Honble GUPTA, J.–This appeal has been directed against the Judgment and order dated 3.8.94 passed by learned Sessions Judge, Jaisalmer convicting appellant Noore Khan under Sec. 376 IPC and sentencing him to undergo 7 years rigorous imprisonment and pay a fine of Rs. 2,000/-; in default one year and nine months simple imprisonment. (2). The brief facts of the case are that on 1.10.1993 at about 12.00 noon Smt. Gajju was washing clothes on the Tube well. It is said that accused Noore Khan went there, asked for water; demanded a knife for peeling `Kakri and entered in the hut and thereafter committed rape on Gujju (PW 2). The FIR was lodged by Gajju on 5.10.1993 at P.S. Phalsund where a case under Secs. 376,477 and 323 IPC was registered. The Police during investigation inspected the site, got the medical examination of Gajju done, arrested the accused and recorded the statements of various witnesses. After completion of investigation a challan was submitted. The learned trial Court framed a charge under Sec. 376 IPC against the accused who pleaded not guilty. The prosecution examined PW 1 Chetan Singh, PW 2 Gajju, PW 3 Chutra Ram, PW 4 Madhosingh, PW 5 Hukam Singh, PW 6 Nishchal Kumar, PW 7 Nanak Ram, PW 8 Pema Ram, PW 9 Dr.V.D. Jetha, PW 10 Mukna Ram and PW 11 Shambhu Singh. Accused in his statement recorded under Sec. 313 Cr.P.C. stated that he has falsely been implicated in this case because of some land dispute. He examined DW-1 Nag Singh and DW-2 Prayag Raj in defence. The learned trial Court after hearing the parties, convicted the appellant as above. Hence this appeal. (3) Arguments of learned counsel for the appellant and learned Public Prosecutor appearing for the State-respondent have been heard. (4). Mr. Khatri, learned counsel for the appellant contends that the trial Court has committed error in convicting the accused as FIR was lodged 5 days after the occurrence and there was no medical corroboration of the statement of Gajju. He submits that in any case Gajju was not below 16 years of age and if at all there was sexual intercourse, it was with her consent and as such, the accused could not be convicted in this case. Mr. Khatri points out various cont- tradictions appearing in the findings of the learned trial Court. He submits that in any case Gajju was not below 16 years of age and if at all there was sexual intercourse, it was with her consent and as such, the accused could not be convicted in this case. Mr. Khatri points out various cont- tradictions appearing in the findings of the learned trial Court. According to him, the Judgment is nothing, but full of contradictions and confusion. He places reli- ance on various rulings which will be referred to at appropriate places. (5). The learned Public Prosecutor admitting that the Judgment is full of contradictions and confusion, he submits that conviction of the accused should be upheld on the basis of statement of Gajju supported by her father Mukna Ram and other persons. (6). I have given the matter my thoughtful considerations. The telling circumstances of the case are that the FIR was lodged on the 5th day of occurrence and in the FIR itself no explanation of this delay was stated; and that no injuries were found on the person of Gajju on 6.10.1993 when she was medically examined by the Dr. V.D. Jetha (PW 9). It is also important to note that in the FIR, it was stated that Gajju immediately after the occurrence had narrated the incident to the wife of Udai Singh who was there in the field, however, this important witness has not been examined by the prosecution. (7). Be that as it may, the important point that requires determination in this case is as to what was the age of Gajju at the time of occurrence. Gajju in her statement has given her age as 15 years on 16.2.94 and has stated that occurrence had taken place some 2-3 months before her statement. Mukna Ram (PW 10), father of Gajju has deposed that at the time of occurrence, Gajju was 14 years of age. Dr. Jetha (PW 9) has deposed that on the basis of radiological examination, he found that Gajju was about 15 years of age. (8). The date of birth of Gajju has not come on record. Mukna Ram has been cross-examined on this point. He has deposed that he was married in Samwat 2013 and that his first daughter was born in Samwat 2022 and other issues were born some 4-5 years thereafter. (8). The date of birth of Gajju has not come on record. Mukna Ram has been cross-examined on this point. He has deposed that he was married in Samwat 2013 and that his first daughter was born in Samwat 2022 and other issues were born some 4-5 years thereafter. According to him, a son was born to him in Samwat 2033 and thereafter Gajju was born in Samwat 2039. If this part of the statement of Mukna Ram is taken to be true, Gajju was not more than 12 years of age at the time of occurrence. It appears that either Mukna Ram does not have knowledge of Samwat year of the birth of Gajju or he has deliberately given wrong Samwat year of her birth. In any case in the statement of Gajju, it has come that her elder brother is 21 years of age and there are 2 brother and sisters between her and her eldest sister. She has not given the age of her sister who is the eldest and who is mother of two children. As per statement of Mukna Ram, his eldest daughter was not less than 29 years of age as she was born in Samwat 2022. On a rough estimate, there comes out a gap of 4 years in the age of the children of Mukna Ram. On this estimate, Gajja comes out to be about 17 years of age. Thus on the basis of statements of Gajju and Mukna Ram, it could not be found with certainty that Gajju was below 16 years of age on the date of occurrence. (9). Coming to the medical evidence, it may be stated that Dr. Jetha has clearly stated in his cross-examination that age of Gajju could be 15-16 years. Dr. Jetha has given the age of Gajju on the basis of the radiological examination report Ex. P.11. A reading of the statement of Dr. Jetha clearly shows that he