JUDGMENT : G.S Solanki, J. - The appellants have pre­ferred this appeal under section 374(2) of Cr.P.C. being aggrieved by judgment dated 28.4.1995 passed by Additional Sessions Judge, Maihar, District Satna in S.T. No. 163/1994 whereby the appellants have been convicted under section 376(2)(g) of IPC and sentenced to R.I .for 10 years. 2. The prosecution case, in short, is that on 4.6.1994 Rajaram .father of prosecutrix lodged a report at P.S. Amdara that this daughter Laxmi Bai (PW-S)left the house by saying that she is going to her elder father at Katni .On being en­quired from the Railway station, he came to know that Laxmi Bai had gone with daughter of Maiyadeen ,father of appellant No.1 Ramesh. When Rajaram asked Mayadeen about her daughter, he did not say anything in regard to prosecutrix .thereafter during investigation, it was found that appellant No.1 Ramesh ab­ducted the prosecutrix and she was found in possession of appellant No.1Ramesh on 7.6.1994 at Railway Colony, Pakaria. She was sent for medical examination Appellants were arrested, they were also subjected to medical examination. 3. After usual investigation, appellants were charge sheeted before Additional Chief Judicial Magistrate, Mahiar , Who committed the case to the Court of Sessions. The learned Additional Sessions Judge farmed the charges under sec­tions 363,366 and 376(2)(g)of IPC against the appellants. 4. The appellants abjured their guilt and pleaded false implication. 5. On appraisal of evidence on record, learned Additional Sessions Judge convicted and sentenced the appellants as mentioned here-inabove, hence this appeal. 6. Learned counsel for the appellants has submitted that the trial court has committed il­legality in not appreciating the evidence on record in its proper perspective. He has further submitted that the trial court recorded contra­dictory findings. At one place the trial Court held that the prosecutrix had gone along with appel­lant No.1 Ramesh on her own accord and ac­quitted the appellants to the charges under Sec­tion 363,366 of IPC and on the other hand, the trial Court recorded the finding that gang rape was committed by the appellants, thus counsel has prayed for setting aside the conviction and sentence recorded by the trial Court and for ac­quittal of appellants. 7. Learned counsel for the State has sup­ported the judgment and justified the finding recorded by the trial Court. 8. I have perused the impugned judgment, evidence and other material on record. 7. Learned counsel for the State has sup­ported the judgment and justified the finding recorded by the trial Court. 8. I have perused the impugned judgment, evidence and other material on record. Pros-ecutrix Manju @ Laxmi Bai (PW-5) deposed that when she had gone along with Meena, sis­ter of appellant No.1 Ramesh in the house of Ramesh, then Maiyadeen confined her in the house, thereafter she was taken to Jabalpur on a Passenger train, where Ramesh and Bablu committed rape on her. She admitted in her cross examination that she did not make any hue and cry in the train. She was kept for about 20-21 days at Jabalpur, thereafter she was taken to Pakaria station but she did not make any complaint to anyone curing this period. She deposed that she did not make any noise be­cause she was threatened by knife, but this very fact did not find place in her police statement (Ex.D-1). 9. Dr. Smt. M. Nema (PW-8) deposed that the prosecutrix was habitual of sexual inter­course, therefore, no definite opinion can be given in regard to commission of rape, thus the statement of prosecutrix is not corroborated by the medical evidence on record. 10. As mentioned hereinabove, the trial Court was of the opinion that prosecutrix was major and she had gone along with the appel­lant on her own accord, I am also of the same view because Rajaram (PW-1), father of pros­ecutrix admitted in his cross examination that he recorded her date of birth on the basis of horoscope but same has not been produced before the police as well as before the Court as evidence. There is no other evidence on record in regard to the age of the prosecutrix. Thus, the prosecution has failed to prove that the age of prosecutrix was below 16 years at the time of incident. 11. It has come in the evidence of prosecu­trix that she did not make any hue and cry while travelling in train, thereafter she lived with ap­pellants for about 20-21 days at Jabalpur and thereafter at Pakaria, but she did not make any complaint in this regard. The conduct of pros­ecutrix shows that she was a consenting party in indulging in sexual intercourse with appel­lant No.1 Ramesh. The conduct of pros­ecutrix shows that she was a consenting party in indulging in sexual intercourse with appel­lant No.1 Ramesh. Though she deposed that appellant No.2 Bablu also committed rape on her but since it has also come in the evidence on record that Ramesh's elder brother and fa­ther were intended to accept the prosecutrix as their daughter in law, in these circumstances, in my opinion, it is not possible that they allow other person like Bablu to indulge in sexual ac­tivities with the prosecutrix. Thus, in my opin­ion, the prosecutrix tried to falsely implicate Ramesh, his friend Bablu and his father after she came back to her parental house. 12. In view of the above, I am of the view that the trial Court has committed illegality in not appreciating the evidence on record in its proper perspective and in convicting the appel­lants under section 376(2)(g) of IPC. Thus, the conviction and sentence recorded by the trial Court deserves to be set aside. 13. In the result, the appeal is allowed, Con­viction and sentence recorded by the trial Court is hereby set aside. Appellants are acquitted to the charges under Section 376(2)(g) of IPC. Appellants are on bail, their bail bonds and surety bonds stand discharged. Appeal allowed.