Judgment R.S.Madan, J. 1. The learned Addl. Sessions Judge, Fast Track Court, Gurgaon convicted the appellant as under : 1) U/s 363 IPC : To undergo rigorous imprisonment for three years with fine of Rs. 300/- and in default of payment of fine to further undergo rigorous imprisonment for two months. 2) U/s 366 IPC : To undergo rigorous imprisonment for five years with fine of Rs. 500/- and in default of payment of fine to further undergo rigorous imprisonment for three months. 3) U/s 376 IPC : To undergo rigorous imprisonment for seven years with fine of Rs. 1000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. All the sentences shall run concurrently. 2 In brief, the case of the prosecution is that on 19-2-2003 ASI-Attar Singh along with other police officials was present at Mehrauli Road near Palm Court where Har Prashad-complainant met him and presented a complaint alleging therein that he was residing in Sector 17, in front of DAV School in the house of Teetu Sardar. He further reported that on 13-9-2003 at about 1.30 P.M., his daughter Ladli aged 15 years went to house No. 386, Sector 14 for doing a job of domestic help. Ajay son of the complainant, who was with Ladli on his returning to the house told that Rakesh-accused residing in the same locality had taken away his sister Ladli forcibly by enticing her. The complainant searched for Ladli here and there but did not succeed. A formal FIR was recorded by ASI-Tulsi Ram on 19-9-2003. A special report to Illaqa Magistrate and other senior officers was sent through Constable Jagdish. The Investigating Officer went to the spot, prepared the rough site plan and completed the various formalities. 3. It was on 4-10-2003, ASI-Attar Singh was present at MDI Chowk, Gurgaon at about 9.30 A.M. along with other police officials, when he received secret information that accused-Rakesh and Ladli prosecutrix were present at IFFCO Chowk, Gurgaon. The Investigating Officer immediately proceeded towards IFFCO Chowk, Gurgaon and apprehended both accused-Rakesh as well as prosecutrix The complainant, who was also present with the police party identified accused- Rakesh and his daughter Ladli. Both of them were sent to doctor for medico- legal examination. During the investigation, statement of the prosecutrix was got recorded under Section 164 Cr.P.C. by producing her before Mr. Both of them were sent to doctor for medico- legal examination. During the investigation, statement of the prosecutrix was got recorded under Section 164 Cr.P.C. by producing her before Mr. Sudhir Parmar, Judicial Magistrate, 1st Class, Gurgaon on 6-10-2003. Ajay was also examined under Section 164 Cr.P.C. by the Judicial Magistrate, 1st Class, Gurgaon on 15-10-2003. After getting the scaled site plan prepared by Manoj Kumar-Draftsman and completing the necessary formalities of investigation, challan against the accused was presented in the Court. 4. On appearance of the accused before the Court of Addl. Sessions Judge and on perusal of the report under Section 173 Cr.P.C. a prima facie case under Sections 363/366/376 of IPC was made out against the accused and he was charged thereunder, this was read over and explained to the accused in simple Hindi, to which he pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined Manoj Kumar-Draftsman, who prepared the scaled site plan Ex.PA. Constable-Jagdish as PW2, who delivered copies of special report to illaqa Magistrate on 19-9-2003. Head Constable- Govind Ballabh, PW4 tendered into evidence affidavit Ex. PC. Constable-Bhagwan Dass, PW5 tendered affidavit Ex. PD into evidence. ASI-Tulsi Ram, PW6 on receipt of ruqqa Ex. PF, recorded formal FIR Ex. PE/1. Constable Rattan Pal, PW7 took the complaint from ASI-Attar Singh on 19-9-2003 and got the case registered as directed. PW10-Inspector Sube Singh, prepared the challan after necessary investigation on 4-11-2003. Dr. Sarayu Sharma-PW12 medico-legally examined Ladli on 4-10-2003 and proved the copy of MLR Ex. PJ. After seeing the report of FSL Ex. PH, Dr. Sarayu Sharma opined that the possibility of sexual intercourse cannot be ruled out. This witness further deposed that age of the prosecutrix on the date of her examination was 15 years. Dr. B.B. Aggarwal-PW13, who conducted the medico-legal examination of Rakesh proved the copy of the MLR Ex. PK. According to him, Rakesh was capable of performing act of sexual intercourse, PW13-Dr. B.B. Aggarwal also conducted the radiological examination of Ladli on 9-10-1993 and stated her age as 16 to 17 years by proving his report Ex. PL. He also opined that if radiological date is taken into the consideration, the possibility of two years on both sides cannot be ruled out i.e. on the upper side as well as on the lower side. PL. He also opined that if radiological date is taken into the consideration, the possibility of two years on both sides cannot be ruled out i.e. on the upper side as well as on the lower side. He further stated that after going through report of LMO, the possibility of age remains only upto six months, either on upper side or on lower side. PW-14 is Mr. Amarjeet Singh, Judicial Magistrate 1st Class, Gurgaon, who proved the statement of Ajay Ex. PG/1. PW15 is Mr. Sudhir Parmar, Judicial Magistrate, 1st Class, who proved the statement of Ladli Ex. PF/2 recorded under Section 164 Cr.P.C. 6. After the case of the prosecution was closed, the accused was examined under Section 313 Cr.P.C. in which the entire prosecution version was put to the accused to which he pleaded innocence and stated that he has been falsely involved. The prosecutrix was in fact major. The accused was called upon to lead evidence in defence, if any, but he did not preferred to lead any evidence in defence. 