( 1 ) THE sole accused, who is in Sessions case No. 27 of 2001 on the file of the V additional Metropolitan Sessions Judge (Mahila Court), Hyderabad, who was convicted for the offences under Sections 376,366 and 493 IPC and sentenced to undergo Rigorous imprisonment for a period of seven years and pay afine of Rs. 3,000. 00 in default, to undergo simple Imprisonmentfora period of six months on the first count, to suffer Rigorous imprisonment for a period of five years and pay a fine of Rs. 500. 00 in default, to suffer simple imprisonment for three months on the second count and to undergo Rigorous Imprisonment for a period of five years and pay a fine of rs. 500. 00 in default, to suffer Simple imprisonment for two months, on the last count, is questioning his conviction and sentence in this appeal. ( 2 ) THE gravamen of the charge against the appellant-accused is that on 26-1-2000, at about 8. 00 p. m. , he induced the alleged victim girl Kum. Revathi-P. W. 3, aged 13 years at her house bearing No. 18-7-466/2/a/82 situated at ambica Nagar, Uppuguda, Hyderabad and took her to Yadagirigutta where he tied yellow thread containing gold colour pustes and also asked her to wear toe rings of silver and took her to the house of P. W. 4-Shobha. M, Who is no other than the maternal aunt of the accused and had sexual intercourse with the victim girl till 13-2-2000. It is also alleged that from 27-1 -2000 to 13-2-2000 the date when the girl returned to her parents house, he committed rape on P. W. 3. The girl appeared before the investigating officer-P. W. 8 on 14-2-2000 who got her examined by P. W. 11 the then Assistant professor of Obstetrics and Gynecology, maternity Hospital, Nayapool, and the examination revealed that vagina admitted two fingers and hymen is not intact. He collected vagina slides and sent to Forensic Science laboratory forchemical examination. A report received from Forensic Science Laboratory revealed that human semen and spermatozoa were present in the vagina. Based on the said findings and chemical examination, P. W. 11 opined that sexual intercourse cannot be excluded. He collected vagina slides and sent to Forensic Science laboratory forchemical examination. A report received from Forensic Science Laboratory revealed that human semen and spermatozoa were present in the vagina. Based on the said findings and chemical examination, P. W. 11 opined that sexual intercourse cannot be excluded. The Doctor says in her evidence that the girl stated before her that she left her home on 26-1-2000 with her neighbour by name Venkatachari, aged about 24 years and they married at Yadagirigutta on 28-1-2000 and she had intercourse with him willinglyfrom 26-1 -2000 at 10. 00 p. m. , onwards. ( 3 ) P. W. 2, who is a tutor in Forensic Science department, examined the accused and opined that the appellant-accused is capable of performing sexual act. A photograph was marked as Ex. P-2 where both the accused and the victim girl-P. W. 3 can be seen with garland around their necks and standing in front of an idol of Lord Lakshminarsimha swamy. The girl wearing a thread around her neck is also seen. This photograph is not disputed. The case of the accused is one of complete denial except his arrest. ( 4 ) P. W. 1 is them otherof the victim-P. W. 3. P. W. 4 is the maternal aunt and P. W. 5 is the sister of the accused. Both P. Ws. 4 and 5 did not support the case of the prosecution. They are not the residents of Hyderabad. P. W. 4 is resident of Kallem, while P. W. 5 is a resident of Nagargul. P. W. 6 is the Head Master of sweety Moral Public School, where P. W. 3 studied up to IV Class. He was examined for the purpose of determining the age of P. W. 3. P. W. 7 is the Sub-Inspector, who registered the case. P. W. 8 is the Police Inspector, who investigated the case in part. P. W. 9 is the police Officer, who filed the charge sheet. P. W. 10 is also the Investigation Officer, who took over the investigation from P. W. 8. ( 5 ) BEFORE deciding the question whether the prosecution could prove the commission of the offence punishable under Sections 376, 366 and 493 IPC, a finding shall be given as to the age of P. W. 3 because it would have relevant bearing on the case. ( 5 ) BEFORE deciding the question whether the prosecution could prove the commission of the offence punishable under Sections 376, 366 and 493 IPC, a finding shall be given as to the age of P. W. 3 because it would have relevant bearing on the case. P. W. 1, who is the mother of P. W. 3 is an illiterate lady and she stated that as on the date of her evidence her daughters age was about 15 years. In such a case, the girls age as on the date of offence i. e. , 26-1-2006 comes to around 13 years but in cross examination the same lady states that she cannot give the age of her daughter and at what age she admitted into the school. As the girls father admitted her into school, she does not know her date of birth. Then there remains the only evidence of p. W. 6-Head Master of Sweeti Moral Public school. Through him, progress report of the girl was marked as Ex. P-5 and it bears his signature. The date of birth of the girl as noted in Ex. P-5 is 4-4-1987. He says that as perthe record of the school, the date of birth of the girl is 4-4-1987. It appears that he did not produce any record except giving evidence with reference to Ex. P-5-progress report. In cross-examination, he stated that whatever date of birth is furnished by the parents of the students it would be noted by them in the school registers. Ex. P-5 is only a Xerox copy of the progress report but not the original. Though it was marked through P. W. 3, from whose custody the Xerox copy had emanated is not known. As already stated P. W. 6 did not give evidence with regard to the record brought by him to the Court. ( 6 ) P. W. 2, who is a tutor in Forensic