VIRENDRA SARAN, J. Anil Kumar s/o Sri Ram Sowak r/o Naramau, P. S. Bithoor, district Kanpur Nagar has filed this criminal appeal against the judg ment and order dated 5-7-1993 of Sri V. S. Shukla, IVth Additional Sessions Judge, Kanpur Nagar in S. T. No. 258 or 1992. The learned Judge has con victed and sentenced the appellant to 4 years R. I. under Section 366, I. P. C. , by the same order the learned Judge has acquitted the appellant under Section 376, I. P. C. 2. According to the case of prosecution Km. Mamta was aged about 15 years at the time of incident and was a student of Class X in Jawahar Lal Vidyalaya, Kalyanpur, District Kanpur Nagar. On 19-7-1989 she left her house at 9 p. m. for going to the school for depositing her fee. Km. Mamta did not return to her house in the evening and the complainant started searching for her. While the search was on it was learnt that Km. Mamta had boarded Tempo No. UHI 584 on her way back and co-accused Suresh Kumar s/o Ram Shankar Tiwari was driving the same, while appeillant Anil Kumar was the conductor of the tempo. It further came to light that Mamta was seen in the company of the two accused at a tea shop at Bithoor. Thereafter on 22-7-1989 PW 1, Ram Chandra, lodged F. I. R. at P. S. Bithoor, Km. Mamta was recovered by police near Lakhanpur while she was in the company of appellant Anil Kumar on 5-8-1989. At the time of recovery PW 1, Ramchandra, was also present and Km. Mamta was given in his custody vide Supurdaginama (Ext. Ka-2) Km. Mamta was sent for medical examination. She was medically examined by PW 6, Dr. R. Gupta on 6-8-1989. Dr. Gupta found that the hymen of the girl was intact and its margins were regular. There was no swelling or bleeding of any kind. Breasts of Km. Mamta were well developed and auxiliary and pubic hair were present. Dr. Gupta has further noted that there was no injury present on vulva or any other part of the body and that girl was not habitual to intercourse and in the opinion of doctor sexual intercourse was not committed with her on the basis of X-ray examination Dr. Gupta opined that Km. Mamta was aged about 17 years. Dr. Gupta has further noted that there was no injury present on vulva or any other part of the body and that girl was not habitual to intercourse and in the opinion of doctor sexual intercourse was not committed with her on the basis of X-ray examination Dr. Gupta opined that Km. Mamta was aged about 17 years. X-ray report has been duly proved as Ext. Ka-8 by the doctor. After the completion of investigation a charge-sheet was filed against the appellant and one Suresh Kumar and they were committed to the Court of Session. 3. In support of its case the prosecution examined PW 1 Ram Chandra, father of Mamta who has been married to one Ram Autar. After her recovery. PW 2 is Smt. Mamta is alleged to be the victim of the offence. PW 3 Shiv Kumar and PW 4 Banwari are witnesses of seeing the prosecutrix in the company of accused. PW 6 is lady doctor R. Gupta who conducted the medical examination. PW 5 is constable Ahibaran Singh who registered the case and the last witness is PW 7 Mahesh Chandra Tyagi who investigated and charge-sheeted the case. After the close of the prosecution evidence the appellant as well as the co-accused Suresh were examined. Both denied the correctness of prosecution case, plea added innocence and claimed to be tried. The learned IVth Additional Sessions Judge, Kanpur Nagar (Sri V. S. Shukla) after scrutinising the evidence on the record found that the charge under Section 376 has not been proved and therefore, he acquitted both the accused for the offence under Section 376, I. P. C. , but convicted the appellant under Section 366, I. P. C. , and sentenced him as mentioned above. 4. I have heard Sri S. L. Singh, learned counsel for appellant and learned State Counsel at length and have perused the evidence and the other material on the record. 5. It has been argued by the learned counsel for the appellant that F. I. R. in the present case has been lodged after a considerable delay. There is force in the submission made by the counsel. The incident took place on 19-7-1989 but the report was lodged on 23-7-1989 i. e. after 4 days of the disappearance of the girl. It has been argued by the learned counsel for the appellant that F. I. R. in the present case has been lodged after a considerable delay. There is force in the submission made by the counsel. The incident took place on 19-7-1989 but the report was lodged on 23-7-1989 i. e. after 4 days of the disappearance of the girl. In such a long interval of time a version suited to the informant could be cooked up and, therefore, the allegation of the F. I. R. cannot be accepted at their face value. 6. One of the basic considerations in this case is the age of Km. Mamta at the time of the incident. The informant has made a vain effort to minimise her age by describing her to be nearby 15 years of age. The doctor has, however, deposed that the age of the girl was about 17 years at the time of her medical examination. According to the X-ray report there was com plete fusion of bones of the elbow joint while there was no fusion of the wrist joint. According to the Modis Medical Jurisprudence the wrist- joint fuse at the age of 19 years in the case of girls of U. P. Moreover, the opinion of the doctor is a mere estimation and there can always be a variation of 2 years in the assessment of the age made by the doctor on either side. Thus, when two possibilities are there, one which is in favour of accused has to be given weight. I am, therefore, of the opinion that Mamta may well be above the age of 18 years at the time of incident. The doctor has, however, stated that the breast of Km. Mamta was fully developed and pubic and auxiliary hair were also there. It, therefore, appears that even from her appearance Km. Mamta was grown up girl and that might be above 18 years of age. The learned Sessions Judge had observed that auxiliary and pubic hair were not well developed but this is not the statement of doctor. The prosecution did not put a single question to doctor and did not get it proved in the examination-in- chief that auxiliary and pubic hair were not developed. 7. The learned Sessions Judge had observed that auxiliary and pubic hair were not well developed but this is not the statement of doctor. The prosecution did not put a single question to doctor and did not get it proved in the examination-in- chief that auxiliary and pubic hair were not developed. 