himself had not conducted the radiological examination and he had got it done from someone else. The person who had conducted the examination, has not been examined by the prosecution. Therefore, this arguments of learned counsel for the appellant cannot be lightly brushed aside that it is not established on record that X-ray films produced in the case are that of Gajju. When Dr. The person who had conducted the examination, has not been examined by the prosecution. Therefore, this arguments of learned counsel for the appellant cannot be lightly brushed aside that it is not established on record that X-ray films produced in the case are that of Gajju. When Dr. Jetha was not himself the Radiologist as he had taken training of radiologist and he himself was not present at the time of X-ray examination, it cannot be found with certainty that the films pertain to Gajju. It may be noted that in the statement of Dr. Jetha, it had come that :– ^^,Dljs IysVl Fkh] IysVl eSaus fyokbZ Fkh** but this part of statement was deleted by the learned Sessions Judge by putting his signatures/initials. This goes to show that when the statement was read over to the witness, he stated that the films were not taken in his presence and hence a line was drawn on the relevant words as to remove it from the statement. The fact remains that the radiological examination did not take place in the presence of Dr. Jetha and the said radiologist or technician has not been examined. (10). Apart from this, even if this report Ex.P. is accepted, it cannot be found that Gajju was below 16 years of age. As per the radiological examination the heads of radius had completely fused and also the olecranon process of ulna had fused. Dr. Jetha had admitted that according to Modi Jurisprudence, there could be difference of 3 years in the estimation of age. Their Lordships of Supreme Court in the case of Jaimala vs. Home Secretary of J & K (1), has obser- ved that one can take judicial notice of margin of error in age ascertained by radiological examination is two years on either side. In the case of Bhagwati vs. State of Raj. (2), it has been observed that medical evidence is flexible and in case of doubt, benefit regarding the age, should go to the accused person. In the case of Ramu vs. State of Raj. (3), it has been observed that in matters of age based upon radiological and clinical test, variation of one year is quite possible. In that case as in the instant case, the medical officer had recorded the age between 15 to 16 years. In the case of Ramu vs. State of Raj. (3), it has been observed that in matters of age based upon radiological and clinical test, variation of one year is quite possible. In that case as in the instant case, the medical officer had recorded the age between 15 to 16 years. The Court held that it could not be definitely said that victim was below 16 years of age. In the case of Kishania vs. State of Raj. (4), the following observations from Jhalas Medical Jurisprudence have been quoted : ``An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible an accurate a test as to indicate, the correct number of years and days he has lived. (11). Thus it is clear that when Dr. Jetha gives the age of Gajju as 15 to 16 years, there is possibility that Gajju could be more than 16 years of age. We have also seen that there is no convincing evidence regarding the year of birth of Gajju. Thus it is held that prosecution has not been able to establish that Gajju was below 16 years of age at the time of occurrence. The learned Sessions Judge has certainly erred in holding that Gajju was of 15 years of age. (12). Coming to the evidence of the occurrence, we may scruitinise the statement of Gajju. She has deposed that she was washing clothes on the tube well and there the accused went to her and wanted a mug of water and after drinking water, he asked for a knife in order to peel the `Kakdi and when she proceeded for bringing knife in her hut, accused caught her hand, took her inside the room and committed sexual intercourse with her forcibly and because of that, there was bleeding from her private parts. She has further deposed that she tried to save herself, but the accused had put towel on her face and after doing the intercourse, he ran away. She has then deposed that as she came out of the room, she went to wife of Udai Singh and narrated the incident and thereafter when her father reached there, she also told the incident to him. She has then deposed that as she came out of the room, she went to wife of Udai Singh and narrated the incident and thereafter when her father reached there, she also told the incident to him. She has further said that her father called Madho and Chutra Ram, who came and said the foot marks. She has also deposed that she lodged the report of the occurrence on the 5th day because of the fact that when she and her father proceeded for making a report, the muslims came and they brought them back for compounding the matter. (13). Thus the explanation given by Gajju of 4 days delay is that though she had proceeded to go to lodge a report, but some muslims brought them back from the way telling that they would get the matter compromised. According to her, six muslims had taken them back from Raj Masai Village. She has deposed that after 2-3 days, some 10 persons came and they pressed for a compromise, but nothing could be settled. Mukna Ram (PW 10) has given different version of the delay. According to him, the cause of delay in lodging the report was that Peera had threatened him saying that where would he go after reporting the matter. He has also deposed that because of prestige also, he did not think it proper to lodge a report immediately. It may be noted that Mukna Ram has not stated about the facts deposed by Gajju that when she was going to lodge a report alongwith her father, 6 muslims met them and they brought them back from village Raj Masai and that after 2-3 days, some 10 persons had come for compromise. This goes