Honble MITTAL, J.–This appeal is directed against the judgment and sentence dated 31.8.1995 passed by Additional Sessions Judge No.2 Jodhpur, whereby the appellant Puran Chand has been convicted u/Ss. 363, 366 & 376 IPC and sentenced to undergo three years R.I. and Rs. 100/- fine or in default to undergo 1 month S.I., 5 years R.I. and fine of Rs. 200/- or in default to undergo two months S.I., 8 years R.I. and Rs. 500/- fine or in default to undergo four months S.I. respectively. (2). The prosecution case is that complainant Kalu Regar and his wife Smt. Parsi had gone to work on 18.4.1995 leaving behind their daughter Manju aged 13 years and son Siva 3 years, in their hut. In the evening at about 6.00 p.m. they did not find their daughter and son for whom they made search but could not find them. On 6.5.1995, the complainant suspected the petitioner and lodged a complaint at PS Udai Mandir. An investigation was conducted and after completion of investigation, charge sheet was submitted against the petitioner and on committal and trial the impugned judgment and sentence has been passed as stated above. (3). Learned counsel for the appellant has argued that the prosecution has failed to prove the charged framed against the appellant beyond reasonable doubt and also failed to prove the age of the prosecutrix below 16 years i.e. 13 years stated to be in this case. While inviting my attention to the statements of prosecutrix Manju Regar, PW 4 Kallu Ram PW 1 and Smt. Parsi PW 2, it has been contended that the prosecution story is not at all liable. The testimony of the prosecutrix Manju does not find corroboration from any circumstances because the prosecution has not submitted the chemical examiner report or medical report whereas the prosecutrix has stated that she suffered injuries and were shown to the Doctor. There is no evidence that the petitioner used force or induced to her to go with him. (4). Learned Public Prosecutor has contended that the sole testimony of the prosecutrix Manju PW 4 is sufficient and trustworthy to hold the conviction of the petitioner. The prosecution has proved the age of the prosecutrix as 13 years on the date of the occurrence by a medical evidence and the statements of her parents Kallu PW 1 and Smt. Parsi PW 2. (5). The prosecution has proved the age of the prosecutrix as 13 years on the date of the occurrence by a medical evidence and the statements of her parents Kallu PW 1 and Smt. Parsi PW 2. (5). I have gone through the statements of all the witnesses on record, and also the impugned judgment of learned Sessions Judge who has relied upon the medical evidence and the statement of prosecutrix to hold that she was 13 years of age at the time of the occurrence. Manju and Siva were recovered from the house of the appellant and charges one proved from the statement of Manju and suppor- ted by her parents to whom she narrated about the incident after her parents to whom she narrated about the incident after her recovery. It has been further observed that she could not resist because the appellant has threatened her to kill. (6). Learned counsel for the appellant has relied upon several judgments in support of his argument. (7). In Hari Ram vs. State of Raj. with Phool vs. State of Raj. (1) it was held that the prosecutrix made no protest despite opportunity and it was not proved that she was abducted against her will. In Bherun Lal vs. State of Rajasthan (2), the prosecutrix was a minor girl and she was taken away on a bicycle during the night and was discovered in the company of the accused next morning. There was no injury on her body and the opinion of the Doctor was that no sexual intercourse has taken place, neither any inducement nor any force was proved to have been used by the accused and so the offence u/Ss. 376 & 363 IPC was not made out and the conviction was set aside. The same view was taken in Jagannivasan vs. State of Kerala (3). Another case relied upon on behalf of the appellant is Peer Singh vs. State of Rajasthan (4) wherein the facts did not disclose any allurement or inducement and that the girl went with the accused willingly who was her brother-in-law. The Court held that the girl was mature and understood her welfare and in the circumstances conviction could not be sustained. (8). The Court held that the girl was mature and understood her welfare and in the circumstances conviction could not be sustained. (8). On the question of age, the learned counsel for the appellant has placed reliance on Shyam Sunder vs. State of Rajasthan (5) wherein the girl appeared 14 years of age but below 18 years and she had attained the age of discretion and understand her welfare. There was no inducement or allurement and the girl went with paramour. The accused-appellant was given a benefit of doubt. In Noore Khan vs. State of Rajasthan (6), after discussing the case law it was laid down that in case of doubt regarding the age of the prosecutrix, the benefit of doubt go to the accused there can be a variation of one year in the age based on radiological and clinical test. In another case of Rafiq vs. The State of Rajasthan (7) the age of the prosecutrix was 16 years as per the medical evidence and hymen was old torn. She remained with the accused and travelled to several places then it was observed that she was a consenting party and the accused was given benefit of doubt. (9). I shall first deal with the controversy about the age of the prosecutrix Manju, the prosecution case is that her age at the time of the occurrence was 13 years and Dr. V.K. Malhotra has opined on the basis of clinical test and radiological report that it was between 14 years to 16 years. It may not be out of place to mention here that the prosecution has not produced the x-ray plates and also has not produced the radiologist. However, radiological report has been exhibited in the statement of Dr. V.K. Malhotra, medical jurist. I am unable to agree with the learned Public Prosecutor that non-examination of radiologist does not effect the prosecu- tion case. When there is a question of determination of age, the apithysis of bones is very material factor and the radiologist should depose to the Court about the x-ray taken by him and the findings there in so that the accused get a fair chance to cross-examine him. The oral testimony and the medical evidence is also found extremely contradictory. Kallu PW 2 has stated his age at the date of his statement on 13.7.1995 as 30 years. The oral testimony and the medical evidence is also found extremely contradictory. Kallu PW 2 has stated his age at the date of his statement