JUDGMENT P. K. PATRA, J. — The appellant has challenged the judgment dated 29.6.1996 passed by Shri D.G.Samal, Assistant Sessions Judge, Deogarh in S.T.No. 18/3 of 1996 convicting him under Secs. 366/376 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentencing him to undergo rigorous imprisonment for eight years and to pay a fine of Rs. 500.00 on each count, in default to undergo rigorous imprisonment for a further period of three months on each count with direction that the sentences would run concurrently. 2. Briefly stated, the prosecution case is as follows : On 10.7.1995 the prosecutrix (P.W.1), aged about twelve years, daughter of the informant (P.W.2), resident of village Kalanda under Deogarh police station in the district of Deogarh had been to Deogarh with other girls of her village and some relations to witness return car festival. While they were returning to village after witnessing the festival, the grandfather of the prosecu¬trix, the appellant (hereinafter referred to as the ‘accused’) and his father were also following them. On the way, the accused enticed the prosecutrix and took her away. The grandfather of the prosecutrix returned to village and told the matter to P.W.2. They searched for the prosecutrix, but in vain. On 13.7.1995 he lodged written report (Ext. 3) at the Deogarh police station before the O.I.C. of the said P.S. who treated the same as FIR, registered the case under Sec. 366, IPC and directed the S.I. of the said police station (P.W.10) to take up investigation. During investigation, P.W.10 examined witnesses, rescued the prosecutrix from the grocery shop of the accused adjoining his residential house in village Goisapada. He arrested the accused and took him to the police station along with the prosecutrix, seized their wearing apparels, sent them for medical examination to the Deogarh District Headquarters Hospital, forwarded the accused to Court in custody and forwarded the seized wearing apparels for chemical examination. On 6.10.1995 he arrested the father of the accused alleging that he had abetted the offence committed by the accused. After completion of investigation P.W.10 submitted charge-sheet under Secs. 363/366/376, IPC against the accused and under Secs. 212/109, IPC against his father and both of them stood their trial. The trial Court convicted the accused as stated earlier but acquitted the co-accused, his father, of the charge levelled against him. 3. After completion of investigation P.W.10 submitted charge-sheet under Secs. 363/366/376, IPC against the accused and under Secs. 212/109, IPC against his father and both of them stood their trial. The trial Court convicted the accused as stated earlier but acquitted the co-accused, his father, of the charge levelled against him. 3. Defence plea is one of denial and according to the accused, the prosecutrix had come to his house out of her own will and wanted to marry him. 4. Mr. R.K.Nayak, learned counsel for the appellant, and Mr. S. Pradhan, learned Addl. Standing Counsel for the State, were heard at length. While Mr. Nayak contended that the impugned judgment is unsustainable in law and is liable to be set aside, learned Addl. Standing Counsel supported the impugned judgment. 5. In order to bring home the charge against the accused, prosecution examined ten witnesses in this case of whom P.W.1 is the prosecutrix and P.W.2 is her father who lodged the FIR in this case. P.Ws. 3 and 4 are the co-villagers of the informant. P.W.5 is the medical officer who had medically examined the prosecutrix. P.W.6 is the husband of the aunt of the accused in whose house the accused and the prosecutrix had stayed for some hours when the father of the accused took them to his house. P.W.7 is another medical officer who examined the X-ray plates, teeth and other parts of the body of the prosecutrix and determined her age to the below seventeen years (14 to 16 years). P.W.8 is the Constable who was present at the time of seizure of the wearing apparels of the prosecutrix. P.W.9 is the Head Pandit of Kalanda Primary School who has produced the Admission Register of the School showing the date of birth of the prosecutrix as 1.7.1985 as per the entry against Sl. No. 2 of the year 1990-91 when she took admission on 3.7.1990 in Class-I. P.W.10 is the investigating officer. 