N. P. SINGH, J. ( 1 ) THE appellant alongwith co-accused Ramjhul were prosecuted for the offence under Sections 366 and 376 of the Indian Penal Code before Second Addi. Sessions Judge, Durg camp at Bemetra in Sessions Trail No. 113/85. The appellant was charged for the offences punishable under Sections 366 and 376 of the Indian Penal Code while co-accused Ramjhul was charged under Section 363 of the Indian Penal Code. ( 2 ) THE prosecution case is that on 13. 4. 1985 the appellant enticed away the prosecutrix Jhuniya Bai, a minor daughter of Jugnuram (P. W. 4) and Bishmat Bai (P. W. 11) with intention to marry her and he concealed the prosecutrix in the house of co-accused Ramjhul where appellant committed rape on her. ( 3 ) THE learned Additional Sessions Judge convicted the appellant under Sections 366 and 376 of the Indian Penal Code and sentenced him to undergo R. I. for two years and to pay a fine of Rs. 1,000/- in default to undergo R. I. for six months under Section 366 and R. I. for two years and to pay a fine of Rs. 2,000/- in default to undergo R. I. for further one year under Section 376 of the Indian Penal Code while co-accused Ramjhul was acquitted. The sentence awarded were, however, ordered to run concurrently. ( 4 ) ON the information lodged by Jugnuram (P. W. 4) at Nandghat Police Station F. LR (Ex. P 4) was drawn and the investigation proceeded. The S. H. O. R. P. Pandey (P. W. 9) recovered the prosecutrix from the house of co-accused Ramjhul on 17. 4. 1985 and seized seminal stained, bad sheet, petticoat of the prosecutrix and underwear of the appellant and sent the seized articles to F. S. L. Sagar for chemical examination and sent the prosecutrix to Dr. Smt. Rajput (P. W. 8) for her medical examination; but she did not find any external and internal injury on the person of the prosecutrix. The prosecutrix was then examined by Dr. G. N. Tiwari (P. W. 1) a Radiologist who after radiological examination of the prosecutrix Jhuniya Bai, found her to be aged about 15 years. The Director of F. S. L. Sagar after examination of the seized articles reported that the articles contained seminal stains human spermatozoa were found on the seized articles. The prosecutrix was then examined by Dr. G. N. Tiwari (P. W. 1) a Radiologist who after radiological examination of the prosecutrix Jhuniya Bai, found her to be aged about 15 years. The Director of F. S. L. Sagar after examination of the seized articles reported that the articles contained seminal stains human spermatozoa were found on the seized articles. The appellant was medically examined by Dr. Verma at the instance of the 1. 0. who found him able to commit the sexual intercourse. ( 5 ) THE defence was that the prosecutrix was major and in love with the appellant and had voluntarily gone with the appellant. ( 6 ) SHRI A. S. Jha, learned counsel for the appellant, has contended that the evidence led by the prosecution on the point of age of the prosecutrix is not consistent. The evidence of Jugnuram (P. W. 4) father and Bishmat Bai (P. W. 11) mother of the prosecutrix on the point of age of the prosecutrix are not consistent with the medical evidence of Dr. Smt. Rajput (P. W. 8) and Dr. G. N. Tiwari (P. W. 1), who have assessed the age of the prosecutrix to be 16 years. It is evident from the medical evidence of Dr. Smt. Rajput (P. W. 8) and Dr. Tiwari (P. W. 1) that the prosecutrix was on the verge of attaining the age of majority. ( 7 ) IN, Jayamala v. Home Secretary Govt. of J. andk. the apex Court has observed: Margin of error in age ascertained by radiological examination is two years on the either side. ( 8 ) IN, State of Karnataka v. Sureshbabu Puk Raj Porral the apex Court has held: Where the age of victim is doubtful, the question of taking away from her lawful guardianship does not arise. More so, when the victim herself deposed that she went to the appellant voluntarily. ( 9 ) IN the instant case, it is obvious from the evidence of the parents of the prosecutrix Jugnuram (P. W. 4) and Bishmat Bai (P. W. U) on the point of age of the prosecutrix is not consistent. More so, when the victim herself deposed that she went to the appellant voluntarily. ( 9 ) IN the instant case, it is obvious from the evidence of the parents of the prosecutrix Jugnuram (P. W. 4) and Bishmat Bai (P. W. U) on the point of age of the prosecutrix is not consistent. In view of the principle led by the apex Court in the case of Jayamala (Supra) in determining the age of a person on the radiological examination the possibility of the prosecutrix being major on the alleged date of occurrence can not be Tuled out. Therefore, the conviction of the appellant under Section 366 of the Indian Penal Code cannot be sustained. ( 10 ) AS regards, the conviction of the appellant under Section 376 of the Indian Penal Code is concerned, the apex Court in the case of State of Karnataka (Supra) has further observed that the accused cannot be convicted for the offence under Section 376 of the Indian Penal Code on mere statement of the victim before the Police as well as during cross-examination that accused did something to her which he ought not to have done. ( 11 ) IN the instant case, the medical evidence of Dr. Smt. Rajput (P. W. 8) has completely demolished the testimony of the prosecutrix that she was subjected to rape by the appellant. The prosecutrix has not given consistent evidence. Her evidence on the point of rape is very vacillating, therefore, the testimony of the prosecutrix is not worth any credence. The conviction of the appellant under Section 376 of the Indian Penal Code, therefore, also cannot be sustained. ( 12 ) FOR the reasons mentioned aforesaid, the conviction and sentence of the appellant are set aside and in the result the appeal is allowed. The fine amount deposited by the appellant is directed to be refunded to him. Appeal allowed. .