JUDGMENT 1. These two appeals arise out of the same judgment and order dated 7.10.1986 passed by Additional Sessions Judge of Seoni, convicting the appellants under section 376 IPC and sentencing each of them to undergo four years rigorous imprisonment. 2. The story set up by the prosecution was that on 26.2.1984, appellants had induced Kumari Phoolwati to go alongwith them for the purpose of having sexual intercourse. The prosecutrix Kumari Phoolwati was recovered after two days on 28.2.1984 when she was living with the appellant Perru in a particular house in village Chammu Tola, when the prosecutrix came back to her parents house a report was lodged at police station Barghat stating therein that the appellants had kidnapped the prosecutrix and had committed rape upon her for continuous two days. The case was given the nature of a gang rape by two persons upon a minor girl of below 16 years of age. The FIR is said to have been lodged by the father of the prosecutrix, which has been proved on record as Ex. P/7. 3. The prosecutrix was medically examined after lodging of the FIR on 28.2.1984 by Dr. Mrs. A. Pancholl, P .W. 1 the doctor had found that the age of the girl at the time of the medical examination was about 14 years. After investigation a charge sheet was submitteq. The appellants had pleaded not guilty of the change, u/S. 376 IPC and they were tried. 4. The prosecution in support of the charge, had examined 14 witnesses. P.W. 1 Dr. Mrs. A Pancholi had deposed regarding the medical condition of the prosecutrix at the time of her medical examination. She was found to have been used to sexual intercourse. However, her age was found to be about 14 years. P.W. 2 Dr. N.K. Pancholi had medically examined the two appellants when they were arrested and they were found to have been capable of performing sexual intercourse. P.W. 3 Ramu is a witness of recovery of birth and death register of the Kotwar of the village concerned. P.W. 4 Bholaprasad is Kotwar himself. He had brought the birth and death register of the period, which was said to have been maintained in due course of business earlier by his father and after his death, by himself. P.W. 3 Ramu is a witness of recovery of birth and death register of the Kotwar of the village concerned. P.W. 4 Bholaprasad is Kotwar himself. He had brought the birth and death register of the period, which was said to have been maintained in due course of business earlier by his father and after his death, by himself. He had deposed regarding the entry of age of the prosecutrix who was said to have been born on 28th of August, 1970, which is recorded at Page No. 76 of the register. P.W. 5 Sheelabai had deposed regarding the actual incident. Prosecutrix Kumari Phoolwati was coming alongwith them in a group of ladies after per forming labour work. Prosecutrix Kumari Phoolwati left behind and she became untraceable thereafter. P.W. 6 Gyanilal is the father of the prosecutrix, who did not support the prosecution case. He was declared hostile and was cross-examined. P.W. 7 Somwati Bai is elder sister of the prosecutrix. She had deposed regarding the age of Kumari Phoolwati to be about 14-15 years. P.W. 8 Dr. K.C. Meshram had taken X ray of the prosecutrix Kumari Pholwati and according to his opinion the age of the prosecutrix at the time of medical examination was less than 14 years. He admitted that there may be a difference of 2~3 years in the assessment of age by performing X Ray. P.W. 9 Vishlal is a witness when the girl was recovered and memo was prepared. P.W. 10 Tamsingh is a police constable who had taken possession of clothes of the appellants, which were sent for chemical examination. P.W. 11 Kumari Phoolwati is the prosecutrix herself. She had deposed as. to how she had gone alongwith the appellants and remained with them for two days outside in two different villages. P.W. 12 Phoolchand is a witness of fact that Kumari Phoolwati, the prosecutrix was found alongwith Perru in his house and on inquiry it was found that the girl had come at her own accord alongwith clothes and ornaments and was living with the appellant. This witness was also declared hostile. P.W. 13 H.N. Guru is the Investigating Officer who had submitted the charge sheet. P.W. 14 J.P. Koshata had proved the X ray plates, who was a radiographer when the X ray was taken. 5. Appellants had denied the charge. This witness was also declared hostile. P.W. 13 H.N. Guru is the Investigating Officer who had submitted the charge sheet. P.W. 14 J.P. Koshata had proved the X ray plates, who was a radiographer when the X ray was taken. 5. Appellants had denied the charge. They had stated that they have been falsely implicated on account of grudge when prosecutrix Mst. Phoolwati was turned out from the job where earlier she was working on their truck. Appellants had relied on the statement of the prosecutrix's father namely Gyanilal, Ex. D/1, which had created a doubt regarding the prosecution case. One witness D.W. 1 Abdul Muzeeb was examined in defence who had stated that the truck was being plied by him as a driver which belonged to the appellants and at some time prosecutrix Kumari Phoolwati was working as a labourer on that very truck. Lateron she was turned out from the job and was bearing a grudge against the appellants on that count. 