JUDGMENT 1. - The above named accused-appellants and one more Bhonria S/o Birdha preferred an appeal to this Court against their conviction under the various offences as given below. After filing of the appeal Bhonria S/o Birdha died and vide order sheet dated 8.4.74.. it was ordered that his name should be struck off from the array of the appellants. 1. Bhonria S/o Heera) U/s. 366 IPC 2 years rigorous imprisonment. 2. Rampal S/o Dhanna ) 3. Prasada S/o Bhonria U/s. 366 IPC 2 years rigorous imprisonment. U/s 376 IPC 3 years rigorous imprisonment, 4. Gyana S/o Jaichand U/s 366 IPC 2 years rigorous imprisonment. U/s 376 IPC 3 years rigorous imprisonment. U/s 379 IPC 6 month's rigorous imprisonment and a fine of Rs. 100 in default further one months rigorous imprisonment. 2. The facts of the case on which the accused persons have been convicted and sentenced, as aforesaid, are as follows : Prashada son of Asharam Meena is the husband of Smt. Kailashi (PW3). They were both residing in village Bharoti P. S. Malarna Dunger. It is alleged that on January 4th or 5th of 1972 in the evening the accused persons Prashada, Bhonria, Rampal and another Bhonria (since dead) came to village Bharoti and in the absence of Prashada (PW 8) they took away Smt. Kailashi by force. At that time, Kailashi was wearing silver ornaments. A report (Ex. P. 4) of the incident was lodged on 7-1-78 before the Superintendent of Police, Sawai Madhopur, who endorsed it to S. H. O., P. S. Malerna Danger for compliance and report. The same was received in P. S. Malerna on 10-1-72 where a case No. 2 under Sections 366 and 379 IPC was registered and the investigation started. On January 25, 1972 Kailashi (PW 3) was recovered from Muslim Musafirkhana, Jaipur, where she was staying alongwith accused Gyana. She was medically examined by Dr. Narendra Singh Chohan (PW 11) and x-ray for occification of bones was also taken and the opinion of the doctors is that she was aged in between 14 to 16 years on the date of examination. 3. Accused Gyana is alleged to have given information (Ex. P. 6) under Section 27 of the Evidence Act on 26-1-72 to Shri Gopal Singh for getting recovered one bangle of silver and consequent to the information vide Ex. 3. Accused Gyana is alleged to have given information (Ex. P. 6) under Section 27 of the Evidence Act on 26-1-72 to Shri Gopal Singh for getting recovered one bangle of silver and consequent to the information vide Ex. P. 7 he got recovered one bangle of silver, which is said to be of Smt. Kailashi (PW 3). A charge-sheet was filed against the accused and they were committed to the Court of Sessions where after triai the accused persons have been convicted and sentenced as aforesaid. 4. Arguments of the learned Advocate for the accused appellants and the learned Public Prosecutor have been heard and the record of the case has been perused. 5. The arguments of the learned Advocate for the appellants are two fold. Firstly, it is submitted that the charge against the accused persons is that they abducted or kidnapped Smt. Kailashi on 5-1-72. The prosecution has utterly failed to prove the occurrence and the case of the prosecution is rendered highly doubtful. 6. The second argument is that the prosecution has failed to prove beyond reasonable doubt that the age of Smt. Kailashi is below 18 years and from the evidence on record it can be said that she went of her own accord and was not abducted or kidnapped by any of the accused persons. Elucidating his argument on the first point, it is submitted by the learned Advocate for the appellants that the occurrence has not been proved to have taken place on 5-1-72. He has taken me through the evidence of prosecution witnesses, which shall be discussed presently. 7. Smt. Kailashi (PW 3) has deposed that she was taken by the accused persons to Sahsa village where she was kept by accused Prashada in a room under the lock for about a month. There Prashada committed sexual intercourse with her against her will. From there she was taken to village Phulwara and was handed over to accused Gyana. There she was kept for a period of 15 days. She was also kept under the lock there. From the Gyana accused took her on foot to Gangapur, where they stayed for a night at the house of an Advocate. From there they went to Karauli and also went to Jaipur from where she was recovered by the police from Muslim Musafirkhana alongwith Gyana accused. She was also kept under the lock there. From the Gyana accused took her on foot to Gangapur, where they stayed for a night at the house of an Advocate. From there they went to Karauli and also went to Jaipur from where she was recovered by the police from Muslim Musafirkhana alongwith Gyana accused. The Advocate who accompanied them from Gangapur was also present. It may be stated that the occurrence is alleged to have taken place on 5-1-72 and she was recovered from Muslim Musafirkhana, Jaipur on 25-1-72, i. e. after 20 days of the occurrence. If her statement is perused, it will be clear that she remained with the accused persons for more than one and a half months. Therefore, it becomes doubtful that the occurrence, if at all, took place on 5.1.72 as alleged. 