JUDGMENT V.P. Mathur, J. - These two appeals arise out of the same judgment dated December 3, 1981 passed by Sri K.C. Agarwal. the then land Additional Sessions Judge, Bahraich in S.T. No. 339 of 1979 Smt. Neelam Devi has been convicted under Section 366 of the I.P.C. and sentenced to five years' rigorous imprisonment and also under Section 372, I.P.C. and sentenced to seven years' rigorous imprisonment. Appellant Nanhey Lal has been convicted under Section 366, I.P.C. and sentenced to five years' rigorous imprisonment. Appellants Radhey Shyam and Ghanshyam both have been convicted under Sections 366 and 376 of the I.P.C. and sentenced to five years' and seven years' rigorous imprisonment respectively. All the sentences of each of the accused appellants have been made concurrent. Since the appellants have been convicted in the same crime, they have been heard together and this judgment shall govern both the criminal appeals. The original judgment shall be placed on the record of Criminal Appeal No. 884 of 1981. 2. The prosecution story is that on March 8, 1973 at about 7 in the morning Smt. Neelam Devi and her husband Nanhey went to the house of Mst. Lakhpata. She was preparing cow dung cakes with the assistance of her 14 years' aged daughter Km. Dhandei. The two accused persons had an intention to kidnap this girl with a view to compel her to illicit intercourse. Therefore, on the pretext of taking her to their house for some work, they took her and ultimately from March 8, 1973 to July 22, 1973 this girl Dhandei was subjected to rape by Ghanshyam and Radhey Shyam and by four other persons. It is said that Smt. Neelam Devi first took this girl on the pretext of bringing rice to village-Mohraniya. From there she was taken in a Ekka to Ratnapur. At that time she was seen going by some residents of the village including Pheran (P.W. 4). Ultimately she was taken to Bahraich by bus on the pretext that sh will be given bangles and dhoti. In Bahraich Smt. Neelam Devi told her that she had no money and therefore, she will have to first arrange for the money and through another bus these persons came to Nanpara. The girl was taken to the house of Radhey Shyam and Ghanshyam who are real brothers where she was locked up in a Kothari. In Bahraich Smt. Neelam Devi told her that she had no money and therefore, she will have to first arrange for the money and through another bus these persons came to Nanpara. The girl was taken to the house of Radhey Shyam and Ghanshyam who are real brothers where she was locked up in a Kothari. There she was subjected to sexual intercourse by both the brothers all along for a period of 2 months and was kept confined. Thereafter she was taken to Nanpara Bazar where Nanha Saran met them and all the three came to Naipalganj where she was kept at the house of Nanha Saran for 15 days and raped by him. Then she was taken by Smt. Neelam Devi back to Nanpara and kept at the house of Radhey Shyam and Ghanshyam where the same story was repeated. She was taken by a train to Balrampur where she was handed over to Agyaram of village Paprahan. Agyaram also committed rape upon her and told her that she had been purchased by him for a sum of Rs. 1,000. In this manner she lived with him for a month. She was ultimately brought back to the house of Radhey Shyam and Ghanshyam where she was kept for 4 or 5 days. She was under constant threat. On July 22, 1973 at about 7 in the morning while she sitting out side the house on a Charpoy with Ghanshyam, her brother Gulai (P.W. 3) and cousin Gurprasad along with 4 or 6 other persons saw her. They were in search of her. She raised the cry and was rescued and along with Ghanshyam was taken to the Police Station Nanpara. Then she was medically examined and the case started. 3. After hearing the arguments on both the sides, and after going through the record of the case, it is patent and clear that Nanhey has been wrongly convicted and sentenced and that no case was made out against him. The Statements of Dhandei and her mother only show that Nanhey Lal had accompanied his wife to the house of the prosecutrix but had not played any part in taking her to his house. Moreover, even if this story is believed that she was taken by these two persons to their house. The Statements of Dhandei and her mother only show that Nanhey Lal had accompanied his wife to the house of the prosecutrix but had not played any part in taking her to his house. Moreover, even if this story is believed that she was taken by these two persons to their house. She was taken for specific purpose of doing some odd, jobs, and it is the testimony of the girl that at their house these two persons made her to do odd job for about one hour. Therefore she was not initially taken deceitfully. She was taken with the consent of her mother who is her guardian. Even if it is believed that she was a minor, up to this stage there was no case under Sections 363 or 366, I.P.C. Thereafter, even according to the prosecution story Nanhey Lal did not play any part. It means therefore that Nanhey was wrongly convicted and sentenced and the order of the learned Sessions Judge, so far as he is concerned, can not be upheld. 4. Then let us consider the entire prosecution version. The most important point for consideration in this case would be about the age of this girl. According to the first information report she was about 10 years of age at the time when she was taken allegedly by Nanhey Lal and his wife Smt. Neelam Devi. The oral evidence on the record consists of the statements of the prosecutrix and her mother only, and the learned Additional Sessions Judge has very rightly discarded these testimonies as of no avail, because they are contradictory and they do not lead us to any conclusion. According to the prosecutrix herself, her age at the time of the incident was 10 to 12 years. During cross-examination she was unable to give out the year, month and date of her birth, she admitted that she has two brothers, one of whom is elder to her and the other is younger and she also said that her assessment of her age was based upon what her mother toil her. So far as Lakhpata (P.W. 2) is concerned, she says that the age of Dhandei at the time of the incident was about 7 or 8 years. She was unable to tell about the year, month and date of the birth of this girl. So far as Lakhpata (P.W. 2) is concerned, she says that the age of Dhandei at the time of the incident was about 7 or 8 years. She was unable to tell about the year, month and date of the birth of this girl. The elder brother of Dhandei is Gulai and according to Lakhpata, Dhandei is the youngest issue. This is against the testimony of Dhandei who says that she has a }younger brother also. 5. The learned Additional Sessions Judge placed reliance upon Kutumb Register Ext. Ka-9 in which the age of Dhandei is shown to be 12 years. This copy from the Kutumb Register was issued on May 18, 1973 and the learned Judge is of the view that the age of the girl should he reckoned on that date. This is a very wrong way of approach to the problem. The entries were not made on May 28, 1973 and therefore they will relate back to the time when these entries were made and for this no evidence has been brought on the record. Moreover the entries on the Kutumb Register regarding the age of a person cannot be deemed to be conclusive for the purposes of a criminal charge like one under Sections 363, 366 and 376, I.P.C. Positive and definite evidence in this respect has to be adduced. 