D. H. SHUKLA, J. ( 1 ) THE Appellant State of Gujarat is aggrieved by the acquittal judgment of the respondent-accused Babu @ Roni Manilal rendered by the learned Additional Sessions Judge Bhavnagar in Sessions Case No. 102 of 1984 acquitting the respondent-accused of the charges under secs. 363 366 and 376 of the Indian Penal Code. ( 2 ) THE facts shortly stated are that the prosecutrix Bai Minakshi daughter of Maganlal Bhikhabhai of village Rajpara had gone on 9 at about 4-00 p. m. to the dispensary of Dr. Patel for being treated for fever diarrhoea and vomit. She was accompanied by her sister Jyotsna. However Jyotsna returned alone and told her mother Parvatiben that Minakshiben the prosecutrix was admitted in the hospital and she had asked her to convey that her father should go to look after her health the next day. Therefore Parvatiben on the next day went to Dr. Patels dispensary at Talaja to inquire after Minakshiben but Dr. Patel told her that he had administered injection to Minakshiben and had allowed her to go she was not admitted in the hospital. Thereafter Parvatiben inquired at other dispensaries. She then informed the Police Station that her daughter had gone away to some place. The information was given at the Police Station by Parvati on 10 In that it was not stated that she was kidnapped but that she had run away to some unknown place. On 12-7-1984 Parvatiben gave a second complaint at the Talaja Police Station to the effect that her servant Babu who was working in her lodge had enticed her daughter Minakshiben away with a view to having sexual intercourse with her. Parvatibens husband Maganlal came to know that she had gone to village Mandal in Viramgam taluka. Police then investigated the complaint. With the rest of the details as regards investigation we are not very much concerned in this judgment. ( 3 ) MR. M. A. Bukhari the learned Additional Public Prosecutor took us through the evidence in the matter and particularly the evidence of Dr. Patel P. W Exh. 7. Dr. Jayshriben (P. W. 4 Exh. 9) Dr. Mahendrakumar Prabhudas (P. W. 5. Exh. 25 ). Dr. Nareshbhai Amrutlal (P. W. II Exh. ( 3 ) MR. M. A. Bukhari the learned Additional Public Prosecutor took us through the evidence in the matter and particularly the evidence of Dr. Patel P. W Exh. 7. Dr. Jayshriben (P. W. 4 Exh. 9) Dr. Mahendrakumar Prabhudas (P. W. 5. Exh. 25 ). Dr. Nareshbhai Amrutlal (P. W. II Exh. 28) who proved an entry in the school register as well as an entry in the Vahalipatrak as well as the evidence of Maganlal Bhikhabhai father of the prosecutrix P. W. 12 Exh. 31 and Parvatiben Maganlal P. W. 6 Exh. 18. He also read out the relevant portions of the judgment of the trial Court. ( 4 ) ON the careful scrutiny of the evidence before us we are of the view that the learned trial Judge has reached a correct conclusion in acquitting the accused of the charges which were levelled against him. This being an acquittal judgment we would indeed be slow to interfere with the judgment of the trial Court even if on some of the minor aspects we had not agreed with the trial Judge. In this case however we are of the view that the reasoning of the trial Judge for the acquittal of the accused is sound inasmuch as it is based on evidence and the inference drawn by him from the evidence is also unimpeachable. Since we are agreeing with the trial Judges we do not propose to set out in our judgment the same reasoning to come to the same conclusion to which the trial Judge did. We only propose to bring out the basic infirmity in the prosecution case which alone would go to show than the rest of the judgment of the trial Court does not need any further discussion. ( 5 ) IT is trite to observe that in the charges under secs. 363 366 and 376 of the Indian Penal Code the age of the prosecutrix is very important. If there is any reasonable doubt about the age of the prosecutrix the prosecution case must necessarily fail. In the present case the trial Judge has entertained a reasonable doubt about the prosecution having proved the prosecutrixs age to be below 18 for the purpose of the offence of kidnapping and below 16 for the purpose of considering her consent for the offence under sec. 376 of the Indian Penal Code. In the present case the trial Judge has entertained a reasonable doubt about the prosecution having proved the prosecutrixs age to be below 18 for the purpose of the offence of kidnapping and below 16 for the purpose of considering her consent for the offence under sec. 376 of the Indian Penal Code. On reading the relevant evidence we have reached the conclusion that the hesitation of the trial Judge is quite understandable in fact he is perfectly justified in hesitating to accept the evidence led by the prosecution to prove the age of the prosecutrix. This being a basic element to prove the charges of offences under secs. 363 366 and 376 of the Indian Penal Code we shall discuss this aspect of the matter at a little length. ( 6 ) THE prosecution has examined Dr. Jayshriben Anopchand Medical Officer Bhavnagar in regard to the