JUDGMENT A.L. VAIDYA, J.—Present appellants Saroti Devi and Shakuntla Devi were charged under Sections 363/366/386-A, IPC while appellant Bal Raj was charged under the aforesaid Sections as also under Section 378 IPC All the three appellants, after being tried for the aforesaid offences, were convicted by the learned Sessions Judge, Hamirpur, vide judgment dated 25th April, 1995, and sentenced as under: Saroti Devi and Shakuntla Devi appellants have been sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs. 2,000 each under Section 366, IPC. In default of payment of fine each one of them has been directed to undergo simple imprisonment for a period of six months. Further, each of the above appellants has been sentenced under Section 366-A, IPC to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000 each and in default of payment of fine each one of them has been sentenced to undergo simple imprisonment for a period of six months. Both the sentences have been ordered to run concurrently. Appellant Balraj has been sentenced to undergo rigorous imprisonment for a period of two years under Section 366, IPC and to pay a fine of Rs. 2,000. In default of payment of fine, he has been ordered to undergo simple imprisonment for a period of six months. Appellant Balraj has further been sentenced to undergo rigorous imprisonment for a period of four years under Section 376, IPC and to pay a fine of Rs 5 000 and in default of payment of fine he has been directed to undergo simple imprisonment for a period of one year. All the sentences have been ordered to run concurrently, 2. The prosecution case, as put up, has been that Smt. Ram Dei prosecutrix was the daughter of PW 5 Joginder Singh. The occurrence is alleged to have taken place on 31.7.1994 and at that time six months had passed when the mother of the prosecutrix and wife of Joginder Singh had died. On the day of occurrence, that is, 31.7.1994 Joginder Singh, along with his son Ram Lai, left his residence for work leaving behind Ram Dei and other minor children in the house. On the day of occurrence, that is, 31.7.1994 Joginder Singh, along with his son Ram Lai, left his residence for work leaving behind Ram Dei and other minor children in the house. The father and son came back in the evening and found the prosecutrix absent from the house On inquiry one of the sons of Joginder Singh named Raju informed that accused Saroti Devi and Shakuntla Devi had visited the house and took Ram Dei prosecutrix with them. Prosecution case further has been that when the prosecutrix did not return, next morning Joginder Singh searched for her in the house of accused Saroti Devi and Shakuntla Devi aforesaid but they too were found absent from their house. Thereafter, PW 5, Joginder Singh lodged a report Ex. PG under Section 366, IPC read with Section 34, IPC. It was revealed that Saroti Devi and Shakuntla Devi accused persons had allured the prosecutrix to marry accused Balraj and on 1.8.1994, without her consent, accused Balraj performed the marriage with her in the temple at Jogi Panga and thereafter Balraj and the prosecutrix both were sent to Nawan Sehar where the prosecutrix was alleged to have been raped by Balraj accused. It was aiso revealed that at the time of commission of sexual offence the prosecutrix cried out of pain but her mouth was gagged and on 2.8.1994 clothes were changed by the prosecutrix and Saroti Devi accused and Ram La! brought them to their shop at Sangian-Da-Tiaia, from where the prosecutrix was recovered from the custody of Saroti Devi and was handed over to her father Joginder Singh. Thereafter, the prosecutrix was medically examined. Medical certificate was given to this effect by the Doctor which was Ex.PA on record. The clothes of the prosecutrix were also taken into possession. Accused Balraj was arrested on 6 8.1994. He was also medically examined. His medical certificate is Ex. PE and it was opined that he was capable to perform sexual intercourse. The clothes of the prosecutrix as well as the underwear of the accused were sent for chemical examination. Neither blood nor semen was opined to be present on the aforesaid clothes During investigation the prosecutrix was sent to the Radiologist for opining about her skeletal age. The Radiologist was of the opinion that the age of the prosecutrix was ranging between 14 and 16 years. Neither blood nor semen was opined to be present on the aforesaid clothes During investigation the prosecutrix was sent to the Radiologist for opining about her skeletal age. The Radiologist was of the opinion that the age of the prosecutrix was ranging between 14 and 16 years. Some certificate of the president of the Panchayat was aiso obtained pertaining to the age of the prosecutrix and a copy of the family register was also procured wherein the date of birth of the prosecutrix was recorded as 11.4.1982. !t was also revealed during investigation that the accused had also burnt the clothes of the prosecutrix which she was wearing at the time of occurrence. 3. The aforesaid convictions and sentences have been assailed in the present appeal on various grounds. 