JUDGMENT - W.M. SAMBRE, J.:---Appellant/accused is challenging his conviction under section 376 of Indian Penal Code sentencing him to suffer rigorous imprisonment for eight years and to pay a fine of Rs. 10,000/-, in default rigorous imprisonment for 1½ years, vide order dated 19-5-1989 passed by the 8th Assistant Sessions Judge, Nagpur, in Sessions Case No. 37 of 1989. 2. Appellant's main contention is that he has been implicated merely on the evidence of interested witnesses. Moreover the complaint lodged by the villagers wherein it has been alleged that the prosecutrix and her mother are of bad character has not been properly investigated. It has also been contended that the sexual intercourse committed by the accused was with the consent of the prosecutrix who was a major girl of above 16 years age. It has been further contended that even the medical report shows that the prosecutrix was more than 17 years of age. 3. Facts of the case are that the prosecutrix Jijabai (P.W. 2) is resident of village Khapari (Barokar) in Katol tahsil of district Nagpur. Appellant/accused is the son of the Police Patil of the same village. The appellant/accused used to visit the house of the prosecutrix invariably. He also used to engage the prosecutrix as a labourer in his filed. The accused and the prosecutrix developed illicit relations and they used to have sexual intercourse in the river bed which resulted in the pregnancy of the prosecutrix from the appellant. It is further alleged that the accused had assured the prosecutrix to marry her and on this assurance the prosecutrix allowed the accused to have sexual intercourse with her. When the prosecutrix informed the fact of pregnancy to the accused, he refused to marry her and on the other hand he lodged a complaint with the police about her and her mother's bad character. It is stated that this complaint was lodged by near about 30 villagers. This complaint was investigated by the police and it was found that the said complaint is having no substance. It was also revealed that this complaint has been deliberately lodged to malign the status of the prosecutrix and her mother. Therefore on this report , which proved to be a false one, police lodged the F.I.R. vide Ex. 24. This complaint was investigated by the police and it was found that the said complaint is having no substance. It was also revealed that this complaint has been deliberately lodged to malign the status of the prosecutrix and her mother. Therefore on this report , which proved to be a false one, police lodged the F.I.R. vide Ex. 24. After completing the due investigation, the charge-sheet came to be filed against the accused in the Court of J.M.F.C. Katol, who committed the case of the accused to the Court of Sessions, Nagpur, for trial. 4. Charge under section 376 of Indian Penal Code was framed against the accused which was read over and explained to him and he pleaded not guilty to the same. In all eight witnesses were examined on behalf of the prosecution. Gunwant (P.W. 1) the Head Master of Khapri Primary School, has produced the school register. Gunwant (P.W. 1) has stated that as per the school record the date of birth of prosecutrix Jija is 12-3-1972. This witness has also stated that the father of the prosecutrix has stated the date of birth of Jija as 12-3-1972 on affidavit. The certificate regarding date of birth of Jijabai issued by the Head Master Gunwant (P.W. 1) is at Ex. 12. 5. Prosecutrix Jijabai (P.W. 2) has stated in her evidence that she was engaged by the accused as a labourer in his field and he used to have sexual intercourse with her in the river bed on the assurance that he would marry her. She further stated that he and the accused belong to same caste and, therefore, on the assurance given by the accused she allowed him to have sexual intercourse with her. As regards the complaint lodged by the villagers against her and her mother, the prosecutrix stated that the said report is false for the reason that the father of the accused, who is the Police Patil, and his elder brother Vasant have manipulated the said complaint with a definite intention that she and her mother would leave the village and the accused, who had assured to marry her, will be relieved of marrying this prosecutrix. 6. The prosecutrix has also stated that the accused used to visit her house frequently. She has stated before police that the accused had sexual intercourse with her in her house also on various occasions. 6. The prosecutrix has also stated that the accused used to visit her house frequently. She has stated before police that the accused had sexual intercourse with her in her house also on various occasions. In her evidence before the Court she stated that the accused is still unmarried. She also stated that she did not lodge any complaint against the accused with the police because he had assured to marry her. Even after the child was born on Diwali day, no complaint was lodged against the accused. The police proceeded against the accused on the basis of the false report lodged by the elder brother of the accused as regards the character of the prosecutrix and her mother. The prosecutrix stated that her age is below 16 years. 