JUDGMENT R. S. Thakur, J.—This appeal has been filed by the appellant Bittu alias Anand Singh (hereinafter called as the accused) against the order of conviction passed by the learned Sessions Judge, Solan, against him under section 376 of the Indian Penal Code on May 5, 1984, whereby he was sentenced to undergo rigorous imprisonment for a period of two years only. 2. The facts of the case, in brief, are that the accused alongwith another co-accused Babli alias Baldev Singh was tried by the learned Sessions Judge for offences under sections 363, 366 and 376 of the Indian Penal Code and the third co-accused Suresh Kumar was also charge sheeted tried for the offence under section 376 read with section 109 of the Indian Penal Code. 3. The allegations against the accused were that two girls named Kamla and Maya Wati were undergoing the training in the Sewing Centre at Subathu in March, 1983 where they used to go from their respective villages Ghan-ki-ser and Banyara, tehsil and District Solan. They used to go part of the way on foot up to a place known as Gambharpul for about 2 k. ms. from their houses where they used to live with their respective parents and from Gambharpul they used to go by bus to Subathu covering a distance of about 8 kms. On March 26, 1983, they came as usual from their parental houses to attend the centre at Subathu in the morning and at Gambharpul they boarded the bus along with a third trainee Kumari Balo, When the bus arrived at the bus-stand Subathu, they got down from the bus. Kumari Balo then went to the Sewing Centre whereas said Kamla and Maya Wati proceeded to the shop of a chemist one Khan at Subathu where Maya Wati wanted to purchase some medicine. Thereafter the two girls Kamla and Maya Wati decided to go to Solan to purchase medicine over there and thus boarded a bus from Subathu for Solan. On their arrival at tbe bus-stand Solan they met one Prem who was the conductor in the H. R. T. C. and hailed from the village of said Kamla. Said Prem then entertained them for tea and later on both these girls boarded another bus with a view to coming back home. On their arrival at tbe bus-stand Solan they met one Prem who was the conductor in the H. R. T. C. and hailed from the village of said Kamla. Said Prem then entertained them for tea and later on both these girls boarded another bus with a view to coming back home. When on their return journey they arrived at tbe bus-stand Subathu, the two accused Babli and Bittu met them at the bus-stand and told them that they should not go home as the police was in search of them and asked them to come with them to Solan so that they could bring about a compromise with the police over there. The two girls thus accompanied the two accused. When they walked part of the way and then took a lift in military truck to Solan. On arrival at the Solan bus-stand, the third accused Suresh Kumar met them who took them to the Khalsa Hotel where there the said Suresh entertained the two girls and the two accused at Lunch. Thereafter said Suresh Kumar booked two rooms for tbe said two accused and the two girls in the same hotel and he himself went away from there. The two accused and the two girls thus remained together thereafter and in the evening they went to see a picture FARZ AUR KANON* in the Laxmi Talkies, opposite the court building at Solan from 9 p. m. upto mid night. After seeing the picture the two accused and the two girls returned to Kbalsa Hotel and occupied the two rooms already booked which were adjacent to each other in the said hotel when Babli and Kamla shared one room and Bittu and Maya Wati the other one. 4. The prosecution story further goes that during the night the accused Babli and Bittu subjected said Kamla and Maya to forcible sexual intercourse respectively. In the morning Bittu lef them at the bus-stand when he boarded a bus for Nahan while the accused Babli, Kamla and Maya took the bus back to Gambharpul. Said Maya then went back home on March 27, 1983, whereas when their bus was at Subathu, said Kamla instead of going back home decided to go to the house of her mothers sister at Gurdaspur and thus boarded a bus which was going towards Kakla. Said Maya then went back home on March 27, 1983, whereas when their bus was at Subathu, said Kamla instead of going back home decided to go to the house of her mothers sister at Gurdaspur and thus boarded a bus which was going towards Kakla. At Kakla said Kamla however, changed her mind and instead of going further on to Gurdaspur she came back from Kakla by boarding a bus which was bound for Simla and got down from the said bus at Dharampur. At Dharampur the aforesaid Prem of her village again met her who made her to board a bus for Solan where she was kept in the house of a driver of his department who was staying with his family in village Mansar near Salogra. Next morning that driver again took her to Solan where said Prem again met her at the bus-stand and asked her to wait for him over there till he