JUDGMENT Challenge in this appeal is to judgment rendered in Sessions Case No.3/ 2009 by learned Additional Sessions Judge, Basmathnagar, whereby and where under the appellant came to be convicted for offence punishable u/ss.376 and 363 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for seven years along with fine of Rs.10,000/- in default to suffer rigorous imprisonment for six months on first count and rigorous imprisonment for three years and to pay fine of Rs.500/- in default to suffer rigorous imprisonment for three months on the second count. 2. The prosecution case, as unfolded during trial before the Court of Sessions, is that the prosecutrix - (PW 2) was a school going girl at the relevant time and was minor, aged about 14 years and 9 months. She used to reside with her parents in Tirupati Nagar locality behind S.T. Stand at Basmath. Her father is illiterate. He used to earn livelihood by doing manual work. On 12.2.2008, the prosecutrix alone was in the house. Her father had gone to attend the manual work as a daily wager, whereas her mother had gone to attend a marriage at outstation along with her brother. When they returned home, they noticed that the prosecutrix was missing from the house. Her father lodged a missing report after about one week when he could not locate her in spite of hectic search. The appellant had taken away the prosecutrix from lawful guardianship of her father in the relevant noon. He allured her to go with him under false pretext that he will marry her. He, however, did not marry her though she repeatedly asked him to marry and fulfill the promise. He committed sexual intercourse with her at Devas (M.P.) where both of them had gone. Ultimately, she was located during course of investigation and was brought back to Basmath. Her medical examination revealed that she was no more virgin. It was noticed by the medical officer that the prosecutrix was subjected to sexual intercourse. On the basis of material gathered during the course of investigation, the appellant was charge-sheeted for the offences punishable u/ss.363 and 376 of the Indian Penal Code. 3. The prosecution examined in all 10 witnesses in support of its case. It was noticed by the medical officer that the prosecutrix was subjected to sexual intercourse. On the basis of material gathered during the course of investigation, the appellant was charge-sheeted for the offences punishable u/ss.363 and 376 of the Indian Penal Code. 3. The prosecution examined in all 10 witnesses in support of its case. The learned Sessions Judge held that the prosecutrix was minor at the relevant time and, therefore, her consent for sexual intercourse was not a lawful consent as such. The learned Sessions Judge further held that the prosecutrix was subjected to sexual intercourse by the appellant under false promise of marrying her and, therefore, even though there was consent of the prosecutrix, yet it could not be deemed as lawful consent. The learned Sessions Judge came to the conclusion that the prosecutrix was taken away by the appellant from lawful guardianship of her father and that she was sexually exploited by him. In keeping with such findings, the impugned judgment of conviction and sentence is rendered by the Court of Sessions. 4. Heard learned Ad, ocate Smt. Patibha Bharad appointed to represent the appellant as amicus curiae, learned APP for the respondent no. 1 and learned Advocate Shri. S. K. Adkine for the respondent no.2. 5. Crucial question involved in the appeal is whether the prosecutrix is proved to be minor at the relevant time and, therefore, her consent for the sexual intercourse could be regarded as no consent in the eye of law. Another question of significance is whether her consent was obtained under false promise of marrying her and, therefore, the charge of rape is duly established. 6. So far as PW-l Baburao is concerned, it is explicit that he is an illiterate person. He is a rustic labourer. He corroborated the missing report (Exh.9) filed by him after about one week of the prosecutrix's leaving his house. There is no eye-witness account about the manner in which the prosecutrix left house of her father in the relevant noon. There is also no iota of evidence to infer that she was compelled by the appellant to go with him. Cross examination of PW-1 Baburao purports to show that he learnt about abduction of the prosecutrix after about four months of the incident. He came to know that they had been residing at Devas (M.P.). There is also no iota of evidence to infer that she was compelled by the appellant to go with him. Cross examination of PW-1 Baburao purports to show that he learnt about abduction of the prosecutrix after about four months of the incident. He came to know that they had been residing at Devas (M.P.). He states that he learnt that the appellant had been to house of his mother at Basmath along with the prosecutrix. He, therefore, went to house of the appellant to verify the information. He noticed that the prosecutrix was in the same house with the appellant. In other words, the prosecutrix herself had not made any attempt to go back to house of her parents and