JUDGMENT T.P.S. Mann, J.:- The appellant was tried by Additional Sessions Judge, Chandigarh for offences under Sections 366/376 IPC. Vide judgment and order dated 11.11.1993, the trial Court convicted the appellant under Section 376 IPC and sentenced him to undergo RI for seven years and to pay a fine of Rs. 500/-. In default of payment of fine, he was directed to undergo further RI for three months. However, the appellant was acquitted of the charge under Section 366 IPC. 2. The FIR was registered on the basis of a statement Ex.PD made by father of the prosecutrix. He alleged therein that he was a resident of Milk Colony, Dhanas, Union Territory of Chandigarh, where he resided with his wife and children. The prosecutrix was aged 12 years. He was doing the work of a mason and his two daughters, who were elder to the prosecutrix, also helped him in his occupation. On 27.11.1989, he returned along with his two daughters to his house after doing labour. At about 6.15 P.M., the prosecutrix went to the latrine, situated on the road nearby his house. She asked one of her elder sisters to bring water for her. When her elder sister reached the latrine, she found the prosecutrix missing. The complainant searched for his daughter. He met Izat Baigi, who disclosed him that he had seen the prosecutrix with the accused at the bus-stand of Dhanas. The complainant went to the bus-stand but he could not find his daughter there. He suspected that the accused allured his daughter, aged 12 years, with an intention of committing rape. On the basis of the aforementioned statement Ex.PD, which was recorded by SI Sudarshan Kumar, who made endorsement Ex. PD/3, formal FIR Ex.PD/1 was registered in Police Station West, Chandigarh. 3. On 3.12.1989, the complainant along with his relative Mohd. Safi went to the Police Station and thereafter accompanied SI Sudarshan Kumar and other police officials towards PGI. When they reached near the PGI Chowk, SI Sudarshan Kumar received a secret information that the accused and the prosecutrix were present in the Industrial Area near Transport Chowk. Accordingly, all of them went there, where the accused and the prosecutrix were apprehended. 4. The prosecutrix was subjected to medico-legal examination by Dr. Gursharan Kaur PW1, who noticed as follows:­ “1. She gave her age 12 years 2 months and alleged to have been raped. 2. Accordingly, all of them went there, where the accused and the prosecutrix were apprehended. 4. The prosecutrix was subjected to medico-legal examination by Dr. Gursharan Kaur PW1, who noticed as follows:­ “1. She gave her age 12 years 2 months and alleged to have been raped. 2. On examination her height is 150 cm, weight 50 kg. teeth 14/14. Her salwar Ex.P1 was taken into possession and the same was sealed with the seal of General Hospital. It was, thereafter, handed over to the police for sending it to the Chemical Examiner. The prosecutrix was referred to the Radiologist for confirmation of her age. The accused was medico-legally examined by Dr. J.R. Chohan PW2 on 3.12.1989 at 10.15 P.M., who found the following:- “Auxill-ary hair and pubic hair present. External genitalia fully developed. On retracting the prepuce, no smegma was present. On pressing the glans, no discharge came out. After physical examination, there is nothing to suggest that he was incapable of doing sexual intercourse. 5. During the investigation of the case, the Investigating Officer collected School Leaving Certificate Ex. PH, wherein the date of birth of the prosecutrix was recorded as 18.10.1977. Statements of various witnesses were recorded under Section 161 Cr.P.C. After the receipt of the report of the Chemical Examiner Ex. PB and the completion of the investigation, the challan was presented in the Court. 6. In support of its case the prosecution examined Dr. Gursharan Kaur PW1, who deposed about the medico-legal examination of the prosecutrix. In cross-examination, she testified that the prosecutrix was habitual to sexual intercourse and that hymen of the prosecutrix had old healed tears. 7. Dr. J.R. Chohan PW2 deposed about the medical examination of the accused and found him physically fit to perform sexual intercourse. 8. The prosecutrix appeared as PW3. She stated that in the year 1989, when she went to answer the call of nature, the accused met her and started teasing her. He allured her for good clothes, besides assuring her decent living. He asked her to leave her parents. Sometime later, when she again went to answer the call of nature and asked her elder sister to provide her water, the accused came and threatened her to go with him or else he would rape her elder sister. The accused tempted her with providing good clothes and comfortable living to her. He asked her to leave her parents. Sometime later, when she again went to answer the call of nature and asked her elder sister to provide her water, the accused came and threatened her to go with him or else he would rape her elder sister. The accused tempted her with providing good clothes and comfortable living to her. He took her in a place, which looked like a jungle and committed rape against her wishes. She was raped four times. When they were standing near the Transport Chowk, they were apprehended by the police party accompanied by her father and Mohd. Safi PW. 9. Complainant, who is father of the prosecutrix, appeared as PW4. He stated that his daughter, i.e. prosecutrix, was running in her 16th year on the date of his examination before the Court, i.e. on 23.11.1992. 10. He also stated about the missing of his daughter and later on his making a statement on the basis of which FIR was registered. He also testified to the apprehension of the accused and the prosecutrix from near the Transport Chowk. 