came back at about 5.30 p. m. Said Prem then took her to the quarter of one Kishan of his department and both said Kishan and Prem subjected her to sexual intercourse during the night. Next morning, that is, March 28, 1983, said Prem made her to board the bus which was going towards her village. While she was going in the bus to her house her uncle Jai Krishan met her at subathu who was going to Solan in connection with his personal work and she then again accopanied her uncle to Solan and that very day in the evening they both returned home. 5. Meanwhile, then said Kamla did not return home from the training centre, her mother sent her younger sister Sulochna to the house of her father (maternal grant father of Kamla) to find out whether she had gone there in village Haripur When said Sulochna found that said Kamla was not there, she went back home next day and reported to her mother accordingly. Later when said Kamla returned home, to the questioning of her mother as to where she was, said Kamla narrated the entire incident to her who in turn narrated the story to her husband Durga Ram, the father of Kamla. Later when said Kamla returned home, to the questioning of her mother as to where she was, said Kamla narrated the entire incident to her who in turn narrated the story to her husband Durga Ram, the father of Kamla. Incidently, just at that time the father of Kamla, that is, said Durga Ram met the s, H. O Shiv Ram, Incharge Police Station, Dharampur, and he thus made a statement with regard to the incident before the said S. H. O. under section 154, of the Criminal Procedure Code on the basis of which a case for the aforesaid offence was registered at the police station, Dharampur, and after investigation the accused were accordingly challanged and ultimately committed to the Court of Session to stand their trial for the aforesaid offences. 6, The learned Sessions Judge after the trial of the case vide the impugned judgment came to the finding on the basis of the evidence on the record that no case was made out against the accused Babli and Suresh Kumar and acquitted them. So far as the accused Bittu is concerned it was found by the learned Sessions Judge that since the prosecutrix qua him, that is, Maya Wati had voluntarily gone to Solan in the company of Kamla and the two accused, there was no question of any offence under section 363 and or 366,1. P. C. having been made out. As regards offence under section 376, I. P. C. the learned Sessions Judge held that though said Maya Wati was a willing party to sexual intercourse with the accused Bittu but since at the time of this sex act said Maya Wati was aged 15 years 10 months and 10 days, that is, below 16 years her consent was immaterial and tfce accused was still guilty of the offence under section 376 of the Indian Penal Code and convicted and sentenced him as stated earlier. Be it stated at the very out set that the sentence passed by the learned Sessions Judge to undergo two years imprisonment simpliciter is in violation of a statutory obligation which enjoins that the substantive sentence of imprisonment should necessarily be accompanied by fine. 7. Be it stated at the very out set that the sentence passed by the learned Sessions Judge to undergo two years imprisonment simpliciter is in violation of a statutory obligation which enjoins that the substantive sentence of imprisonment should necessarily be accompanied by fine. 7. Thus the short question that arises for the determination of this Court in this appeal is whether the finding of the learned Sessions Judge that Maya Wati was below 16 years on March 26, 1983, and as such even if she was a consenting party to the sexual intercourse with the accused, the same was of no consequence and the accused was liable to be convicted for the said offence is, is sustainable ? It is an admitted fact that not only the accused Babli and Bittu were known to the two prosecutrixes very well prior to the incident, as all belong to the same area, but they also knew the third accused Suresh Kumar who, though at that time was a resident of Solan, but was running wine shop at Gambharpul for quit some time prior to the date of incident and the two prosecutrixes while going to the Sewing Training Centre at Subathu used to wait for the bus every day at Gambharpul just opposite his wine-shop. In fact the accused Bittu and the prosecutrix Maya Wati belong to the same village. 8. Now the first important piece of evidence on the age of Maya Wati is the deposition of Dr. G. D. Khullar (PW 3), Radiologist, who has deposed that he had taken the Skiagram of said Maya Wati with regard to her shoulder, joint, elbow-joint, wrist joint, hip joint, knee joint and ankle joint at the instance of the police for the determination of her age and his finding was that her bony age was between 15 years to 17 years. 