FAKHRUDDIN, J. ( 1 ) CRIMINAL Appeal No. 415 of 1986 has been preferred by Daulat sb Bholaram and Smt. Sahodra w/o Ratanlal against the conviction and sentence recorded by III Additional Sessions Judge, Rewa in Sessions Trial No. 29 of 1984. Daulat has been convicted u/s Section 376 IPC and sentenced to 5 yearst RI whereas appellant Smt. Sahodra w/o Ratanlal has been convicted u/section 366 IPC and sentenced to five years RI. ( 2 ) CRIMINAL Appeal No. 358 of 1986 has been preferred by Daulatram alone from jail and the same has been linked with the Cr. Appeal No. 415/86. The grounds mentioned therein are to be taken as additional ground, as per order of this Court dated 31. 7. 9 1 passed in Cr. Appeal No. 358/1986. ( 3 ) THREE persons, namely, Daulatram, Ratanlal and Smt. Sahodra Bai were prosecuted. Daulatram has been charged for offences punishable u/section 366 nw Section 34 IPC and Section 376 IPC, Ratanlal u/section 366 r/w Section 34 IPC and Smt. Sahodra Bai u/section 336 r/w Section 34 IPC. Ratanlal has, however, been acquitted by the Trial Court. As such, these two appellants have preferred these appeals, against their conviction and sentence. ( 4 ) PROSECUTION story, as contained in Ex. P1 FIR is that Sarvan and his wife Surtiya both reside at Thakur Deva, P. S. Churthat, District Sidhi. Sarvan is a rickshaw puller and his wife Surtiya is working as a Maid Servant in the house of one Dr. Thakur. They have a daughter named Shyama Munni. It is alleged that Sarvan has gone out for rickshaw pulling and his wife Surtiya in the house of the Doctor and when they returned their house in life evening, they did not find Shyama Munni in the house. His wife told that Munni had not returned home, though left in the noon. It was expected that Munni could as to the house of one Ratan Mistry where she used to go. He expressed his apprehension that Ratan might be responsible for enticing his daughter Shyama @munni He, therefore, lodged a report on 8. 8. 93 at 17. 15 hours, which is recorded as Ex. P-1 and in which it is mentioned that Shyama Munni had left her house on 7. 8. 83 noon. He expressed his apprehension that Ratan might be responsible for enticing his daughter Shyama @munni He, therefore, lodged a report on 8. 8. 93 at 17. 15 hours, which is recorded as Ex. P-1 and in which it is mentioned that Shyama Munni had left her house on 7. 8. 83 noon. ( 5 ) PROSECUTION alleges that Shyama Munni, aged 12 years was enticed away by Sahodra Bai w/o Ratanlal and it is further alleged that Ratan abetted the offence and thereafter Daulatram and Ratan both committed rape on Shyamabai Munni. Shyama Bai, the prosecutrix, who recovered on 9. 8. 83 from Bhopal, as per Ex. P-9 and a Panchnama (Ex. P-b) was prepared She was sent for medical examination on 10. 8. 83 and was medically examined by Dr. (Mrs.) Tripathi, RMO, Government Medical Hospital, Rewa. Her Report is Ex. P-8. The Doctor examining Shyamabai did not find any mark of violence anywhere on the body of the prosecutrix. Regarding age, it is mentioned that the prosecutrix could be of 16 years of age. For configuration, X-ray was advised. It was opined by the Doctor that the girl had been subjected to sexual intercourse before more than eight to ten days. No definite opinion could be given by the Doctor about occurrence of recent sexual intercourse with the prosecutrix. Shyamabai Munni, the prosecutrix was thus sent for ossification test of Dr. AP. Singh (PW 7), who opined that the girl could be between the age group of 16 to 18 years. The report of the Doctor is Ex. P-7, wherein it is mentioned that (1) Epiphysis for lower end of humerus and upper end of radius and ulna are fused indicates age about 16 years; (2) Epiphysis for lower end of radius and ulna not fused indicates age below 18 years. After usual investigation, the challan was filed. ( 6 ) THE appellants abjured the guilt and pleaded that they have been falsely implicated. ( 7 ) MR. S. C. Dutt, Sr. Counsel and Mr. MA Khan, Counsel both appeared on behalf of the appellants and contended that there was no evidence on record to prove that the prosecutrix Shyama Bai Munni (PW 1) was less than 16 years of age. It was contended that the prosecution had not led any cogent evidence on record to hold that Shyama Bai was less than 16 years of age. It was contended that the prosecution had not led any cogent evidence on record to hold that Shyama Bai was less than 16 years of age. Evidence of PW 2 Surtiya, mother of the prosecutrix is that Shyama Bai is 13 years of age (Para 1 ). Thereafter she says that she may be more than 13 years. In para 4 other cross-examination, Surtiya Bai was, however, not able to state about her own age. In para 5, she has stated that she was married at the age of 7 years, but Gauna had taken place after 3 years. She was married in her childhood and her eldest daughter Munni was born after 3 years of Gauna Ceremony. The age of Smt. Surtiya mother of the prosecutrix who estimated by the Court to be 35 years. PW 3 is Sarvan, father of prosecutrix Shyamabai Munni, who has stated that the age of his daughter would be 12-13 years. During his cross-examination, para 4, the witness is neither able to give his own age nor the age of his wife. He has only stated that when he was married, he was only 10-12 years of age and his Gauna took place when he was 14-15 years. After two years of Gauna, daughter Munni Bai was born. Age of PW 3 Sarvan was estimated by the Court to be of 35 years. The age of PW 1 prosecutrix has been estimated by the Court to be of 17 years. The medical evidence, however, indicates that she is 16 to 18 years of age. ( 8 ) THE learned Defence Counsel contends that the prosecution has not adduced any evidence regarding the date and time of birth of the prosecutrix. No