JUDGMENT Arun Kumar Goel, J.: Appellant has filed this appeal against the judgment passed by Shri Surjit Singh, Sessions Judge, Mandi, Kullu and Lahaul - Spiti Districts at Mandi in Sessions Trial No. 18 of 1990 dated 1-6-1991. By this judgment the appellant was convicted and sentenced to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.5000/-, in default of payment of fine he has been directed to undergo further simple imprisonment for six months. The appellant was prosecuted under Sections 363,366 and 376 I.P.C. for having allegedly kidnapped minor Daya Kumari from the lawful custody of her father with the intent she be compelled to marry the appellant and is further stated to have committed rape upon the said minor without her consent forcibly. This judgment has been assailed in the present appeal by the appellant. 2. Brief facts giving rise to this case are that Jiwan Dass (PW-5) father of Daya Kumari Prosecutrix (PW-1) made a statement to ASI Sita Ram (PW-12), who was Incharge of Police Post, Pandoh under Section 154 Cr. P.C. Statement made by PW-5 was that his daughter aged 14 years had gone to school on 14-3-1990 to take her examination but did not return till late evening. Getting worried on this count he talked to his colleague, namely, Khazan Singh regarding non return of his daughter, who in turn is stated to have informed Jiwan Dass that he had seen the girl at the house of Surjit Kaur who is the mother of the appellant. Jiwan Dass is stated to have gone to Surinder Paul . Abhilashi President of LN.T.U.C. and informed him regarding his daughters non return not only in the evening her laving been spotted by Khazan Singh at the house of Surjit Kaur (mother of the appellant). Mr. Abhiiashi is stated to have assured Jiwan Dass that her daughter would be back by evening however, the girl did not return not only in the evening but even on the next day, as such, Jiwan Dass reported the matter to the A.S.I, who met him in the bazar. This statement made by Jiwan Dass is stated to have been sent to Police Station, Mandi on the basis of whereof FIR No.83/90 was recorded. This statement made by Jiwan Dass is stated to have been sent to Police Station, Mandi on the basis of whereof FIR No.83/90 was recorded. On 16-3-1990 the police went to the house of the accused which is located in B.S.L. Colony Pandoh and the prosccutrix (PW-1) was recovered from there. The girl is stated to have informed the police that on 14-3-1990 when she was returning after taking her examination, the appellant met her on the way. At such time he took her towards his house and on the way informed that her mother was waiting for her in the house of one of her friends which was in the neighbourhood. However, instead of taking her to the house of her friend, the appellant took her to his own house and committed act of forcible intercourse and thereafter she was brought to Mandi. At Mandi she was firstly taken to Gurudwara and then to a studio where certain joint photographs (Ext.PC/1 to Ext.PC/3) were taken by the photographer. Such photographs arc stated to have been taken by the photographs at the instance of the appellant. Thereafter, the prosecutrix is stated to have been taken to the house of his sister by the appellant which is located near District Hospital Mandi. At this time appellant informed his sister and brother- in-law that they are married and according to prosecutrix as per the information given by her to the police, the appellant again committed sexual intercourse with her. Appellant is stated to have left for Pandoh after leaving her at his sisters house. According to further information provided by the prosccutrix to police that on the next day mother of the appellant and Mr. Abhilashi visited the house of the sister of the appellant and required the prosecutrix to return to her fathers house According to prosecutrix she refused to do so on the plea that since her virginity has been lost at the hands of the appellant and with what face she is going to face her father. On the night of 15-3-1990 appellant is stated to have taken the prosecutrix to Pandoh and kept her at appellants mothers house when again she was subjected to sexual intercourse and on the next morning she was required to change her shirt and salwar and wear a sari. On the night of 15-3-1990 appellant is stated to have taken the prosecutrix to Pandoh and kept her at appellants mothers house when again she was subjected to sexual intercourse and on the next morning she was required to change her shirt and salwar and wear a sari. According to prosecution after her recovery a memo was prepared and the prosecutrix was entrusted to her father, her clothes i.e. shirt and salwar which she had changed a litter earlier was taken into possession and were kept in a sealed parcel. Prosecutrix was taken to hospital for her medico legal examination. Doctor who examined the prosecutrix opined that she was subjected to sexual intercourse within 2-3 days. Ossification test was also undertaken upon the prosecutrix to ascertain her skeletal age which was opined around 15 to 16 1/2 years. During the course of investigation, Panchayat record from Secretary, Gram Panchayat, Baggi, Raghbir Singh (PW-7) and school admission form from Sohan Lai (PW-8) was taken into possession. 