6. The learned trial Court held, after assessing the evidence, that the age of the prosecutrix was only 14 years at the time of the incident. Even if, she was taken to have been left alongwith the appellants on her own accord, yet on account of her tender age, consent had become immaterial and the charge of rape has been proved against the appellants, by the statement of the witnesses and the medical evidence. With these findings, appellants were convicted and sentenced, as referred above. 7. At the very outset, learned counsel for the appellants pointed out to the Court that the charges u/Ss. 363 and 366 of the Indian Penal Code were not made out against the appellants, as the trial Court itself observed that the movement of the prosecutrix alongwith the appellants may be taken to be with the consent, and they were acquitted of the charges u/Ss. 363 and 366 IPC. But the girl/prosecutrix was found to be below 16 years at the time of the incident, by the trial Court, the appellants were convicted and sentenced u/S. 376 IPC. 8. The finding of the trial Court regarding the age of the prosecutrix was mainly based on the entry made in the death and birth register maintained by the Kotwar of the village concerned, which had been produced on record and proved as material document Ex. 8. The finding of the trial Court regarding the age of the prosecutrix was mainly based on the entry made in the death and birth register maintained by the Kotwar of the village concerned, which had been produced on record and proved as material document Ex. A, which has been thoroughly examined by me at the stage of arguments. It has been mentioned in this very register that a daughter was born to Gyanilal, father of the prosecutrix on 3rd of March, 1962 whose name was Jamwati. No such name of any daughter of Gyanilal has been shown on record. Therefore, this entry does not support the prosecution version. Gyanilal himself appeared in the witness box and did not say that any daughter with the name of Jamwati was ever born to him. Similarly on 11.6.65 a son with the name Shamsingh was born to Gyanilal, whose name is registered in this birth and death register at page No. 47. Again no such son to Gyanilal is shown to have been born with the name Shamsingh at any point of time. Gyanilal himself stated that names of his sons are entirely different. Again on 30.1.1968, another son is said to have been born as recorded in the register, to Gyanilal with the name Ramsingh. No such son with the name Ramsingh is admitted by Gyanilal to have been born to him. He had given the names of his sons entirely different then what has been registered in this register of birth and death. In this sequence, a daughter with the name Phoolwati was shown to have been born to Gyanilal, as per the entry made at page No. 76. Reliance has been placed by the trial Court on that entry which pertains to the date 28th of August, 1970. Name of father is shown as Gyanilal S/o Bharat Lahor and the name of the girl mentioned is Phoolwati. Placing of implicit reliance on this entry by the trial Court has been demolished by the previous entries of birth of one daughter and two sons to the same person Gyanilal S/o Bharat Lohar. Name of father is shown as Gyanilal S/o Bharat Lahor and the name of the girl mentioned is Phoolwati. Placing of implicit reliance on this entry by the trial Court has been demolished by the previous entries of birth of one daughter and two sons to the same person Gyanilal S/o Bharat Lohar. All the four entries are not verified to be of the same person, i.e. the father of the prosecutrix, and the names registered in the said birth and death register are entirely different then what has been deposed by Gyanilal, father of the prosecutrix and the prosecutrix Phoolwati herself. The prosecution lateron produced the elder sister of the prosecutrix, namely, Somwati to clarify this point, and she had deposed regarding the names of her brothers and sisters with aliases to tell with the entries made in this register. This afterthought statement given by Somwati is nothing but an improvement of the earlier stand taken by Gyanilal his own statement and to make the entries reasonable and reliable. 9. After a careful scrutiny of this register, it appears that two daughters and two sons were born to Gyanilal on different dates which are recorded in this register. But Gyanilal himself admits that six children were born to him, three sons and three daughters, whose names are entirely different as given in the statement given before the trial Court. In this background and in view of the discrepancy appearing in the register, the entry dated 28.8.1970 could not be accepted as the date of birth of the prosecutrix Kumari Phoolwati, to make the charge established against the appellants. 