Judgment :- This appeals is by the accused Sundaram alias Balasundaram who has been convicted under section 376 I.P.C. and sentenced to undergo rigorous imprisonment for ten years. 2. The case against the accused is that PW 1 Nagmani was born to PW 3 Karuppusamy on 11-6-1971. She was studying in eighth standard in a school at Neelikonamapalaum. On 21-12-1985 Saturday as the school was only for half a day she came to her house at 12.30 p.m. Her father and mother had left for work. At 5.30 p.m. when she was sweeping with a broomstick in the bed room the accused who was living in the neighbouring street came into the bed-room, closed and bolted the door from inside, and threatening to kill her if she would shout he pushed her down, opened her blouse, tore the bracier and pressed her breasts and lifted her petticoat and had sexual intercourse with her. Then he got up and opening door went away. PW 1 had pain in her private part and her chest, and she was crying. 3. At that time PW 2 Nagarajan who was living opposite to the house of PW 1 and who was the cousin brother of PW 1 came there. He saw the accused going out of that house. When he went inside the house PW 2 saw PW 1 Nagamani crying. She told him that the accused raped her. He went out to inform the parents of PW 1, but he could not find them anywhere. At 9.30 p.m., both the parents of PW 1 came to the house and PW 1 told them about the incident. They wanted a report to be given to the police. Upon that PW 1 wrote a complaint and signed it. They went to Singanallur police station and gave that complaint. 4. P.W. 11 Head Constable registered a case and he sent PW 1 to the Hospital. PW 5 Doctor Mangaleswari examined her. PW 12 Inspector took up further investigation, went to the alleged place of incident, and recovered the semen-stained cement from the bed-room. On 23-12-1985 at 6-30 a.m. at Thiruchiraplli road near Sungam Nehru Park the Inspector arrested the accused. He recorded a statement given by the accused. The Inspector seized the clothes worn by him. He sent the accused for medical examination. On 24-12-1985 PW 6 Doctor Palaniappan examined him. On 23-12-1985 at 6-30 a.m. at Thiruchiraplli road near Sungam Nehru Park the Inspector arrested the accused. He recorded a statement given by the accused. The Inspector seized the clothes worn by him. He sent the accused for medical examination. On 24-12-1985 PW 6 Doctor Palaniappan examined him. After completion of the Investigation the Inspector filed the charge-sheet. 5. The trial court on consideration of the evidence found that the prosecution case that the accused raped PW 1 is true and she was at that time below 16 years of age. Therefore the trial Court found the accused guilty under section 376 I.P.C. Therefore it convicted him and sentenced him to undergo rigorous imprisonment for ten years. 6. Now in the appeal it is contended that there is absolutely no reliable evidence in proof of the alleged commission of rape, and the finding of the Court below to the contrary is unsustainable. 7. As to the alleged commission of rape, the girl in question viz., Nagamani has been examined as PW 1. She in her evidence has stated that the accused came to her bed room, bolted the door from inside and under threat made her to lie down and raped her. It is her further evidence that after the commission of rape the accused left the room and at that moment PW 2 Nagarajan came there and she narrated to him what had happened, and at 9.30 p.m. her parents came and to them also she told about the incident. PW 2 Nagarajan has in the chief examination just stated that when he went to the house of PW 1 he saw the accused leaving from there and he saw PW 1 weeping inside the bedroom. Apart from that it appears he has not supported the case of the prosecution and therefore he was treated as hostile witness. 8. Now, according to PW 5 Doctor Mangaleswari who examined PW 1 at 2.00 a.m. (22-12-1985) she found white discharge in her. She would further say that apart from the white discharge there is no other evidence to show that there was rape on her as alleged. She would also say that the white discharge can be due to various reasons such as venereal disease, and that some ladies get white discharge monthly. She would further say that apart from the white discharge there is no other evidence to show that there was rape on her as alleged. She would also say that the white discharge can be due to various reasons such as venereal disease, and that some ladies get white discharge monthly. This being the evidence of PW 5 Doctor who examined PW 1, as rightly pointed out by the Court below, there is no medical evidence to support the evidence of PW 1 that she was raped. Therefore as to whether there was really a rape or not we have to consider the evidence of PW 1 herself and PW 2 cousin brother and PW 3 her father. 9. As stated above PW 2 has been treated as hostile by the prosecution since he has not supported the evidence of PW 1, of course he has stated in the chief examination that at the relevant time he saw the accused going out of the house of PW 1 and PW 1 was weeping inside the room. Now the question is if really he had asked PW 1 as to what had happened and she had narrated that she was raped by the accused, he being such a close relative of PW 1 as a cousin brother and living just opposite to her house, why should he not support her evidence as to the alleged factum of rape. There is absolutely no reason whatsoever pleaded or even suggested by the prosecution as to this. Of course he has, when cross-examined by the prosecution, stated that he told the police that PW 1 told him that the accused had raped her. But there is no reason why he should not support the case of the PW 1 in the Court. 10. Quite possibly it was the game of PW 3 father (of PW 1) to falsely implicate the accused in an offence of rape and therefore a complaint was given and to the police at the behest of PW 3, PW 2 has given a statement supporting the statement of PW 1 but after he was sworn in the Court to speak the truth he would not speak falsehood. Therefore the evidence of PW 2 not only does not support the case of the prosecution but also renders the evidence of PW 1 improbable and difficult to believe. 11. Therefore the evidence of PW 2 not only does not support the case of the prosecution but also renders the evidence of PW 1 improbable and difficult to believe. 