Judgment O.P. Bishnoi, J.-This appeal has been filed by the accused-Balwant Singh and his wife Smt. Harjeet alias Ranjeet Kaur against a judgment dated 20-10-2001 by the learned Additional Sessions Judge (Fast Track), Hanumangarh. 2. According to the prosecution story, P.W. 1 Daleep Singh was resident of Hanumangarh and the two appellants were his neighbours. The incident allegedly occurred on 23-3-2001 when the two appellants took away the pro secutrix (daughter of Daleep Singh) with them. Daleep Singh was informed about the same by P.W. 5 Het Ram. On 25-2-2001, Daleep Singh lodged a written FIR Ex. P/i at Police Station, Hanumangarh Junction and a case under Sections 363 and 366 of the I.P.C. was registered against the two appellants. The prosecutrix was recovered on 26-3-2001 from “Dhani Chandigarh” near village ‘Arniyawali’ Tehsil Fazalka (Punjab). Her statement Ex. D/1 was recorded by the police under Section 161 of the Cr. P.C. She stated that the appellants were her neighbours and she used to go with them as a labourer occasionally. Further, she stated that her father Daleep Singh was ailing for the last 4-5 months and many a times, she was subjected to sexual intercourse against her wishes by the appellant-Balwant Singh. Looking to the condition of her father, she did not protest. Regarding the incident dated 23-3-2001, she stated that at about 3-3.30 p.m. while she had gone to the house of one Gopi Singh, she was called by the two accused persons at their house and they persuaded her to go with them to Punjab. She agreed to go with them. Thereafter, she was taken by the appellants to a room situate somewhere in “Bijali Colony” and she was locked there till evening. After sunset, the appellants took her out and all the three boarded a bus for Abohar in Punjab. At Abohar, they halted at the house of Mahendra Rana for a night where she was criminally assaulted by Balwant Singh. Next day, at 10 a.m. they left for village Arniyawali and she was taken to the house of Santa Singh (P.W. 3). Santa Singh became aware of the crime and consequently did not permit them to stay in his house and thereafter they went to “Dhani Chandigarh” and stayed at the house of the sister of the mother of Balwant Singh, from where, she was ultimately recovered by the police. Santa Singh became aware of the crime and consequently did not permit them to stay in his house and thereafter they went to “Dhani Chandigarh” and stayed at the house of the sister of the mother of Balwant Singh, from where, she was ultimately recovered by the police. On 4-4-2001, her statement was recorded by the learned Additional Chief Judicial Magistrate, Hanumangarh wherein she stated that while she was sleeping at her own house, the two appellants came and told her that they intended to sell her to somebody and she was taken to the house ot the appellants where Balwant Singh had sexual intercourse with her against her wishes. Thereafter, she was taken to Punjab to the house of Mahendra Rana and at the instance of his wife, the appellant again had sexual intercourse with her. From there, she was taken to village “Raniya” to the house of the sister of the appellant Ranjeet Kaur and there also, she was subjected to rape by Balwant Singh. From village Raniya, she was taken to the place, from where she was recovered by the police. Ultimately, a challan under Sections 363, 366, 342, 376 and 376/144 of the I.P.C. was filed against the two appellants. Balwant Singh was charged for the offences punishable under Sections 363, 366, 342 and 376 of the I.P.C. Smt. Ranjeet Kaur was charged under Section 363, 366, 342 and 376/144 of the I.P.C. Both the appellants pleaded not guilty. 3. Ten witnesses were examined by the prosecution and none was examined in defence. The learned trial Court, thereafter, heard the arguments and delivered the Judgment on 20-10-2001. Both the appellants were found guilty for the offences punishable under Sections 363, 366 and 342 of the I.P.C. Further the appellant-Balwant Singh was found guilty under Section 376 of the I.P.C. and the appellant-Smt. Ranjeet Kaur was found guilty tor the offence punishable under Sections 376/144 of the I.P.C. While awarding sentences, the learned trial Court, for the reasons best known to him, sentenced the two appellants to R.I. for 3 years each and a fine of Rs. 100/-for the offence punishable under Section 341 of the I.P.C. instead of Section 342 of the I.P.C. for which a finding of guilt was recorded. For the offence punishable under Section 363 of the I.P.C., R.I. for 3 years and a fine of Rs. 100/-was awarded. 100/-for the offence punishable under Section 341 of the I.P.C. instead of Section 342 of the I.P.C. for which a finding of guilt was recorded. For the offence punishable under Section 363 of the I.P.C., R.I. for 3 years and a fine of Rs. 100/-was awarded. Under Section 366 of the I.P.C., R.I. for 7 years and a fine of Rs. 100/-was awarded. For the offence punishable under Sections 376 and 376/144 of the I.P.C., each appellant was awarded, R.I. for 10 years with a fine of Rs. iooi-. On account of non-payment of fine, additional R.I. for 3 months was awarded on each count. Feeling aggrieved, the two accused-persons have come in appeal. 4. I have heard the learned counsel for the appellants as well as learned Public Prosecutor for the State and have gone through the record of the case. I find that the conclusions drawn by the learned trial Court are unsustainable and the appeal deserves to be allowed. 5. Regarding the age of the prosecutrix, I find that no age of the prosecutrix was mentioned in the FIR Ex. P/i. No birth certificate of the pro secutrix has been tendered in evidence. In such cases, the mother is one of the important person to depose on the point of age but strangely enough, the mother of the prosecutrix has not been examined in spite of the fact that her statement under Section 161 of the Cr. P.C. was recorded by the police. The prosecutrix, during her deposition, has given her age as 15 1/2 years. Her father Daleep Singh has deposed that she was aged 17 years. 