7. After going through the prosecution evidence on record, the learned Addl. Sessions Judge passed the impugned order of conviction and sentence as mentioned above. 8. I have heard Mr. Rahul Vats, learned counsel for the appellant and Mr. S.S. Goripuria, DAG, Haryana and have carefully gone through the record. 9. On behalf of the appellant, it is contended by Mr. Vats that there is no Birth Certificate nor School Leaving Certificate available on record so as to show the date of birth of the prosecutrix-Ladli He further contended that during investigation of the case, Ladli was radiological examined by Dr. B.B. Aggarwal, who determined the radiological age of the prosecutrix between 16 to 17 years by proving his report Ex. PL. He further stated that two years on either side can be taken into consideration. According to the learned counsel, if radiological age of the prosecutrix is taken into consideration and two views are possible then any view more favourable to the accused has to be accepted by the Court. A reference was made to Om Parkash @ Mita @ Prem v. State of Haryana, 1997(1) RCR(Crl.) 741, where D.B. of Punjab and Haryana in the paragraph No. 4 of the judgment, the date of birth entry was in question and it pertained to one Sahara whereas the name of the prosecutrix was Saira Banu. A reference was made to Om Parkash @ Mita @ Prem v. State of Haryana, 1997(1) RCR(Crl.) 741, where D.B. of Punjab and Haryana in the paragraph No. 4 of the judgment, the date of birth entry was in question and it pertained to one Sahara whereas the name of the prosecutrix was Saira Banu. She was born on 24-9-1970. She was also radiological examined and her date of birth was found between 16-17 years and a margin of three years was given on either side as the report can be made by couple of years of both sides. The age more favourable to the accused has to be accepted by the Court. A reference was also made to Rajinder Chandra v. State of Chhattisgarh, 2002(1) RCR(Crl.) 587 Supreme Court, where the Birth Certificate, school record and ossification test showed the age of the juvenile just on border of 16 years when the offence was committed. Accused was subjected to radiological examination. In ossification test report, he was opined to be 15-16 years of age. The learned Sessions Judge by referring to these medical jurisprudence held that variation of 2-3 years of either side is permissible in the ossification test and, therefore, on the basis of such test, no opinion could be formed. However, in paragraphs 6 of the judgment, it was observed that if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. A reference was also made to Balkar Singh v. State of Punjab, 2005(1) RCR(Crl.) 576, where the Honble Mr. Justice S.K. Mittal followed the guidelines given by the Supreme Court in Rajinder Chandras case. 10. Learned counsel deriving the benefit from ossification test submitted that the case of the prosecution is that the prosecutrix was taken by the appellant on 13-9-2003 from Gurgaon to Bullandsher where she stayed for 14 to 15 days. They have travelled in a bus from Gurgaon to Bullandsher but the prosecutrix did not raise any raula so as to attract the attention of the public. Therefore, she can be taken to be a consenting party. She was kept in Bullandsher in a house for 14 to 15 days where the accused have been committed rape daily upon her person but she did not raise any raula. Therefore, she can be taken to be a consenting party. She was kept in Bullandsher in a house for 14 to 15 days where the accused have been committed rape daily upon her person but she did not raise any raula. In the cross- examination, the prosecutrix had stated that first of all they travelled in a three-wheeler to some bus stop and, thereafter, they had taken the bus for Bullandsher and 2-3 buses were changed on the way in reaching the village near Bullandsher. She further stated that at the time when she was traveling in the bus, she never disclosed to any passenger that she was being abducted by the accused forcibly nor did she raise any raula because she was under threat from the accused that she would be eliminated. It is not possible for a lady to travel in a crowded bus under the influence of threat when she could easily secure her release from the clutches of the accused but her silence on every occasion can be termed as a consenting party. Therefore, the accused deserves acquittal. 11. Learned State counsel Mr. S.S. Goripuria was frank enough to submit that from the evidence appearing in the case, he is unable to controvert the arguments of the learned counsel for the appellant. 12. Taking into account the facts and circumstances of the case, I am of the view that the prosecution has miserably failed to prove its case beyond any shadow of doubt. 13. Resultantly, this appeal is accepted and order of conviction and sentence recorded by the trial Court is set-aside.