entry of the birth register or any other evidence has been adduced. It is further contended that the medical or ossification test is not conclusive piece of evidence. Relying on a decision reported in (Kishori Lal Rnghbir Dos v. The State), the learned Defence Counsel also contends that the margin of error in ossification test is always there. Modi in his treatise, Modis Medical Jurisprudence and Toxicology, 21st Edition at page 40, has the margin of error is 3 years. Relying on a decision reported in (Jaya Mala v. Home Secy. , Government of J and K), the learned Counsel contends that the margin of error may be 2 years. Modi in his treatise, Modis Medical Jurisprudence and Toxicology, 21st Edition at page 40, has the margin of error is 3 years. Relying on a decision reported in (Jaya Mala v. Home Secy. , Government of J and K), the learned Counsel contends that the margin of error may be 2 years. PW 7, Dr. AP. Singh has given the age of the prosecutrix to be 16 to 18 years. Modis Medical Jurisprudence and Toxicology, 21st Edition, page 42 has been referred by the Counsel to show that on the findings recorded, the age comes to 19 years. Mr. Girish Shrivastava, Government Advocate, on the other hand contends that the age of the prosecutrix is about 16 years. ( 9 ) HAVING considered the submission of the rival party, even according to the prosecution, evidence Ex. P-7 and the evidence of Dr. AP. Singh (PW 7), the age of the prosecutrix was between 16-18 years. The margin of error is always there and taking into consideration a decision rendered by the Apex Court and reported in (Jaya Mala v. Home Secy. , Government of J and K), (supra) this Court is of the opinion that it is a case where the prosecution has failed to prove that the prosecutrix was a minor. ( 10 ) THE learned counsel for the appellants then contended that evidence of PW 1 Shyarnabai Munni (Para 6) indicates that while leaving house, she had come with all preparation of going out and she was not persuaded by anyone to leave her house. Learned Defence Counsel pointed out from the evidence of PW 1 where she says that she is unable to identify the accused persons in the Court. She says that she does not know the female accused by name, but she identifies the female accused and says that it was the female accused, who had taken her to Bhopal. There are material omissions in the case diary statement and these omissions are regarding her statement that she should go only after asking her father. Her statement indicates that she went alongwith the female accused voluntarily. She went from her house to Satna by bus, from Satna she went to Railway Station and from Railway Station to Bhopal. From Bhopal; she went to the house of Sahodra, where she lived. Her statement indicates that she went alongwith the female accused voluntarily. She went from her house to Satna by bus, from Satna she went to Railway Station and from Railway Station to Bhopal. From Bhopal; she went to the house of Sahodra, where she lived. She has further stated in evidence that she was asked to give food to Daulat and when she went to serve food to Daulat, Daulat committed sexual intercourse upon her. But in cross-examination, she had said that she was wearing a Maxi She further said that in the night she slept there. She got up at 6. 00 a. m. Thereafter, she washed the utensils and prepared Rati. There are material omissions in the case diary statement. ( 11 ) THE evidence of prosecutrix is not corroborated by the medical evidence on record. Medical evidence is very Categoric and says that the prosecutrix had been subjected to sexual intercourse more than 8-10 days before. Then she was examined on 10. 8. 83. If any intercourse had really been committed on her 8 to 10 days before, the corresponding period comes to 1st or 2nd August, 1983. The prosecution case alleged sexual intercourse by appellant Daulatram during the intervening night of 7th and 8th August. The medical evidence does not fit in the prosecution story. It was counter to the prosecution case on the question of sexual intercourse. ( 12 ) SO far as taking out of lawful guardianship of the prosecutrix is concerned, the learned Counsel relied on (S. Varadaraj v. State of Madras), and (Ramchandran and Anr. v. State), wherein it is laid down that to sustain a conviction u/section 363 IPC, there must be proof of taking of the minor from the lawful guardianship of her father. If a girl leaves her home without any persuasion or inducement, the offence is not made out. There is nothing on record that an inducement was proposed to her. The case in hand is similar to that of Ramchandrans case (supra ). The prosecution in this case has failed to establish that any force was used or that the girl (PW 1) had put any resistance. She was taken from place to place. She never raised any alarm that she was being forcibly taken or being taken against her will She did not complain to anybody. The prosecution in this case has failed to establish that any force was used or that the girl (PW 1) had put any resistance. She was taken from place to place. She never raised any alarm that she was being forcibly taken or being taken against her will She did not complain to anybody. These circumstances indicate that she had left her house on her own will and neither any force nor any inducement was caused to her. This is not a case of helpless resignation by the girl in the face of an inevitable compulsion or passive given in, when her volitional faculties were either clouded by fear or vitiated by duress. ( 13 ) IN view of discussion aforesaid, the conviction and sentence recorded by the Trial Court are set aside and appellants are acquitted of the charges. They are on bail. Their bail bonds and surety bonds are cancelled. Appeal allowed. .