JUDGMENT Harbans Lal, J.:- This appeal is directed against the judgment/ order of sentence dated 18.2.1998 passed by the Court of learned Additional Sessions Judge, Sangrur whereby he convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/ - and in default of the same, to further undergo rigorous imprisonment for two months under Section 376 IPC and further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- and in default thereof, to further undergo rigorous imprisonment for one month under Section 366-A IPC with a further direction that these sentences shall run concurrently. 2. The facts in brief of the prosecution case are that on 14.6.1993 at about 2:00 p.m., Amrik Singh (referring to the accused) a neighbour of the complainant Gurmukh Singh PW took away the prosecutrix (To prevent her social victimisation, her name has been kept secret in view of the observations rendered by the Apex Court in re: Premia @ Prem Prakash v. State of Rajasthan, [2008(5) LAW HERALD (SC) 3473] : 2008(4) Recent Criminal Reports (Criminal) 539 Supreme Court) aged about 16/17 years grand daughter of Gurmukh Singh by inducing her by deceitful means. On search, Amrik Singh could not be tracked down, nor she could be found. On the basis of Gurmukh Singh’s statement, formal FIR Ex.PW5/B was registered. On 13.9.1993, they both were found present at the Railway Station, Sangrur. On catching sight of the police party, an endeavour in vain was made to run away. He dragged her by holding her arm. On being given a chase, she was saved from his clutches. He was arrested. After observing usual formalities and on completion of investigation, the charge-sheet was laid in the Court of learned Judicial Magistrate 1st Class, Dhuri. Vide his order dated 24.12.1993, he committed the case to the Court of learned Sessions Judge, Sangrur for trial of the accused. On commitment, the case was entrusted to the Court of learned Additional Sessions Judge, Sangrur. 3. The accused was charged under Section 376/366-A of IPC to which he did not plead guilty and claimed trial. To bolster up its version, the prosecution examined the prosecutrix PW1, Dr. Rupinder Kaur Sandhu PW2, Dr. K.K. Goyal PW3, Dr. On commitment, the case was entrusted to the Court of learned Additional Sessions Judge, Sangrur. 3. The accused was charged under Section 376/366-A of IPC to which he did not plead guilty and claimed trial. To bolster up its version, the prosecution examined the prosecutrix PW1, Dr. Rupinder Kaur Sandhu PW2, Dr. K.K. Goyal PW3, Dr. S.K. Juneja PW4, Gurmukh Singh complainant PW5, Constable Jaswinder Singh PW6, GuIzar Singh Head Constable PW7, SI Nahar Singh PW8, Madan Lal Statistical Clerk of the Office of Civil Surgeon, Sangrur PW9, S.I. Darshan Singh PW10, Mr. N.K. Goel, Judicial Magistrate 1st Class, Dhuri, PW11 and closed its evidence. 4. When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him. He has come up with a plea that he was earlier a student of Engineering College, Bangalore and has been falsely involved in a case by Gurmukh Singh and his other relations in connivance with the Police due to inimical relations. He examined DW 1 V.B Bhatnagar. Handwriting and Finger Prints Expert. After hearing the learned Additional Public Prosecutor for the State and the learned defence counsel, the learned trial Court convicted and sentenced the accused as noted supra. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. 5. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 6. Mr. Sandeep Mann, Advocate representing the appellant urged with a good deal of force that as is borne out from the prosecution evidence, the prosecutrix was about 16 years of age and she did not raise alarm when she travelled in number of buses from one place to the other nor shared with the passengers that she was being taken away forcibly under threat. This spells out that she was a consenting party. He further puts that a careful delving into the evidence adduced by the prosecution would reveal that somewhere her age has been given as 16 years and somewhere, she has been shown to be more than 18 years. Thus, the charged offence in its entirety is not established. 7. To controvert these submissions, Mr. T.S. Salana, Deputy Advocate General, Punjab maintained that the findings returned by the learned trial Court are based on luculent evidence and thus call for no interference. 8. I have well considered the rival contentions. Thus, the charged offence in its entirety is not established. 7. To controvert these submissions, Mr. T.S. Salana, Deputy Advocate General, Punjab maintained that the findings returned by the learned trial Court are based on luculent evidence and thus call for no interference. 