JUDGMENT : Ganesh Ram Meena, J. 1. The present criminal appeal has been preferred by the accused-appellant against the judgment of conviction and sentence dated 26.11.1993 passed by the Court of learned Sessions Judge, Jhalawar (Rajasthan) [for short ‘the learned trial court’] in Sessions Case No.64/1991, whereby, the accused appellant has been sentenced as under:- U/s. 363 IPC : Fire years Rigorous Imprisonment and a fine of Rs.2,000/-. In default of payment of fine, the accused appellant has to further undergo six months Rigorous Imprisonment. U/s. 376 IPC : Five years Rigorous Imprisonment and a fine of Rs.2,000/-. In default of payment of fine, the accused appellant has to further undergo six months Rigorous Imprisonment. Both the sentences were ordered to run concurrently. 2. As per the case of the prosecution, on 03.11.1990 complainant Kesar Singh (PW2) lodged an FIR No. 2341990 (Ex.P18) at Police Station Jhalrapatan, District Jhalawar for the offences under sections 363 and 366 IPC. The FIR reads as under:- ^^dy fn- 02-11-1990 dks esjh cPph larks"k daoj mez 14&15 lky esjs HkkHkh lk- o xkao ds vU; 10&12 cPpksa ds lkFk esyk ikVu dkfrZd Luku djus vkbZ Fkh tc 'kke dks esjs HkkHkh lk- o vU; cfPp;ksa o esjk cPpk tqxjkt flag okil xkao lksgu[ksMh igqaps rks esjh cPph larks"k daoj muds lkFk ugha igqaph rks cPpksa us crk;k fd ckbZ larks"k esyk ikVu esa dqbZ;ka ds ;gka ;g dgdj gekjs ikl ls xbZ Fkh fd eSa nkark ls iSls ys vkrh gwa rkfd vkSj lkeku [kjhndj ys pywaxh ysfdu dkQh nsj rd mldk bartkj fd;k ysfdu og okil ugha vkbZ irk ugha og dgka xqe xbZA bl ij eSa o esjk HkkbZ lk- izrki flag] j?kqohj flag oxSjg us ikVu esa vkdj vc rd dkQh ryk'k dh ysfdu larks"k daoj dk vHkh rd dksbZ irk ugha pyk blfy, eSa fjiksVZ dks vk;k gwaA^^ 3. The police after investigation submitted chargesheet against the accused appellant along-with co-accused Raghuraj Singh for the offences under sections 366 and 376 IPC in the concerned Court. 4. The learned court framed the charges against the accused appellant for the offences under sections 363, 366 and 376 IPC. The accused appellant denied the charges and opted for trial. 5. From the prosecution side, the statements of thirteen witnesses were recorded and certain documents were exhibited. 6. The statement of the accused appellant was recorded under section 313 CrPC. The learned court framed the charges against the accused appellant for the offences under sections 363, 366 and 376 IPC. The accused appellant denied the charges and opted for trial. 5. From the prosecution side, the statements of thirteen witnesses were recorded and certain documents were exhibited. 6. The statement of the accused appellant was recorded under section 313 CrPC. The accused appellant in his statement has denied about the allegations levelled against him and deposed that no recovery has been effected at his instance. In defence the accused appellant did not produce any witness but exhibited four documents. 7. The learned trial court vide its judgment 26.11.1993 convicted and sentenced the accused appellant for the offences as mentioned above. 8. Counsel appearing for the accused appellant argued and submitted that the impugned judgment of conviction and sentence passed by the trial court is contrary to the provisions. Counsel further submitted that from the statement of PW1 Santosh Kanwar it is prima facie proved that the said case is not in regard to enticing any girl nor it is in regard to commission of rape. Counsel further submitted that from the statement of this witness it is clear that victim went with the accused appellant voluntarily and at the most it is a case of mutual consent. This witness has made several material contradictions in her statement. 9. Counsel further submitted that the material witness in this case is PW5 Dr. Gauri Shankar Chauhan. This witness in his statement deposed that the victim was major at the time of alleged incident as she was 16-18 years of age. Thus, the conviction of the accused appellant for the offence under section 363 IPC is bad in law and cannot be sustained at all. This witness in his statement further deposed that neither the victim was having any injury on her private parts nor there was any external injury on outer side of her body nor there was any semen or spot on her clothes. Thus, prima facie the case for the offence under section 376 IPC against the accused appellant is not make out. In such circumstances the conviction of the accused appellant is bad in law and cannot be sustained at all. 10. Thus, prima facie the case for the offence under section 376 IPC against the accused appellant is not make out. In such circumstances the conviction of the accused appellant is bad in law and cannot be sustained at all. 10. Counsel further submitted that PW6 Jugraj Singh, who is brother of victim, in his statement deposed that in the fare 10-12 girls of his