M. D. BHATT, J. ( 1 ) THIS is the appeal of the accused Mangilal, who has been convicted and sentenced be the trial Court as under; 363 I. P. C. One years RI. 366 I. P. C. Two years RI. 376 I. P. C. Three years R. I. ( 2 ) THE appellant-accused Mangilal and two others Jagdish and Kashiram had, all, been prosecuted under sections 363 and 366, Indian Penal Code and apart from this, the appellant accused Mangilal had also been prosecuted under section 376, Indian Penal Code, with the prosecution story briefly being as under: Prosecutrix Prembal, an unmarried girl, aged about 13 years, was staying, at the relevant time, with her parents in village Jaitapur Khurd. In the early hours of the night of 12. 3. 1982, she had gone to Harisinghs house for celebrating Phaguwa; and thereafter, she did not return home on that night and for several days thereafter, till she was brought home by his father, from Police Station on 24. 3. 1982. The appellant-accused and the two co-accused, were stated to have caught hold of Prembai on her return from Phaguwa, when she was sitting outside, for urine, after gagging her mouth. She was, at first, taken to river side and then was taken, on foot, to Harsud railway Station. From Harsud, the appellant-accused. In the company of Prembai, went by train to Khndwa; while the other two co-culprits Jagdish and Kashiram went away from Harsud railway station after the appellant-accused and Prembai had borded the train. The appellant-accused and Prembai both moved around in the town of Khandwa, stayed for the whole night at the railway station Khandwa; and thereafter, both together came by bus to Rajoor where Prembai was kept at Ramprasads house and where she was subjected to sexual intercourse by the appellant accused. From Rajoor both came together to Village Kotha and stayed at the house of Nanthu Singh Kotwar, where also forcible intercourse was done. The Village Patel, learning of the presence of these two persons, arranged to send them both to Police Station Baldi, from where the prosecutrix Mst. Prem Bais father Mangilal (name of the appellant accused is also Mangilal) brought back his daughter to his home. The appellant-accused and the prosecutrix both, were medically examined with respect to their respective injuries. The Village Patel, learning of the presence of these two persons, arranged to send them both to Police Station Baldi, from where the prosecutrix Mst. Prem Bais father Mangilal (name of the appellant accused is also Mangilal) brought back his daughter to his home. The appellant-accused and the prosecutrix both, were medically examined with respect to their respective injuries. For determining the age of the prosecutrix, on the strength of appearance and fusion of some of the epiphyses, the prosecutrix was also X-rayed. During investigation, some material was also collected regarding her date of birth from the register of births and deaths, maintained at the Police Station. After due investigation, the appellant-accused and two others, on being put up for trial, abjured the guilt. The trial Court, relying on the entry (Ex. P-16) in the register of births and deaths, duly corroborated by the Radiologists report (Ex. P. 20), further supported by the statements of the prosecutrix father P. W. 2 Mangilal and some other witnesses; held that the prosecutrix date of birth was 26. 5. 1969; and as such, at the relevant time of the incident, the prosecutrix was not above the age of 14 years. The trial Court further held that the prosecutrix was a willing and consenting party for moving in the company of the appellant-accused and for the sexual intercourse committed with her by the appellant-accused. But, since the prosecutrix was a minor for purposes of all the offences in question, consent and willingness were held to be of no help and accordingly. the appellant accused was convicted and sentenced to the extent as stated at the outset, although the co-culprits Jagdish and Kashiram had been released on probation of good conduct under section 4 of the Probation of Offenders Act in the matter of the commission of the offences under sections 363 and 366, Indian Penal Code because of their limited role in the kidnapping in question. Hence, now, the accused Mangi Lals appeal. Hence, now, the accused Mangi Lals appeal. ( 3 ) SHRI Dutt, learned counsel for the appellant-accused, while not challenging the trial Courts finding that the prosecutrix had moved in the company of the appellant-accused for about 12 days and was also subjected to sexual intercourse by the appellant-accused, has advanced the solitary argument that the age of the prosecutrix Prembai is not proved to be below 14 years, as held by the trial Court, on the strength of the medical evidence, coupled with the entry in the register of births and deaths. Shri Dutt has urged in this connection that P. W. 14 Dr. Vishnoi had wrongly relied on the particular table applicable to Bengalis as given in Modis Text-book of Medical Jurisprudence and Toxicology (19th Ed. ). It is also stated that the medical evidence regarding the age, on the basis of ossification test, is never conclusive, as bas been stated in the said Text-book itself and so also in several decisions of this Court and of the Supreme Court. Entry ill the birth register, which is stated to be relied on by the trial Court, is urged to be inadmissible under section 35 of the Evidence Act, inasmuch as, the person making the entry, had not proved the said entry. ( 4 ) TRIAL Courts Judgment and evidence on record, scrutinized in the light of the arguments pressed. It may, at first, be stated that there is more than sufficient clinching evidence to establish beyond and shadow of doubt that the appellant accused and his co-accused persons, had taken the prosecutrix Prembai on the night of 12. 