JUDGMENT 1. - This appeal is directed against the judgment dated April 29, 1974, passed by the Sessions Judge, Jhunjhunu, whereby the appellant was convicted under sections 363 and 376 I. P. C. and sentenced to rigorous imprisonment for two years on each count. 2. The case of the prosecution which resulted in the conviction and sentence of the appellant as aforementioned is that on the night between October 19 and 20, 1973, the appellant secured his entry into the residential house of the prosecutrix through a window by removing an iron bar from the said window and that he woke up the prosecutrix from her bed and took her away on the threat that otherwise he would kill her. It is alleged that he kept her confined in his own quarter that night and raped her the following day. She was recovered from his house by the Police on October 20, 1973 at about 4 p.m. 3. It has come in evidence that there was some previous liaison between the prosecutrix and the appellant. The father of the prosecutrix namely PW Gopal Ram produced the appellants Photograph Article 1/1 which had been recovered by him from the box of the prosecutrix. It appears that the prosecutrix and the appellant were in correspondence with each other for quite some time before the occurrence. Though she denied this fact in her deposition in the trial, she had admitted before the committing court that she had been writing letters to the appellant. The Investigating Officer has testified that it was not possible for a man to enter the room of the prosecutrix or go out of it through the gap in the window effected by the alleged removal of one of the iron bars from it. The prosecutrix admitted in her testimony that besides her two sisters were also sleeping in the same room from which she is alleged to have been taken away by the appellant. In the circumstances, it is difficult, if not impossible, to believe that the appellant had committed house breaking by night and taken away the prosecutrix from her room in the manner alleged by the prosecution. On the other hand, it is more likely that the prosecutrix herself escaped from her house during the night and went to the appellant's house. 4. On the other hand, it is more likely that the prosecutrix herself escaped from her house during the night and went to the appellant's house. 4. The learned trial Judge has found and rightly so in my opinion that the appellant had had sexual intercourse with the prosecutrix with her consent. The learned public Prosecutor does not question this finding. He has, however, contended that the Prosecution has proved beyond any doubt that the age of the prosecutrix at the material time was below 16 and that, therefore, whether she was a consenting party or not is wholly immaterial from the stand point of the prosecution. I have carefully examined the incidence on the question of age and I am of opinion that it would not be safe to record a finding on its basis that the prosecutrix was below 16 at the relevant time. The prosecutrix admittedly went to school for 11 years and did her matriculation. Under the circumstances it was expected of the prosecution to place on the record documentary evidence regarding her age. If for one reason or the other, her birth certificate was not available to the prosecution, it could have quite easily produced the school certificate in that behalf. The father of the prosecutrix, who has now given evidence that she was born in the year 1959 must have given her date of birth to the school authorities at the time of getting her admitted in the school. The date of birth as given by the father at that time would have been very important and reliable evidence as to the age of the prosecutrix. The non-production of such material evidence must raise an inference adverse to the prosecution. 5. Dr. D. Chanana, who has given the age of the prosecutrix as being below 16 at the relevant time, formed this opinion on the basis of clinical examination. He of course, referred to the skiagrams prepared by Dr. M. P. Gupta, who has not been examined as a witness in this case. Much reliance cannot, therefore, be placed on the evidence of Dr. Chanana on the question of age. 6. The conclusion is, therefore, inescapable that the prosecution has failed to prove beyond doubt that the age of the prosocutrix at the material time was below 16. The charge of rape must, therefore, fail. 7. Much reliance cannot, therefore, be placed on the evidence of Dr. Chanana on the question of age. 6. The conclusion is, therefore, inescapable that the prosecution has failed to prove beyond doubt that the age of the prosocutrix at the material time was below 16. The charge of rape must, therefore, fail. 7. For all these reasons, I allow this appeal, set aside the order of conviction and sentence of the appellant and instead acquit him. He is already on bail. His bail bonds are hereby discharged.Appeal allowed. *******