had gone to house of mother of the appellant along with him during the relevant period. His version of cross-examination further reveals that she informed the father (PW-1 Baburao) that the appellant had given assurance to her to marry her. 7. Though PW -1 Baburao states that the prosecutrix was below 15 years of age at that time, yet his version is quite shaky in the context of her age. He admits that the prosecutrix was born before 8/12 years of his migration to Basmath from village Shendurjana. He admits that initially the prosecutrix was admitted in a primary school at village Takalgaon some where in 1981-82. He states that she was around four years of age at the time of her admission in the primary school. He further admits that he, his wife and the prosecutrix were together working in a ginning factory between 2007-08. These admission of PW-1 Baburao give a serious jolt to his version about age of the prosecutrix. If the admissions are considered, then it is apparent that the prosecutrix was major at the relevant time when she had eloped with the appellant. It appears that the appellant had developed intimacy with the prosecutrix much before the alleged incident. 8. Coming to the version of the prosecutrix - (PW -2), it is amply clear that she made no attempt to rescue herself when she had eloped with the appellant from the house of her father. She deposed that she was alone at the house of the father in the relevant noon and then the appellant asked her to accompany him because he wanted to marry her. She deposed that she was alone at the house of the father in the relevant noon and then the appellant asked her to accompany him because he wanted to marry her. Both of them thereafter went to Devas (M.P.) via Akola in a S.T. Bus and train. She narrated that she was subjected to sexual intercourse by the appellant by use offorce. Her version purports to show that because mother of the appellant had become ill, he took her back to his maternal home at Basmath. She admitted her signatures on the three letters (Exhs.11 to 13). Her only grievance is that the appellant did not marry her and as such she was aggrieved. She admits that she was working as a labourer along with her mother in a local ginning factory prior to the day of her going with the appellant. She further admits that the appellant was working as Hamal at Devas (M.P.) when they resided together for about four months. She admits that the appellant was employed as a labourer in the local ginning factory called "Darak Ginning Factory" at Basmath. She further admits that she was knowing the appellant since about couple of months prior to the alleged incident of their going together to Devas (M.P.). It is explicit. therefore, that the appellant and the prosecutrix were working together in the same ginning factory and had developed intimacy with each other. It is also manifestly clear that the prosecutrix made no attempt to go back to house of her parents during the relevant period. She attempted to improvise her version by saying that she had shouted on the way to Devas (M.P.), but nobody had come to rescue her. She clearly admits that on arrival at Devas (M.P.), the appellant started working as a labourer from the very next day. She further admits that she used to prepare the meals, used to wash clothes and clean the utensils. In absence of the appellant, there was ample opportunity available to the prosecutrix to leave his house and go back to house of her parents. She admits, unequivocally, that she had contacted her father after a fortnight after reaching at Devas (M.P.) and had talked with him as well as with her brother on telephone. In absence of the appellant, there was ample opportunity available to the prosecutrix to leave his house and go back to house of her parents. She admits, unequivocally, that she had contacted her father after a fortnight after reaching at Devas (M.P.) and had talked with him as well as with her brother on telephone. If this admission is considered, it is quite clear that her father was duly informed by her about going to Devas (M.P.) along with the appellant and their relationship. Notwithstanding such knowledge, PW -1 Baburao did not immediately lodge any complaint with the Police in order to get back custody of the prosecutrix. She admits that she did not disclose to the neighbourers that the appellant had committed forcible intercourse with her against her will. She made no attempt to escape from his house at Devas (M.P.). She further admits that about one year before the incident, she had attained the age of puberty. 9. As stated earlier, age of the prosecutrix is most important aspect of the matter in the conteXt of present appeal. The prosecutrix was initially admitted in a primary school of village Takali. The record about her admission in the primary school was not called. Much reliance was placed on version ofPW-3 Jyoti, who was working as a school teacher in Mahatma Gandhi High School at Basmath. She corroborated entries in the admission register. The extract of admission register (Exh.16) purports to show that birth date of the prosecutrix is 9.9.1993. If the said information is considered as reflective of gospel truth, then the prosecutrix can be regarded as minor at the relevant time. However, the school record of Mahatma Gandhi High School is founded on the earlier entries, which were recorded prior to 1.2.2004. The father of the prosecutrix does not say that information in the school leaving certificate is correct and as per his personal knowledge. 