question of the age of the prosecutrix. She is P. W. 2 Exh. 9. She has stated that she had examined the prosecutrix on 16-7-1984 at 3-45 p. m. She has stated that Lady Police Constable Savitaben Dave had taken the prosecutrix to her along with a Yadi. It is pertinent to note that the same Yadi with which the Lady Constable had taken the prosecutrix to Dr. Jayshriben is not on record. The trial Judge had exhibited the Police Yadi at Exh. 10. We have perused that Yadi but it cannot be the same Yadi with which the prosecutrix was taken to Jayshriben since Exh. 10 is later in point of time and was in regard to a demand of certificate of age by the Police Sub-Inspector Talaja Police Station. There is no satisfactory explanation as to why the same Police Yadi is not produced. It would be appropriate at this stage to observe that we wanted to peruse the original Yadi with which she was taken to Dr. Jayshriben for several reasons. On inquiry Mr. Bukhari told us that the police had recovered the prosecutrix on 14-7-1984. If that is so we fail to understand as to why he prosecutrix was taken to Dr. It would be appropriate at this stage to observe that we wanted to peruse the original Yadi with which she was taken to Dr. Jayshriben for several reasons. On inquiry Mr. Bukhari told us that the police had recovered the prosecutrix on 14-7-1984. If that is so we fail to understand as to why he prosecutrix was taken to Dr. Jayshriben as late as on 16-7-1984 police should certainly have realised that delay in the first examination of the prosecutrix and of the accused if available in a case of rape would damage the prosecution case since certain important evidence is likely to disappear by the passage of time and on account of the changing of clothes taking bath etc. Further the medical evidence at Exh. 11 which is a certificate issued by Dr. Jayshriben contains the name of the patient as Jamnaben Maganlal and not Minaben Maganlal. Exh. 12 is a certificate as to age given by the Medical Officer Sir T. Hospital and G. M. H. Bhavnagar which also originally contained the name of the patient as Jamnaben which is later on corrected to read as Mina Maganlal. The consistent mention of the name of the patient as Jamnaben Maganlal instead of Minaben Maganlal put us on our guard to ascertain whether this was a bona fide mistake or whether there was some mischief committed to concoct a false case against the accused. Of course Dr. Jayshriben stated that she had written the name Jamnaben because Minaben had given her name as Jamnaben. But that explanation is not convincing. Again there is no evidence as to who corrected the name Jamnaben to read as Minaben and no question is asked to Dr. Jayshriben as to whether that name was corrected by her in Exh 12. It was for these reasons that we inquired from Mr. Bukhari as to whether the Yadi with which the prosecutrix was sent to Dr. Jayshriben was on record. Mr. Bukhari tells us that it is not on record. We had a hunch that there is something fishy in the prosecution evidence and therefore we examined the evidence regarding the X-ray of the prosecutrix which was taken for the purpose of having radiological evidence to ascertain her age Dr. Jayshriben has stated in her examination-in-chief that she had given her age to have been between 14 to 16 years in her certificate (Exh. Jayshriben has stated in her examination-in-chief that she had given her age to have been between 14 to 16 years in her certificate (Exh. 12) on the basis of the information of the radiologist which was to the effect that Minaban was below 16 years of age. Clearly therefore the evidence of Dr. Jayshriben as regards the age of the prosecutrix is not her own opinion reached after proper examination of the prosecutrix but it is based on opinion of the radiologist. The radiologist who had ascertained the age is Mahendrakumar P. Mehta (Exh. 25 ). Since the evidence of Dr. Jayshriben as regards the age of the prosecutrix is not based on her own opinion it was necessary to read the evidence of witness Mahendrakumar P. Mehta carefully. Witness Mehta is an Hon. Radiologist and is employed as such in Sir T. Hospital and is also doing private practice as a Radiologist. Beyond that we do not get his qualifications. We inquired from Mr. Bukhari whether he could guide us as to whether we can gather qualifications of witness Mehta from anywhere from the record of the case. He could not give us any assistance since it appears that there is nothing to show as to what were the qualifications of witness Mehta. We are not sure whether a mere Radiologist who has no medical qualification can opine as to the age of a person who has been radiologically examined for the ascertainment of age. Witness Mehta has stated that the X-ray photograph of Jamnaben (i. e. the Prosecutrix) was sent to him on 17-7-1984. That was an X-ray photograph taken by the Technician Ashokbhai Chauhan on 16-7-1984. In our view it was necessary under the circumstances of the case to have examined Ashokbhai Chauhan who actually took the X-ray since in order to prove the