JUDGMENT 1. - This appeal has been filed by the accused appellant-Munna @ Prem Chand against the judgment dated April 27, 1985 passed by learned Sessions Judge, Sawaimadhopur whereby the appellant has been acquitted of the charge under section 376 IPC but convicted for the offence under section 354 IPC but convicted for the offence under section 354 IPC and sentenced to two years rigorous imprisonment and a fine of Rs. 50/- and in default of payment of fine to further undergo 15 days rigorous imprisonment. 2. Briefly stated the facts of the prosecution case are that on Sept. 5, 1982 at about 3.00 PM when PW 2 Mst. Prem by caste Meena resident of Mandawar, was taking both on the well of Shankarlal Bagda, the appellant-Munna came there and said that he also would take bath. Thereafter, the appellant Munna showed Barfi (sweetdish) and a currency-note of Rs. 10/- to Mst. Prem and asked her to accompany him to a field of Bajra crop but Mst. Prem refused to accompany him. On her refusal the appellant caught 1 hold of her hand, lifted and took her at the field and put her on the ground for committing rape on her. Mst. Prem made hue and cry. At that time' Hari Brahmin was passing through the way on his cycle. On hearing Must Prems cry Hari Brahmin asked that "who are there?", whereupon the appellant ran away. Mst. Prem came to her house and narrated the incident to her mother. PW 1 Dhapa submitted a written report Ex.P1 at PS Mandawar at 6.30 PM. On the basis of the written report SHO PS Mandawar registered a case under section 376/511 IPC and investigation commenced. Formal FIR is Ex.P2. On completion of the investigation a charge-sheet was laid against the appellant in the court of Judicial Magistrate, Hindauncity who committed the case to the court of learned Sessions Judge, Sawai Madhopur. 3. Learned Sessions Judge framed charge under section 376 IPC against the appellant. The appellant denied the charge and claimed to be tried. Thereafter the prosecution examined as many as 9 witnesses. In his statement recorded under section 313 Cr.RC. the appellant pleaded innocence. He further stated that 25-30 days before the alleged incident the marriage ceremony of his brother had taken place and during that ceremony utensils belonging to his family were stolen. Thereafter the prosecution examined as many as 9 witnesses. In his statement recorded under section 313 Cr.RC. the appellant pleaded innocence. He further stated that 25-30 days before the alleged incident the marriage ceremony of his brother had taken place and during that ceremony utensils belonging to his family were stolen. They asked the complainant party who is his neighbour about the stolen utensils. Because of this the complainant party became angry and lodged a false case against him. In defence no witness was examined. 4. Learned Sessions Judge after hearing rival submissions of both the parties acquitted the appellant of the charge under section 376 IPC but convicted and sentenced him for the offence under section 354. IPC as indicated hereinabove. 5. I have heard learned counsel for the appellant, learned Public Prosecutor and have also scanned and scrutinised the material on record. 6. Learned counsel for the appellant has contended that the finding of the trial court that the prosecutrix Mst. Prem was below 16 years of age is erroneous. PW 2 Prem has admitted in her cross-examination that age of his brother Hansu is 25 years and she is 5 years younger to him and therefore, it is clear from her statement that she was above 18 years of age. There were no reasons to disbelieve her statement before the trial court, it has also been contended by the learned counsel that the learned Sessions Judge has held Mst. Prem to be below 16 years on the basis of the statement of PW 5 Dr. B.K. Agarwal. As per contention of learned counsel PW 5 Dr. B.K. Agarwal has stated that on the basis of ossification test he found the age of Mst. Prem to be below 16 years but in view of the, statement of the prosecutrix Mst. Prem, on the basis of the statement of the Dr. B.K. Agarwal it cannot be said with certainty that the age of the prosecutrix Mst. Prem was below 18 years on the date of alleged incident. Learned counsel has submitted that as held by Hon'ble Supreme Court in " State of M.R v. Narehdra Kumar, 2000 Cr.L.J. 2379 ", the margin of error in age ascertained by radiological examination is two years on either side. Prem was below 18 years on the date of alleged incident. Learned counsel has submitted that as held by Hon'ble Supreme Court in " State of M.R v. Narehdra Kumar, 2000 Cr.L.J. 2379 ", the margin of error in age ascertained by radiological examination is two years on either side. Therefore, the prosecutrix has not proved beyond reasonable doubts that the age of the prosecutrix was below 18 years, learned Public Prosecutor has supported the view taken by learned Sessions Judge. 7. I have given my thoughtful consideration to the above submissions made by learned counsel. According to the version of PW 5 Dr. B.K. Agarwal on ossification test the age of the prosecutrix Mst. Prem was found below 16 years. In State of MP v. Narendra Kumar (supra) the Apex Court has held that: "Learned counsel appearing to assist the accused relies on a decision Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, AIR 1982 SC 1297 : (1982 Cri LJ 1777 ) to contend that radiological and orthopaedic tests only given an approximate age of the person medically examined and margin of error of two years on either side can be assumed. The observation in the case of Jaya Mala (supra) of the Supreme Court are as under: "However, it is notorious are one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side." In view of the above pronouncement and law laid down by the Supreme Court, the finding on age reached by the learned trial Judge that the prosecutrix was between 14 to 16 years is merely an approximation and two years margin on either side could be given. The prosecution, therefore, has failed to conclusively prove that the prosecutrix was below 16 years of age." 8. In view of the above decision of the Hon'ble Supreme Court and the statement of Mst. Prem it cannot be held on the basis of the statement of Dr. B.K. Agarwal that age of the prosecutrix was