9. Then the statement of Dr. (Mrs.) Asha Maria (PW 12) who had medically examined Maya Wati on April 2, 1983, at the instance of the police, has deposed that her secondary sex characteristics were well developed inasmuch as her axillary hair growth was good and dark in colour, breasts were well developed including fatty tissues and nipple and also her public hair were well developed and dark in colour and free from any matting. Her hymen was found torn and old tear of hymen was found laterally on the right side of the vagin which admitted of two fingers easily and was stretchable and patulous and free from any bleeding, oedima or congestion or puss discharge or supermatozoa and according to her she was used to sexual intercourse. 10. Then Shri Lachhi Ram, teacher (PW 13) has deposed that the record of the school namely, Government School Banyara which is also the parental village of Maya Wati to which said Maya was admitted revealed that at the time of the admission the date of birth of Maya Wati was given as May 16,1967 and she was admitted in the said school at the instance of her mother, Smt. Vidya Devi. 11. The father of the prosecutrix Maya Wati Shri Hari Dass (PW 5), deposed before the court on March 13, 1984 that the age of said Maya Wati at the time of his deposition was 17 years who was the eldest of his four children. He has further deposed that when Maya Wati did not return home on the evening on March 26, 1983, he presumed that she had gone to her mothers sisters house in village Timli. On the next day he found her and the accused Babli getting down from the bus at Subathu at about 9 a. m. and to his query, said Maya Wati told him that she had gone to the house of her mothers sister in village Timli on the previous night and he came to know about the incident only six/seven days thereafter when the police came to his house. In cross-examination, he stated that Maya Wati was born in the military hospital at Merrut where he was posted at that time during the course of his military service. 12. It may be noted that the learned Sessions Judge, has discarded the finding of the Radiologist with regard to the bony age of the prosecutrix Maya Wati on the ground that the same was not based on any authority recognised by law or authoritative medical jurisprudence but on the basis of the data published by tbe two doctors. Dr. M. L. Aggarwal and Dr. I C, Pathak coupled with the fact that this is legally a weak type of evidence. Dr. M. L. Aggarwal and Dr. I C, Pathak coupled with the fact that this is legally a weak type of evidence. But he has heavily relied upon the record of Primary School Banyara where the date of birth of prosecutrix was recorded as 16-5-1967 at the time of her admission. I however, feel that the learned Sessions Judge has patently erred in placing so much reliance on this record No doubt this date of birth of Maya Wati as 16-5-1967 has been recorded in the Register of admission of the Primary School Banyara where said Maya Wati was first admitted and this date has also been affirmed by the father of the prosecutrix Shri Hari Dass, it is, however, clear from the evidence on record that Maya Wati was admitted in the said Primary School at the instance of her mother Vidya Devi and it was her mother Vidya Devi who had disclosed this date of birth of Maya Wati to the school authorities. Said Smt. Vidya Devi has, however, not stepped into the witness-box to support the fact that this date of birth was recorded at her instance when it could be ascertained from her through cross-examination as to how she remembered this date of birth of the prosecutrix or whether she produced any document to support this. The father of the prosecutrix has categorically stated that no horoscope with regard to the birth of Maya Wati has been prepared. Judicial notice can be taken of the fact that the registers of births and deaths are maintained by the concerned Panchayats which usually convey more reliable date of birth and death of an individual but no attempt has been made in the instant case by the prosecution to produce any such document on record It may be noted that according to the father of Maya Wati Shri Hari Dass, said Maya was born in the military Hospital at Merrut where he was posted at the time during the course of his military service. In these circumstances, the Investigating Agency would have found no difficulty whatsoever to have located the correct entry with regard to the date of birth of said Maya Wati from the record of the military Hospital at Merrut. But it appears that no attempt has been made by the prosecution in this behalf. In these circumstances, the Investigating Agency would have found no difficulty whatsoever to have located the correct entry with regard to the date of birth of said Maya Wati from the record of the military Hospital at Merrut. But it appears that no attempt has been made by the prosecution in this behalf. It is not unusual that in many of the cases the date of birth of a child is given at random while getting him/her admitted in the school for the first time without verying the date of birth from any authenticated record and thus no unreserved reliance can be placed on an entry of this nature unless it is verified that the same carried authenticity especially in the rural schools like the one in question where mostly uneducated parents bring their children to school for admission and give the dates of birth of their children/wards by approximation and the entry in question cannot be said to be an exception to this type of modus-operandi. 