7. Adverting to the other evidence on the record, there is evidence of PW 1, Ram Chandra, being the father of the girl who has now been married to one Ram Autar is certainly highly interested in projecting that his daughter was a very innocent and virtuous girl and only the appellant was to be blamed. The conduct of Ram Chandra in not lodging the report with promptitude makes his version at the trial highly doubtful and has to be taken with a pinch of salt. 8. PW 2 Smt. Mamta is the victim. She has stated that on 19-7-1989 when she boarded tempo Suresh Kumar and appellant were on the tempo. When the tempo reached at near Naramau crossing then some other passengers including the maid servant of the school got down and at that stage the accused told her that her house was at a considerable distance and, therefore, they would drop her near her house. Both of them had also told her that brother of girl had called them in a school at Bithoor in order to give some forms and for this reason they all proceeded to Bithoor reaching there at about 6 p. m. but her brother was not there at the school and she asked the accused to leave her at Naramau but by that time it was night and the accused took her in a quarter in Alimboo factory, she further stated that at the night both the accused wanted to take undue liberties from her but she did not permit them to do so and raised alarm. Later on Suresh Kumar left that place and Anil Kumar took her to the residence of his aunt (Buwa) at Lal Imli where she lived for two days. The aunt of Anil resented the action of Anil and scolded him yet on the third day she, Anil and Anils aunt went to Lucknow and from there to Balrampur in the district of Gonda, where she remained for 2 or 3 days. The aunt of Anil resented the action of Anil and scolded him yet on the third day she, Anil and Anils aunt went to Lucknow and from there to Balrampur in the district of Gonda, where she remained for 2 or 3 days. Thereafter she again returned to Kanpur and on the road she was arrested in the company of appel lant Anil. She further stated that Anil tried to outrage her modesty by sexually assaulting her but he could not succeed as she resisting the same. In cross-examination she denied the fact that she had gone alongwith Anil Kumar out of her own free will and consent. 9. It is surprising to note that after the recovery of Km. Mamta, the prosecuting agency did not produce her before any Magistrats for recording her statement, promptly, but she was given in the custody of her father, Ram Chandra without her being produced in any court. It is further impor tant to mention that Km. Mamta was quickly married to another person Ram Autar and by the time her evidence was recorded she was not in a position to make a free statement of her choice because in case she admitted that she had herself left her house and had gone away with appellant Anil Kumar or had an affairs with Anil, it would have completely ruined her married life and she had no choice but to blame the appellant. Her state ment given in Court makes it absolutely clear that after her so-called kid napping she was freely moving here and there in the company of appellant. If she had boarded in tempo at noon it was but natural for her to go straight to her parental house and not have a joy-ride on tempo till it was dark. She has neither complained to any one while she was being taken to Bithoor and kept there for two days nor she raised any alarm. Thereafter she claimed to have gone to Lal Imli and from there to Lucknow. While she was travelling to these places she did not complain to anybody. She has categorically stated in her cross-examination that she had gone Bithoor but of her own free will and she remained at the tempo stand out of her own free will but made a pretence of waiting for her brother who was to come. While she was travelling to these places she did not complain to anybody. She has categorically stated in her cross-examination that she had gone Bithoor but of her own free will and she remained at the tempo stand out of her own free will but made a pretence of waiting for her brother who was to come. But when it became dark she went to the house of accused at 8 p. m. in Alimboo factory. She further stated there are large number of house all around in the colony where the accused lived. It is not acceptable that she was acting innocently and did not understand the reasons of hip going away and staying at the house of accused. She has further admitted that when she again started there was other passengers but she did not make any complaint to anybody. She has stated that from Lal Imli she went on a Rickshaw upto to the Railway Station and she had come across with policemen in the way but she did not make any complaint to either those police men or other persons to whom she came across in the way. It is clear from the cross-examination of PW 2 Smt. Mamta that she is a wholly untruthful witness and she has herself gone away from her house and joined the accused. It is noteworthy that she remained in the company of accused for several days but she was not subjected to rape. 10. PW 3 Shiv Kumar has not supported the prosecution case and he has been declared hostile. PW 4 Banwari has stated that he was standing near a pan shop, a Tempo driving by co-accused Suresh Kumar stopped there and he saw Mamta sitting in the tempo. He informed Ram Chandra on the next day. He has admitted that he is first cousin of Ram Chandra but denied that they were living jointly. In case he has seen any such thing he would have raised alarm and reported the matter to the police. He has further stated that when the tempo came there its engine failed and it remained standing there for 15 minutes. He saw Mamta getting down from the tempo but still he did not talk to her and on the next day he was informed that girl has disappeared. He has further stated that when the tempo came there its engine failed and it remained standing there for 15 minutes. He saw Mamta getting down from the tempo but still he did not talk to her and on the next day he was informed that girl has disappeared. In case Mamta was not willing to travel further in tempo and this witness was really present there he would not have allowed the tempo driver and the conductor to take his neice away. His statement appears to be wholly artificial and full of improbabilities and con cocted. 11. In the result I am of the opinion that the prosecution has not only failed to prove its case but the prosecution case is utterly false and concocted. 12. The appeal is hereby allowed. The conviction and sentence of the appellant is set aside. He is on bail. He need not surrender. His bail bonds are discharged. Record shall be sent back to the trial Court as early as possible. Appeal allowed. .