6. Defence has examined three witnesses in support of its plea. D.W.1 is a co-villager of the accused who has stated regarding a Punch meeting held in the village after arrival of the victim girl in the village in which she expressed her will¬ingness to marry the accused. D.W.2 is another co-villager who has stated that the victim girl travelled in a bus from Deogarh to the village of the accused with her. D.W.2 is another co-villager who has stated that the victim girl travelled in a bus from Deogarh to the village of the accused with her. D.W.3 is a co-villager of the informant and mother-in-law of the cousin of the informant who has stated regarding the decision of the informant to give the prosecutrix in marriage to one Ananta of Nuagaon, her sis¬ter’s son and about refusal of the prosecutrix to marry said Ananta. She has also stated that she had been to Deogarh to witness Bahuda Jatra and was returning to her village with the prosecutrix and her grandfather and other relations and that the prosecutrix and her grandfather went to the bus-stand. 7. Discussing all the materials on record, the trial Court held that under no circumstances the age of the victim girl would be more than sixteen years at the time of occurrence when the accused enticed her for the purpose of committing rape on her and that the accused committed rape on the victim girl. He found that there was no material on record to believe that the father of the accused had abetted the offence committed by the accused and as such the father of the accused was acquitted. The contention of the learned counsel for the accused that the learned Assistant Sessions Judge failed to appreciate the evidence on record in its proper perspective requires careful consideration. 8. The medical officer-P.W.5 who examined the prosecutrix on 15.7.1995 submitted the report - Ext. 4 and found as follows : “1. The victim girl was capable of sexual intercourse. 2. I found her hymen absent. 3. There was a laceration of the posterinal wall of the vagina. 4. I collected vaginal swab and on mycrospic examination of the vaginal swab I found dead spermatozoa.” P.W.7 is the other medical officer who examined the X-ray plates and other physical features of the prosecutrix on 1.5.1996 being directed by the C.D.M.O., Deogarh and submitted his report Ext. 6, found as follows : “1. The lower end of ulna and the lower end of radius have not fused evidencing the age of the victim girl to be less than sixteen years. 2. All carpal bones were present at the time of examination showing the age of victim girl more than 12 years. 3. 6, found as follows : “1. The lower end of ulna and the lower end of radius have not fused evidencing the age of the victim girl to be less than sixteen years. 2. All carpal bones were present at the time of examination showing the age of victim girl more than 12 years. 3. The lower end of humerus and the external epicondyle have fused while the age of the victim to be more than 14 years. 4. The lower end of tibia and fibula have not fused showing the age of the victim girl to be less than 16 years. 5. The upper end of tibia and of femur have not fused showing the age of the victim to be less than sixteen and half years.” He was also of the view that the prosecutrix was below seventeen years of age (14 years to 16 years). 9. In the FIR (Ext. 3) the informant (P.W.2) has given the age of the prosecutrix to be twelve years. The prosecutrix (P.W.1) at the time of her examination on 29.4.1996 has given her age to be twelve years while the Court assessed her age to be fourteen years. The informant (P.W.2) has stated in Court that the age of the prosecutrix was about twelve to thirteen years. As per the School Admission Register (Ext. 8) produced by P.W.9, the date of birth of the prosecutrix is recorded as 1.7.1985, which shows that the prosecutrix was ten years’ old at the time of the alleged occurrence which is apparently wrong in view of the medi¬cal evidence on record. It is well settled in law that ossifica¬tion test to determine the age of the girl invariably be carried out whenever it is possible and it is better and sure test of fixing the age of the girl from the growth of teeth, pubic and auxiliary hair, growth of the breast, height and weight of the girl. The birth register is conclusive evidence of age, but where such evidence is not available, ordinarily Court will have to base the decision upon facts and circumstances as disclosed by physical features and other oral evidence. 10. The birth register is conclusive evidence of age, but where such evidence is not available, ordinarily Court will have to base the decision upon facts and circumstances as disclosed by physical features and other oral evidence. 10. In the present case, as per the statement of P.W.7, who considered the X-ray plates of the wrist joints, elbow joints, ankle joints, knee joints and other physical features, the growth of teeth, pubic and auxiliary hair and growth of breast of the prosecutrix, the age of the girl was below seventeen years, i.e. within fourteen to sixteen years, at the time of her examination. He has specified that the age of the victim girl cannot be less than fourteen years and more than sixteen years. In the opinion of the other medical officer (P.W.5) who also examined the X-ray plates of the victim girl, the age of the victim girl was four¬teen to sixteen years at the time of examination. 