Judgment P.K.Sarin, J. 1. This Criminal Revision application is directed against the judgment and order dated 8-3-1991 passed by IInd Additional Sessions Judge, Bhagalpur dismissing petitioners Criminal Appeal No. 59/90 in part and confirming the judgment and order dated 25-8-1990 passed by Ilnd Assistant Judge. Bhagalpur in Sessions Case No. 309/82 in so far it related to the conviction and sentence of the petitioner under Sec. 376 of the Indian Penal Code. The petitioner was convicted and sentenced to seven years rigorous imprisonment and a fine of Rs. 1000.00 for the offence under Sec. 376 of the Indian Penal Code by the trial Court. He was further convicted and sentenced for the offence under Sec. 366 of the Indian Penal Code by the trial Court. On appeal, the appellate Court acquitted the petitioner of the offence under Sec. 366 of the) Indian Penal Code but upheld his conviction and sentence under Sec. 376 of the Indian Penal Code. 2. Petitioner was tried on the allegations that he had kidnapped 14 years minor girl Maya from village Koyala. P.S. Mahagama, District Godda. Maya was residing with her brother-in-law at Kahalgaon. It was alleged that in the night of 27th July, 1980, when her brother-in-law woke up in the night he found Maya missing from the room. On search, it was informed by some villagers that they had seen petitioner and Maya in the same night and boarding on train in the same night. The first information report was lodged by Smt. Madhilbati Wala Ghosh, the mother of Maya on 30-7-1980, Maya was subsequently recovered from the house of the petitioners fathers sister at Banka where she was said to have been taken by the petitioner. Maya was said to have been raped by the petitioner while she was kept at the house of the petitioners fathers sister. 3. After investigation police submitted charge - sheet. The petitioner pleaded his innocence and alleged false implication. 4. Prosecution examined nine witnesses in the case. Out of them PWs 1 to 4 who were said to have been seen the petitioner going with Maya turned hostile and did not support the prosecution case. PW 5 is the brother-in-law of Maya and PW 6 Chaina Devi is her sister while PW 7 is Madhubati Wala Ghosh, the mother of the victim girl. They had not seen the petitioner taking away Maya. PW 5 is the brother-in-law of Maya and PW 6 Chaina Devi is her sister while PW 7 is Madhubati Wala Ghosh, the mother of the victim girl. They had not seen the petitioner taking away Maya. They deposed on the basis what others toldthem. The statement of Bijay Prasad Singh (PW 5) and his wife Chaina Devi (PW 6) was on the point that Maya was found missing from their house in the night of occurrence. PW 8 is the victim girl Maya Devi. She was the only witness in the case regarding the commission of offence by the petitioner. PW 9 is Dr. Sharda Ram who had examined victim Maya Devi. The learned trial Court on consideration of the evidence on record found the charges against the petitioner proved and accordingly convicted and sentenced him. However the appellate court on re-appraisal of evidence disbelieved the statement of victim Maya Devi on the point of kidnapping by petitioner and discussion by the appellate Court would show that he found that Maya Devi had left the house of her brother-in-law on her own accord and went with the petitioner. On this finding, the learned appellate Court acquitted the accused petitioner of the charge under Sec. 366 of the Indian Penal Code. However, the appellate Court believed the evidence regarding the age of the victim girl being about 15 years and believed her testimony that she was raped by the petitioner at Banka. 5. The learned counsel for the petitioner has contended that in this case Investigating Officer has not been examined and it has prejudiced the petitioner as contradiction could not be brought on record. The learned counsel has drawn attention to the observation made by the appellate court wherein it as been observed that the attention of the witnesses have been drawn towards statements before the police but as the Police Officer recording their statement was not examined by the prosecution a serious legal infirmity has crept in the prosecution case and these witnesses need not be treated creditable. It is contended that when the appellate Court had found prejudice has been caused to the defence for nonexamination of the Investigation Officer the benefit ought to have been given to the petitioner and he ought to have been acquitted. It is contended that when the appellate Court had found prejudice has been caused to the defence for nonexamination of the Investigation Officer the benefit ought to have been given to the petitioner and he ought to have been acquitted. In support of his contention, the learned counsel has placed reliance on a decision of this Court in the case of Sheikh Rashid V/s. The State of Bihar, wherein the accused was held entitled to acquittal on account of prejudice caused to the accused for non - examination of the Investigation Officer. The next case relied upon by the learned counsel for the petitioner is a decision of this Court in the case of Hazan Choubey V/s. The State of Bihar, wherein it has been held that if the examination of the Investigating Officer is essential then his non-production causes prejudice to the accused and the accused was acquitted in the said case. It is well settled position that non - examination of the Investigating Officer per se would not be said to be fatal until prejudice is shown to have been caused to the defence. In the present case, the appellate Court itself observed that the non - examination of the Investigating Officer has resulted into a serious legal infirmity. The finding of the learned appellate Court ought to have followed the principles laid down by this Court in various decisions including aforesaid two decisions referred to above. It may be mentioned that there was no evidence regarding recovery of Maya from the house of petitioners fathers sister at Banka. The police officer who is said to have recovered Maya was not examined by the prosecution. There was only the testimony of Maya PW 8 that she was recovered by the police from the house of the petitioners fathers sister. That testimony without examination of the Police Officer, who recovered Maya could not have been relied upon. The appellate Court has acquitted the accused petitioner of the charge under Section 366 of the Indian Penal Code. Therefore, perhaps the appellate Court did not attach much importance to this aspect of the police. The trial Court as well as the appellate Court have observed that although Dr. Shard a Ram (PW 9) had first recorded opinion that the victim girl was aged about 15 years, but it was left to be confirmed after X-ray etc. Therefore, perhaps the appellate Court did not attach much importance to this aspect of the police. The trial Court as well as the appellate Court have observed that although Dr. Shard a Ram (PW 9) had first recorded opinion that the victim girl was aged about 15 years, but it was left to be confirmed after X-ray etc. Thereafter on the report received after such examination Dr. Sharda Ram recorded opinion that the victim girl was between the age of 18-22 years. However, the trial Court as well as the appellate Court did not give reasons for discarding the medical opinion regarding age which was based on the pathological examination as well as X-ray etc. and they believed the oral testimony of PW 8 the victim girl and her mother (PW 7) and her brother-in-law and sister and on its basis treated the victim girl to be minor on the date of occurrence and found the charge of rape to be proved despite discussion by the appellate Court that the victim girl appear to be a consenting party in going with the petitioner for the purposes of marriage. The finding of the learned appellate Court on this score regarding charge of rape appears to be on account of wrongly discarding medical evidence and. giving weight age to the oral evidence. After the observation of the appellate Court that Maya was consenting party and had gone on her own accord with the petitioner and in the face of medical evidence that she was aged about 18-22 years the conviction of the petitioner under Sec. 376 of the Indian Penal Code was not warranted. The petitioner was also entitled to be acquitted on the ground of prejudice having been caused by non - examination of the Investigating Officer apart from any other ground. The appellate court has failed to give the benefit thereof to the petitioner and the appellate Courts judgment and order appear to suffer from infirmity on this score. The judgment and order under revision cannot be sustained and is liable to be set aside. 6. Accordingly, the judgment and order under revision is set aside. The petitioner is acquitted of the charge under Sec. 376 of the Indian Penal Code. He is on bail. He need not surrender. His liability on the bail bond, is discharged.