village were also present and 20-25 male members of his village also went in the fare. Counsel submitted that if the sister of this witness would have been enticed by the accused appellant then this witness should have been witnessed by these persons and any of them should have narrated about the same but the same has not been done. 11. Counsel further submitted that PW13 Munshi Ram was Investigating Officer of the case who investigated into the matter. This witness in his testimony deposed that at the place where there was fare, on both the sides there were shops and in the fare police persons were deputed for security purposes. Thus, it is clear that the accused appellant did not forcibly took victim with him. 12. Counsel further submitted that PW2 Kesar Singh, PW3 Pratap Singh and PW4 Ramjan are formal witnesses. 13. Counsel further submitted that the alleged incident is of 2.11.1990 and the FIR was registered on 4.11.1990 after a great delay for which no reasonable and plausible explanation has been given by the prsosecution. 14. Learned Public Prosecutor has opposed the appeal and has submitted that there is no material irregularity or illegality committed by the learned trial court and keeping in view the evidence on record, the accused appellants have been rightly convicted. 15. Considered the submissions made by learned counsel for the accused appellants, learned Public Prosecutor and examined the material made available to the Court. 16. The learned trial court has convicted the accused appellant for the offence under section 363 IPC observing that as per the medical examination conducted on 04.11.1990, the age of the victim was in between 16 to 18 years and since the incident took place on 02.11.1990, the age of the victim cannot be said to be above 18 years. 16. The learned trial court has convicted the accused appellant for the offence under section 363 IPC observing that as per the medical examination conducted on 04.11.1990, the age of the victim was in between 16 to 18 years and since the incident took place on 02.11.1990, the age of the victim cannot be said to be above 18 years. The learned trial court has also observed that the medical examination of the victim in regard to the age was conducted on 04.11.1990 observing her to be below age of 18 years and since the incident took place on 02.11.1990, the age of the victim is proved to be two days less than eighteen years. The learned trial court has failed to appreciate the variation in the age of about two years as per the medical jurisprudence. The learned trial court has not discussed about the variation possible in the age. As per the medical jurisprudence, if during medical examination the observation is given that the age of the victim is 16 to 18 years then it can vary two years because the age which is borne out in the medical evidence, is not a conclusive age but it can vary in between two years. 17. A medical opinion on the age of a person is an expert opinion in terms of Section 45 IEA and is only of advisory nature as has been held in the case of Ramesh Chandra Agarwal Vs. Regency Hospital, reported in (2009) SCC 709. Courts are not bound to accept it and must be made aware of the underlying scientific basis undertaken to form the opinion. The judicial discourse around medical opinion has seen acknowledgment of courts on the limitations of an ossification test. The position of medical opinions has been summarised in Babloo Pasi v. State of Jharkhand, reported in (2008) 13 SCC 133 , where the Supreme Court stated that the opinion of a medical board is not a conclusive proof of age and is no more than an opinion. The Court held that while ossification tests were useful guiding factors for determining age, they were not incontrovertible. Similar findings were recorded in State of Madhya Pradesh v. Anoop Singh, reported in (2015) 7 SCC 773 which held that ossification tests were not the sole criteria to determine the age of a person. The Court held that while ossification tests were useful guiding factors for determining age, they were not incontrovertible. Similar findings were recorded in State of Madhya Pradesh v. Anoop Singh, reported in (2015) 7 SCC 773 which held that ossification tests were not the sole criteria to determine the age of a person. These judgments acknowledge that there is a margin of error of two years on either side of the range estimated by bone ossification tests. The issue becomes more acute when the upper and lower ages provided in the range of age under the medical opinion fall within the fringe areas of juvenility. A decision then needs to be made on whether the upper age or the lower age is to be considered. In Shweta Gulati v. State (Govt. of NCT of Delhi) reported in SCC Online Del 10448 (Criminal Revision Petition No. 195 of 2018 decided on 08.08.2018) the question before the Delhi High Court