11. Books on medical jurisprudence establish the fact that the age of puberty in India is attained by a girl upon her reach¬ing the age of fourteen. Even though puberty may be reached at that age, it is obvious that girls are unfit for sexual cohabita¬tion till they are older and more developed in physique and strength. As stated by D.W. 3 who is related to the informant and had no axe to grind against him, the prosecutrix had attained puberty six to seven years prior to the occurrence and that she was aged about five years about sixteen years back when D.W.3 migrated to village Kalanda. Had the victim girl not attained marriageable age, her father would not have arranged her marriage with Ananta. 12. In the case of Jaya Malla v. The Home Secretary to Government of Jammu and Kashmir, reported in AIR 1982 SC 1297 , the Apex Court held that however it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. In the case of Sribastasha Khamari v. State of Orissa, reported in (1993) 6 OCR 661, the above view was followed by this Court and it was held that such margin will enure to the benefit of the accused. In the case of Sribastasha Khamari v. State of Orissa, reported in (1993) 6 OCR 661, the above view was followed by this Court and it was held that such margin will enure to the benefit of the accused. Keeping in view the principle enunciated in the above decisions, the age of the victim (P.W.1) in the present case was definitely above sixteen years. 13. It has been held in several other cases that there may be variation of age determined by ossification test by two years this side or that side and that this variation should go to the benefit of the accused. In the present case if two years in added to the age of the victim girl then her age would have been above sixteen years at the time of the alleged occurrence. 14. The statement of the prosecutrix (P.W.1) reveals that she was a willing party to the sexual intercourse, inasmuch as she had stated that after arrival in the house of the accused she put on saree, blouse and Saya given to her by the accused changing her frock and Chadi and slept with the accused in one bed. Her statement that the accused gave her something known as “Kalinga Gupta’ to eat on the way while she was returning from Deogarh to her village is a subsequent development and cannot be believed to be true, inasmuch as she has not stated the same before the investigating officer (P.W.10). She has also stated to have accompanied the accused to different places where they had sexual intercourse several times. She has also stated to have signed a document (Ext.1) agreeing to marry the accused in a meeting of the Panchayat, but she has not stated that her signature was taken by using force or inducement. The chemical examination report (Ext. 21) reveals that no stain of blood or semen was detected in the Saya, blouse, bra, two frocks and saree sent for chemical examination which indicates that she was a willing party to the sexual intercourse. 15. The chemical examination report (Ext. 21) reveals that no stain of blood or semen was detected in the Saya, blouse, bra, two frocks and saree sent for chemical examination which indicates that she was a willing party to the sexual intercourse. 15. Thus from the evidence on record it is found that the victim girl (P.W.1) was aged above sixteen years and that she had refused to marry one Ananta, son of her aunt, whom her father P.W.2 had selected and that she had accompanied the accused out of her own volition and had agreed to marry him without any force or coercion or inducement and had sexual intercourse with him with her consent. Therefore the findings of the trial Court that the accused had kidnapped the prosecutrix (P.W.1) and that the kid¬napping was to compel the prosecutrix to marry him and that he committed rape on her are erroneous and cannot be sustained. Hence the conviction of the accused under Secs. 366 and 376, IPC and the sentences passed thereunder are liable to be set aside and the accused will be entitled to an acquittal. 16. In the result, the Criminal Appeal is allowed. The impugned judgment dated 29.6.1996 of the Assistant Sessions Judge, Deogarh in S.T.No. 18/3 of 1996 is set aside. The appellant is found not guilty of the charge and is acquitted. He be set at liberty forthwith if his detention is not required in connection with any other case. Appeal allowed.