medicine in Osmania Medical College, examined P. W. 3 for determination of herage. On physical, general and radiological examination of P. W. 3. , he came to the opinion that the girl was aged 16 years as on the date of her examination i. e. on 15-2-2000. Though he noted two simple injuries, which are scratches on P. W. 3, as per the own statement of the latter it was self-inflicted injury. On physical, general and radiological examination of P. W. 3. , he came to the opinion that the girl was aged 16 years as on the date of her examination i. e. on 15-2-2000. Though he noted two simple injuries, which are scratches on P. W. 3, as per the own statement of the latter it was self-inflicted injury. Therefore, the simple injuries are of no consequence. He states that the age determined by him is subject to variation of plus or minus two years. The entry in the school register is not the conclusive proof of age of a person. At the time of admission into school where it was made at a late age of the student, the parents are likely to give less age. about:blankTherefore, to take the age mentioned in the school register, unless there is sufficient corroboration, is fraught with danger of miscarriage of justice. The evidence of p. W. 6 is based on radiological examination and the age is so determined subject to two years this side or that side. The age of the girl as per P. W. 2 is 16 years as on 15-2-2000. The commission of offence took place only few days earlier. Thus the girl was aged 16 years as on the date of commission of offence also. ( 7 ) THE Apex Court in Deelip Singh Alias di/ip Kumar v. State of Bihar held that in a case where the medical off icer gave the age of the girl as 16 to 17 years the defence was entitled to rely on the higher side of the age and as such the girl would be more than 16 years when the alleged offence had taken place. If we add two years to the age of P. W. 3 as on the date of commission of the offence, it must be held that the girl was aged more than 16 years as on the date of the commission of the offence. ( 8 ) NOW, are shall take up the evidence of p. Ws. 1 and 3 and determine the question whether the prosecution could establish the offences under Sections 376, 366 and 493 ipc. ( 9 ) P. W. 1 is the person who gave Ex. P-1 report to the police on 29-1-2000 i. e. three days after the alleged abduction of the girl. 1 and 3 and determine the question whether the prosecution could establish the offences under Sections 376, 366 and 493 ipc. ( 9 ) P. W. 1 is the person who gave Ex. P-1 report to the police on 29-1-2000 i. e. three days after the alleged abduction of the girl. It reveals nothing except saying that she suspected that her daughter left with venkatachari, who is residing opposite to their house. So, she was aware that the girl was in love with Venkatachari by the date of the report. As per her evidence, on the date of the commission of the offence, the inmates of the house attended to dinner hosted by their neighbours living opposite to their house. P. W. 3 refused to attend the dinner. There was electricity failure at 8. 00 p. m. , for sometime before that. While taking meals, she observed the accused passing in front of them. After returning home, she found the girl missing from the house. The accused was also missing from his house. 19 days after the incident, lndira-P. W. 5, the elder sister of the accused and Sobhana-P. W. 4 brought P. W. 3 to hyderabad on 14-2-2000 and handed over them to their parents. But the evidence of the investigating officer P. W. 8 is that P. W. 3 herself came to her parents. Thus, P. W. 1 s evidence that P. Ws. 4 and 5 handed over P. W. 3 at police station stands disproved. ( 10 ) AS per herevidence, the police informed about the girl being with them and she went to the police station and brought her home. In cross-examination, she admits that her daughterandlavanya,thesisteroftheaccused used to closely move togetherand her daughter used to visit the house of the accused and speak to him. It is evident from her evidence that the girl refused to attend the dinner and disappeared on that night and the girl used to move close with the sisterof the accused. The statement in Ex. P.-1, that P. W. 1 is suspecting that herdaughterwent away with the accused would sufficiently go to establish that there was love affair between P. W. 3 and the accused. In fact, the Doctor P. W. 11 clearly states that the girl stated before her that she voluntarily left with Venkatachari and had intercourse with him willingly. P.-1, that P. W. 1 is suspecting that herdaughterwent away with the accused would sufficiently go to establish that there was love affair between P. W. 3 and the accused. In fact, the Doctor P. W. 11 clearly states that the girl stated before her that she voluntarily left with Venkatachari and had intercourse with him willingly. So, nothing more is necessary to say that the love affair between the two culminated in their leaving their respective about:blank houses for Yadagirigutta where they got married. Thus, an adventure was made by the youngsters. ( 11 ) NOW let us lookinto the evidence of the prima donna, P. W. 3. She seems to have been brain washed by her parents. Though she admits that she went along with the accused she says that he threatened to kill her and her parents and forcibly took herto Kachiguda by train and from there to Yadagirigutta by bus where he tied an yellow thread around her neck forcibly to claim that both were married and also forcibly made her to pose for photographs with him. Ex. P-2 is one of such photographs. From there, the accused took her to Kallem village near Aleir Jangaon and further to the house of P. W. 4. For 18 days she was made to stay there and du ring that period the accused committed rape on her. In cross-examination, she admits that Lavanya who is the sister of