SHARAD KUMAR GUPTA, J.

1. In this criminal appeal, challenge is levied to the judgment of conviction and order of sentence dated 13.05.1999 passed by the second Addl. Sessions Judge, Ambikapur, Surguja(M.P.) (now in C.G.) in Sessions Trial No. 403/1994 whereby and whereunder he convicted and sentenced the appellant as under:-

Sr.No.	Offence u/S.	Sentence	In default of payment of fine
1.	363, Indian Penal Code (for short ‘IPC’)	RI for 2 years	Xxxxxx
2.	366, IPC	RI for 5 years	Xxxxxx
3.	376, IPC	RI for 7 years+ fine of Rs.200/-	Additional RI for 2 years

All the jail sentences are directed to run concurrently.

2. In brief, the prosecution story is that at the time of alleged incident prosecutrix was about 12 years old, she was a resident of Ganjar-anpara. On 21.06.1994 appellant enticed prosecutrix that he would marry her. Prosecutrix believed on his promise and went to Pratappur Naka. Thereafter, appellant took her to village Sedam where he committed repeatedly sexual intercourse with her. Meanwhile, her father informed Police Station Ambikapur on 21.06.1994 that she was missing. On such information a report of missing person was registered. Thereafter, her father took back her from Sedam to his house. On 27.06.1994 an FIR was lodged against the appellant in Police Station Ambikapur. After completion of the investigation a charge-sheet was filed against him under Sections 363, 366, 376 of IPC. The trial Court framed charges against him under Sections 363, 366, 376 IPC. He abjured the charges and faced trial. To bring home the charges the prosecution examined as many as 6 witnesses. He did not examine any witness on his defence. After conclusion of the trial, trial court convicted and sentenced him as aforesaid.

3. Being aggrieved, the appellant has preferred this criminal appeal.

4. Counsel for the appellant strenuously argued that the prosecution has failed to prove that the age of prosecutrix was below 18 years of age at the time of the alleged incident. She was a consenting party. Thus, aforesaid conviction and sentences are bad in the eyes of law and not sustainable. Thus, aforesaid conviction and sentences may be set aside and the appellant may be acquitted of the aforesaid charges.

5. The Govt. Adv. appearing for the State submitted that aforesaid conviction and sentences are based on clinching evidence led by the prosecution. He supported the aforesaid conviction and sentences and submitted that no interference is called for by this Court.

6. The first and foremost question for adjudication before this court is as to whether prosecutrix was below 18 years of age on 21.06.1994.

7. P.W.-2 prosecutrix and P.W.-3 Meeru who is father of the prosecutrix, do not say clearly and firmly the date of birth of prosecutrix. They do not say clearly and strongly as to what was the approximate age of the prosecutrix on 21.06.1994. Moreover, P.W.-2 prosecutrix says in Para 9 of her statement given on oath during her cross-examination, P.W.-3 Meeru says in Para 4 of his statement given on oath during his cross-examination, that Kalawati is the eldest daughter of P.W.-3 Meeru, Kalawati is about 30-35 years old, Manmati, Ramu, Chaituram are the other elder children of P.W.-3 Meeru, prosecutrix is the youngest daughter of P.W.-3 Meeru, there is a gap of 2-2 years between birth of these children.

8. In the case in hand, prosecution failed to prove any entry of Dakhil- Kharij register regarding date of birth of prosecutrix. For not doing so there is no explanation from prosecution.

9. As per the alleged report of radiologist Ex. P-17, P.W.-5 Dr. M.K. Jain opined that the radiological age of prosecutrix was 14 to 16 years.

10. In Jaya Mala v. Home Secretary, Government of Jammu and Kashmire And Others, (1982) AIR SC 1297 the Hon’ble Supreme Court has observed that margin of e