3. In order to prove its case against the appellant, prosecution examined as many as 13 witnesses out of whom material witnesses are Daya Kumari Prosccutrix (PW-1), Dr. Priya Malhotra (PW-2) who conducted examination of the prosecutrix on 16-3-1990 and after examination issued medico legal certificate Ex.PB/1, Dr. G.D.Gaur (PW-3) Radiologist under whose supervision the prosecutrix was X- rayed at District Hospital Mandi for the purpose of ascertaining her skeletal age on a reference having been made by Dr. Priya Malhotra. He proved X-ray skiagrams taken and were exhibited as Exts.PD/1 to PD-3. According to this witness the skeletal age of the prosecutrix was determined between 15 to 16 1/2 years. He also proved skiagrams Ex.PD/1 to PD/3 and report submitted by him vide Ex.PD/4. Jiwan Dass (PW-5) father of the prosecutrix who amongst other things has stated that prosecutrix was born on 12- 9-1974 and he had got admitted his daughter in the school wherein the date of birth mentioned is 12-9-1975. PW-6 is Parkash Chand. He has stated that he was present when the police took the prosecutrix into its custody and entrusted her to her father vide memo Ex. PG. He alongwith one Nanak Chand was present when the prosecutrix had produced her clothes salwar Ex.Pl, under wear Ex.P-2 and a duster Ex.P-3. PW-6 is Parkash Chand. He has stated that he was present when the police took the prosecutrix into its custody and entrusted her to her father vide memo Ex. PG. He alongwith one Nanak Chand was present when the prosecutrix had produced her clothes salwar Ex.Pl, under wear Ex.P-2 and a duster Ex.P-3. These clothes were sealed and the seal after use was handed over to this witness which he had produced in the court and was marked as Ex.P-4. In cross- examination, he has denied the suggestion of defence that either he did not go inside the room with police or that the Exts.P 1 and P3 are not the clothes of the girl. He has further reiterated that vide Ex. PG prosecutrix was entrusted to her father after her having been recovered at 8 A.M. PW-7 is Raghubir Singh, Secretary who has proved the entry from the register of deaths and births and extract thereof has been placed on record Ex. PH as well as certificate Ext. PJ, according to which the date of birth of one Kumari Guddi daughter of Jiwan Dass was 21-9-1974. PW-8 is Sohan Lal who has proved the admission form of the prosecutrix and its copy Ext. PK duly attested by the Principal of the school. This copy was correctly prepared according to the original. As per this copy Ext.PK the date of birth of the prosecutrix is 12-9- 1975. PWs 9 to 11, namely, Sant Ram, LHC, Rup Lal H.C., Uttam Singh, HC arc formal witnesses. PW-12 is ASI Sita Ram who recovered the prosecutrix from the house of the appellants mother when she was found sitting there and after taking her into custody entrusted her to her father vide memo Ex.PG. Before this witness prosecutrix had produced Exts. PI to P3 which were taken into possession vide memo Ex.PA and were sealed with seal H which was handed over by him to Parkash Chand (PW-6) and these articles were deposited at Police Station Sadar. This witness had got the prosecurtix medically examined and also collected the material regarding her date of birth, he had also taken into possession photographs Exts.PC/1 to PC/3 from the photographer. According to him FIR in this case Ext. PP is in the hand of Kashmir Singh, S.H.O. and is signed by him and this witness was acquainted with the handwriting of the said S.H.O. 4. According to him FIR in this case Ext. PP is in the hand of Kashmir Singh, S.H.O. and is signed by him and this witness was acquainted with the handwriting of the said S.H.O. 4. Appellant was examined under Section 313 Cr. P.C. whose case was that of denial simplicitor and He further states that the age of the prosecutrix is 18 years. During the cross-examination of-the prosecutrix Days Kumari (PW-1), letters Exts. D-l to D.16 were brought on record and when she was confronted with these letters, she admitted to have written those to the appellant. Prosecutrix also admitted that her parents opposed the meeting kstomnga the appellant and herself as well as having affair between both of them because she was brahmin and the appellant is a scheduled caste. 