below 18 years. Mst. Prem has stated in her cross-examination that age of his brother Hansu is 25 years and her age is 5 years less than that of his brother. It means that her age is 20 years. Prem it cannot be held on the basis of the statement of Dr. B.K. Agarwal that age of the prosecutrix was below 18 years. Mst. Prem has stated in her cross-examination that age of his brother Hansu is 25 years and her age is 5 years less than that of his brother. It means that her age is 20 years. As observed by the Apex Court the margin of error in age ascertained by radiological examination is two years on either side and, therefore, I have come to the conclusion that the prosecution has failed to conclusively prove that the prosecutrix was below 18 years of age. 9. Learned counsel has next contended that Mst. Prem is a major lady. Whatever was done by the appellant it was done with her consent and therefore, no offence has been committed by the appellant Munna. It has also been urged by learned counsel that the testimony of Mst. Prem has been disbelieved with regard to rape and therefore, how could it be relied upon regarding other allegations against the appellant. In the opinion of the trial court Mst. Prem is not a wholly reliable witness and in view of that and in absence of corroboration of her statement the appellant could not be found guilty by the trial court under section 354 IPC. It was alleged in the written report Ex.P1 that the incident was witnessed by Hari Brahmin, Mst. Prem has stated that when the appellant was committing rape on her. Hari Brahmin came near the place of occurrence and thereafter the appellant ran away. She has also stated that she narrated the incident to Hari. But the prosecution has with-held Hari Brahmin and did not produce him in its evidence. Therefore, learned Sessions Judge should have drawn adverse inference against the prosecution and in these circumstances the appellant should not have been convicted on the solitary statement of Mst. Prem. 10. Having considered the aforesaid contentions of learned counsel I am of the opinion that there is force in these contentions. Mst. Prem has stated that when the appellant was having sexual intercourse with her Hari Brahmin came there and on seeing him the appellant ran away. The incident was narrated by her to Hari but the prosecution has not examined Hari in its evidence. Therefore, adverse inference may be drawn against the prosecution. Mst. Prem has stated that when the appellant was having sexual intercourse with her Hari Brahmin came there and on seeing him the appellant ran away. The incident was narrated by her to Hari but the prosecution has not examined Hari in its evidence. Therefore, adverse inference may be drawn against the prosecution. Learned Sessions Judge has not placed reliance on the testimony of Mst. Prem with regard to rape, in written report Ex.P1 also there were no allegations of rape against the appellant. It was only alleged in the report that the appellant attempted to commit rape with Mst. Prem and because of arrival pf Hari near the place of occurrence of the appellant could not commit rape. But in her statement Mst. Prem has stated that she was raped by the appellant and complete sexual intercourse took-place. This part of her testimony has not been relied upon by the learned Sessions Judge. 11. I have gone through the whole testimony of Mst. Prem and considered it in the light of of other facts and circumstances of the case, in my considered view Mst. Prem was the consenting party to the act done by the appellant. In my opinion when the appellant was having sexual intercourse with Mst. Prem with her consent Hari Brahmin saw them in compromising position when he was going through the way situation at some distance form the place of alleged incident and he narrated the incident to PW 3 Hansu who is brother of Mst. Prem. Because of this reason the matter was reported to the police. Had Mr. Hari not seen the incident the matter would not have come to the knowledge of the matter and brother of Mst. Prem. Mst. Prem has admitted in her cross-examination that after the incident to rape she took both at her house and changed her clothes. She has also admitted that her mother and brother used to beat her. These facts show that she was having illicit relations with the appellant and because of that reason she was beaten by her mother and brother prior to this incident and whatever was done by the appellant with Mst. Prem it was done with her consent. As already stated Mr. Hari saw them having sexual intercourse in the field and narrated the incident to Mr. Hansu. Prem it was done with her consent. As already stated Mr. Hari saw them having sexual intercourse in the field and narrated the incident to Mr. Hansu. In these circumstances a written report Ex.P1 had to be filed with the police by Mst. Dhapa, mother of the Mst. Prem to save the prestige and dignity of her family wherein no allegations of rape or having had sexual intercourse were made against the appellant. Mst. Prem has stated that on the well of Shankarlal she was about to take bath. At that time the appellant Munna came there and showed her Barfi (sweetdish). Thereafter, he caught hold of her hand, dragged and took her in a field wherein Bajra-crop was standing. In that field the appellant committed rape on her. As per site-plan Ex.P10 prepared by the Investigating Officer the incident took-place in the field of Shankarlal. Near this field house of Shankarlal is situated. Apart from that there is a public way near the aforesaid well. Looking to these facts I am of the opinion that it was not possible for the appellant to drag Mst. Prem from the well and take her to Shankarlals field to have sexual intercourse without her consent and against her will. 12. For the aforesaid reasons I have come to the conclusion that Mst. Prem was a major girl and she was a consenting part to the act done by the appellant and in such circumstances the appellant has committed no offence in the eye of law. Therefore, his appeal deserves to be allowed. 13. Consequently, the appeal of the appellant Munna is allowed. He is acquitted of the charge under Section 354 IPC. Amount of fine if deposited by him shall be refunded to him.Appeal allowed. *******