Short Note : 1. Appellant Indar Singh was held to be guilty for the offences under sections 376, 366 and 363 IPC. Held : After carefully going through the evidence on record this Court is of the view that the convictions and sentences passed against the appellant by the trial Court cannot be sustained. The prosecutrix Dela (P.W.1) has deposed that on the date of the occurrence the appellant Indar Singh and one Juwansingh came at the well where she had gone to fetch water and they forcibly took her away into the jungle and kept her there for about six days. According to her for the first two days the appellant Indar Singh committed rape on her. She has further deposed that one Sanbai, the daughter of her brother was also kidnapped about one year back by Juwansingh. According to the prosecutrix when she was kidnapped she found Sanbai also with the appellant and Juwansingh. She then states that one day she and Sanbai finding an opportunity escaped from the jungle. In the cross-examination the prosecutrix stated that on the date of the incident she voluntarily and out of her free will went with Juwansingh and lived in the forest. According to her both she and Sanbai lived there in the jungle with Juwansingh and Indarsingh and did not resist at the time when the sexual intercourse was committed with her. This shows that she was a consenting party to the act of sexual intercourse. According to the medical evidence the prosecutrix was between the age of 15 to 17 years at the time of the said incident. Thus, it is not proved that she was below 16 years of age at the time of the commission of sexual intercourse with her and hence the offence under section 376 is not borne out. 2. As regards the offence under section 366 IPC it may be noted that the medical evidence that the prosecutrix was below 17 years of age is after all an opinion evidence. There is no conclusive evidence on record to prove the exact age of the prosecutrix. 2. As regards the offence under section 366 IPC it may be noted that the medical evidence that the prosecutrix was below 17 years of age is after all an opinion evidence. There is no conclusive evidence on record to prove the exact age of the prosecutrix. In Modi's Medical Jurisprudence (20th Edition) at page 32, it is stated that too much reliance should not be placed on the table showing the age and years of the appearance and fusion of some of the epiphysis as observed by different authors as it merely indicates the average and is likely to vary in individual cases even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be up to three years on either side. Thus it is quite probable that the prosecutrix was above 18 years of age at the time of the commission of the offence. Thus the prosecutrix being a consenting party no offence under section 366 IPC has been proved beyond any shadow of doubt. Therefore, the conviction of the appellant either under section 363 or under section 366 can be maintained. Appeal allowed.