10. The testimony of PW -4 Dr. Kalpana would show that the prosecutrix was examined on 19.6.2008. She deposed that the medico legal certificate (Exh.22) was issued by her. She noticed that the prosecutrix was subjected to sexual intercourse. She also noticed that the vaginal examination disclosed easy access of two fingers and the hymen was ruptured. In other words, the prosecutrix was duly habituated to sexual intercourse. She deposed that the medico legal certificate (Exh.22) was issued by her. She noticed that the prosecutrix was subjected to sexual intercourse. She also noticed that the vaginal examination disclosed easy access of two fingers and the hymen was ruptured. In other words, the prosecutrix was duly habituated to sexual intercourse. The medical officer further admits that without radiological examination, age of the person can not be determined. She further admitted that she issued the medico legal certificate (Exh.24) as per instructions of the prosecutor. Needless to say that her opinion as regards age of the prosecutrix is of no much significance. 11. The testimony of PW -7 Dr. Amol purports to show that radiological examination of the prosecutrix indicated that she was aged about 17 years as on the date of examination, which was conducted on 20.6.2008. He corroborated the opinion letter (Exh.33). It appears that he carried out the radiological examination on the basis of X-Ray photographs drawn. It is of common knowledge that such opinion of expert is required to be considered with variation as per permissible margin of error. Ordinarily, the margin of error is of couple of years. Needless to say, the prosecutrix could be between the age group of 15 to 19 years at the relevant time. The benefit of such shaky evidence must go to the appellant. 12. PW 8 Shantabai deposed that the appellant and the prosecutrix resided in a common house at Devas (M.P.) like husband and wife for a period of four months. So also PW -9 Mohan states that the appellant was residing in a residential quarter provided by the factory along with the prosecutrix. He admits that the appellant was working under his supervision. He further admits that he had never talked with the prosecutrix during the relevant period. It is not necessary to elaborately discuss the remaining evidence, which comprises of stages of investigation. 13. On proper appreciation of evidence placed on record, it can be gathered that the prosecutrix is not proved to be minor at the time of the alleged incident. It is not proved beyond reasonable realm of doubt that she was allured by the appellant to go with him under false pretext of marrying her. What appears from the record is that both of them had gone together to Devas (M.P.) and were residing together like husband and wife. It is not proved beyond reasonable realm of doubt that she was allured by the appellant to go with him under false pretext of marrying her. What appears from the record is that both of them had gone together to Devas (M.P.) and were residing together like husband and wife. It is further clear that the prosecutrix had informed to her parents about her joint residence with the appellant at Devas (M.P.) after about a fortnight and hence no further criminal action was taken because her father was relieved to know that she was happily residing with the appellant. Considering the fluctuating and shaky version of the prosecutrix, the learned Sessions Judge should not have placed implicit reliance on her bald version so as to conclude that her consent for sexual intercourse was obtained by the appellant under false pretext of marrying her. The impugned judgment of conviction and sentence is quite unsustainable in view of the reasons discussed hereinabove. 14. The Apex Court in Sunil Vs. State of Haryana [ (2010)1 SCC 742 ] held that where there was dispute as regards minority of the prosecutrix at the time of alleged incident, the clinical examination of the prosecutrix for verification of her age could be more relevant. The omission to get verification from Dental Surgeon and Radiologist was held as a serious flaw in the prosecution version. So also, in case of S. Varadarajan Vs. State of Madras (1965 AIR SC 942), the Apex Court held that where the girl herself had been telephoning the accused and accompanied him, then it could not be treated as case of abduction. It was held that when the girl was on the verge of attaining majority, she could have been considered as having proper age of understanding. 15. In the result, the appeal is allowed. The impugned judgment is set aside. The sentence awarded to the appellant is, therefore, quashed and the appellant is directed to be released if not required in any other case. Fine amount, if deposited be refunded to the appellant. Appeal allowed.