M. D. BHATT. J. ( 1 ) THIS is the appeal of the accused Kripal who, on his conviction under section 376 IPC, bas been sentenced to six months RI. ( 2 ) INCIDENT is of the after-noon of 24. 3. 82. The prosecutrix Mst. Baiganbai was an unmarried girl. On the date of the incident at the relevant time, the appellant-accused was alleged to have entered the prosecutrix house while she was all alone and committed sexual intercourse with her. P. W. 9 Bastaram was stated to have seen both the appellants-accused and the victim actually in the act of sexual intercourse and bad brought the appellant out of the house in a naked condition. Report was lodged. Investigation followed and as per the investigation, the prosecutrix was stated to be below 16 years of age. The appellant-accused, on being prosecuted, claimed to be falsely implicated. ( 3 ) THE trial Court, after elaborately considering the evidence on the prosecution side, held that the appellant-accused had committed sexual intercourse with the prosecutrix Baiganbai with her consent, under prior mutual arrangement. However, the trial Court, relying on the entry in the register of births, maintained by the police station concerned and kept in the Collectorate, held the prosecutrix to be below 16 years of age. Consent being thus ruled out, the appellant-accused was convicted under section 376 IPC. In the matter of sentence, lenient view was taken because of the consent and he was sentenced only to six months RI. Hence, now, the present appeal. ( 4 ) DURING the course of arguments, the learned Panel Lawyer, appearing for the respondent-State, on the strength of evidence on record and the trial Courts finding, has candidly conceded that the sexual intercourse between the appellant- accused and the prosecutrix Mst. Baiganbai was a case of clear mutual consent. In view of this, the appellants learned counsel has pressed the solitary point that the trial Courts finding regarding the prosecutrix age, as being below 16 years of age, is erroneous, since the entry in the register of births is not clinchingly reliable when judged in the light of the medical evidence. ( 5 ) I have scrutinized the evidence on record. It may, at first, be stated that there is more than sufficient evidence on record on the prosecution side to clearly establish that the prosecutrix; Mst. ( 5 ) I have scrutinized the evidence on record. It may, at first, be stated that there is more than sufficient evidence on record on the prosecution side to clearly establish that the prosecutrix; Mst. Baiganbai was a consenting party to the commission of intercourse with her by the appellant accused. There is also oral evidence of some witnesses to show that the prosecutrix was a girl of loose character. Medical evidence too points out to this fact, inasmuch as, P. W. 1 Dr. Mrs. Sambhare, who had examined this girl, has opined that there were old scars of the torn hymen, clearly indicating that the prosecutrix Baiganbai was well used to sexual intercourse from before. It is in the fitness of things that the respondents learned counsel viz. Panel Lawyer Shri Namdeo did not challenge the trial Courts finding regarding consent. ( 6 ) THE only question that survives for determination, is whether the prosecutrix, at the relevant time of the incident, was below 16 years of age. The trial Court, for determining the age of prosecutrix Mst. Baiganbai, has solely relied on the evidence of Court witness P. W. 1 Banote, a clerk in the Collectorate, who has proved the entry in the register of births and deaths of the police station Lalburre which was deposited in the Collectorate by the said police station, as has been discussed in para 17 of the trial Courts Judgment. Copy of this entry is Ex. P. B, wherein the date of birth is shown to be 25. 9. 67, leading to the fact that on the date of the incident, i. e. on 24. 3. 82. Mst. Baiganbai was about 14 years and 6 months of age. Disagreeing with the trial Court, it may, at first, be stated that Ex. P-13 is not properly proved and entry in this register of the P. S. Lalburra must obviously have been made by some police officer of the police station. The entry is not found to have been proved by any such police officer. Then again, this register of births and deaths, maintained by the police station, as would be apparent from Banotes evidence, is maintained on the strength of entries in the village Kotwars book which the Kotwar regularly produces at the police station. The entry is not found to have been proved by any such police officer. Then again, this register of births and deaths, maintained by the police station, as would be apparent from Banotes evidence, is maintained on the strength of entries in the village Kotwars book which the Kotwar regularly produces at the police station. Kotwari book is not available and therefore the basis for the entry in the register of the police station is without any proof and even the entry in the police register is without proof, inasmuch as, there is no one to depose as to who had made the entry in the said register and after seeing what particular records whether of the village Kotwar or of anybody else. Therefore, Ex. P-13 has to be ruled out from consideration and more so in the circumstance that the medical evidence is not in keeping with the entry in Ex. P-B. P. W. 1 Dr. Mrs. Sambhare, on observing the external symptoms of the girl Baiganbai, had opined that she was a healthy girl, with breasts, well developed and so also the genitals. She has although not determined her aged but has stated in her report Ex. P-17 that this girl was aged about 17 years. However, P. W. 2 Dr. Mehta, on ossification test (Exs. P-3 and P-4), is found to opine that the girl Baiganbai was definitely above 15 years of age. This demolishes the entry in Ex. P-13, Dr. Mehta, on ossification test, has finally held that this girl was aged in between 15 to 16 years. This medical evidence of the Radiologistcum-Assistant Surgeon Dr. Mehta is comparatively more cogent and the possibility cannot be ruled out that Mst. Baiganbai may well be above 16 years of age. Therefore, disagreeing with the trial Court, I hold that there is no cogent and clinching proof regarding Mst. Baiganbai as being below 16 years of age. Giving the benefit in this regard, Mst Baiganbai bas to be treated as a girl above. 16 years of age, with well developed body and habituated to sexual intercourse from before. Trial Courts finding regarding consent being already there, the appellant-accused cannot be held guilty of the offence in question, in face of the circumstance that this girl, above 16 years of age, was the consenting party. ( 7 ) IN the result, thus, the accuseds appeal is allowed. Trial Courts finding regarding consent being already there, the appellant-accused cannot be held guilty of the offence in question, in face of the circumstance that this girl, above 16 years of age, was the consenting party. ( 7 ) IN the result, thus, the accuseds appeal is allowed. Setting aside the order of conviction and sentence as passed by the trial Court, it is ordered that the appellant-accused be and is acquitted of the offence punishable under section 376, IPC and his bail-bonds are, hence, discharged. Appeal allowed. .