was whether the benefit of doubt in age estimated by the ossification test is to go to the accused or to the victim. Age, in this case, was estimated to be between 17-19 years. The Court held that applying the margin of error principle of two years on either side the age of the victim could be between 15 to 21 years. The Court reiterated the principle that the benefit of the doubt must go to the accused and stated that the victim was not a juvenile. However, this principle is not uniformly applied. Oftentimes, the margin of error of two years on either side is not accounted for. Judicial opinions have also stated that there is no such rule to add two years, let alone an absolute rule as has been observed in the case of State of U.P. v. Chhoteylal, reported in (2011) 2 SCC 150 and State of Karnataka v. Bantara Sudhakar @ Sudha & Anr., reported in (2008) 11 SCC 38 . Further, courts have not uniformly extended the benefit of the doubt to the accused. Many High Courts have blamed the prosecution for not having adduced documentary proof of age and have denied benefit of medical opinions to the accused. Further, courts have not uniformly extended the benefit of the doubt to the accused. Many High Courts have blamed the prosecution for not having adduced documentary proof of age and have denied benefit of medical opinions to the accused. In Khalil Mehboob Shaikh v. State of Maharashtra, reported in 2019 SCC OnLine Bom 242, Criminal Appeal 315 of 2014 decided on 30.01.2019 the Bombay High Court was faced with only an ossification test that stated that the victim was between 15-16 years. Applying the margin of error principle of two years on either side, the upper age limit of the victim would have been 18 years. The High Court accepted the age of the victim to be 16 years and held that the onus is on courts to see that justice is done to the victim as well. 18. The Rajasthan High Court (Jaipur Bench) in the case of Mohan Vs. State of Rajasthan, reported in (2003) 1 WLC 260 has observed in para 5 as under:- “5. To appreciate the arguments advanced by learned counsel for the parties, firstly, the age of the victim on the day of occurrence has to be determined. The learned Trial Judge arrived this conclusion that victim was below. 18 years of age but she was not below the age of 16 years. The age of the victim is stated to be 16/18 years in the First Information Report itself which is EX.P.3 and it was lodged at 10.15 a.m. on 11.2.1998 and the incident took place at 2 a.m. i.e. in the previous night. When confronted Ex.P.3 on the point of the age of the victim, PW4 Lalchand showed his ignorance as to how the age of the victim is stated to be 16/18 years in Ex.P.3, thus the informant failed to explain as to why he stated the age of the victim 16/18 years in Ex.P.3. Lalchand further stated in cross-examination that he does not know that the age of the victim was 18 years at the time of her marriage with one Sh. Dori Lal. He also pleaded his ignorance regarding the age of Dori Lal. According to Laichand the age of the victim should be 14 to 15 years. Thus, Laichand did not give any positive evidence about the age of the victim though he is the uncle of the victim. Dori Lal. He also pleaded his ignorance regarding the age of Dori Lal. According to Laichand the age of the victim should be 14 to 15 years. Thus, Laichand did not give any positive evidence about the age of the victim though he is the uncle of the victim. The next relevant witness on this point is PW-12 Pooran, father of the victim. No question was put to him in examination-in-chief regarding the age of the victim. In cross-examination, he stated that his daughter qualified 4th class or 5th class and she was a student in Jai Bharat School. He stated that the age of his daughter is 16 years. Third important witness on this point is PW-9 victim herself. She stated in cross-examination that she qualified 6th Class and she is about 16 or 16 and a half years. Her statement was recorded on 1.10.1998 and this occurrence is dated 11.2.1998. According to the statement of the victim herself she was about 16 years of age at the time of occurrence. Now medical evidence on this point has to be considered, PW-16 Dr. S.P. Sharma medically examined the victim on 12.2.1998 with the help of lady Dr. Santosh Gupta, PW- 23. According to the statement of Dr. Sharma and his report Ex.P. 14. 