JUDGMENT This appeal is directed against the judgment of conviction under section 376 (1), sentencing the appellant to R.I. for 2 years by the Addl. Sessions Judge, Panna. Facto shortly sk1ted are that on June 6,1988 prosecutrix Nathhi Bai (P.W. 1) had gone to the court-yard for tieing cattle along with one Anil Kumari. While returning back, she happened to meet the accused-appellant who caught hold her hand and carried her to the room where cattle were tied. Anil Kumari came running towards her house. Having carried the prosecutrix where cattle of the accused were tied, it is alleged that he committed rape on Nathhi Bai who has been trying to defend herself. While defending herself, Nathhi Bai's bangles were broken. When the accused- appellant was committing rape, it is stated by the prosecution that Sahodrabai (P.W. 3) sister-in-law of the prosecutrix came to the spot. On seeing Sahodrabai, the accused-appellant fled away from the place. Raghuraj Saran and Sukhendra (not examined though their names appeared in the challan) are said to have been the accused running from the spot. On reaching home, Nathhi Bai (P.W. 1) narrated the incident and a report (Ex. P-1) was lodged by her. She was sent for medical examination. The police registered the case under section 376, IPC and after due investigation, a challan was filed against the appellant. The appellant denied the charge. The material question in the instant case is as what was the age of the prosecutrix at the time of the alleged incident and whether sexual act was committed by the appellant with the consent of the prosecutrix. The consent of the prosecutrix would absolve the appellant when she is found to be above the age of 16 years. Admittedly, the prosecution has not filed any entry from the register of Births and Death. The prosecutrix was admitted to the school for studies. But to prove her age from the record, the prosecution has not examined any witness although a certificate based on the school record has been got exhibited through the prosecutrix herself as Ex. P-5. That document is of no help to the prosecution as it cannot be taken to be proved since no school record or any witness from the school was even produced by the prosecution. Further, the prosecutrix, though referred to the X-ray examination, has failed to prove the X-ray report. P-5. That document is of no help to the prosecution as it cannot be taken to be proved since no school record or any witness from the school was even produced by the prosecution. Further, the prosecutrix, though referred to the X-ray examination, has failed to prove the X-ray report. Therefore, there is no documentary support to oral testimony of the witnesses regarding the age of the prosecutrix. With regard to the ocular testimony on the point Nathhibai (P. W. 1) stated her age to be of 14 years on the date of her medical examination. P.W. 4 Hiralal has deposed that Nathhibai is about 14 years younger to him and on the date of his deposition, he stated his age to be of 28 years. The learned trial Judge has based its finding that the prosecutrix was below the age of 16 years on the above oral testimony and also on the circumstances as deposed by Sohodrabai (P.W. 3) that till the date of incident, the prosecutrix had no menses. On this circumstance, the learned trial Court proceeded to infer that menses generally start in the age from 14 years to 16 years. The prosecution has withheld that best evidence which was available to it to prove the age of the prosecutrix. It has not examined a rediologist, a member of school staff or produced the entry from the Births and Deaths Register. The prosecution has not even examined the doctor who examined the prosecutrix medically after the incident. In the circumstances, the presumption against the prosecution has to be raised that if the available evidence was produced, it would have proved the age of the prosecutrix to be above 16 years. In the above circumstances, the age of the prosecutrix cannot be held to be below 16 years only on the ocular evidence, when other documentary evidence was available to the prosecution and was not produced. Adverting to the next question whether the sexual act committed on the prosecutrix was with her consent, the version of Sahodrabai (P.W. 3), who could see the accused committing the sexual act, is material. According to the version of Nathhibai (P.W. 1) when Sahodrabai (P.W. 3) reached the spot, the accused-appellant was above her committing the sexual act. This version has not been corroborated by Sahodrabai. According to the version of Nathhibai (P.W. 1) when Sahodrabai (P.W. 3) reached the spot, the accused-appellant was above her committing the sexual act. This version has not been corroborated by Sahodrabai. But according to her statement (examination-in-chief para 2), Nathhibai was standing naked and her petti-coat was lying nearby. She has also stated that Nathhibai was trying to wrap up the saree. This witness in para 11 has further stated that Nathhibai was standing totally naked and on seeing her, she tried to wrap up the saree. Her petticoat was lying nearby and the blouse was open from which her breasts were visible. The prosecutrix has also stated in her examination-in-chief para 2 that the accused had undressed her totally. The prosecutrix has admitted in para 9 of her version that Nanhe, Rajmani, Govind Urmaliya have their house adjoining to the place where rape was committed on her by the accused, but none came to the spot though she was shouting for help. In para 13, she has admitted that when Sahodrabai (P.W. 3) reached the spot, she was totally naked and also when Sukhendra and Raghuraj Saran reached the spot. An young woman could not be made naked completely, against her consent, by one person, without her clothes being torn and buttons or hooks of blouse being detached. These circumstances sufficiently go to indicate that the prosecutrix was a consenting party to the sexual act. The prosecution has failed to prove even the prosecutrix had any external or internal injuries. As such from the version of Nathhibai (P.W. 1) and Sahodrabai (P.W. 3), it appears that the prosecutrix was a consenting party to the alleged sexual act. Since she has not been proved to be below the age of 16 years by the prosecution, the appellant-accused, in the circumstances, cannot be held guilty for the offence under section 376, IPC. For the foregoing reasons, the appeal succeeds and is allowed. Conviction and sentence of the appellant are set aside and he is acquitted of the charge. The appellant is in jail, he be set at liberty forthwith, if not required in connection with any other case.