3. 1982 from her village Jaitapur Khurd, to Harsud railway station, wherefrom, the. two co-accused persons had come back, but the appellant-accused, thereafter, had gone in the company of Prembai, to various places, for a period of about 12 days, by motor bus and by train; and both had stayed together, at different places, where the appellant-accused had committed sexual intercourse with the prosecutrix Prembai. The trial Court has amply discussed the incriminating evidence in this regard and it is needless to reiterate the same, inasmuch as, the trial Courts finding in this regard, has not been challenged. The trial Court has amply discussed the incriminating evidence in this regard and it is needless to reiterate the same, inasmuch as, the trial Courts finding in this regard, has not been challenged. It is also established, as has been held by the trial Court, that the prosecutrix was a willing and consenting party for moving in the company of the appellant-accused and so also a willing and consenting party for commission of sexual intercourse committed with her by the appellant accused. The trial Courts finding in this regard, being also not challenged, it is needless to discuss over again the incriminating facts and the reasoning in this regard. Suffice to say, that, had not the prosecutrix Prembai been a willing and consenting party for her sojourn with the appellant-accused at different places and for her sex affairs with the appellant accused, she would have positively complained to passengers in the bus and in the train and also, to various other persons in different villages where she had stayed in certain houses and where she had equally worked as a labourer in the fields. Hence, now, the only material question for determination is the age of the prosecutrix. If she is found above 16 years, then, the offence under section 376, Indian Penal Code will not be sustained because of consent and willingness. Then again, if she is found to be above 18 years of age, the other offences under sections 303 and 366. Indian Penal Code would equally not be sustained. If, however, she is found to be below the prescribed age, the appellant-accused would obviously be held guilty for the offences in question, since consent and willingness of the minor in that case, would be of no consideration. ( 5 ) THE first proof regarding the age, which the trial Court has relied on, is Ex. P. 16, the copy of the entry in the birth register, produced by P. W. 12 Vimal Singh Ghouhan, Head copyist of the office of the Collectorate, Khandwa. He bad brought the original register from the custody of the Record Keeper. He bas admitted that in the registers of births and deaths, which are deposited with the Record Keeper of the Collectorate, are the ones which are maintained in the respective Police Stations in the District. He bad brought the original register from the custody of the Record Keeper. He bas admitted that in the registers of births and deaths, which are deposited with the Record Keeper of the Collectorate, are the ones which are maintained in the respective Police Stations in the District. It is to be remembered that he has not produced the Kotwari register regarding births and deaths but he has only produced the birth register maintained at the Police Station, Khandwa. It, therefore, follows that the entry in this register, maintained at Khandwa Police Station, must have been made on some basis, more probably on the basis of the entry in the Kotwars register of births and deaths. P. W. 17 Kotwar Mangilal has thrown light in this regard. He has stated that on the strength of the Kotwari Register, entries are made in the register of births and deaths, of the Police Station, by the Police Officer concerned. According to this Kotwar, he had deposited his Kotwari register at the Police Station, Khandwa. He bas admitted that he himself had not made the entry in the Kotwari register but he had got this entry made by village Patel Chunnilal. In the first place, the entry in the Kotwari register has not been proved. Furthermore, the entry in the register of births and deaths, maintained at the Police Station, is also not proved by any Police Officer and even if it would have been proved, it would have served no useful purpose, because that entry would have been the one, made by someone else, other than the village Kotwar; and in such a case, even the entry in the Kotwari register, would have been inadmissible in evidence, being not covered under section 35 of the Evidence Act, as held in Brijmohan Singh v. Priya Bhatt1. Therefore, the entry regarding the date of birth, as mentioned in EK. P. 16 is irrelevant and is