8. I have well considered the rival contentions. As surfaces in the cross-examination of the prosecutrix (PW1) “the accused had been committing rape upon me at Village Mooluwal for 3 or 4 days at his house during day time and not during night. These acts include the earlier two acts of rape upon me, on the first day, when the accused had bolted the door and had not opened it when his mother had called from outside.” This evidence speaks volumes of the fact that even on earlier occasion, they had sexual intercourse. Had she been not a consenting party, she in the common course of conduct would have certainly reported the matter regarding her rape on earlier occasion to her parents or other members of her family. In her cross-examination dated 12.5.1994, she has stated that “I had not talked about this matter to anyone of them because of threat to my life given by the accused. On the next day, in accordance with the threat of the accused, I had gone to his house again. I went there at 11:00 A.M or 12:00 Noon. The accused again committed sexual intercourse with me in one of the two rooms attached with the varandah where he had earlier raped me. I had gone to the accused on different days at his house and he raped me on 3 or 4 occasions during day times in those very rooms.” This evidence tends to show that she herself had been visiting the accused over and over again. “While in her parental house, she would have not been apprehensive. Her long drawn silence and repeated visits to the accused ipso facto nullify her rape story. Admittedly, she was more than 16 years of age at the material time. That being so, there can be no escape from the finding that she was a consenting party to the sexual intercourse acts. 9. It is in her further cross-examination that “we used to remain in the room some time for one hour and some time for more than one hour during the act of sexual inter-course being committed. That being so, there can be no escape from the finding that she was a consenting party to the sexual intercourse acts. 9. It is in her further cross-examination that “we used to remain in the room some time for one hour and some time for more than one hour during the act of sexual inter-course being committed. I did not talk to anybody about these acts during all these days. There were about 10 or 20 passengers in the bus which we caught at Mooluwal. I did not talk to anyone in the bus due to the threat from the accused. We changed the bus at Dhuri Bus Stop. There were passengers at the bus stand. I did not talk to anyone due to the threat of the accused. We caught another bus from Dhuri Bus Stand. The bus was full of passengers, but I did not talk to anyone due to the threat of the accused. We changed bus at Bus Stand, Sangrur and caught a bus for Rajpura. We had, however, got down at Patiala for a short time but I did not talk to anyone. We waited for the train for 15 minutes at Rajpura Railway Station at a vacant place. For purchasing the railway tickets, the accused had joined a que, while I kept standing near him. There were many men and women in the said que. It was 5:30 P.M when we boarded the train for Delhi. We reached Delhi at about 11:00 P.M, but I did not talk to any passenger in the compartment due to the threat of the accused. I did not talk to any person at Delhi Railway Station due to threat given by the accused. We did not get a room and we had slept in the compound of Gurdwara. The gates of the Gurdwara remains open during the night. We had, in fact, remained sitting throughout the night. There was none in the compound except us. I did not talk to any person at Delhi Railway Station due to threat given by the accused. We did not get a room and we had slept in the compound of Gurdwara. The gates of the Gurdwara remains open during the night. We had, in fact, remained sitting throughout the night. There was none in the compound except us. I did not raise any alarm in the presence of Sangat in the Gurdwara when we went there to pay obeisance on the first day of our arrival there.” This evidence leave no scope for doubt that the prosecutrix had got numerous opportunities at different stages to disclose to the close by attendants that she has been kidnapped by the accused and under the threats being held out by him, she is accompanying him. If verily she had not been a party to the acts which were being performed by the accused, she by all probabilities would have disclosed the same to the co­passengers or the persons who were present in the Sangat of the Gurdwara. As per the above reproduced evidence, they had slept in the compound of Gurdwara of which the gates remain open during the night. Thus, again during this time, she had got the opportunity to report matter to the attendants in the Gurdwara. She could have also disclosed the alleged threat to the men and women who were standing in the que to buy tickets. Thus, from whatever angle, the matter may be viewed, it has to be concluded that she being above 16 years of age was a consenting party. 