6. During the cross-examination, Daleep Singh has stated that his eldest daughter was aged between 27-28 years. He further stated that five children were born with a gap of two years. According to the prosecutrix, she is the third child of her parents. Two sisters are elder to her and two brothers are younger to her. Consequently, she was born some 4 years after her eldest sisters, who according to P.W. 1 Daleep Singh, is aged 27-28 years. That way, the prosecutrix should be aged somewhere between 23-24 years. The learned Public Prosecutor has drawn my attention towards the deposition of Dr. Rajendra Kumar Gupta (P.W. 9) and argued that according to Dr. Consequently, she was born some 4 years after her eldest sisters, who according to P.W. 1 Daleep Singh, is aged 27-28 years. That way, the prosecutrix should be aged somewhere between 23-24 years. The learned Public Prosecutor has drawn my attention towards the deposition of Dr. Rajendra Kumar Gupta (P.W. 9) and argued that according to Dr. Rajendra Kumar Gupta, the prosecutrix was examined on 26-3-2001 and the estimated age as per the medical report (Ex. P116), was found to be 17-18 years. I find that the deposition of Dr. Gupta can be of no help to the prosecution and on its basis, no conclusion can be drawn that the prosecutrix was necessarily less than 18 years of age at the relevant time. The estimated age, according to Dr. Gupta was 17-18 years. Needless to say that there was scope for further fluctuation either way in the estimated age and Dr. Gupta has admitted to this possibility during his cross-examination. Consequently, I find that the prosecution has failed to establish that the prosecutrix was less than 18 years on 23-3-2001. 7. Thereis no circumstance to suggest that the pro secutrix was taken away from her house by the appellants against her wishes. From her statement Ex. D/1 recorded under Section 161 of the Cr. P.C. it comes out that much prior to the alleged incident, she started to have sexual intercourse with the appellant-Balwant Singh. She has stated that earlier many a times, the accused-Balwant Singh had sex with her and due to the ailing condition of her father, she didn’t resist. According Ex. D/l, the appellants called her from the house of Gopi Singh and she agreed to go with them to Punjab. The learned trial Court has opined that some intoxicating substance was administered to the prosecutrix and under its influence, she was taken away from her house. However, it is nowhere stated in Ex. D/1 that any such substance was administered to the pro secutrix. According to the prosecution story, the prosecutrix was taken to Santa Singh with a purpose to sell her. Santa Singh has been examined and he has totally denied the said allegation. According to the prosecution story, the pro secutrix was taken to Abohar to the house of Mahendra Rana but this Mahendra Rana has not been examined. No person from the village Arniyawali has been examined. Santa Singh has been examined and he has totally denied the said allegation. According to the prosecution story, the pro secutrix was taken to Abohar to the house of Mahendra Rana but this Mahendra Rana has not been examined. No person from the village Arniyawali has been examined. Similarly, none from the village Raniya has been examined to show that the prosecutrix was taken away by the police against her wishes. It has come in evidence that they travelled by a bus which was full of passengers. Still the prosecutrix didn’t raise any hue and cry. The prosecutrix has admitted that there was a ‘Police Out-post’ near the house, in which, she was kept. Still she made no attempt to approach the police. 8. Regarding the evidence of rape she does not say that sexual intercourse was actually performed. She does not say that there was any penetration. She simply says that there was a “Bura Kam.” After much persuasion, she states that the appellant-Balwant Singh did to her what is done by a person with his wife. Needless to say that the statement falls much short of establishing that sexual intercourse against her wishes was actually performed. Dr. Gupta has specifically stated that she was habituated to sex and there was no evidence of any violence on her person. Further he was stated that there was no evidence to suggest that the pro secutrix ever resisted in respect of the sexual act. Even the prosecutrix does not say that any resistance was offered by her. 9. Regarding the finding of guilt under Sections 34 1/342 of the I.P.C., the statement Ex. D/1 of the prosecutrix is to the effect that she was taken to “Bijali Colony” where she was locked in a room. During her deposition, the prosecutrix has stated that she was taken to the house of the appellants where she was closed in a room. In the light of the overall discussion of evidence, it is more than clear that there is no satisfactory evidence to bring home the said charge against the appellants. 10. In this way, it is more than evident that the prosecutrix has not been shown to be aged less than 18 years during the relevant time. Further, there is no satisfactory evidence to suggest that she was taken by the appellants against her wishes. 10. In this way, it is more than evident that the prosecutrix has not been shown to be aged less than 18 years during the relevant time. Further, there is no satisfactory evidence to suggest that she was taken by the appellants against her wishes. Similarly, if there was any sexual intercourse with her, she evidently was a willing party and also, there is no acceptable evidence to conclude that the prosecutrix was put under wrongful restraint or was put to a wrongful confinement. 11. In the result, the appeal is allowed. The judgment under appeal is set aside. Both the appellants are acquitted of all the charges. The appellant-Balwant Singh is in custody and he shall be released forthwith unless needed in connection with some other case.