5. It is on the basis of the aforesaid evidence both oral as well as documentary the trial court has convicted the appellant under Section 376 I PC. but had acquitted him of the charges under Sections 363 and 366 of the I.P.C. State did not appear to be aggrieved by the acquittal of the appellant under Sections 363 and 366 I.P.C. and it is the appellant alone who has preferred the present appeal. Shri Jairath, learned counsel for the appellant has forcefully argued that in the peculiar background of the case, the trial court has fallen into error by convicting the appellant without there being any legal evidence to show that the age of the prosecutrix was less than 16 years or that she was subjected to sexual intercourse against her wish forcibly. According to Shri Jai Rath the age of the prosecutrix stands proved to be more than 16 1/2 years and thus in the face of the acquittal of the appellant under Sections 363 and 366 of the I.P.C. his conviction under Section 376 of the I.P.C. was also liable to be set aside. According to Sh. Jairath the consent in the present case is writ large from the conduct and behaviour of the prosecutrix Kumari Oaya (PW-1) coupled with her letters Exts. D-l to D-16 and she being more, than 16 years of age, the present appeal according to him deserves to be allowed. 6. In support of his aforesaid submissions, Shri Jairath has referred to the statements of Dr. Priya Malhotra (PW-2), Dr. G.D. Gaur (PW-3) and that of prosecutrix (PW-1). D-l to D-16 and she being more, than 16 years of age, the present appeal according to him deserves to be allowed. 6. In support of his aforesaid submissions, Shri Jairath has referred to the statements of Dr. Priya Malhotra (PW-2), Dr. G.D. Gaur (PW-3) and that of prosecutrix (PW-1). In addition to this, he has attacked the correctness of Exts. PH and PJ certificates from the Panchayat record and Ex.PK admission form for holding the age of the prosecutrix to be below 16 years. 7. Pw-2 Dr. Priya Malhotra has opined that the clinical age of the prosecutrix was 15 to 16 years and in her opinion the girl was exposed to coitus. On her examination she had observed as under: "Average built and nourished. Pulse 80 per minute. B.P. 110/70. Teeth 7+7/7+7 total 28. There was space for the 3rd motar in both lower jaw. Height 153 cms and weight 40 kgs Menarche - four years back. The girl was having menses since morning. Breasts were well developed. The areola was pink in colour. Nipple had formed. Auxiliary hair was well developed and black in colour. Public hair was well developed and black in colour. No matting of hair. There were no stains on the thighs. No external injury mark was seen on her body. The girl had changed her clothes and taken her bath. Per vagina examination, labia majora was found well formed. Labia minora was also well formed. No injury was found on the pereneim. The hymen was torn with well deformed margins. The margins were red and swollen. Vagina admitted one linger easily. No internal injury was seen. There was bleeding from the uterus cavity Cervica smear was taken! No dead-or alive spermatozoa was seen." 8. PW-3 Dr. G.D. Gaur, Radiologist had given the skeletal age of the prosecutrix between 15 to 16 1/2 years after the girl had been X- rayed under his supervision at general Hospital, Masdi. In the face of the statements of these two witnesses, it is evident that by allowing a margin of two years, it will not be sale to infer that the age of the proserottix on 14-3-1990 was below 16 years. While taking this view, reference may be usefully made to Ex.PH and Ex.PJ certificate and extract from the Panchayat records which show the date of birth of the prosccutrix as 21-9-1974 and Ex. While taking this view, reference may be usefully made to Ex.PH and Ex.PJ certificate and extract from the Panchayat records which show the date of birth of the prosccutrix as 21-9-1974 and Ex. PK school admission form shows her date of birth as 12-9-1975. PW-5 Jiwan Dass father of the prosecutrix has stated that he himself got his daughter admitted in school. He further states that his daughter (prosccutrix) was born in the year 1974 on 12-9-1974. He further admits that he got his said daughter admitted in the school and had got her date of birth recorded as 12-9- 1975. No explanation has been given by PW-5 as to how the discrepancy- regarding her daughters date of birth is there in both the records, when he states that both entries were got made by him personally. Even otherwise, there is no evidence to connect Ex. PH with the prosecutrix as there the name of the girls is shown as Guddi. While dealing with this aspect of the matter, the trial court has said that in this part of the country, generally on the birth of of a girl she is named as Guddi, to my mind this inference is not correct. 