding the age even differs from that given in Taylor?s. Be that as it may, it is not worthwhile to discuss that is view of my positive finding that at the worst it can be taken to be a border line case on which if it cannot be said with precision the actual age, no conviction should lie. At least it is none of the duties of the defence to establish that p.w. 4 was above 18. The entire onus lay squarely on the prosecution. In the absence of materials discussed above, the irresistible conclusion is that the might be a girl beyond 18 and, therefore, the benefit thereof the Appellant are entitled to get and much more so when p.w. 4 appears to be quite a world-wide woman capable of taking care of herself who can afford to toy with the lives of youngmen. 8. In the result, therefore, I would accept this appeal set aside the order of conviction and sentence, and acquit the Appellants. They are to be released from their bail bonds. Appeal allowed.