4. Learned Counsel for the parties have been heard and the records has been minutely scrutinized. 5. Learned Sessions Judge has come to the conclusion, after appreciating the evidence, that the age of the prosecutrix at the relevant time was below 16 years and on that basis, according to the learned Sessions Judge, the offences stood legally established. 6. it has been very forcefully contended on behalf of the appellants that the leaned Sessions Judge has acted illegally in appreciating the evidence with respect to the age of the prosecutrix especially when the circumstances brought on record in this particular behalf if appreciated in a legal manner, the likelihood of the prosecutrix being more than 18 years of age could not be ruled out. It has further been submitted that in the present trial, the prosecution has miserably failed to establish the age of the prosecutrix below 16 years beyond a reasonable doubt by examining legally competent evidence. The prosecution in order to establish the age of the prosecutrix has examined three types of evidence, the first being the entry in the family register brought on record; the second one is the opinion given by the Radiologist; and the third being the oral evidence examined in this particular behalf. 7. Ex.PJ is the copy of the Pariwar register wherein the names of Joginder Singh and his’ family members have been mentioned. 7. Ex.PJ is the copy of the Pariwar register wherein the names of Joginder Singh and his’ family members have been mentioned. The name of Joginder Singh finds mention at serial No. 2 and his age has been recorded to be 37 years while the date of birth of his son Ram Lai has been recorded as 1.3.1980 and the date of birth of Ram Dei prosecutrix has been recorded as 11.4.1982. There js nothing in this copy as to when this entry was made. The copy is also silent as to at whose instance this entry was made. At this stage, the statement of PW 11 Mouzi Ram can safely be referred.. He has been examined as PW 11 who stated on oath that" he remained posted as Panchayat and Development Officer at Multhan Circle at Multhan during the .years 1987 to 1994. According to him, he had brought the family register of Gram Panchayat Lubai and in the said register at page 96 there was an entry in regard to the family of Joginder Singh, son of Chet Ram and copy of that entry was Ex, PJ. He further added that on the basis of the said entry, he issued certificate Ex, PK and according to the said entry, the witness stated the date of birth of prosecutrix Ram Del as 11.4.1982 Ex. PK is the certificate issued by him wherein the date of birth of the prosecutrix has been stated to be 11.4.1982 as was recorded in Ex, PJ 8, During cross-examination, this witness deposed that he did not know as to when the entry in the Pariwar register was recorded nor there was any mention to that effect in the register According to him, Panwar register was maintained for maintaining the record of the population in a pa pariwar and other public purposes such as for issuance of & He stated that it was correct that register of deaths and birth. prepared and maintained in the Panchyat. According to him, the register of births and deaths pertaining to Lubai Panchayati for the year 1982 had been consigned to the record kept m the office of the Chief Medical Officer Kangra at Dharamsala. He further d that in column. prepared and maintained in the Panchyat. According to him, the register of births and deaths pertaining to Lubai Panchayati for the year 1982 had been consigned to the record kept m the office of the Chief Medical Officer Kangra at Dharamsala. He further d that in column. No. 7 of : register approximate age has been recorded., He further added that it was correct that in the said register dale of birth in respect of elderly person was not mentioned though the date of birth of the children of Joginder Singh was duly mentioned. He also stated that the entry in the register copy whereof is Ex. PJ had been made with different ink. He did not know whether or not the person who made the said entry was alive when the witness made the statement According to him, there was no mention in the register as to who came forward to get the entry made in the said register To a court question, the witness stated that he understood that the Pariwar registers were being maintained in Kangra District since the year 1977 and prior to that register of births used to be maintained by a Chowkidar and at the police station concerned He also disclosed that under the latest position, birth registers were kept in the office of the CM O, 9. Admittedly, the prosecution has not brought on record any birth entry from both the registers pertaining to the prosecutrix. The aforesaid entry is pertaining to the family register which could be relevant to prove the persons recorded therein to be members of a particular family. That was the main idea of preparing such a register as has been stated by PW 11. The said copy nowhere recorded the source of this information especially pertaining to the age of