8. There is evidence that the alleged abduction or kidnapping took place after about 25 days of Dewali. In this connection, reference may be made to the statement of Ramkaran (PW 1) and Bhuria (PW 5). Similar is the statements of Prashada (PW 8), husband of Kaiiashi. In the year 1972 Dewali fell on 5. 11. 72. Therefore also, it cannot be said that the occurrence could have taken place on 5.1.72. The trial court have not discussed this aspect of the case. 9. The report of the incident was lodged on 7.1.72, i. e. on the third day of the alleged abduction or kidnapping of Kailashi. This delay has not been explained. 10. According to the statement of Kailashi (PW. 3), when she was being taken by the accused persons by force, Bhuria and Ramkaran met her in the the way, but the accused persons brandished lathis towards them. It does not appeal to reason that why she would have been taken by force, as alleged, and if Bhuria and Ramkaran would have met in the way, they would have allowed Kailashi to be taken away by, the accused persons in this manner. Ramkaran and Bhuria (PW. 4 and PW. 5 respectively) have stated that Kailashi was crying and was being carried away by the accused persons. They asked the accused persons not to take away Kailashi but they did not pay any heed. I have already said above that their statements render the prosecution case doubtful that Kailashi was abducted or kidnapped on 5.1.72. 4 and PW. 5 respectively) have stated that Kailashi was crying and was being carried away by the accused persons. They asked the accused persons not to take away Kailashi but they did not pay any heed. I have already said above that their statements render the prosecution case doubtful that Kailashi was abducted or kidnapped on 5.1.72. Both these witnesses stated that seeing Kailashi being taken away, they returned to their village. They did not know the accused persons from before, Ramkaran (PW. 4) was confronted with his police statement (Ex. D. 4) (portion A-B and C-D), but he disowned his police statement. According to Ramkaran (PW 1 Kailashi was in veil, but surprisingly again he identified her. He did not see the mother-in-law of Kailashi, whereas Smt. Kailashi (PW. 3) states that her mother-in-law was there. She has not been examined. 11. A perusal of the statement of Smt. Kailashi will further reveal that she was taken from one place to another and was also taken to the Cour at Gangapur. She also met an advocate, but surprisingly she did not complaint to any body that she was abducted or kidnapped by any of the accused persons Smt. Kailashi was recovered at about 4 a. m. in a room in Muslim Musafirkhana which is in a congested locality of Jaipur. She was found sleeping along with accused Gyana. In such circumstances, it cannot be said that she was abducted or kidnapps by any of the accused persons. The trial court has not discussed the various salient features and infirmities in the evidence of the prosecution witnesses. 12. The learned trial court has held that from the evidence on record. Smt. Kailashi is a girl of less than 18 years. Even as per the medical evidence, which is only an expert opinion, her age is between 14 to 16 years. Smt. Kailashi was used to sexual intercourse. No injury on her private part or any other part of the body was found. Therefore it can be said that if at all there was a sexual intercourse by accused Prashada and Gyana with her, it was with her consent. Only on her solitary statement, an offence under Section 376 I. P. C. cannot be made out against either accused Prashada or Gyana. 13. Therefore it can be said that if at all there was a sexual intercourse by accused Prashada and Gyana with her, it was with her consent. Only on her solitary statement, an offence under Section 376 I. P. C. cannot be made out against either accused Prashada or Gyana. 