DIPAK MISRA, J. ( 1 ) IN this appeal, preferred under Section 374 (2) of the Code of Criminal Procedure, the accused-appellant has called in question the propriety of judgment of conviction and order of sentence passed for commission of offence punishable under Section 376 of the Indian Penal Code (in short IPC') convicting and sentencing him to undergo rigorous imprisonment for a period of 4 years in respect of the aforesaid offence. ( 2 ) THE case of the prosecution is that on 2pt March 1987 the parents of the prosecutrix were not at home. She and her elder brother Ramshankar were at home. That night Ramshankar went to the house of Babulal compounder to hand over some tobacco. At that juncture she had gone to the cattle-shed to feed the cattle. The accused all of a sudden appeared on the scene and caught hold of her threw her on the ground gagged her mouth and committed sexual intercourse. Hearing her cry. Ramshankar reached there but he failed in his attempt to catch hold of the accused who fled away. Alongwith his uncle Gulabchand, Ramshankar went in search of the accused but it yielded no results. As the parents of the prosecutrix were away, FIR could not be lodged immediately. After their arrival an FIR was lodged on the next day at the Police Station. After the criminal law was set in motion investigation commenced and on completion of the necessary formalities the charge-sheet was submitted before the competent Court under Section 376 of the IPC. ( 3 ) THE accused at the time of framing charge admitted to have committed sexual intercourse with the prosecutrix but stated to have done so with her consent. However, it is relevant to state here that in his statement under Section 313 of the Code of Criminal Procedure the accused took the plea of alibi. ( 4 ) IN furtherance of its case the prosecution examined as many as 10 witnesses. Defence chose not to adduce any evidence. ( 5 ) THE learned trial Judge considering the evidence of the prosecutrix her brother and the evidence of the doctors came to hold that there was no consent on the part of the prosecutrix and delay of 6 days in lodging the FIR does not affect the case of the prosecution. Defence chose not to adduce any evidence. ( 5 ) THE learned trial Judge considering the evidence of the prosecutrix her brother and the evidence of the doctors came to hold that there was no consent on the part of the prosecutrix and delay of 6 days in lodging the FIR does not affect the case of the prosecution. Being of this view the learned trial Judge held the accused-appellant guilty of the offence punishable under Section 376 (1) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 4 years. ( 6 ) ASSAILING the aforesaid conviction and sentence Mr. S. C. naft. learried Senior Counsel for the appellant has submitted that the circumstances clearly lead to the irresistible conclusion that there was consent by the prosecutrix. It is his further submission that thefinding that had been recorded in regard to the factum of age of prosecutrix is unjustified. In order to substantiate that she was major at the relevant time Mr. Datt has highlighted that in the ossification test the Doctor has opined that the prosecutrix was above 16 and below 19 years of age and the margin of benefit should have been given to the accused whereas the learned trial Judge has not done so which makes the conclusion on that score vulnerable. Mr. P. O. Gupta, learned Government Advocate for the State per contra has submitted that there is cogent evidence of the victim who has vividly and graphically stated with regard to the act of the accused and the narration belies the plea of consent. Mr. Gupta further submitted that the conduct of the accused who had accepted initially the factum of sexual intercourse with the prosecutrix cannot be totally brushed aside and in fact, goes a long way to show his involvement in the crime. His alternative submission is that even if there is consent by the prosecutrix, she being a minor the consent would not enure to the benefit of the accused. Mr. Gupta has urged with vehemence that material on record clearly establish that she was a minor as the entry in the Kotwar Register brought on record as Ex. P-7 so shows. ( 7 ) FROM the aforesaid submissions, two issues emerge for determination, (i) whether the prosecutrix was above 16 years at the time of occurrence, and (ii) whether there was consent by her. Dr. P-7 so shows. ( 7 ) FROM the aforesaid submissions, two issues emerge for determination, (i) whether the prosecutrix was above 16 years at the time of occurrence, and (ii) whether there was consent by her. Dr. Hasan (PW 5) who had conducted the ossification