14, her age was assessed between 14 to 15 years on the basis of x-ray of radius and ulna, 17 to 18 years on the basis of the fusion of bones of right elbow and between 15 to 16 years on account of non-fusion of illiacrest. Thus, her average age was found between 15 and half year to 16 and half year. In cross-examination, he opined that there may be a difference of two years in age either side. Learned counsel for the appellant contended that she qualified 6th class and she was a student in a school but no admission form, entry in the admission register of school regarding her age and other relevant documentary evidence was not produced and thus adverse inference should have been drawn against prosecution holding her age not below 18 years. Learned Public Prosecutor contended that there is no ground to interfere with the findings of the Trial Court on this point. I have considered the rival submissions. Learned Public Prosecutor contended that there is no ground to interfere with the findings of the Trial Court on this point. I have considered the rival submissions. According to the oral testimony of PW-9 victim and PW-12 Pooran, father of the victim, no definite conclusion can be drawn that the victim was below 18 years at the time of occurrence. In other words, prosecution failed to prove by oral testimony the age of the victim to be below 18 years at the relevant time. The prosecution did not offer any explanation as to why the relevant record pertaining to her age was not produced in the court. As stated hereinabove the victim and her father both stated that she was a student in the school and according to the statement of the victim she qualified 6th class, Therefore, it was the duty of the prosecution to produce the admission form, the entries in the admission register maintained in the school and other relevant documentary evidence on this point. Since prosecution did not produce the best available evidence, presumption should have been drawn against the prosecution. It is true that medical evidence in respect of age cannot be exact and the determination of the age is by the reference of lower and higher margins as stated hereinabove. According to the medical report Ex.P. 14 given by PW-16 Dr. S.P. Sharma, the age of the victim may be 18 years and the benefit of outer margin regarding the age of the victim should be given to the accused. Thus, in view of such medical evidence, the age of the victim may be taken to be 18 years or more. However, the prosecution failed to prove that she was under 18 years of age at the relevant time. Therefore, the offence u/s 363 IPC is not even constituted.” 19. In the present case also, in the written report (Ex.P1) submitted by the father of the victim, the age of the victim was said to be 14 to 15 years. In the recovery memo the age of the victim has been mentioned as 15 years. In the medical examination conducted on 04.11.1990 and on the basis of the Radiological Report the age of the victim was said to be about 16 to 18 years. The aspect variation of two years has not been discussed by the learned trial court. In the recovery memo the age of the victim has been mentioned as 15 years. In the medical examination conducted on 04.11.1990 and on the basis of the Radiological Report the age of the victim was said to be about 16 to 18 years. The aspect variation of two years has not been discussed by the learned trial court. It is true that medical evidence in respect of age cannot be exact and determination of age is by the reference of lower and higher margins. According to the medical report (Ex.P3) and the evidence of PW5 Dr. G.S. Chauhan, the age of the victim may be 18 years and the benefit of outer margin regarding the age of the victim should be given to the accused. In view of such medical evidence and observations given by the Rajasthan High Court in the case of Mohan (supra), the age of the victim in absence of any other documentary evidence may be taken to be 18 years or more as the prosecution has failed to prove by adducing any documentary or oral evidence that the victim was conclusively below 18 years of age. 20. As regards the conviction of the accused appellant for the offence under section 376 IPC is concerned, on critical examination of the evidence, this Court finds that in the medical examination (Ex.P2), the Medical Jurist has stated that there is no any visible injury on the body of the victim or on her private parts. In Ex.P2 the Medical Jurist has given the opinion that “in my opinion she is habitual to sexual intercourse but where sexual activity done or not- opinion reserved till chemical examination report received and physically she is about 16-18 years of age. In evidence PW5 Dr. G.S. Chauhan has stated that on the basis of medical examination of victim, no definite opinion can be given that whether the victim had sexual intercourse or not. Taking into consideration the medical report of victim as well as the statement of PW5 Dr.G.S. Chauhan, the allegations of rape are not supported and corroborated by the medical evidence. 21. The allegations against the accused appellant are that he took the victim along-with him and committed rape with her. Taking into consideration the medical report of victim as well as the statement of PW5 Dr.G.S. Chauhan, the allegations of rape are not supported and corroborated by the medical evidence. 