JUDGMENT : S.N. Aggarwal, J. - This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 filed by the appellant is directed against his conviction under Sec­tions 376(1) and 373 IPC vide impugned judgment of the Trial Court dated 14.8.2006 in Sessions Trial Case No. 59/04. The ap­pellant has been sentenced to undergo RI for 10 years for offence under Section 376(1) IPC and 7 years for offence under Section 373 IPC and fine with default stipu­lation. 2. I have heard the arguments of Mr. Dharmendra Garg, learned counsel appear­ing on behalf of the appellant and also of Mr. Vishal Mishra, learned Public Prosecu­tor appearing on behalf of the respondent/State. I have also perused the record of the Trial Court. 3. Briefly stated the facts of the prosecution case giving rise to this appeal are as follows:- There were seven persons implicated as accused persons by the prosecution in crime No. 298/03 registered at Police Station Jamner, District Guna. The appellant was one of them. Initially the crime was regis­tered against the unknown persons on the basis of 'merg report' of the mother of the prosecutrix. The case was registered under Sections 302 and 201 read with Section 34 of IPC. It was during inquest proceedings the name of the appellant and six co-ac­cused persons had surfaced and it was re­vealed that co-accused Mohan and Seema who were related to each other as husband and wife had brought the prosecutrix and her mother with them on the pretext of re­turning of loan amount telling them that the loan amount would be returned at village Jharpai. The prosecutrix and her mother were resident of Bhopal and they accom­panied co-accused Mohan and Seema or Jharpai on 2.11.2003 but the above men­tioned two accused persons in stead of tak­ing them to Jharpai detained her at a well on the way where another co-accused Rajkuarr is alleged to have committed repeated rape on the person of the prosecu­trix at gun point and from there the pros­ecutrix is alleged to have been sold to the appellant for Rs. 10,000/- and on being sold, it is alleged that the appellant had brought the prosecutrix to his own house around 1 a.m. in the night intervening 5th and 6th of November, 2003 where he also committed rape with the prosecutrix under threat. 10,000/- and on being sold, it is alleged that the appellant had brought the prosecutrix to his own house around 1 a.m. in the night intervening 5th and 6th of November, 2003 where he also committed rape with the prosecutrix under threat. The further case of the prosecution is that while the prosecutrix was being taken away by the appellant on being sold to him, the remaining co-accused persons had committed murder of her mother by giving beatings to her and setting her ablazed. After the investigation into the case was completed, challan under Section 173 of Cr.P.C. was filed by the prosecution against all the seven accused persons in­cluding the appellant. Co-accused Malthu, Santosh and Savitri Bai were charged by the Trial Court for offences under Sections 302,302/149,201,343,376(2)(g) and 372 IPC, whereas the appellant was charged for offences under Sections 302,302/149,201, 343, 376(2)(g) and 373 IPC. 4. Out of total seven persons involved in the crime in question, three of them namely Mohan Seema and Rajkumar had ab­sconded the trial and were declared absconders. The Trial Court after complet­ing the requisite procedural formalities separated the trial of these three co-accused persons who had adsconded the trial and held trial against the remaining four accused persons including the appellant. 5. In order to prove its charges against the appellant and his other co-accused per­sons, the prosecution had examined total 28 witnesses, out of whom, the prosecutrix is the most important witness and she is PW-24. 6. The Trial Court vide its impugned judgment has convicted the appellant's co-accused Malthu for offence under Section 372 IPC and to the knowledge of the ap­pellant, no appeal has been preferred by him against his said conviction. The appellant's two co-accused persons namely Savitri Bai and Santosh have been acquitted or all the charges by the Trial Court and there is no appeal against such acquittal by the State. 7. The appellant has been convicted by the Trial Court only for offences under Sec­tions 376(1) and 373 IPC and has been ac­quitted of the remaining charge? for which he was charged. The State has not preferred any appeal against the acquittal of the ap­pellant by the Trial Court of charges other than his conviction under Sections 376(1) and 373 IPC. 8. Mr. for which he was charged. The State has not preferred any appeal against the acquittal of the ap­pellant by the Trial Court of charges other than his conviction under Sections 376(1) and 373 IPC. 8. Mr. Dharmendra Garg, learned coun­sel appearing on behalf of the appellant has vehemently argued that the impugned con­viction of the appellant both under Sections 376 (1) and 373 IPC cannot be sustained either on facts or in law. He has taken the Court through the evidence produced by the prosecution and the findings regarding age of the prosecutrix contained in the im­pugned judgment and by reference to the same, he has contended that the conclusion arrived at by the Trial Court regarding age of the prosecutrix to be less than 18 years at the time of incident is based only on sur­mises and conjectures and not supported from evidence on record. 9. It is an admitted ease of the prosecu­tion that no documentary evidence regard­ing age of the prosecutrix was either col­lected during investigation or was produced before the Trial Court. However, the pros­ecution had attempted to prove the age of the prosecutrix by getting her ossification test done. PW-8 Dr. Sitaram Singh, Radiologist, had carried out the ossification test on the prosecutrix and had given his report which is Ex.P. 11, according to which the age of the prosecutrix at the time of inci­dent which took place between 2.11.2003 and 6.11.2003 was more than 17 years but less than 19 years. PW-8 Dr. Sitaram Singh has proved his report Ex.P. 11 in his testi­mony before the Court and rather he in his testimony has referred to medical jurispru­dence by Mody to State that the age of the prosecutrix at the time of incident could be even around 21 years. This fact has been noticed by the learned Trial Court in para 35 of the impugned judgment. A perusal to the finding of the Trial Court regarding age of the prosecutrix contained in para 35 of the impugned judgment would show that there was no legal basis for the Trial Court to hold that the prosecutrix was under 18 years of age at the time of incident. Para 35 of the impugned judgment is relevant and its extracted below :- 10. Para 35 of the impugned judgment is relevant and its extracted below :- 10. This Court in a recently decided case being Criminal Appeal No. 70/03 titled Ajab Singh and Others vs. State of Madhya Pradesh (decided on 01.02.2011), has al­ready taken a view that when there is no direct evidence regarding age of the prosecutrix available with the Court, the only option available is to get her age determined by the ossification test. I do not find any reason to take a view on this aspect differ­ent than what I have already taken in the aforementioned case. Since in the present case the age of the prosecutrix at the time of incident, in terms of ossification report Ex.P. 11, was found to be between 17 and 19 years of age, extending benefit of 2 years on either side of her age, the prosecutrix has to be treated more than 18 years of age on the date of incident. 