to show that whatever has been deposed by Gajju regarding delay, is not correct. According to Mukna Ram, Peera continued to meet him at his Dhani for 3 days, but when this fact does not find place in the statement of Gajju, it has to be found that whatever Mukna Ram has deposed is also not correct. It is thus manifest that both the reasons of delay assigned by prosecution witnesses are not correct. It may also be stated here that both the reasons were not stated in the report Ex.P. 14. It is thus manifest that both the reasons of delay assigned by prosecution witnesses are not correct. It may also be stated here that both the reasons were not stated in the report Ex.P. 14. Of course in the interrogation, it was recorded that FIR was not lodged because of Panch Panchayati, but in view of the fact that the factum of interuption by panchas is not deposed by Mukna Ram, it has to be found that this fact stated in the interrogation, is also not correct. Thus the delay in lodging the FIR in this case has not been satisfactorily explained. (14). The learned trial Judge has observed that since the girl was married and her Gona was to take place, it was natural for Mukna Ram to have taken some time in considering over the matter. We have seen that Gajju was not below 16 years of age. It is also note worthy that the most important witness, the first person who was informed about the incident i.e. wife of Udai Singh has not been examined by the prosecution. This circumstance goes to show that if at all there was a case of sexual intercourse in the hut, it was not without the consent of prosecutrix. It seems that wife of Udai Singh was not prepared to fall in the line of the prosecution version of forcible intercourse and, therefore, she was dropped by the Investigating Officer. We have also seen that the explanation of delay given by the two witnesses is also not correct. It may also be noted that at the time of medical examination, no mark of violence was found on the person of Gajju on 6.10.93. According to Gajju, she had suffered injuries on her wrist when her bangles were broken by the accused and that she had also suffered injuries on her elbow when her hand was turned by the accused. Not only this she had stated that she had shown these injuries to the Medical Officer. According to her, she had also suffered injuries on her thigh and knee. Dr. Jetha did not find any injuries on Gajju. Learned Sessions Judge has observed that injuries could not be found as the examination was conducted on 6th day and such injuries might have disappeared within 72 hours. It has not come in the statement of Dr. According to her, she had also suffered injuries on her thigh and knee. Dr. Jetha did not find any injuries on Gajju. Learned Sessions Judge has observed that injuries could not be found as the examination was conducted on 6th day and such injuries might have disappeared within 72 hours. It has not come in the statement of Dr. Jetha that bruises or the abrasion to disappear within 72 hours. It is not clear on what basis, learned Sessions Judge has concluded that marks of injuries could not be visible after 72 hours. Modi in his Medical Jurisprudence, has opined at pages 254 and 251 that marks of abrasions can be seen even upto 10 days and marks of bruises can also be seen upto two weeks. By broken bangles, certainly there could be abrasions on the wrist, it is thus manifest that there is no corroboration of injuries, by the medical evidence or the statement of Gajju. This fact goes to show that if at all there was sexual intercourse, it was with the consent of Gajju and it is for the reason that she did not put resistance and did not sustain any injury. The learned Sessions Judge has himself observed that the alleged recovery of broken bangles does not support the prosecution case. This further shows that this was the clear cut case of consent. (15). Dr. Jetha has observed that there was rupture of hymen and this rupture should have taken place some 5 to 7 days before examination. We have found that Gajju was not less than 16 years of age and she was competent to give consent for sexual intercourse, the FIR was lodged after inordinate delay and no marks of evidence were found on her. It can safely be said that it was a case of consent. It appears that wife of Udai Singh noticed the accused going from the hut and apprehending the trouble that the matter would be reported, Gajju made out a case of forcible sexual intercourse when her father came. It has been held in the case of Bhogini Bhai vs. State of Gujarat (5) :– ``Corroboration may be insisted upon when a woman having attained majority is found in a compri position and there is likelihood of her having levelled such an accusation on account of the instinct of self preservation. (16). It has been held in the case of Bhogini Bhai vs. State of Gujarat (5) :– ``Corroboration may be insisted upon when a woman having attained majority is found in a compri position and there is likelihood of her having levelled such an accusation on account of the instinct of self preservation. (16). In the instant case, as already stated, Gajju must have apprehended that wife of Udai Singh had seen them in objectionable position, so on account of the instinct of self preservation, it seems, she has made false accusation. It is true that accused has taken false plea of prosecuting him on account of enmity, but that cannot be a ground to convict him. The prosecution has to stand on its own legs and it cannot take the support of weakness of the defence. (17). In view of the above discussion, I have no hasitation in saying that the learned trial Court has committed error in convicting the appellant in this case and he is entitled to acquittal. Consequently, this appeal succeeds. The conviction and sentence recorded by the learned Sessions Judge are set aside and appellant Noore Khan is acquitted of the offence under Sec. 376 IPC. He is in jail. He will be released forthwith, if not required in any other case.