10. It is in the cross-examination of Dr. Rupinder Kaur Sandhu PW2 that “age of 17 years was given by _______ (referring to the prosecutrix) voluntarily by herself and the possibility cannot be ruled out that she was used to sexual intercourse.” As shall appear in the testimony of PW4 Dr. S.K. Juneja, on 4.12.1993, he radio logically examined___________ (referring to the prosecutrix). In his opinion according to Galstun and Modi’s Work, the age in this case is between 16 to 17 years. It is in his cross-examination that “it is correct that sternal classification and ossification test was not performed.” It is inferrable from this evidence that the requisite tests as prescribed by J.P. Modi in his medical jurisprudence were not performed. In his opinion according to Galstun and Modi’s Work, the age in this case is between 16 to 17 years. It is in his cross-examination that “it is correct that sternal classification and ossification test was not performed.” It is inferrable from this evidence that the requisite tests as prescribed by J.P. Modi in his medical jurisprudence were not performed. That being so, it would be difficult to accept the opinion of this doctor that the age of the prosecutrix was 17 years. As per the opinion given by this doctor in his report Ex.PE, the age in this case is between 16 to 17 years. As per J.P. Modi, an authority on medical evidence, there is always a variation of two years on either side in the age determined on the basis of ossification test, as this is not the surer test. Only radiological examination was carried out. It is an abstract rule of law that in cases where the age is determined on the basis of ossification test, the marginal variation of two years is to be counted in such a way as would be favourable to the accused. Thus, the age of the prosecutrix has to be taken to be 19 years. In this way, she was above 18 years of age and sequelly, the question of her being kidnapped by the accused from the lawful guardianship of her parental custody is uncalled for. Of course, as testified by Madan Lal Statistical Clerk PW9, the date of birth of the prosecutrix is 5.12.1976, but under the stress of cross-examination he has stated that “the said entry, i.e.. Entry No.43 does not bear the page number. However, back page of this entry bears the page number as 301 and the next page bears page number as 303. It is correct that at Entry No.42, there is overwriting. Similarly, there is overwriting at Entry No.44 at digit ‘4’. It is correct that there is no thumb impression or signature of the person who gave the information. It is correct that there is no note in the register by the SHO. I cannot say whether Entry No.43 in the register brought by me is wrong or correct. It is correct that few leaves in the register are lying blank in the beginning and in the centre. It is correct that stamps of Dr. It is correct that there is no note in the register by the SHO. I cannot say whether Entry No.43 in the register brought by me is wrong or correct. It is correct that few leaves in the register are lying blank in the beginning and in the centre. It is correct that stamps of Dr. Narinder Singh are not existing on all the pages.” Adverting to Ex.PW9/A, the alleged birth certificate of the prosecutrix, if the same is looked even with an unaided eye, it would be revealed that the name of the Police Station Sherpur bears overwriting. In this certificate, in the column of sex, the word Kuri (girl) has been mentioned with a different ink. The name of the female baby has been shown as Guddi, though the prosecutrix’s name is Rajwinder Kaur alias Rani. When appeared as PW1, she did not state that initially she used to be addressed or called by the name of Guddi. There is no evidence to hold that in her infancy, she was known as Guddi, Therefore, it would be going too far to assume that this certificates relates to her. 11. In the ultimate analysis, it boils down that the prosecutrix was above 18 years of age at the time of the occurrence. She being major as well as consenting party, the charged offences fail. Sequelly, this appeal is accepted, setting aside the impugned judgment/ order of sentence. The accused-appellant is hereby acquitted of charges under Section 376/366-A of IPC. -------------------