10. Learned counsel for the appellants rightly pointed out that the sole basis regarding the age of the prosecutrix could not be the entry available in this register. 11. The learned trial Court again relied on the medical evidence of the doctor Mrs. A. Pancholi who had admitted in Court that the age of the prosecutrix was about 14 years at the time of the incident. But the prosecutrix Kumari Phoolwati herself had given her age to be 15 years when she deposed before the Court. Same age has been given by her elder sister. A. Pancholi who had admitted in Court that the age of the prosecutrix was about 14 years at the time of the incident. But the prosecutrix Kumari Phoolwati herself had given her age to be 15 years when she deposed before the Court. Same age has been given by her elder sister. Since the documentary evidence of the register of birth and death, as aforesaid, is not reliable in the circumstances as mentioned above the trial Court had to bank upon the statement of the doctor and the prosecutrix herself alongwith the statement of her father and elder sister. Even if, they have deposed that the age of the prosecutrix was 14 years at the time of the incident, there always can be a margin of two to three years on either side. Reliance was placed on the case of Hon. Supreme Court in Jayamala v. Home Secy. Govt. of J. & K.; AIR 1982 SC 1297 . In the aforesaid case, Hon. the Supreme Court had laid down the law in para 9 of its judgment which is quoted below:- "Even on normal calculation, if seven months are deducted from the approximate age opined by the expert in Oct. 1981, detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side." 12. Hon'ble Supreme Court has laid down a law which has been followed throughout all these years that there can always be a margin of two years in ascertaining the age medically, which can always be marginalised in favour of the accused. 13. In this particular case, the approximate age, after assessing the medical evidence and the evidence of the prosecutrix herself, comes out to be more than 16 years at the time of the incident. 13. In this particular case, the approximate age, after assessing the medical evidence and the evidence of the prosecutrix herself, comes out to be more than 16 years at the time of the incident. In that view of the matter when the consent of the prosecutrix to go alongwith the appellants, staying for two days in two different villages, travelling six miles, taking tea in different stalls, passing in front of the police station, a number of persons met her in way, the prosecutrix not grudging anywhere, not raising any objections, alarms, hue and cry, it can safely be inferred that the prosecutrix was a consenting party at the time of the incident. Once the Courts come to the conclusion that the consent is obvious on record and the age can safely be inferred to be more than 16 years at the time of the incident, in view of the circumstances mentioned above, the charge under section 376 of the Indian Penal Code cannot be sustained. 14. As pointed out earlier, the father of the Prosecutrix Kumari Phoolwati, namely Gyanilal himself did not support the prosecution case. He disowns the first information report lodged by him. He also stated that nothing was reported to him by the prosecutrix herself and since the prosecutrix did not complain to him, she had not lodged any report. Therefore, in view of the statement of the father of the prosecutrix, entire prosecution story is belied, and in view of the consent of the prosecutrix, no charge under section 376 of the Indian Penal Code could be established against the appellants. 15. Heavy burden was upon the prosecution to establish the charge like rape by producing cogent reliable and convincing evidence, which is totally lacking in this case. The trial Court was misled by the entry made in the register regarding the age of the prosecutrix herself finding that the statement of the father and the prosecutrix was totally unreliable. The improvement made by the elder sister of the prosecutrix was ignored by the trial Court. Other witnesses had no bearing on the point in question. Therefore, from the facts and circumstances of the case and the evidence on record, the charge under section 376 of the Indian Penal Code was not at all made out against the appellants. 16. In the result, the appeals are allowed. Other witnesses had no bearing on the point in question. Therefore, from the facts and circumstances of the case and the evidence on record, the charge under section 376 of the Indian Penal Code was not at all made out against the appellants. 16. In the result, the appeals are allowed. The conviction and sentence awarded by the trial Court under section 376 of the Indian Penal Code, against the appellants, are set aside. Appellants are on bail. They need not surrender. Their personal bonds and surety bonds are discharged. 17. A copy of this judgment be placed on the record of Criminal Appeal No. 1386 of 1986, which shall govern the disposal of that appeal as well.