the accused, and herself used to move closely and the accused also used to speak to her now and then, but she claims that she used to treat him as a brother. She did not raise cries when the accused was taking her away as the accused threatened that he would kill her if she raised cries. The railway station can be reached within five minutes from her house by walk. They went to the station on foot only. Even while purchasing tickets the accused was holding her. The accused took her to the railway station just at the time of the arrival of the train only. She did not raise cries even at the railway station as the accused put her under threat of killing her. About 20 members were present at Uppuguda railway station where they boarded the train. She claims that the accused took her from the back of her house. She did not raise cries even at the railway station as the accused put her under threat of killing her. About 20 members were present at Uppuguda railway station where they boarded the train. She claims that the accused took her from the back of her house. A reading of her evidence would clearly show that she turned volte face before the Court. However, it is clearf from the fact that she did not raise cries anywhere at any time when sexually enjoyed by the accused for so many days would clearly indicate that she voluntarily left with the accused. It is interesting to note what she stated before police. "since a few months time, I am having a love affair with one A. Venkatachary aged 24 years, residing in opposite house. " ( 12 ) THE above portion was marked as ex. D-2. She denied to have made that statement. No more discussion is necessary to say that the case is an out come of love affair between the accused and P. W. 3, and P. W. 3 left with the accused voluntarily on her own and roamed with him for about 18 or 19 days before she appeared before the police with her parents. It is also interesting to notice that in ex. P-1 it is stated that the girl left the home on the morning of 26-1-2000 without notice or intimation. However, it was marked as contradiction and it is of no consequence. ( 13 ) I held that the girl was above 16 years as on the date of the commission of the offence. The Supreme Court, in jinish Lal Sah v. State of Bihar, held that to establish the charge under Section 366 there should be acceptable evidence to show that the girl was compelled to marry the appellant-accused against he will or was forced to or induced to intercourse against her will. Therefore, the prosecution is required to prove that there was some such undue force on the girl either to marry the accused or to have about:blank intercourse with him. In the case before their Lordships, the girl had planned for departure from the house in advance and had willingly gone away with the appellant. Therefore, the prosecution is required to prove that there was some such undue force on the girl either to marry the accused or to have about:blank intercourse with him. In the case before their Lordships, the girl had planned for departure from the house in advance and had willingly gone away with the appellant. Their Lordships had drawn inference that the said conduct indicates that there was no threat or inducement either in regard to her leaving the house or in regard to accompanying the appellant and therefore, charge under section 366 IPC was not made out. In the case on hand also the girl had planned her departure from the house. As per the testimony of p. W. 1, she avoided attending the dinner in the neighbours house. She stayed in the house only with the avowed intention of leaving the house with the accused in the absence of other inmates. Thus, it is clear that no case is made out under Section 366 IPC. Their lordships in the above said decision, had an occasion to discuss, on the facts of the case before their Lordships, where the offence under section 366 IPC was also made out. Their lordships held thatthe prosecturix herself had planned her departure from her house in advance and had willingly gone away with the accused-appellant. In such a situation in the absence of any other material to show the contrary, it will be difficult to accept the prosecution case. The accused-appellant cannot be held to have raped the prosecutrix. Before the Doctor the girl stated that she had intercourse with the accused willingly. Even otherwise, her willingness can beinferred from her conduct. Since she is aged above 16 years, the sixth description under Section 375 ipc which says that the intercourse with the consent of a girl aged less than 16 years is also a rape would not come into play. Thus, the offence under Section 376 is also not made out. There was no cohabitation with deceitful intention of a lawful marriage in this case. The girl was aged more than 16 years. She knows that a marriage has to be performed by her elders. In spite of that she left the house without informing her parents or anybody in the house and went all the way to Yadagirigutta where from the couple left elsewhere and had led sexual life. The girl was aged more than 16 years. She knows that a marriage has to be performed by her elders. In spite of that she left the house without informing her parents or anybody in the house and went all the way to Yadagirigutta where from the couple left elsewhere and had led sexual life. If the alleged marriage took place at Yadagirigutta is a fake marriage both p. W. 1 and the accused are equally to be found guilty. Accused alone cannot be convicted, therefore, I hold that Section 493 ipc is also not made out. ( 14 ) FORTHEFORE going reasons, the judgment of the lower Court convicting and sentencing the accused is liable to be set aside. Accordingly, this appeal is allowed setting aide the judgment of the lower Court. The fine amounts if any paid by the accused shall be returned to him.