21. The allegations against the accused appellant are that he took the victim along-with him and committed rape with her. On examination of the statement of the victim, this Court finds that the victim went with the accused appellant from a fare and reached at Kota where they resided at the residence of one Tanwar Singh. The victim was with the accused at a fare and reached Kota in a bus and resided at the residence of Tanwar Singh. There is no evidence on record that the victim was under any threat and why the victim did not raise any alarm. This Court would like to quote the statement of the victim (PW1) here-in-below:- 22. As per the evidence of PW9 Jagdish Prasad, the accused appellant and the victim were recovered while they were walking together. The other witness PW10-Tanwar Singh at whose residence the accused is said to have committed the rape with the victim, has not supported the prosecution story and has been declared hostile. 23. There is no corroboration of the statement of the victim also by the medical evidence. According to the statement of PW5 Dr. G.S. Chauhan, there was no injury on the person or private parts of the victim, whereas the allegations as per the case of the prosecution are that the accused committed rape with the victim thrice. No conclusive opinion regarding recent intercourse with the victim has been given and it has been stated that the victim is habitual of sexual intercourse. The prosecution failed to prove the allegations beyond the reasonable doubt that the accused appellant had committed rape with the victim. On critical examination of the evidence, this Court feels that this is a case of consent where the victim is a consenting party in going with the accused. 24. This Court in the case of Ajaypal @ Jaipal Vs. State of Rajasthan (S.B. Criminal Appeal No.500/1993) decided on 22.05.2023 along-with one another connected criminal appeal, has observed in para 18 to 27 as under:- “18. As per the medical evidence of PW2 Dr. 24. This Court in the case of Ajaypal @ Jaipal Vs. State of Rajasthan (S.B. Criminal Appeal No.500/1993) decided on 22.05.2023 along-with one another connected criminal appeal, has observed in para 18 to 27 as under:- “18. As per the medical evidence of PW2 Dr. D.N. Chabariya, who had medically examined the victim, he has stated that on the basis of clinical examination, he is not sure whether the rape was committed on victim or not. As per the medical report of the victim (Ex.P2), no injury was seen on vaginal wall and the hymen is absent. The opinion of the medical examination conducted on 17.10.1989 is as under:- “On clinical grounds the board is of the opinion that nothing is suggestive of the fact that rape has not been done. However, the vaginal swab and smear have been proposed to be sent to the Chemical examination. She is habitual to intercourse.” 19. The medical examination of the accused appellant was also conducted on 18.10.1989 at 11:45 AM and the opinion was given that “since Smegama over the glans is present so recent sexual intercourse has not been performed (within 24 hours). Opinion regarding old sexual intercourse (after 24 hours) cannot be given” and final opinion can only be given after Chemical examination of the clothes etc. 20. As per the medical examination, there are two injuries on the body of the victim which were said to be caused by other accused Roopa and Heera Lal after the incident of rape when they came on the spot and gave beating to the victim. In ordinary course there is no question that a forcible rape is committed in the fields when the victim is without clothes and no injury is sustained by her. The medical examination of the victim as well as the accused do not suggest of any such injury on prosecutorix or on the body of accused suggesting forcible intercourse. 21. The Hon’ble Supreme Court in the case of Ram Nivas Vs. State of Karnataka, reported in 1994 SCC (Cri) 503 has observed in para 4 as under:- “4. The case mainly rested on the evidence of prosecutrix, PW 1. The way she narrated the whole occurrence appears to be highly doubtful and looks as no such rape has taken place. The Hon’ble Supreme Court in the case of Ram Nivas Vs. State of Karnataka, reported in 1994 SCC (Cri) 503 has observed in para 4 as under:- “4. The case mainly rested on the evidence of prosecutrix, PW 1. The way she narrated the whole occurrence appears to be highly doubtful and looks as no such rape has taken place. She says that she cried and tried to wriggle out but neither on her nor on the accused any injuries were found. She further gave so many details as to how the accused is said to have committed rape and she categorically stated that the accused had intercourse fully with her against her will. The doctor who examined her did not find any spermatozoa. The fact that no spermatozoa was found would go to show