on 13.7.1995 as 30 years. He further deposed that the age of his daughter Manju on the date of the occurrence was 13 years but in the cross-examination he has stated that he was married at the age of 5 i.e. 25 years ago. He does not remember that when his Gona was performed after marriage, but Manju was born after two and a half years of Gona. He is unable to give any date, year or Samvat of the birth of his daughter Manju. He admits that he has given the age of 13 years as an estimately only. If the age of Manju is considered as 13 years, then the age of her father i.e. PW 1 Kallu was 17 years in the, year of her birth whereas Smt. Parsi PW 2 has stated her age on the date of taking her statements as 20-25 years. It means that in the year of the birth of her daughter Manju, her age comes to 12 years. In the cross-examination she states that she was married at the age of three years and went to her matrimonial home at the age of 16 years and after three years her daughter Manju was born. According to this calculation also Manju was born to her at the age of 11 which is in my view, not an acceptable position. When she states that she went to matrimonial home at the age of 16. I am unable to accept the contention of the learned Public Prosecutor that the learned trial Court treated Manju as child witness because she gave her age 12 years, and therefore, the age of Manju should be accepted as 13 years on the date of the occurrence. It is not possible to ignore the statements of her parents as discussed above and the medical evidence wherein radiologist has not been examined and X-ray plates has also not been produced for the examination of the Court. There is another aspect of the case also that Manju joined the school and passed second class, but the school certificate showing age in the admission register was not collected during investigation. It is true that Dr. There is another aspect of the case also that Manju joined the school and passed second class, but the school certificate showing age in the admission register was not collected during investigation. It is true that Dr. V.K. Malhotra PW 3, has given the opinion about the age of Manju to 14 to 16 years but considering the total evidence on record as discussed above, I am of the view that the prosecution has not been able to prove beyond reasonable doubt that the age of Manju was below 16 years on the date of the alleged occurrence. (10). I have carefully scrutinised the testimony of Manju and I agree with the learned counsel for the appellant that her statement is not credible about the alle- ged occurrence also. It is apparent from her statement that Puran Chand appellant was also living near the hut of the prosecutrix. According to her the appellant molested her previously also and did sexual intercourse two or three times about two or three months back but she did not make any complaint to her parents. Her explanation that the appellant had threatened her and therefore she did not make complaint is not plausible. She has given only one explanation for every question in the cross-examination that she could not resists or she could not complaint to her parents or she could not tell about the incident to the `Bhua of the appellant in his house who used to serve food to her and also did not complaint to anybody while travelling with the appellant at several places on account of threatening given to her by the appellant, even at the bus stand when the appellant went to take ticket she did not report to anybody that she had been abducted by the appellant by force or inducement. She has unable to make it clear as to how force was used against her or an inducement or allurement was given by the appellant. I am of the view that the reason shown by her and the allegation of threatening by the appellant is not found acceptable in the facts and circumstances of the case. She also states in her cross-examination that she was injured on stomach and hands and the injuries were shown to the Doctor but there is no such medical report before us. She also states in her cross-examination that she was injured on stomach and hands and the injuries were shown to the Doctor but there is no such medical report before us. In the cross- examination she has admitted that the parents of the appellant used to visit her house in the presence of her but she also did not told them about her abduction. So far as the offence u/S. 376 is concerned, Dr. V.K. Malhotra has not given any definite opinion. The swab in his smear were sent for chemical examination but that report has also not been placed before the Court. Possible that no injury was found on her person. But the medical examination Ex.P/7 reveals that hymen was old torn and no external or internal injuries, or marks of injuries were seen. Manju deposed that there was bleeding from vagina on sexual intercourse by the petitioner. But this version is not acceptable in view of the medical report Ex.P/7 saying old torn hymen, old tears. I am of the view that it could be possible by the medical jurist to have marked the injuries and tear of the hymen in the recent past had it been so a reality. So far as the kidnapping of Shiva, three years is concerned, there is no statement that he was taken away by the appellant. I agree with the learned counsel for the appellant that in the above facts and circumstances ther eis every possibility and it cannot be ruled out that she herself would have taken her brother with her. Manju has also deposed that her clothes got blood stained and were given to the police but no clothes have been produced in the Court. (11). From the aforesaid reasons, I am of the view that the testimony of prosecutrix Manju is not reliable at all about the alleged occurrence and I do not agree with the appreciation of the evidence on record made by the learned trial Court. The learned trial court has not considered and appreciate the moral testi- mony and the medical report properly and the impugned judgment and sentence does not deserve to be sustained. (12). In the result, the appeal is accepted. The impugned judgment of conviction and sentence dated 31.8.1995 passed by Additional Sessions Judge No.2, Jodhpur is hereby set aside. The appellant Puran Chand is hereby acquitted of the charges u/Ss. (12). In the result, the appeal is accepted. The impugned judgment of conviction and sentence dated 31.8.1995 passed by Additional Sessions Judge No.2, Jodhpur is hereby set aside. The appellant Puran Chand is hereby acquitted of the charges u/Ss. 363, 366 & 376 IPC. The petitioner be set at Iiberty if not required in any other case.