7. Saraswatibai (P.W. 3), the mother of the prosecutrix, has stated that the age of the prosecutrix is 16 years. She further stated that the accused used to visit her house since childhood. She also stated that the prosecutrix used to work as agricultural labourer in the field of the accused. She further stated that when the prosecutrix was pregnant of four months she asked the accused to marry. Even after pregnancy the accused continued to visit her house and expressed his desire to terminate the pregnancy and asked for Rs. 200/- for that purpose from her to which she replied that she is ready to pay the amount for marriage and not for termination of pregnancy. This witness has further stated that in order to save the skin of the accused, his elder brother lodged a false complaint against her and the prosecutrix which was investigated by police and the said report was held to be false one. She further stated that the accused had personally told her to marry the prosecutrix and therefore no report was lodged against him. On the date of evidence she stated that the prosecutrix has a male child of 1½ years from the accused. In the cross-examination this witness has stated that the accused used to visit her house since childhood. She further stated that she was knowing the relationship of accused and prosecutrix from the beginning as accused had assured that he will marry prosecutrix Jijabai and, therefore, there was no question of giving any report to police. In the cross-examination this witness has stated that the accused used to visit her house since childhood. She further stated that she was knowing the relationship of accused and prosecutrix from the beginning as accused had assured that he will marry prosecutrix Jijabai and, therefore, there was no question of giving any report to police. In the cross-examination this witness has denied the suggestion that Jija was having connections with some other persons. 8. Champatrao Dobale (P.W. 4) is the father of the prosecutrix Jijabai. He has narrated the same story. He has also stated that a false report has been lodged against his wife and daughter Jijabai. To avoid the marriage of Jija with the accused, a false report came to be filed against his wife and daughter. This witness has denied the suggestion that the accused was not visiting his house nor the prosecutrix was working as labour in the field of the accused. 9. Sheikh Ismail (P.W. 5), the police constable B. No. 776, has stated that he investigated into the report lodged by the brother of the accused against the prosecutrix and her mother and it was found to be a false one. This witness has also stated that he verified the birth date of Jijabai from the school record and submitted the said birth date of Jija to the P.S.I. 10. Dr. Sham Khandalkar (P.W. 6) has stated that he examined prosecutrix Jijabai who was brought by police constable Ganu for determination of her age. On examination he found that the patient was carrying fifth month's pregnancy. This witness has stated that no definite opinion about the age of the patient can be given and, therefore, the patient was asked to take expert's opinion. 11. Narendra Dhike (P.W. 7), who is a lecturer in Radiology at Indira Gandhi Medical College, Nagpur, has stated that on reading the X-ray plates of prosecutrix Jijabai taken for the purposes of ossification test, he was of the opinion that the Bony age of the prosecutrix was between 14 to 16 years. In cross-examination this witness has stated that the last molar erupts between 16 to 23 years. As per the table given in 1988 Edition of Modi's jurisprudence, this witness has stated that, the 3rd molar or wisdom tooth erupts between 17 to 25 years of age. In cross-examination this witness has stated that the last molar erupts between 16 to 23 years. As per the table given in 1988 Edition of Modi's jurisprudence, this witness has stated that, the 3rd molar or wisdom tooth erupts between 17 to 25 years of age. On the basis of this table, this witness has stated that the age of the prosecutrix can be 17 to 25 years. He has further stated that the ossification depends on distary conditions, climatic, geographical and economic conditions. Ossification of bones differ in period taking into consideration the above facts in different countries and different states. He also stated that the age could exceed 16 years on the date of examination. He also stated that in this case also the age could exceed 16 by one or 1½ years considering the 1st X-ray of last molar. Thus from the evidence of this witness it is clear that ossification test is not a surer test for determination of age and there is a margin of 1 or 1½ years on either side. Therefore, the conclusion arrived at by the learned Court below regarding the age of the prosecutrix on the basis of evidence of this witness, cannot be said to be a conclusive proof. 12. Venkat Salunke (P.W. 8) is the Investigating Officer. He has stated that the record of Gram Panchayat prior to 1976 has been deposited in the Panchayat Samiti. He stated that he had asked the Panchayat Samiti to provide the birth date of prosecutrix Jija but no information was supplied by the Panchayat Samiti. This witness further stated that he came to know that the record prior to 1976 has been destroyed but the Panchayat Samiti did not give in writing to that effect. Therefore, in the absence of evidence about birth date of prosecutrix, the conclusion arrived at by the learned Court below on the basis of ossification test and the entries in school record, in our view, appears to be doubtful. It has been submitted by the learned Counsel for the appellant that the appellant/accused has married the prosecutrix and they are residing together. 13. It has been submitted by the learned Counsel for the appellant that the appellant/accused has married the prosecutrix and they are residing together. 13. Apart from the fact that the prosecutrix and the accused have married and are staying together and that certain property has been transferred by the accused in the name of the prosecutrix, considering the evidence of Gunwant (P.W. 1), Narendra (P.W. 7) and Venkat (P.W. 8), the age of the prosecutrix in our view could not be determined and, therefore, the accused is entitled for the benefit of doubt. 14. In view of the above discussion and looking to the facts and circumstances of the case, we acquit the accused by giving him benefit of doubt. The conviction of the accused for the offence punishable under section 376 of Indian Penal Code awarded by the learned Court below sentencing him to suffer rigorous imprisonment for eight years and to pay a fine of Rs. 10,000/-, in default rigorous imprisonment for 1½ years, is hereby quashed and set aside. The appeal is allowed. The bail-bonds of the accused shall stand cancelled. Appeal allowed.