6. Lastly we come to the medical examination report. The girl was subjected to pacification test. Ext. Ka-12 is the report of Dr. Veera Srivastava (P.W. 8) and according to the data given in this certificate she was between 10 to 14 years of age at the tin, of this examination. The Radiologist who submitted the report of the X-ray on the basis of X-ray plate, is dead. But when Dr. Srivastava entered the witness box, she was asked to see the X-ray plate and she; gave out that the epiphysis of the upper ends of radius and ulna had fused in this case. If this statement is taken to be correct and there is no reason why it should not be, the age of girt would be between 16 and 19 years. If this statement is taken to be correct and there is no reason why it should not be, the age of girt would be between 16 and 19 years. In Modi's Medical Jurisprudence and 'Txicology, it has been mentioned that th3 fusion of the head of radius takes place in Uttar Pradesh so far as females are concerned, at the age of 16 years and the fusion of the distal end of ulna takes price between the ages of 18 and 19 years. The learned Additional Sessions Judge has discarded the testimony of Dr. Veera Srivastava in this respect holding that she was not a radiologist. That may be true but even Dr. Mittal who prepared the report on the basis of the X-ray plate, has been shown to be a mere M.B.B.S. and not a radiologist by the Technician who was examined in this case. Even otherwise also when this sort of a doubt had crept in the evidence on the record, it was the duty of the prosecution to have examined some other trained radiologist to show the X-ray plate to him and obtain his report on the record. This has not been done. The basic concept of criminal law is that the accused is to he considered to be innocent unless proved guilty, and therefore there can he no presumption against him on the basis of deficient or insufficient evidence. On the contrary the presumption will be in his favour. 7. A consideration of all this evidence on the record regarding the age of the girl, would, therefore, show that there was no definite proof of the fact that on the date of this occurrence the prosecutrix of this case was a minor below 18 years of age. This being so, the very basis of the charge will go off and it conviction on the basis of this deficient evidence can neither he returned tinder Sections 363 and 366 I.P.C. nor tinder Section 376 and 368, I.P.C. 8. The evidence shows that the girl was allegedly taken from place to place by various modes of transport namely on foot, in an Ekka. through buses and also by train. The evidence shows that the girl was allegedly taken from place to place by various modes of transport namely on foot, in an Ekka. through buses and also by train. It is also shown that every time when she was taken out of Nanpara she was kept at different places for a few days at a stretch and then brought back to Nanpara to the house of the accused Ghanshyam and Radhey Shyam. It is also contended bat at every place wherever she was kept she was subjected to rape. It is however very strange that inspite of the fact that every thing was taking place without her consent, as is alleged, she never raised any alarm and never tried to attract people, whom she might have definitely accosted during her shifting from place to place. Buses and trains run crowded. Even Ekkas run through congested localities at times. At different houses this girl was allegedly kept and except for the tact that at the house of Radhey Shyam and Ghanshyam as she alleges she was kept locked in Kothari, it is not her testimony that at every place she was similarly kept. Except Radhey Shyam and Ghanshyam no body-else threat ended her. It is really very strange that inspite of all this when she had an opportunity to attract people and seek their help, she remained silent all along and did not obtain any body's help against her forcible confinement. It appears to me that the whole story is unbelievable. It may be that this girl left her mother's place and was ultimately recovered from Nanpara. Real and true circumstances in which all this had happened have not been brought on the record. The evidence that has been adduced is unreliable Dhandei herself is not a truthful witness and on her tesitmony therefore it will not be safe, fair and proper to return the verdict of guilt against the accused persons. It is also very strange that although Pheran had seen this girl going with Smt. Neelam Devi, he did not report the matter to her parents the same day and even the next day, although he had learnt that the parents were in search of their daughter who had sadder vanished. It is also very strange that although Pheran had seen this girl going with Smt. Neelam Devi, he did not report the matter to her parents the same day and even the next day, although he had learnt that the parents were in search of their daughter who had sadder vanished. It is also very strange again that although Gulai learnt that his sister was at the house of Radhey Shyarn and Ghanshyam is Nanpara he did not take the police force there and did not obtain their assistance but preferred Io go along with his own cousin brother to make the recovery. It also shows that things had happened in some other way. The girl who was a major and definitely not a minor on the date of the occurrence was a consenting party all along. 9. Considering all the aspects of the matter and the circumstances of the case I do not find the charges under Sections 363 an 366, I.P.C. made out against either Nanhey Lal or Smt. Neelam Devi and the charges under Section 368 and 376, I.P.C. made out against either Nanhey Lal and Ghanshyam. I also not find Smt. Neelam Devi liable to conviction under Section 372. I.P.C. because there was no evidence to show that she sold this girl for an immoral purpose to anybody. The solitary testimony of the prosecutrix herself cannot be accepted in this respect. 10. In the result the appeals are allowed. The conviction and sentences p against the appellants are set aside. They are on bail. They need not surrender. Their, bail bonds and surety deeds are discharged.