JUDGMENT S.B. SEN, J. 1. The prosecution case is, that Sarli a minor girl (under 18 years of age) was working in a field with her mother Bathadi P. W. 2 It was noon-time when the accused Khanna caught hold of the girl's hand and dragged her to a certain distance in spite of her protest. The accused appellant just met the prosecution witnesses Idu (P. W. 3) and Jasu (P. W. 5). They inquired of the accused as to why she was being carried away. The accused is alleged to have replied to them that she was to be taken to be made his wife. These to witnesses however, seeing that the girl was not willing, released her and returned her to her parents. As the girl was a minor, according to the prosecution, he had committed an offence u/s 366 I. P. C. The accused denied the commission of the offence. 2. The learned Sessions Judge found that the girl was below 18 and that she was forcibly carried away by the appellant against her will. He has held that the accused took the girl with intention to marry her or that she would be forced to illicit intercourse. 3. The appellant first assails the finding regarding the age. According to him the prosecution has failed to establish that she was less than 18 years. The Sessions Judge has not placed reliance on oral testimony of her parents. According to him the girl and her parents could not tell the correct age. But he has relied on the medical evidence based on the ossification of bones. According to him the opinion of Dr. Santoshsingh was "to some extent" satisfactory to determine the age. But Dr. Santoshsingh, as we find, confines her age between 16 to 18. It is common knowledge that the medical opinion is based on average and cannot be correct to the day. When the opinion of the doctor is that she is between 16 to 18, one cannot say with certainty that she is below 18. It is therefore unsafe in a criminal prosecution to say, relying on the testimony of the doctor, that she was not 18. In fact in his opinion he has given the limit up to 18. I, therefore, hold that the prosecution has failed to establish beyond doubt that the girl was below 18 years of age. 4. It is therefore unsafe in a criminal prosecution to say, relying on the testimony of the doctor, that she was not 18. In fact in his opinion he has given the limit up to 18. I, therefore, hold that the prosecution has failed to establish beyond doubt that the girl was below 18 years of age. 4. The prosecution has therefore to establish that it was a case of abduction. But unfortunately in this case I find that the charge is not of abduction. It reads as follows- A careful reading of this charge shows that the girl was below 18 and she was taken away without permission of her lawful guardian viz. father and that the appellant wanted to marry her against her will. This shows that it was a case of kidnapping and the charge proceeded on the assumption that she was a minor. I have already held that the prosecution has failed to establish that the girl was a minor. The charge as framed is therefore defective. 5. The defect in the charge is however not fatal in every case. Not only that, I find from the examination of the accused under Section 342 he has been asked questions which show that she was dragged by force and was compelled to move. A reference to the questions, though they were not numbered, show that the accused was specifically asked about the carrying away of the girl forcibly () and by dragging. He was also asked questions that she was taken against her will and that it was the witnesses Idu and Jasu who rescued her. 6. On the basis on the examination under Section 342 the learned counsel for the State submitted that as he has been put questions which show that he was being tried for an offence of abduction the accused cannot be said to have been prejudiced. 7. It is no doubt true that the accused has been asked questions regarding abduction, but the grievance of the appellant is that the charge, as framed, being only of kidnapping, he has not cross-examined the witnesses regarding consent or that there was no force or deceitful means practised. Even assuming, certain questions in cross-examination may give an idea that he was challenging the taking away by force, but it was only according to the accused, to test the veracity. Even assuming, certain questions in cross-examination may give an idea that he was challenging the taking away by force, but it was only according to the accused, to test the veracity. The cross-examination according to him would have been more pointed had the case been of abduction. 8. The contention of the appellant is correct. It will not be proper according to me to convict a person for an offence of abduction when he was charged for an offence of kidnapping. Though they fall under the same section but they are so vitally different that the defence in case of abduction viz a consent would be a fatal defence in the case of kidnapping. It is therefore clear that it will be unjust to convict the appellant under Section 366 on the charge as framed. 9. The counsel for the State however contended that action may be taken under Section 535 sub-section (2) of the Cri. Pro. Code, wherein it has been laid down that if the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed and the trial be recommended from the time immediately after framing of the charge. This step could have been taken, but there are circumstances which make the case of some doubtful veracity. On the point of dragging it is stated that the mother offered no resistence excepting that she asked him not to take the girl away. Then the evidence of the other witnesses viz. Itu and Jasu shows that when they intervened the appellant said that he was taking the girl for marriage. Such a reply is not expected unless the girl was going peacefully and the witnesses for reasons known to them, wanted to interfere. It is alleged that the girl was weeping and was not willing to go, but she did not seem to have offered any resistence. It was broad day-light and many persons were working in the field and to take away the girl without her consent seems not to be probable. The appellant came alone. He did not bring other persons to take away the girl forcibly against resistence, as generally happens in such a case. I therefore feel that it will not be proper to frame the charge and send the case back for re-trial. 10. The appellant came alone. He did not bring other persons to take away the girl forcibly against resistence, as generally happens in such a case. I therefore feel that it will not be proper to frame the charge and send the case back for re-trial. 10. Even from the examination U/S 342 it will be clear that whenever the accused was put questions, the description of the girl was given being below 18. The learned Sessions Judge it appears has judged the case on the basis of the charge viz. that she was below 18. Another reason against re-trial is that there is room for an improvement of the prosecution story. 11. There is also the fact of enormous delay in making a report of this incident. The incident is of 12-9-59 about 2 P. M. The report was made to the Police Station on 18-9-59. The reason given by the prosecutrix Sarli is that the river was in spate. I do not believe this statement that the river could be in spate for 6 days continuously so as to prevant the making of the report. Moreover the prosecution tries to find support for this from witness Arsayya D. W. 2. I do not think that he supports Sarli In fact he says that the flood only continued for a day or two. Thus I find the prosecution has not satisfactorily explained the delay in making the report. There was enough room therefore in making up a false story. 12. I therefore think, under the circumstances of the case, it will not be fair in the interest of justice to exercise powers under Section 535 (2) Cri. Pro. Code and send the case back for re-trial. I also do not think that the prosecution has established, on the evidence adduced, beyond doubt a case of abduction. The accused is therefore entitled to acquittal. The appeal is allowed and the accused-appellant Khanna is acquitted. Appeal allowed