X-ray he alone would be a competent witness. Ashokbhai Chauhan is not examined Before seeing the X-ray photograph and opining about the age of the prosecutrix witness Mehta should have ascertained as to whether it was really the X-ray photograph of the prosecutrix. There is no evidence whatever to show as to what steps did he take to ascertain the identity of the X-ray photograph. Without such an identity the reading of an X-ray photograph is meaningless since from mere X-ray photograph identity of the person can never be established. There is no evidence whatever to show as to what steps did he take to ascertain the identity of the X-ray photograph. Without such an identity the reading of an X-ray photograph is meaningless since from mere X-ray photograph identity of the person can never be established. In our opinion the ideal course for the prosecution ought to have been to examine Ashokbhai Chauhan who took the X-ray photograph of the prosecutrix and to identify the same before witness Mehta who was to opine about the age on the basis of the X-ray photograph. Mr. Bukhari pointed out to us that the name of Jamnaben is to be found on the X-ray photograph. Now in the first place Jamnaben is not the correct name of the prosecutrix. Secondly we do not know who wrote the name Jamnaben on the X-ray photograph and there is no basis to inter that it was written by Technician Ashokbhai Chauhan unless his handwritings are satisfactorily identified and thirdly we do not know at what point of time it was written and whether it was on the X-ray photograph before witness Mehta read the X-ray photograph to ascertain the ate of the prosecutrix. Mr. Bukhari submitted that the date and the name are written on the X-ray photograph. True but who wrote the name and wheel was it written ? Is it not possible that the same has been inserted later after witness Mehta had read the X-ray photograph ? Therefore the best thing for the prosecution was to examine Ashokbhai Chauhan who would have stated on oath regarding the identity of the X-ray photograph and as to when it was taken by him as well as the fact that he had brought all these facts to the knowledge of witness Mehta. It may appear that our approach on the question of identification of the X-ray photograph is little over-minute or academic but it has got to be so when the age is a material ingredient to be proved to bring home the serious charges of kidnapping and rape against the accused and all the mere so when the other evidence on the question is extremely weak and the prosecution is sought to be based on such technical and expert evidence. Further Mehta has not stated his opinion about the age of the prosecutrix in his own handwritings but he says he had dictated his opinion in the Medical Officer. We fail to understand as to how a Medical officer is required to take down the dictation of the radiologist but that apart we have read the details about the opinion of witness Mehta at Exh. 11 the writing of which has been signed by one H. K Parekh. Now this Parekh is again not examined. Parekh must have been examined to say on oath that he had taken down he opinion dictated by the Radiologist as per his dictation. The Radiologist Mehta has not stated his qualifications in his examination-in-chief and his answers in the cross-examination in this regard shows him in a weak manner. He has deposed in his cross-examination that he had drawn inference on the basis of a book. He does not name any book whatsoever. He states that be had read many books on the subject and many recent journals. But he has been able to name none. A suggestion was directly made to him that he had given a false report although the age of take of prosecutrix was over 18 years. He of course has denied the suggestion but from the evidences on record we are not satisfied that the persecution has led a cogent medical evidence to prove the age on the prosecutrix apart from the fact that even when the cogent medical evidence is read the inference regarding age can be drawn with certain approximations varying between 2 years either way. It would be safe to read such an evidence in the light of other evidence regarding age such at the School Leaving Certificate entry in the birth register of a Municipality or a Panchayat or a vaccination certificate or some such other dependable evidence. In this case the reliance is sought to be made primarily on medical evidence and secondly on an entry in the School Leaving Certificate. There is no evidence regarding the birth date either from the Municipality or from the Panchayat at or from the office administering vaccinations to the new-born children Since we were not satisfied about the medical evidence regarding age of the prosecutrix we tried to ascertain the age of the prosecutrix from the school leaving certificate. There is no evidence regarding the birth date either from the Municipality or from the Panchayat at or from the office administering vaccinations to the new-born children Since we were not satisfied about the medical evidence regarding age of the