11. As this Court has found that the age of the prosecutrix was more than 18 years at the time of incident, the conviction of the appellant under Section 373 IPC can­not be sustained because the offence under Section 373 IPC can be committed only with a person under the age of 18 years. 12. Whether the prosecutrix was a con­senting party to rape or not is a relevant question that has to be decided by careful scrutinisation of the prosecutrix evidence in the light of surrounding circumstances. On this aspect of the matter, the testimony of the prosecutrix being PW-24 is most rel­evant and needs a close look by reading the same in between the lines so as to separate the chaff from the grain. On a careful scru­tiny of the testimony of the prosecutrix (PW-24), it may be seen that she has given some details with regard to alleged rape committed with her by appellant's co-ac­cused Rajkumar but when it came to role of the appellant, her testimony of alleged rape by him appears to be far from truth. To support this view, the reference can con­veniently be made to paras 14, 15 and 16 of her testimony as this is the only evidence given by her pertaining to appellant with regard to alleged rape. Paras 14, 15 and 16 of the testimony of the prosecutrix are ex­tracted below : 13. To support this view, the reference can con­veniently be made to paras 14, 15 and 16 of her testimony as this is the only evidence given by her pertaining to appellant with regard to alleged rape. Paras 14, 15 and 16 of the testimony of the prosecutrix are ex­tracted below : 13. A careful reading of the above testi­mony of the prosecutrix pertaining to al­leged rape committed by the appellant with her would show that the prosecutrix had reached the house of the appellant around 1 a.m. in the night intervening 5th-and 6th of November, 2003 and at that time accord­ing to her, many persons were present in the house of the appellant including his brother, sister-in-law and sisters. She has testified that when she reached at his house many people had collected there including several females but she did not raise any protest regarding why she was brought to the house of the appellant at dead of night. Her testimony that the appellant had com­mitted rape with her during the night of 5th and 6th of November, 2003 appears to be unbelievable having regard to the manner in which the offence is alleged to have been committed by him. The prosecutrix was confronted with her statement under Sec­tion 161 Cr.P.C. by the defence which does not contain the details of the manner in which the offence is alleged to have been committed by the appellant testified by her for the first time before the Court. It may be noted that the prosecutrix in her corss-examination done on behalf of the appel­lant has admitted the suggestion that the house of the appellant was surrounded by several other houses inhabited by lot of people. She has deposed that on the next morning of the date of incident she had gone for easing along with the niece of the appellant where she had met several other women also easing but did not raise any protest of the alleged rape committed with her by the appellant. Even if the version of the prosecutrix that the appellant had com­mitted rape with her is believed for a mo­ment, still the appellant cannot be convicted on charge of rape because the post crime conduct of the prosecutrix proves that she was a consenting party to rape with her. Even if the version of the prosecutrix that the appellant had com­mitted rape with her is believed for a mo­ment, still the appellant cannot be convicted on charge of rape because the post crime conduct of the prosecutrix proves that she was a consenting party to rape with her. I am of the view that the prosecutrix is pre­sumed to be a consenting party to rape with her, unless there are circumstances on record to rebut the said presumption, in cases where she remains silent & does not raise any protest/hue & cry despite ample opportunities for the same. 14. In the present case, the prosecutrix has given only a single instance of rape by the appellant with her during night of 5th and 6th November, 2003. She had ample opportunities to raise a protest or her voice if she was raped against her consent. Her silence, in the opinion of this Court, amounts to consent on her behalf. In the peculiar facts and circumstances of the case, it is difficult for me to swallow that the appellant had committed rape on the pros­ecutrix against her consent. 15. This Court is quite conscious of the legal position that normally the Courts should not discard the version of the pros­ecutrix because she does not gain anything in putting her own honour at stake by false implication of an accused person, but at the same time, the Courts should also bear in mind that in the changed values of our so­ciety, false charges of rape also cannot be ruled out. There may be some rare instances where parents might persuade their gullible or obedient daughter to make a charge of rape against an accused to wrap him in a false case either to take revenge or extort money or to get rid of financial liability. 16. In the present case, the defence of the appellant through out had been that he has been falsely roped by the prosecutrix in the present crime. In the opinion of this Court, the appellant, if not entitled to clear accquittal on charge of rape, is at least en­titled to get benefit of doubt in view of the nature of evidence regarding his alleged culpability in the crime on record. Hence, the conviction of the appellant even for of­fence under Section 376(1) IPC cannot be sustained. 17. In view of the foregoing, this appeal is allowed. Hence, the conviction of the appellant even for of­fence under Section 376(1) IPC cannot be sustained. 17. In view of the foregoing, this appeal is allowed. Impugned judgment of convic­tion and order on sentence passed by the Trial Court quo the appellant is hereby set-aside. The Jail Superintendent is directed to release the appellant fortwith, if not re­quired in any other case. His release war­rant be dispatched by the Registry imme­diately. Fine, if any, deposited by the ap­pellant be returned to him.