JUDGMENT 1. - This appeal is directed against the judgment dated 28.11.1981 passed by the learned Sessions Judge, Balotra convicting the appellants under Section 368 & 376 I.P.C. and sentencing them to 3 years' R.l. and to a fine of Rs. 500/- each. Both the sentences have been ordered to run concurrent. 2. The prosecution case in brief is that one Heeramani lodged a F.I.R. at Police Station, Sardarpura, Jodhpour on 29.9.1981 stating interalia that his daughter Jyoti has been kidnapped by the accused Ranjeet Singh and Bhagwan Singh on 27.9.1981. He also alleged that the accused persons took Jyoti to Barmer and they committed rape on her in the room of Sewa Sadan. The informant also stated that Jyoti is minor and she was studying in IXth standard. He also stated that they were searching Jyoti since 27.3.1981. On this information, Police registered a case of offence under Section 368 & 376 I.P.C. The Police recovered sari and ornaments of Jyoti. After usual investigation the Police filed charge-sheet against two accused persons of offence under Section 368 & 376 I.RC. 3. During the trial, the prosecution examined as many as 7 witnesses and produced certain documents. The trial court on analysing the evidence found that Jyoti left alongwith Ranjeet Singh on her own. The court, however convicted the accused of offence under Section 368 & 376 I.PC. for the reason that she was below 16 years of age at the.time as such her consent was of no consequence. 4. The only question involved in this appeal is as to whether Mst. Jyoti was of 16 years of age at the time of commission of offence. As per the school certificate the date of birth of Jyoti is 5.10.1965. Therefore, on the date of incident i.e. on 27.9.1981 she was about 15 years and 11 months of age i.e. she was short of 19 days, it is not in dispute that the Investigating Officer did not permit Mst. Jyoti to be examined by the Radiologist. The school certificate cannot be accepted as a final say in the matter of age. In a marginal case, the medical evidence become important. In the instant case Investigating agency erroneously did not permit Radiological examination. Thus, the accused persons have been deprived of their valuable right in the matter of determining the age of Mst. Jyoti. The school certificate cannot be accepted as a final say in the matter of age. In a marginal case, the medical evidence become important. In the instant case Investigating agency erroneously did not permit Radiological examination. Thus, the accused persons have been deprived of their valuable right in the matter of determining the age of Mst. Jyoti. In view of this, the prosecution has failed to establish that Jyoti was below 16 years of age at the time of commission of the offence. It is not necessary to scan the entire evidence, as the court itself has found that Mst. Jyoti left the house on her own. Thus the conviction of the appellants under Section 368 & 376 I.P.C. is not sustainable. 5. In view of the aforesaid, the appeal is allowed and the conviction of the appellants under Section 376 I.P.C. is set-aside. The accused appellants are acquitted of the aforesaid offences and they are set at liberty .Appeal Allowed-Conviction Set-Aside. *******