13. As I shall presently show, there is no satisfactory evidence on which this Court can arrive at the conclusion that Kailashi was under 18 years of age on the date of alleged offence. The Supreme Court in Ram Murty v. State of Haryana, AIR 1970 SC 1029 has observed as follows:- "The question of age of the prosecutrix in cases under section 366 and 376 I. P. C. is always of importance." 14. Smt, Kailashi (PW3) has deposed that her elder sister is aged 20 years and has a child also. She admits that her statement under Section 161 Cr. P. C. was recorded on 12.3.72. in which she had given out her age as 16 to 17 years. According to her, she was married at the age of 9 years and in the lower court in Ex. D. 1 (A-B) she stated that she was married about 10 years ago at the age of 10-12 years. Therefore, from her statement it cannot be said that she is below 18 years. Her mother has not been examined. Her father Jainaraian (PW 6) has been examined. He is unable to say as to in which Samvat Year or calendar year she was born. According to him, there is one daugthter who is elder to Kailashi. She is aged about 20 years. There is no other evidence except the evidence of Dr. Narendra Singh Chohan (PW.11) and D. K. Gupta (PW 12). Dr. Chohan has stated that space behind the second molar for third moral had formed. According to Modis Medical Jurisprudence, space for 3rd molar is out and interrupts in between the age of of 17 to 25 years. The doctors have taken the Bengal table for ossification of bones. There is no table so far as Rajasthan is concerned. Under the circumstances, only on the opinion of the doctor, it cannot be conclusively held that on the date of occurrence Kailashi was 18 years. The doctors have taken the Bengal table for ossification of bones. There is no table so far as Rajasthan is concerned. Under the circumstances, only on the opinion of the doctor, it cannot be conclusively held that on the date of occurrence Kailashi was 18 years. In this connection, a reference may be made to Kishorilal Raghubirdas v. State, AIR 1957 Punjab 78 , in which it has been said that X-Ray ossification test may provide a super basis for determining the age of an individual, than the opinion of a medical expert but it can by no means be so infallible and accurate test so as to indicate the correct number of years and days he has lived. It has further been held that the opinion of a medical expert based on such test cannot be regarded to be conclusive. 15. Therefore, in this case, and more so when the Magistrate while recording the statement under Section 164 of the Code of Criminal Procedure, in the committing court has given an estimate of her age as 20 years, though the estimate too should not be relied upon, it cannot be said that there is satisfactory evidence on behalf of the prosecution that Kailashi was under 18 years of age on the date of the occurrence. Therefore, under the facts of this case and the evidence on record, it can be said that there is no evidence of her abduction or kidnapping. 16. So far as charge under section 379 I. P. C. against accused Gyana is concerned, it can be said that merely by recovery of a silver bangle from his possession, it cannot be said that accused committed theft of that ornament. Kailashi has stated that her ornaments were taken at village Sabsa. She accompanied accused Gyana to Gangapur, Karauli and Jaipur. Therefore, merely by recovery from the possession of Gyana, a charge of theft cannot be made out. Kailashi (PW 3) has stated that Gyana had taken from her one Loongri and one Ponchi. She does not say that Gyana committed theft of these articles. Hence, no offence under Section 379 I. P. C. is made out. 17. Therefore, merely by recovery from the possession of Gyana, a charge of theft cannot be made out. Kailashi (PW 3) has stated that Gyana had taken from her one Loongri and one Ponchi. She does not say that Gyana committed theft of these articles. Hence, no offence under Section 379 I. P. C. is made out. 17. In the result, the appeal is accepted, the judgement of the learned Additional Sessions Judge, Gangapur City, convicting and sentencing the accused Prashada under sections 366 and 376 I. P. C.accused Bhonrya and Rampal under section 366 I. P. C. and accused Gyana under section 366, 368 and 379 I. P. C. is set aside. All the above named accused persons are acquitted of the charge levelled against them. They are on bail and need not surrender to their bail bonds, which shall stand discharged.Appeal accepted. *******