the prosecutrix and other persons. Moreover in the present case, as has been stated by this PW 11, the birth entries pertaining to the year 1982 were also maintained in a register which was at present in the office of the CMO. There is absolutely no explanation as to why such an entry has not been taken into possession during investigation of the case. The Investigating Officer nowhere stated that he ever tried to procure such an entry and was not in a position to procure the same. There is absolutely no explanation as to why such an entry has not been taken into possession during investigation of the case. The Investigating Officer nowhere stated that he ever tried to procure such an entry and was not in a position to procure the same. In the absence of birth entry having been taken into possession by the police an adverse inference has to be drawn. So far as this entry Ex. PJ was concerned, it will not serve any purpose to prove the actual date of birth of the prosecutrix. It could only be birth entry which could support the prosecution case in this particular behalf but that step has not been taken and an adverse inference, as such, has to be drawn against the prosecution. So this Ex. PJ will not carry any legal weight whatsoever to prove the date of birth of the prosecutrix more so, beyond all reasonable doubt. 10. Skeletal age of the prosecutrix has been given by PW 2, Dr. J.R. Azad, Radiologist, ranging between 14 and 16 years. This opinion was given by the witness on 6.8.1994 which is Ex. PC on record. The skiagrams were Ex. PD. There is no dispute to the proposition that the opinion of the Radiologist is not conclusive one. Such an opinion cannot strictly specify the actual age of the person so examined on the day of examination. Moreover, this is an opinion which has to be taken note of in support of other substantive evidence examined in this particular behalf. In this background, this opinion would be legally helpful to the case of the prosecution in establishing the age of the prosecutrix in case there is some other legally competent substantive evidence fixing the age of the prosecutrix in between 14 and 16 years. In the absence of such an evidence the opinion recorded by the Radiologist will not be legally sufficient to fix the age of the prosecutrix at the relevant time. The oral evidence examined for establishing the age of the prosecutrix could be that of the prosecutrix (PW 4), her father (PW 5) Joginder Singh and her brother (PW 6) Ram Lai. 11. The prosecutrix while appearing as PW 4 has not stated her age on oath. However, while describing her address she has stated her age to be 12 to 13 years which was so done without oath. 12. 11. The prosecutrix while appearing as PW 4 has not stated her age on oath. However, while describing her address she has stated her age to be 12 to 13 years which was so done without oath. 12. PW 5, Joginder Singh while describing his address has stated his age to be 31 years without oath. However, on oath he disclosed that Ram Lai was his eldest son and, presently he was about 18 years of age. The statement of this witness was recorded on 28.2.1995. He further stated that Ram Dei was his daughter and she was born after a gap of 2-1/2 years. That means at the time when the statement was made by this witness the age of the prosecutrix could be 15-1/2 years. As per Ex. PJ the approximate age of Joginder Singh has been recorded to be 37 years. Nobody knows when this entry was made. It could have been so made at least before this document was taken into possession by the police which was so done on 31.8.1994. 13. PW 6, Ram Lai again while describing his address stated his age to be 16 years without oath. However, on oath he stated that he was the eldest son of his parents and Ram Dei was younger to him. As pointed out above, this witness on 28.2.1995, when he was examined, stated his age to be 16 years while describing his address while his father has given his age on thai very day to be of 18 years. This witness has not given the actual date of birth of the prosecutrix. 14. Thus, the oral evidence examined during the trial is not in a way specific to fix the age of the prosecutrix at the time of the occurrence. The father of the prosecutrix had given his age on 28.2.1995 as 31 years while in Ex. PJ, which was prepared prior to 28.2.1995, the age of the father was recorded as 37 years. His son Ram Lai has given his age as 16 years but Joginder Singh, father of Ram Lai, has described him to be of 18 years. Such type of oral evidence will not inspire any legal confidence in fixing the age of the prosecutrix at the relevant time to be below 16 years. The father of the prosecutrix appears to have no sense of age. Such type of oral evidence will not inspire any legal confidence in fixing the age of the prosecutrix at the relevant time to be below 16 years. The father of the prosecutrix appears to have no sense of age. He was the person who could give the actual date of birth of the sons and daughters born to him. He is stated to be an illiterate person and, as such, was not in a position to depose about that fact in a proper manner. It cannot be said that the witness was an illiterate person as he had signed the statement given by him. Any way, whatever may be the fact, the oral evidence, as discussed above, cannot be relied upon to establish the age of the prosecutrix at the relevant time to be below 16 years. That evidence will not be helpful especially in a criminal case of the present nature. 