Kochar, J. -- 1. This revision has been filed by a private party against the impugned judgment of acquittal of non-applicant No. 1, passed by the learned Sessions Judge, Jhabua in ST No. 342/05 dated 6th December, 2006.

2. According to the prosecution case on 19.6.2005, in the night, prosecutrix Shudha left the house of her parents residing in village Karwad. Her absence was noticed by her parents early in the morning at 5:30 a.m. They searched prosecutrix in the village and amongst their relatives, but she was not found. Therefore, report of missing, on 20.6.2005 was lodged and in the said report, doubt was shown on non-applicant No. 1 Charansingh. The police registered the crime after more than a month i.e., on 27.7.2005 and during investigation on 9.11.2005, prosecutrix Shudha and non-applicant No. 1 Charansingh were called in Police Station, Petlawad, Haryana on the basis of some compromise arrived between non-applicant No. 1 and father of the prosecutrix. Police recorded the statement of the prosecutrix and after completion of investigation, filed the charge-sheet against the non-applicant No. 1 for commission of offence under sections 363, 366 and 376 of the IPC.

3. Non-applicant No. 1 Charansingh denied the charges and submitted that prosecutrix was major. Her age was 19 years and she went alongwith him voluntarily. He also submitted that because of tutoring and pressure, she deposed against him.

4. The learned trial Court, after examination of the prosecution witnesses and hearing both the parties, passed the impugned judgment of acquittal of non-applicant No. 1 Charansingh. The learned trial Court after detailed discussion on the issue of age, given finding in paragraph 14 that prosecution has failed to establish that prosecutrix was below 18 or 16 years of age on the date of incident i.e., on 19.6.2005. On the contrary, there is sufficient evidence available on record to establish that prosecutrix could be above 18 years of age. The learned trial Court has taken into consideration the evidence of Dr. Sureshchandra (PW 1) and Dr. Pumima Gadariya (PW 2). According to Dr. Gadariya, she examined prosecutrix and her age was 19 years. This statement of Dr. Gadariya has not been challenged in the Court. Dr. Suresh Chandra proved the ossification test report. According to him, on the date of incident, prosecutrix could be between 14-17 years of age and there can be margin of 2 years on either side.

5. In view of opinion of Dr. Suresh (PW 1), prosecutrix could be 19 years of age on the date of incident. The learned trial Court after evaluation of the evidence of both the doctors has given finding in para 9 that on the basis of medical evidence, prosecution has failed to establish that prosecutrix was below 18 years of age.

6. The learned trial Court also examined statement of prosecutrix Sudha (PW 3), her father Kanhyalal (PW 4) and uncle Radheshyam (PW 6). Prosecutrix has admitted in cross-examination that her statements were recorded before the Magistrate Petlawad, Haryana, and in the said statement, she disclosed her age as 19 years. For this statement, she stated that because of fear, she disclosed her age as 19 years. The learned trial Court did not accept the explanation of the prosecutrix and rightly so, because before Magistrate there could not be any fear to the prosecutrix and if she was abducted or kidnapped against her consent and will, she could have stated this fact before the learned Magistrate. The prosecutrix has stated that in the school, at the time of admission, her date of birth was disclosed by her uncle Radheshyam (PW 6), but Radheshyam (PW 6) has no where stated about date of birth as well as admission of the prosecutrix by him.

7. The prosecution has heavily relied on the entry in school register about age of the prosecutrix i.e., 1.6.1989, but prosecution has failed to lead any evidence, as to who, and on what basis, this date of birth disclosed before the school authority. The father of the prosecutr