that no such occurrence had taken place. The doctor, further admitted that he could not give exact opinion whether rape had taken place or not because of the absence of spermatozoa in the smear and since she was married woman for five years her hymen will not be intact. The accused was also examined by a doctor on the next day and doctor did not find any injury suggesting a forcible rape. We need not go into the fact whether it was a case of rape or consent. But we are not prepared to place any reliance on her evidence itself. It is true, that the courts below have accepted her evidence. But to satisfy ourselves we have examined her evidence minutely and the same is highly untrustworthy. In these circumstances we give benefit of doubt to the appellant. The appeal is allowed accordingly and the accused shall be released.” 22. The Hon’ble Apex Court in the case of Jayantibai Mohanbhai Patel (Padaria) Vs. State of Gujarat, reported in (2020) 19 SC 347 has acquitted the accused appellant therein observing that the accused is entitled for the benefit of doubt taking into consideration the credibility of the victim and the adverse medical report. 23. On consideration of the statement of the victim and other witnesses alleged to be the eyewitnesses, it is found that there is no consistency in their statements about the incident of rape with the victim. 24. The Hon’ble Supreme Court in the case of K.P. Thimmappa Gowda Vs. 23. On consideration of the statement of the victim and other witnesses alleged to be the eyewitnesses, it is found that there is no consistency in their statements about the incident of rape with the victim. 24. The Hon’ble Supreme Court in the case of K.P. Thimmappa Gowda Vs. State of Karnataka, reported in (2011) 14 SCC 475 has also acquitted the accused therein observing that in criminal cases, the rule is that the accused is entitled to the benefit of doubt. If the court is of the opinion that on evidence two views are reasonably possible, one that the appellant is guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the accused. 25. The Hon’ble Supreme Court further in the case of Munna Vs. State of Madhya Pradesh, reported in (2014) 10 SCC 254 has observed in para 11 as under:- “11. Thus, while absence of injuries or absence of raising alarm or delay in FIR may not by itself be enough to disbelieve the version of prosecutrix in view of the statutory presumption under Section 114A of the Evidence Act but if such statement has inherent infirmities, creating doubt about its veracity, the same may not be acted upon. We are conscious of the sensitivity with which heinous offence under Section 376, IPC has to be treated but in the present case the circumstances taken as a whole create doubt about the correctness of the prosecution version. We are, thus, of the opinion that a case is made out for giving benefit of doubt to the accused.” 26. On scrutiny of the evidence of the prosecution witnesses, this Court is of the opinion that the evidence of the victim and the other witnesses alleged to be the eye-witnesses, there is no credibility in their version as their statements are not supporting the version of each other. The medical evidence as discussed above also does not conclusively suggests that the rape was committed on the victim by the accused appellant. Hence, there are two possibilities whether the rape was committed by the appellant on the victim or it is a false allegation. 27. The medical evidence as discussed above also does not conclusively suggests that the rape was committed on the victim by the accused appellant. Hence, there are two possibilities whether the rape was committed by the appellant on the victim or it is a false allegation. 27. On making scrutiny of the evidence and on consideration of the law laid down by the Hon’ble Apex Court, the present accused appellant deserves benefit of doubt and therefore, the conviction of the accused appellant- Ajaypal @ Jaipal for the offence under section 376 IPC is set aside.” 25. Thus, the offence under section 376 IPC is also not found to be proved. Therefore, the conviction of the accused appellant for the offence under section 376 IPC is not sustainable. 26. It is a well settled law that in case of possibility of two views, the view beneficial to accused is to be accepted. 27. Consequently, the criminal appeal of accused appellant of Tanwar Singh is allowed and his conviction for the offences under sections 363 and 376 IPC is set aside and he is acquitted from the aforesaid charges. The accused appellant is on bail, his bail bonds stand cancelled. 28. Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, 1973, the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice therefore, shall appear before the Supreme Court. 29. The Registrar (Judicial) is directed to send back the record of the case to the trial court forthwith.