test has opined that the age of the prosecutrix was above 16 years but below 18 to 19 years at the time of incident. The learned trial Judge has observed that much reliance cannot be placed on his version as his opinion is based on the table given in the Modis Medical Jurisprudence. He has also observed that Dr. Randhawa (PW2) who had initially examined the prosecutrix had found that she had not started her menstrual period. The learned trial Judge has also referred to other available material on record to conclude that the prosecutrix was below 16 years of age. ( 8 ) TO appreciate the aforesaid findings, I have perused the evidence of Dr. Randhawa (PW 2) who had initially examined the prosecutrix. The said doctor had stated that on the basis of the physical examination the prosecutrix appeared to be between 14 to 16 years and therefore advised for radiological examination. It is true that she had stated that the prosecutrix had not commenced her menstrual period. The said finding is based on the version given by the prosecutrix. From this evidence it cannot be said that the prosecutrix was below 16 years. PW 5. Dr. Hasan has categorically stated in his statement that the age of the prosecutrix was above 16 and below 19 years. Needless to emphasize that in the ossification test may refer to the decision rendered in the case of Bishnudas Behera v. State of Orissa. The High Court of Bombay in the case of Balasaheb v. State of Maharashtra, after referring to Modis Medical Jurisprudence and Toxicology (First Edition) expressed thus: It is observed that the error in the case of age based on ossification test may be three years. Similar view has been taken in the case of Akeel v. The State of Madhya Pradesh, in Criminal Appeal No. 1144/91 disposed of on 29-8-1991. In view of the aforesaid position of law, it can safely be concluded that the finding with regard to age of the prosecutrix the learned trial Judge is unsustainable. Similar view has been taken in the case of Akeel v. The State of Madhya Pradesh, in Criminal Appeal No. 1144/91 disposed of on 29-8-1991. In view of the aforesaid position of law, it can safely be concluded that the finding with regard to age of the prosecutrix the learned trial Judge is unsustainable. ( 9 ) NOW I shall advert to deal with the aspect relating to consent Learned Counsel for the appellant. Mr. Datt, has fairly stated that the plea of alibi is totally not believable. He has accepted the earlier plea of the accused to be correct. Learned Counsel for the appellant has taken me through the evidence of the prosecutrix and has categorised the circumstances, which demonstrate that there was consent by the prosecutrix. The submission of Mr. Datt is that it is decipherable from her evidence that she had acquaintance with the appellant being a neighbour and there was objection by her brother about the visits of the accused. That apart, it is also clear from her deposition that between the accused and prosecutrix there was a scuffile for half an hour but PW2, the examining Doctor, at the time of initial examination, had not found any injury on any part of her body. There is also no evidence that she had sustained injuries. The allegation that her mouth was gagged with the Sari by the accused also does not commend acceptance. It is also clear from her evidence that her aunt (Tai) was, living in the other portion of her house and she had cried for help but her aunt had not come to help her. She has also not stated that the accused was holding any weapon so that she was scared. Quite apart from this when the elder brother, Ramshankar came the accused ran away. It is also seen from the evidence of PW. 1. Gulabchand, that Rarnshankar had told him that the accused was having sexual intercourse with his sister Sunitabai and after seeing him both of them fled away. This witness has not been declared hostile. Than apart, it is clear from the testimony of the PW 2, who had initially examined the prosecutrix, that she was accustomed to sexual intercourse. Keeping in view the above evidence in entirety. This witness has not been declared hostile. Than apart, it is clear from the testimony of the PW 2, who had initially examined the prosecutrix, that she was accustomed to sexual intercourse. Keeping in view the above evidence in entirety. I am of the considered view that there was consent on the part of the prosecutrix and it cannot be held that she was ravished by that accused-appellant without her consent. ( 10 ) IN view of the foregoing premises the appeal succeeds and the judgment of conviction and order of sentence are set aside. The accused be discharged of his bail bonds. Appeal allowed. .