Judgment Narinder Singh Rao and J JJ. 1. -pawan Kumar Mandal alias Pawan Mandal, the appellant, stands convicted under Sec.376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. He has also been sentenced to undergo imprisonment for one year under Sec.142 of the Indian Penal Code. His sentences have been ordered to run concurrently. Feeling aggrieved, he has preferred this appeal. 2. Prosecutrix Kalpana Kumar P W.1 is the daughter of Phoolo devi, P. W.3 and the letters daughter-in-law is Kavita Devi, P. W.2 Nou kumar, P W 5 is the brother, and Gangadbar P W.4, cousin of P. W.1 girish Bhawti P. W.7 is the prosecutrixs father All these P. Ws. and mukhia Bhavesh Chandra Mandal P W 6 are residents of Khagra, district-Sahebganj, to which village the appellant also belongs. 3. The prosecution version, in brief, is that on 26 4.1990, P W.1 had taken her cattle for grazing quite at some distance from the abadi of her village. There are situated fields of the appellant there, and he was working in his those fields. At about 3.00 P. M. , when P. W 1 had come to the rivulet to drink water, the appellant had interpreted her. After giving promise of marrying, the appellant had brought P. W.1 to the neighbouring village Shosha Joli in the house of Anil Murmu, now dead. In that house, the appellant had committed rape upon P W.1. While parting company of P. W.1 after locking her inside the house, the appellant had promised her about his return in the evening The appellant had arrived at that house at about 7 00 P. M. and thereafter had again committed rape upon p W.1. Subsequent thereto the appellant and P. W.1 and left village shosha Joli for their own village. The appellant had parted company of p. W.1 in the way She had arrived at her house at about 9.00 P M. , and found that her family members had been searching for her She had told them about the crime committed upon her by the appellant. The matter was reported to Mukhia (P. W.6) and he advised P W.7 to take his daughter P. W.1 to the Police Station. The matter was reported to Mukhia (P. W.6) and he advised P W.7 to take his daughter P. W.1 to the Police Station. On 27.4 90 at about 11 00 A M. P. W.1 arrived in police station Maheshpur alongwith many villagers, and lodged her FIR Ext.1 Investigations were carried out, and after completion of the same, the appellant was charge-sheeted. 4. Out of eleven witnesses examined by the prosecution, A. S. I. Satya Narain Singh P W.10 and A. S. I Ram Brich Prasad P W 11 had partly investigated the case. Munshi Hansdah P W 8 and Oudu Hembram p. W.9 had allegedly seen the appellant and P. W.1 going towards village shosha Joli in the afternoon of 26.4.1990. However, P. W 9 had turned hostile to the prosecution. P Ws 2 and 5 were tendered. The remaining had accompanied P W 1 to the police station. 5. The appellants, in their examination, had denied the prosecution allegations, and stated that he was innocent. He had denied having taken p W 1 any where far from wrongfully confining her. He had also denied indulging in sexual intercourse with her. No witness in defence was examined. 6. After hearing learned counsel for the parties, and going through the records, it is found that as the prosecution has foiled in proving its case beyond all shadows of reasonable court, to say the least, this appeal deserves to succeed. 7. In cases involving sexual offences the age of the prosecutrix is of vital importance. In the instant case neither P. W 3, nor P W 7 had said a word about the age of their daughter P. W.1. The latter herself is not sure about her age No birth certificate was produced Dr. Vedpati Prasad, who had read x-ray plates, had opined the age to be below 18 years. However, the radiologist, who had conducted X ray examination, was not examined. Even his report or X-ray plates were not produced It is thus anybodys guess as to it the girl, whose X-ray plates the doctor had read while opining the age, were that of P. W.1 Even otherwise, the age, determined by Ossification Test, had not shown P. W.1 to be less than 16 years. 8. Then as regard consent, the same is writ large on the fact of it. 8. Then as regard consent, the same is writ large on the fact of it. Assuming the prosecution version to be correct, P W.1, as it appears, voluntarily accompanied the appellant for enjoying his company. She admitted that she had not raised any halla either at the place, from where she was taken, or where she was kept in village Sosha Joli She admitted that there are neighbouring houses of that of Anil Mumur. She had not even raised cries, when the appellant had allegedly left her all by herself and returned late in the evening. Therefore, assuming, but not holding, that P. W.9 had seen the appellant and P W.1 going together towards Shosha Joli, no criminal liability can be fastened upon the appellant inasmuch as the prosecution having failed in proving that P W.1 was less than 16 years, and she was undoubtedly a cons nting party in the entire episode. Undoubtedly, the conviction of the appellant in the case has been recorded on insufficient grounds. At any rate, the prosecution case against him is not free from reasonable doubt, and he deserves the benefit of the same. 9. For reasons stated above, this appeal is allowed. The conviction and sentences of the appellant are set aside, and he is acquitted of the charges The appellant is in custody. He is ordered to be set at liberty forthwith, if not required to be detained in connection with any other case. Appeal Allowed.