13. It is obvious that in a case like the one in hand the age of the prosecutrix becomes of utmost importence as the fate of the accused hangs on this slender thread, namely whether the age of the prosecutrix at the time of the incident was below 16 years and more especially in a marginal case of this nature where even according to the lower Court the age of the prosecetrix at the time of the incident was 15 years 10 months and 10 days, that is, only one month and 20 days short of the crucial 16 years. 14. The evidence on record, however, definitely creates a doubt in the mind of the court as to whether the prosecutrix Maya Wati was below 16 years of age at the time of the incident as held by the lower Court. The Radiologist on the basis of his observations with regard to the fusion of the epiphysis of various joints has given an opinion that on the basis thereof the age of the prosecutrix could be anywhere between 15 years and 17 years. Then in the case of the other prosecutrix Kamla, the finding of the Radiologist is that her bony age could be between 14: years and 16 years. Then in the case of the other prosecutrix Kamla, the finding of the Radiologist is that her bony age could be between 14: years and 16 years. The lower Court, however, his found that the age of said Kamla was somewhere between 19 years and 20 years, that is much above 16 years. Thus although according to the Radiologist Maya Wati was older than Kamla so far as their bony ages are concerned, according to the lower Court, the age of Maya Wati was proved to be only 15 years 10 months and 10 days and this congruity in the findings has crept up since the lower Court has relied solely upon the date of birth as recorded in the register of admission in the school, of Maya Wati. Then the finding of Dr Asha Maria is also relevant on this point since, according to her, the said Maya Wati was a fully grown up woman with all her secondary sex characteristics well developed as noted earlier and she was habituated to copulation. 15. It is apparent that the lower Court closed its eyes to a well recognized legal principle which runs through or criminal jurisprudence like a golden thread, viz., (a) that the accused is presumed to be innocent unless proved guilty ; (b) the proof of guilt in criminal cases is not based on mere preponderance of probabilities but it must be proved beyond a reasonable doubt and the court must be morally certain that the offence has been brought home to the accused beyond all reasonable doubt and in case a slight doubt arises in the mind of the Court with regard to the culpability of the accused, the benefit thereof must go to the accused and he is liable to be acquitted and (c) the burden of proving this guilt against the accused beyond all reasonable doubt always lies on the prosecution and it never shifts. In the instant case in view of the facts and the circumstances set out above, it becomes a doubtful proposition whether the age of Maya Wati was below 16 pears on the date of incident, that is, March 26, 1983, especially when her own father Hari Dass in the witness-box on 13-3-1984 has categorically deposed that on that date said Maya Wati was aged 17 years. 16. 16. Naturally the benefit of this doubt must go to the accused and he is liable to acquital. There is no doubt whatsoever that said Maya Wati had voulantarily gone with the accused to Solan to have good time with him and had not only enjoyed the movie with him but also sex and on return home she had intentionally and deliberately misled her parents while explaining her absence by a false statement that she had gone as a guest to the house of her mothers sister in village Timli. 17. In S. Varadaran v. State of Madras, AIR 1965 SC 942, the Supreme Court in a similar case had held that where the prosecutrix is not only a willing party to go with the accused but also plays an active part in going away with him then in that case even if her age falls a little short of her consenting age, no offence under section 363 of I. P. C. can be said to have been made out. The facts of this case have strong similarity and parity with the case in hand and as such it must be held that on the facts and in the circumstances of this case, no offence under section 376,1. P. C, can be said to have been proved against the accused. 18. In view of the above, the appeal is accepted, the order of the lower Court, dated May 5, 1984, is set aside and the accused is acquitted of the offence under section 376,1. P. C. and his bail and surety bonds stand discharged. Appeal allowed. -