11. PW5 Jaswant Singh, Draftsman proved scaled site plan Ex. PE, which was prepared by him. 12.­ Affidavit Ex. PF was proved by MMHC Piara Singh PW6 and so also affidavit Ex.PG by Constable Ishwar Singh PW7. 13. PW8 Izat Baig also corroborated the prosecution version. He had informed the complainant that on 27.11.1989, he had seen the prosecutrix in the company of the accused near the bus-stand of Dhanas. 14. Smt. Kuldip Chadha, a teacher of Government Senior Secondary School, Dhanas appeared as PW9. She produced School Leaving Certificate Ex.PH, wherein date of birth of the prosecutrix was recorded as 18.10.1977. 15. Inspector Raj Kumar PW10 stated that he recorded formal FIR Ex.PD/1. 16. Mohd. Safi PW11 stated that he along with father of the prosecutrix had been moving from place to place in search of her. Ultimately, the prosecutrix and the accused were apprehended near Transport Chowk, Sector-26, Chandigarh by the police. 17. The investigation part of the case was narrated by SI Sudarshan Kumar PW12. 18. When examined under Section 313 Cr.P.C., the accused denied the entire prosecution version. He stated that he had been falsely implicated in the case. He further stated that prosecutrix was with him from 15.11.1989. She appeared before the Magistrate on 17.11.1989 and got her affidavit (Ex. The investigation part of the case was narrated by SI Sudarshan Kumar PW12. 18. When examined under Section 313 Cr.P.C., the accused denied the entire prosecution version. He stated that he had been falsely implicated in the case. He further stated that prosecutrix was with him from 15.11.1989. She appeared before the Magistrate on 17.11.1989 and got her affidavit (Ex. D1) attested from the Magistrate. She also got her photograph (Ex.D2) with the accused. He further stated that they were arrested by the police at village Chaunali, District Ropar from the house of Sukhdev Singh, his Phuphar in the presence of the Panchayat. 19. The accused examined Dr. B. N. Aggarwal as DW1, who had radiologically examined the prosecutrix. As per his report Ex.D2, the age of the prosecutrix was determined to be about 17 years. After perusing the evidence, the trial Court convicted and sentenced the appellant as mentioned above. However, the appellant was acquitted of the charge under Section 366 IPC. 20. The main point for consideration in the present case is the age of the prosecutrix on the date of the occurrence. Though, Smt. Kuldip Chadha PW9 stated on the basis of School Leaving Certificate Ex.PH that the date of birth of the prosecutrix was 18.10.1977, yet it is clear that the prosecutrix was got admitted by her mother, who has not been examined as a prosecution witness. No record from the office of Registrar, Births and Deaths has been produced to pin-point the actual date of birth of the prosecutrix. Dr. Gursharan Kaur PW1, after conducting medico-legal examination of the prosecutrix, referred her to the Radiologist for confirmation of her age. Dr. Gursharan Kaur initially noticed the age of the prosecutrix to be 12 years 2 months as stated by her. However, for the reasons best known to the prosecution, the Radiologist was not examined as a prosecution witness. It was the accused, who examined Dr. B. N. Aggarwal as DW1. He stated that he was posted as SMO, Incharge, Radiology, General Hospital, Sector-16, Chandigarh on 4.12.1989. He conducted radiological examination (ossification test) of the prosecutrix and opined that she was 17 years of age. He prepared his report Ex.D2 in that regard. He also proved ski-a-grams of the radiological examination as Ex.D2/1 to EX.D2/4. It is, thus, apparent that the said opinion given by Dr. He conducted radiological examination (ossification test) of the prosecutrix and opined that she was 17 years of age. He prepared his report Ex.D2 in that regard. He also proved ski-a-grams of the radiological examination as Ex.D2/1 to EX.D2/4. It is, thus, apparent that the said opinion given by Dr. B. N. Aggarwal did not suit the prosecution and, therefore, he was not examined by it. 21. During her cross-examination, the prosecutrix admitted, that she had appeared in the Court of a Magistrate at Anandpur Sahib on 17.11.1989, where the accused had disclosed that she should sign Ex.D1 on the pretext that the accused had been living at her house. She also admitted photograph Ex.D2, which was taken at Anandpur Sahib on the same day. Her explanation to the document Ex.D1 and photograph Ex.D2 was that the accused was accompanied by two anti-social elements. She did not narrate anything about those persons. If that was a fact, she could have very well informed the Magistrate at Anandpur Sahib but she did not do the same. In this view of the case it can safely be presumed that the prosecutrix was more than 16 years of age on the date of occurrence and, thus a consenting party. Dr. Gursharan Kaur PW1 did not find any evidence of external injuries. This also shows that the prosecutrix never offered any resistance to the so-called act of rape having been committed by the appellant. The trial Court has already acquitted the appellant under Section 366IPC. It is, thus, clear that the prosecutrix went with the appellant of her own will. A thorough and minute examination of the entire facts would lead me to conclude that the prosecution has not been able to prove its case beyond reasonable doubt. The appellant deserves the benefit of doubt. Resultantly, the appeal is accepted. Conviction and sentence of the appellant are set aside and he is acquitted of the charge under Section 376 IPC. ———————————