9. In this case the formost question that arises for determination is whether the prosecutrix was above 16 years of age or below on the date of the commission of the offence. The answer to this question in the facts and circumstances of the case would be that she was above 16 years of age and the appellants conviction and sentence is liable to be set aside. In this behalf it may be appropriate to refer to the statement of PW-3 Dr. G.D. Gaur, Radiologist who has opined that the skeletal age is 15 to 16 1/2 years and as per Dr. Priya Malhotra (PW-2) who examined the prosecutrix the clinical age of the prosecutrix is between 15 to 16 years. Needless to point out that in such test the margin of error on either side varies from 1 1/2 to 2 years and in a case of present nature the benefit of such margin of error would obviously go to the appellant. That being the position, the appellant cannot be said to have committed rape upon the prosecutrix without her consent and or her being under the age of 16 years. That being the position, the appellant cannot be said to have committed rape upon the prosecutrix without her consent and or her being under the age of 16 years. In the face of the evidence on record, the prosecutrix has failed to prove by reliable evidence that the prosecutrix was below 16 years of age at the time of commission of the offence, that being the position, on this ground also the appellant is entitled to acquittal. In taking this view, I am supported by a judgment of the Honblc Apex Court reported in AIR 1979 Supreme Court 1276 Lalta Prasad v. State of Himachal Pradesh and a judgment of this court reported in 1987 CRI.L.J. 1266 Paramjit Singh v. State of Himachal Pradesh. In the context of the opinion of the doctor as to the age of the person on radiological test, margin of error in age ascertained by such examination is two years on either side. In AIR 1982 Supreme Court 1297 Jaya Mala v. Home Secretary, Government of Jammu and Kashmir & Ors., it was so held and relevant extract therefrom is to the following effect: "......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...." 10. Applying the ratio of the judgments reported in the aforesaid cases, and giving benefit of margin of error of two years, it would not be safe to hold that the age of the prosccutrix on the day when she is stated to have been subjected to sexual intercourse was less than 16 years. So far the consent on the part of the prosecutrix is concerned, from the circumstances that firstly she was subjected to sexual intercourse by the appellant at his mothers house at Pandoh, thereafter her having been brought from Pandoh to Mandi a distance of about 15/16 kilometers and then her having been taken to Gurudwara and thereafter both having been taken to Gurudwara and thereafter the girl having been taken to the house of the sister of the appellant where also she was subjected to sexual intercourse, then next day again her having been subjected to sexual intercourse clearly indicate that the prosecutrix was moving of her own free will and volition without any inducement or pressure of any sort on the part of the prosecutrix. A bare reading of Exts.D-1 to D-16 further leads to the conclusion that the prosecurtix and the appellant were intimate and they wanted to marry each other. The mother of the appellant according to these communications had informed the mother of the prosccutrix that her daughter is writing letters to the appellant and prosccutrix had further stated in these communications that her mother is sending her away for two months after the examination and she in fact did not want to go. Tenor of these communications further indicates that the prosecutrix and the appellant were having some liaison between them as such it would be safe and proper to hold that the prosccutrix was a consenting party firstly forgoing to house of the appellant at Pandoh and then accompanying him to Mandi besides being a consenting party to the sexual intercourse and it was not against her wish. Prosecutrix (PW-1) further appears to have made lot of improvements in her statement while appearing in court, This appears to have been done because she wanted to get the appellant convicted. It has come in evidence that appellant is a harijan and the prosecutrix is a brahmin which appears to be the basic cause of whole trouble in the case. Their meeting was objected to by her parents on this ground. 11. Shri M.L. Chauhan, learned Assistant Advocate General for the respondent, made an attempt to pursuade the court that the age of the prosecutrix has been duly proved as well as established to be below 16 years and as such conviction and sentence imposed by them trial court deserves to be upheld. For the reasons set out herein -above, this pica on behalf of the State is hereby rejected. 12. As a result of the aforesaid discussion, the present appeal succeeds and consequently the conviction and sentence imposed upon the appellant by the trial court is set aside and the appellant is acquitted of the charge under Section 376 of the Indian Penal Code, the fine if deposited by the appellant shall be refunded to him. Bail bonds of the appellant shall stand discharged.