15. It may not be out of place to mention here that the physical appearance and physical examination of the prosecutrix revealed that various parts of her body were developed, meaning thereby that she had acquired the age of discretion. In such type of cases where the prosecutrix could be above 16 years, to fix the actual date of birth, would be very much essential. It is not the case of a minor girl whose body has not been developed at all but on factual side it is otherwise. 16. It may be pointed out here that lady doctor Sunita Galoda examined the prosecutrix on 3-8-1994 and this witness was examined as PW 1. The doctor described that the secondary sex of the prosecutrix were developed, auxiliary and public hair were present. Her breasts were developed. The doctor also disclosed that her hymen was torn and vagina admitted two fingers easily. This physical examination will not in any way be helpful to the case of the prosecution especially when the likelihood of the prosecutrix being major could not be ruled out. 17. Thus, taking into consideration the aforesaid facts, the prosecution has miserably failed to establish the age of the porsecutrix at the relevant time to be below 16 years or even below 18 years and above 16 years but on the other hand the likelihood of her having acquired majority could not be ruled out. 17. Thus, taking into consideration the aforesaid facts, the prosecution has miserably failed to establish the age of the porsecutrix at the relevant time to be below 16 years or even below 18 years and above 16 years but on the other hand the likelihood of her having acquired majority could not be ruled out. In this view of the matter, the learned Sessions Judge fell into an error in appreciating the evidence. 18. This Court has been taken through the other evidence recorded during the trial. There are certain circumstances reflected from the prosecution evidence itself which if taken note of, lead to the inference that whatever was done, it could be only with the consent of the prosecutrix. It is in evidence that the prosecutrix, accompanied by the two ladies, did not raise any alarm. Even if when she was taken to the temple for marriage purpose no resistance was given by her and she did not raise any alarm or try to run away. She could have informed the priest of the temple and other persons present there that she was taken away without her consent. There is no doubt that the prosecutrix deposed on oath that she was not a consenting party Jo the sexual act but that will not amount to be so. While examined as a witness, she has stated that she did not use physical force for offering resistance when she was subjected to sexual intercourse. With respect to the factum of her taking away by the accused, she stated that she resisted and asked for the help of the conductor of the bus but no help was extended. Neither conductor of the bus nor any passenger of the bus has been examined. Then there was no mark of injury on her breasts, race, thigh, back and abdomen as has been stated by the doctor. 19. Thus, the circumstances present in this case clearly revealed that whatever was done, the possibility of the same having been done with the consent of the prosecutrix could not be ruled out, if it is so? all the charges did not stand established beyond all reasonable doubt through a legally competent evidence. 19. Thus, the circumstances present in this case clearly revealed that whatever was done, the possibility of the same having been done with the consent of the prosecutrix could not be ruled out, if it is so? all the charges did not stand established beyond all reasonable doubt through a legally competent evidence. Needless to say, it is the prosecution which has to stand on its own legs in proving the guilt against the accused beyond all reasonable doubt and that too by leading independent, reliable and unimpeachable evidence. So far as the present case is concerned, the prosecution has not been successful to discharge the said onus which lay heavily on the prosecution. But on the other hand, the circumstances present in this case, and as-discussed above, make out case of the prosecution to be of doubtful nature benefit of which has to be given to the accused and none else, 20. In view of the foregoing reasons, the present appeal succeeds and the conviction and sentences passed by the learned Sessions Judge are setaside and as a consequence thereof all the appellants are acquitted after giving them benefit of doubt The persona! and surety bonds furnished by the accused persons are discharged. fine, if already paid, be refunded to the appellants. The appeal stands disposed of. Appeal allowed.