11. According to the prosecution case on hearing PW 1 PW 2 told her that he would go and get her parents, but he did not seem to have made any attempt in that regard. May be as it is stated by PW 1 and PW 3 PW 3 had gone to Thudiyalur on that day, but it is in evidence of PW 1 that her mother had gone to cooly work in the field in their village. And it is her further evidence that she (mother) used to come back to the house at 5.00 p.m. The alleged time of rape is 5.30 p.m. Therefore the mother of PW 1 should have returned to the house if she had gone to field for work before the alleged time of rape or very soon after it. Here it must be remembered that the mother of PW 1 has not been examined as a witness. 12. Then remains the evidence of PW 3 father. According to him immediately on hearing about the incident he wanted to give a report to the police. Clearly in such a situation the girl should have been terribly shocked, and they would have gone to the police station straight to the matter there and there a complaint would be prepared. But rather incredibly in this case the girl herself was told to write a complaint and she did so and that is according to the prosecution Ex. P.1. A reading of Ex. P.1 would show that it contains such particulars which I do not think that any girl will write and the parents would ask her to write so. It (Ex. P.1) even contains an averment that the accused put his male organ into the female organ of PW 1 and for five minutes he was pushing in and pulling out. This suggests that Ex. P.1 has been prepared leisurely after full deliberation. 13. Another thing one has to consider is : about the alleged rape, at the time of Ex. P.1, according to the prosecution case, the girl herself and PW 2 - her cousin and her parents alone knew and nobody else. This suggests that Ex. P.1 has been prepared leisurely after full deliberation. 13. Another thing one has to consider is : about the alleged rape, at the time of Ex. P.1, according to the prosecution case, the girl herself and PW 2 - her cousin and her parents alone knew and nobody else. This being the case is it probable that they would have made the incident public which would terribly affect the life of the girl by, even without thinking for a while, giving a report to the police like Ex. P.1. The father P.W. 3 admittedly has married the mother of PW 1 as his second wife and through the first wife he had already two girls who were also living in the same village, and at the time of the incident it is not in dispute that he who had been working in a Mill, was unemployed. In this context the defence version is relevant to consider. According to the accused he was working in a Mill and PW 3 asked him to marry PW 1 but he refused and therefore a false case has been given against him. Considering all these it cannot be held that the prosecution has proved that he accused has committed the offence of rape beyond reasonable doubt. 14. With this finding of mine I do not think any finding as regards the age of the girl PW 1 is called for. However in the appeal argument was advanced with regard to the age also, and considering the evidence in the case it appears to me that the finding of the Court below that PW 1 was at the time of the alleged incident below 16 years of age is correct. 15. Ex. P4 is a certificate given by the Headmistress of the school where PW 1 was studying, as per which she was born on 11-6-1971. This Certificate has been given on the basis of the records in the school. At the time of admission this date should have been given as the date of birth of the girl in the school. This has happened 14 years ago. 16. A note Book has been filed in which it is said the father PW 3 has noted the date of birth of PW 1. But this note book contains two different dates. This has happened 14 years ago. 16. A note Book has been filed in which it is said the father PW 3 has noted the date of birth of PW 1. But this note book contains two different dates. In the first page he has written that PW 1 was born on 11-5-1972 (Ex. P.3) and in the third page he has written that she was born on 11-6-1971 (Ex. D.1). When he was asked why there are two different dates he has stated that he wrote Ex. P.3 for the purpose of admission of PW 1 in the school. But Ex. P.3 being in the first page and Ex. D.1 in the third page and also when comparatively Ex. P.3 looking older than Ex. D.1, Ex. P.3 should have been written first. As between the said two dates Ex. P.3 should reflect the correct date of birth. 17. For the purpose of admission in school it is understandable that one would give a date which would give more age than the real age and therefore for the purpose of admission of PW 1 in school PW 3 should have given the date in Ex. D.1 i.e., 11-6-1971 and not the date in Ex. P.3 which is 11-5-1972 as stated by him. Of course sometimes at the time of admission lesser age is given by parents and that is with a view that later on in the life of the student it may help him in his service if he is employed. But certainly that could not have been the case regarding PW 1 since PW 3 was just a Mill worker and a poor man and therefore he should not have thought of such a thing. Considering the entire circumstances I am of the view that the real date of birth would be 11-5-1972. 18. But whether the correct date of birth is 11-5-1972 or 11-6-1971 PW 1 at the time of incident would be below 16 years of age. PW 3 has stated in his evidence that he married PW 1's mother in 1970. Considering from this point also at time of incident by any means PW 1 should have been below 16 years of age. 19. Further the evidence of PW 7 Dr. N. Ratnam is that from the X-rays taken by him of PW 1 her age should be above 14 and below 15. Considering from this point also at time of incident by any means PW 1 should have been below 16 years of age. 19. Further the evidence of PW 7 Dr. N. Ratnam is that from the X-rays taken by him of PW 1 her age should be above 14 and below 15. However in the cross-examination he has stated that the age given by him could be more by one year or less by one year. In any case PW 1 must be below 16 years of age. It has been pointed out during arguments that PW 7 Doctor has admitted that Modi in his book "Medical Jurisprudence" has stated that the age could be three years more or three years less that the age that could be determined by the X-ray expert. But considering the cumulative effect of the evidence let in the case which has been discussed above, it can be held that the age of the girl was at the time of incident below 16 years. 20. In view of my finding that there is no evidence to prove that the accused has committed rape he is entitled for an acquittal. Accordingly therefore the conviction and sentence passed on the accused by the Court below are set aside and the appeal is allowed and the accused is acquitted. Appeal allowed.