JUDGMENT Surinder Singh, Judge (Oral) State felt aggrieved by the acquittal of the respondent passed by the learned trial Court under Section 363, 366-A and 376 Indian Penal Code hence, the present appeal. 2.Heard and gone through the record. 3. Prosecutrix in this case was examined before the learned trial Court. She stated that on 1.3.2006 she had gone to the tap for washing clothes near the house of Jeet Bahadur, accused Jieu Nath was in the house of Bindu nearby. When she was washing the clothes, he approached her and proposed to marry to which she declined. Thereafter accused called her to the house of Bindu. Again he proposed her but she declined. Thereafter, the accused gave her his sister’s clothes for wearing and took her alongwith him to village Meeni where they stayed in the house of his bua (father’s sister) and raped. However, next day, accused took her to the house of Chatru of the same village and again committed rape on her. Then she was taken to jungle nearby where they stayed for two days in a temporary hut of a gurkha but accused did nothing with the prosecutrix during this time. From gurkha’s hut, they went to village Diswani in the house of Shiv Ram who brought her back to her parental house and accused went to the house of Bindu. At that time, her mother was present in the house. In this way, she had spent 6 days with the accused. When her father returned in the evening, he asked his wife about the whereabouts of prosecutrix, it was then she disclosed him about the incident. 4.The matter was reported to police. Prosecutrix was got medically examined and her wearing apparels were taken in possession by the police. In cross-examination, she stated that it took about one and half an hour on foot to reach the house of the aunt of the accused from the house of Bindu. She also stated that nobody met them on the way. The house of the aunt of the accused was in the village itself and not at a lonely place and when they reached there it had already gone dark. Pertinently, she stated that accused was ahead of her and she followed him. Thereafter they moved out, around 12 noon towards jungle, in the evening returned to Chatru’s house. The house of the aunt of the accused was in the village itself and not at a lonely place and when they reached there it had already gone dark. Pertinently, she stated that accused was ahead of her and she followed him. Thereafter they moved out, around 12 noon towards jungle, in the evening returned to Chatru’s house. On that day, they did not stay in the jungle. Food was served to them by those who were present in the house. Even according to her in the gurkha’s house where they stayed, his wife and two children were present. They used to leave Chatru’s house in the morning and returned in the evening, none had noticed them during that time. Further, she stated that she had talked to Chatru’s wife, his daughter–in-law and three sons but she did not reveal about any rape having been committed by the accused to them. Qua age, she stated that she did not know that she at that time was about 19 years of age. She also stated that even she did not tell anything to Shiv Ram about the rape alleged to have been committed by the accused but she was categorical in saying that she did not tell about rape to any one and admitted that accused did not use force against her. 5. On the critical examination of the evidence of the prosecutrix, we find it a case of tacit consent. Therefore, in the instant case, age of the prosecutrix assumes importance. For that we have already referred to her own statement wherein she stated that she did not know she was 19 years of age at the time of the alleged incident. Though her father disputed this fact but however, admitted that on the day of his examination in the Court he was 48 years of age in the month of March, 2007 and that he was married at the age of 22 years meaning thereby he got married about 26 years back from the date of his examination in the Court. The incident had taken place in the year 2006, i.e., when he was of the age of 47 years. This statement caused serious dent in the prosecution case. The incident had taken place in the year 2006, i.e., when he was of the age of 47 years. This statement caused serious dent in the prosecution case. Further he stated that his first child a son was born after one year of his marriage and prosecutrix was borne one year thereafter, then realizing his mistake he stated that elder son was 17 years of age which contradicts his own statement. Thus, the age of his elder son as well prosecutrix goes in any case more than 20 years, but in any case more than the age of her discretion. 6. Further, the prosecution has relied upon the statement of PW6 Ram Krishan, Panchayat Secretary of Gram Panchayat Masali who had issued the certificate Ext. PW6/A on the basis of entry in the Pariwar Register and categorically stated that he did not know whether any entry with respect to her date of birth was correct or not and admitted that birth certificate is issued only on the basis of the entries in the Register of Birth and Deaths and he did not say that her birth entry was found registered in the said register. Even birth register did not find light of the day. Therefore, entry in the Pariwar Register is of no consequence. 7. PW8 Smt. Laxmi Sharma proved the school leaving certificate Ext. PW8/A pertaining to the prosecutrix but she did not produce the original of such certificate. She did not know on what basis the age of the prosecutrix was entered in the school record. According to her, when a child is brought to the school for admission, the age as mentioned in the certificate obtained from the Panchayat is entered in the school record. In absence of such a certificate at the time of admission, this entry also looses its importance. 8.On scrutiny of evidence, we find that the learned trial Court had rightly come to the conclusion that by all means, prosecutrix comes more than 16 years, i.e., the age of discretion at the time of the said incident. In her own statement, it has come that she had studied up to 5th standard and left the school when she was in 6th standard. That means she was about 14 years when she gave up her studies. In her own statement, it has come that she had studied up to 5th standard and left the school when she was in 6th standard. That means she was about 14 years when she gave up her studies. It is also in her statement that for about 4 years back she had left the school, meaning thereby at the time of her statement in the Court she was 18 years of age. 9.The last piece of evidence is skeletal age. According to PW12 Dr. O.P. Ramdev Radiologist, on the basis of fusion of bones, prosecutrix was around 14 years and his opinion is Ext. PW12/G. But in cross examination he admitted that the opinion regarding age varies to the extent of 2 years plus and minus. In that event, she also comes to be more than 16 years. Doctor also stated that no definite opinion can be given about the age on the basis of fusion of bones. 10. Therefore, in view of the aforesaid evidence, prosecution has failed to prove that at the time of the alleged incident, prosecutrix was, in any case, less than the age of her discretion. Once we have come to this conclusion that prosecutrix had attained the age of discretion, she knew fully well what is good and what is bad for her, and had consensual intercourse with accused, the offence charged cannot be said to have proved. 11. Thus, for the aforestated reasons, in our considered opinion, findings of the learned trial Court acquitting the accused cannot be faulted with. As such the appeal is devoid of any merit, hence dismissed. 12. Respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. 13.Send down the records.