inadmissible in evidence. The trial Court, therefore, was wrong in placing reliance on the same. ( 6 ) THE other basis on which the trial Court has relied on for determining the age, is the medical evidence of P. W. 14 Dr. Vishnoi, who, after to king the X-ray of some of the epiphyses of Mrs. Premhai, has opined, vide his report Ex. The trial Court, therefore, was wrong in placing reliance on the same. ( 6 ) THE other basis on which the trial Court has relied on for determining the age, is the medical evidence of P. W. 14 Dr. Vishnoi, who, after to king the X-ray of some of the epiphyses of Mrs. Premhai, has opined, vide his report Ex. P. 20, that the prosecutrix age at the relevant time, was above 12 years and below 14 years, in the light of appearance and fusion of some of the epiphyses, when determined in the light of the table applicable to Bengalis as given at pages 33 to 36 of Modis Medical Jurisprudence and Toxicolony (lgth Ed. of 1975 ). By applying the Bengali table, Dr. Vishnoi has made the following findings regarding the appearance; and fusion of certain epiphyses: 4. Epiphyses for the Acromion process have appeard but not fused. (Appearance 12 to 14 years) Fusion 1. Epiphyses for the tip of caracoid process have appeared. (10 to 11 years 2. Epiphyses for the lateral epicondyle have fused (10 to 12 years) 3. Epiphyses for the Oleecranon process have appeared. (9 to 12 years) (13 to 16 years) ( 7 ) I have scrutinized the Radiologists report in the matter of examination of 7 epiphyses of Prembai regarding whom the Radiologist had considered a, to what epiphyses had appeared and what epiphyses had, though appeared, but had fused or not fused. The age of appearance and fusion of epiphyses is found to be given in the light of the particular chart applicable to Bengalis. The prosecutrix is found to be the relevant of Khurai Tahsil in Sagar District, which comparatively is nearer to Uttar Pradesh rather than the other States of India, i. e. Bengal or any other State. The chart, as applicable to UP. is either bank and deficient, in the matter of appearance and fusion of many epiphyses; and therefore, the chart applicable to Bengalis alone, appears to be reasonably available for determining the ago with possible variations. There is slight variation in the charts of other States as given in Modis table. The chart, as applicable to UP. is either bank and deficient, in the matter of appearance and fusion of many epiphyses; and therefore, the chart applicable to Bengalis alone, appears to be reasonably available for determining the ago with possible variations. There is slight variation in the charts of other States as given in Modis table. Even according to Bengali table for females, fusion of acromion takes place in between the ages of 13 to 16 years and the fusion of first metacorporal bone takes place in between the ages of 14 to 15 years; but in the case of Prembai, there was no fusion of these epiphyses. Modi, in his Text-book Modis Medical Jurisprudence and Toxicology (19/5 Ed.), has observed at pages 31 and 32 that recent work has shown that the range of error is upto three years on either side. It has also been held in Jaymala v. Home Secretary Govt. of Jammu and Kashmir2, that the margin of error in age as curtained by Radiological examination, is two years on either side. Therefore, in the matter of radiological examination for determining the age, there is no scope, but to give a margin of error of 2 years at least, on either side. Providing this margin in the matter of fusion of acromion and the fusion of first metacorporal bone as given by Dr. Vishnoi, on the strength of Bengali table applicable to females, possibility cannot be ruled out that the prosecutrix at the relevant time, may well be above 16 years of age. Benefit of situation obviously has to be given in favour of the accused. Therefore, after giving margin of error on plus side, the prosecutrix has to be treated above 18 years of age, on the strength of ossification test. The age, being thus above 18 years, and she being the consenting party, both in the matter of sexual Intercourse and also in the matter of moving about in the company of the appellant-accused the offence under section 376, Indian Penal Code as well as the offences under sections 363 and 366, Indian Penal Code, are not possible to be made out conclusively against the appellant accused; and as such he deserves to be acquitted, by giving him the benefit of doubt in the attending situation regarding the doubt in age. ( 8 ) IN the result, thus, the accuseds appeal is allowed. ( 8 ) IN the result, thus, the accuseds appeal is allowed. Setting aside the order of convic and sentences as passed against him under sections 376, 363 and 366, Indian Penal Code, he be and is acquitted of the said offences; and as such, his bail- bonds are discharged. In view of such acquittal, the other two co-accused persons, who on their convictions under sections 363 and 366, Indian Penal Code, have been released on probation of good conduct and who actually have not preferred any appeal are equally acquitted of these particular offences; and as such, bonds furnished by them under section 4 of the Probation of Offenders Act, are equally discharged. .