prosecutrix we tried to ascertain the age of the prosecutrix from the school leaving certificate. The prosecution has examined Nareshbhai Bhatt (P. W. 11 Exh. 28) to prove the entry of the birth-date in the school register. Nareshbhai Bhatt has produced the school register at Exh. 29 the school leaving register at Exh. 30 and the Vahalipatrak Register at Exh. 32. The evidence of Nareshbhai is not required to be scanned any further since his evidence is confined to production and proof of these school records. In the school register an entry at Exh. 158 discloses that the prosecutrix was born on 5-2-1971 and that this entry was recorded in the school register on 11-6-1981. In order to verify these correctness of the entry in the school register we are required to fall back upon the evidence of the father of the prosecutrix which is at EX. 31. The prosecutrixs father Maganlal Bhikhabhai has deposed that the prosecutrix was born in the village Tarapur on 5-2-1971. He remembered this date when he caused an entry to lee made is the school register about 10 years after the birth of the prosecutrix on the basis of a note alias Chhiti. The clear implication is that but for the Chhiti he would not have remembered the date. He has not been able to produce the same Chhiti on an alleged ground that it was lost in a hurricane. It is not his say that he was keeping such a note or the birth of his other children. The story about the note having been lost in a hurricane is also difficult to swallow. The trial Judge has disbelieved the ingenious excuse of the loss of the note and in our view rightly. The evidence of the prosecutrixs father regarding the date of the birth is also not convincing. We therefore read the evidence of prosecutrixs another Parvatiben Maganlal (P. W. 6 Exh. 18 ). Her evidence does not throw any further light. She has admitted that the birth-date of the prosecutrix was not entered either in the municipality or in the Gram Panchayat. We therefore read the evidence of prosecutrixs another Parvatiben Maganlal (P. W. 6 Exh. 18 ). Her evidence does not throw any further light. She has admitted that the birth-date of the prosecutrix was not entered either in the municipality or in the Gram Panchayat. She has stated that the prosecutrix was born on 5-2- 71 but it is difficult to believe that she remembers the date of the birth of the prosecutrix without any documentary assistance. ( 7 ) UNDER the circumstances the hesitation of the trial Justice in not accepting the alleged birth-date of the prosecutrix at its face value appears to us to be quite reasonable. He has discussed his hesitation in paragraphs 25 and 95 of the judgment we have perused this reasoning. The reasoning is acceptable and needs no repetition in our judgment. ( 8 ) SINCE the age of the prosecutrix is in doubt the foundation of the prosecution-case against the accused is shaken. ( 9 ) THE trial Judge has discussed the order aspects of the case in his judgment: the aspects as regards the kidnapping from the lawful guardianship of the parents the intention to commit illegal cohabitation with her and compelling the prosecutrix to an illegal sexual intercourse. For brevity sake we do not repeat the same discussion in our judgment. Suffice it to observe that we do not find any infirmity in his reasoning which would call for an interference in the acquittal judgment at our hands. We have borne in mind the cardinal principle of evaluating an acquittal judgment as has been laid down repeatedly by the Supreme Court. The Supreme Court has observed in the case of Solanki Chimanbhai Ukabhai v. State of Gujarat AIR 1983 Supreme Court 484 as under:the appellate Court while dealing with an appeal against the order of acquittal has full power to review at large the evidence on which the order of acquittal is founded and to reach a conclusion that upon such evidence the order of acquittal should be reversed. However in exercising that power the appellate Court should give proper weight and consideration to the following matters (1) the views of the trial Judge as the credibility of the witnesses (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at the trial (3) the right of the accused to the benefit of any doubt and (4) the slowness of the appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses which finding would not certainly be disturbed if two reasonable conclusions can be reached on the basis of the evidence on record. We have followed the guidelines provided by the Supreme Court in appreciating the acquittal judgment. ( 10 ) IN the result therefore we confirm the acquittal judgment rendered by the trial Judge and dismiss this appeal. We understand that the accused is in the custody since he could not furnish a bailbond of Rs. 5 0 and not even Rs. 2 0 to which later on the amount was reduced as we are given to understand by Mr. S. G. Uppal the learned advocate for the respondent. The respondent-accused is directed to be set at liberty forthwith if he is not required to be detained in connection with any other offence. Appeal dismissed .