JUDGMENT 1. - This is an appeal filed by Bodu against the judgment of the Additional Sessions Judge, Gangapur City, dated December 20, 1975, by which the appellant was convicted under section 366, I.P.C, and Sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 390/-, in default of payment of fine to further suffer rigorous imprisonment for three months. 2. The incident that led to the prosecution of the appellant may be briefly stated as follows : Mst. Leela, aged 15 years by caste Sunar resident of Indore was married to Dalchand resident of village Devas (Chote) District Indore About 15 or 20 days after her marriage her 'Gona' ceremony was performed and she stayed at her husband's house for about 10 days. Thereafter she returned to the house of her parents. She again went to the house of her in-laws on the occasion of Makar Sakranti and stayed there for 10 days. Then again she came back to her father's house and lived therein for one month. Thereafter her husband's sister's husband Chunni Lal took her to his house at Sindhi Colony, Indore, wherein she lived with her husband. About 10 days prior to April 21, 1974 Leela's Girl friend Jhamku, whose father's house was situated in the neighbourhood of Leela's father's house and came to the house of Chunni Lal and told Leela that as her husband and her step-mother were maltreating her, she should accompany Jhamku to live with her at her house. Mst. Leela readily agreed and without informing any person accompanied Jhamku to her house. Jhamku and her mother concealed Leela inside their house for two days. Thereafter Bodu appellant also visited the house of Jhamku Jhamku and her mother asked Leela to so away with Bodu appellant who was prepared to keep her comfortably. On the next day at about 6 p.m. Bodu again came to the house of Jhamku and took away Mst. Leela to railway station, Indore in a tempo-rickshaw. From Indore she was brought to Ratlam and from Ratlam to Gangapur City. From Gangapur, Bodu carried Mst. Leela to his house at village Singapur into motor-car, and kept her therein for two days. During period the appellant bargained with a person for sale of Leela. When Leela came to know about her being sold away, she raised a hue and cry. From Gangapur, Bodu carried Mst. Leela to his house at village Singapur into motor-car, and kept her therein for two days. During period the appellant bargained with a person for sale of Leela. When Leela came to know about her being sold away, she raised a hue and cry. The appellant then took her to his threshing floor in the evening In the night when she was lying on a cot, the appellant raped her twice despite her stiff resistance. The appellant raped her again many a time for two days, thereafter carried her to village Badoll and tried to sell her to a person for Rs. 3000/-. Leela raised an outcry which attracted a good number of villagers. Out of those villagers one Bodu sent Ghasida Heena to police station for giving information to the police. The police reached the spot and brought Mst. Leela to the police station where a first information report was lodged with the police by Mst. Leela herself on April 21,1974 at about 1-30 p.m. On the basis of the report the police registered a criminal case under sections 363, 366 and 376 IPC. and took up usual investigation into the matter. In the course of investigation the police inspected the site, prepared a site inspection memo and site plan, arrested the appellant and took one `Dhoti' of Mst. Leela into their possession. Mst. Leela was sent to the Medical Officer, In charge, Primary Health Centre, Gangapur City for medical examination regarding rape and her age. Dr RC. Totuka, Medical officer, examined Mst. Leela on April 21, 1974 and opined on the basis of general physical characteristics and development of her body and upon ossification test that her age was between 16 to 18 years. The Doctor examined Bodu appellant also and found that his genitals were fully developed and he was fit for couitus and that he had sexual intercourse within 48 hours. 3. The Investigating officer collected other necessary evidence in the case and, upon completion of investigation, filed a charge-sheet against Mst. Jhamku, Mst Soni and Bodu, appellant, in the court of the Munsiff and Judicial Magistrate, Gangapur City, under Sections 366 and 376, IPC. The learned Judicial Magistrate upon finding a prima facie case exclusively triable by the court of Session, committed Mst. Jhamku, Mst. Jhamku, Mst Soni and Bodu, appellant, in the court of the Munsiff and Judicial Magistrate, Gangapur City, under Sections 366 and 376, IPC. The learned Judicial Magistrate upon finding a prima facie case exclusively triable by the court of Session, committed Mst. Jhamku, Mst. Soni and the appellant to the court of the Additional Sessions Judge, Gangapur City, for trial under Section 366 and 376 IPC. The Additional Sessions Judge charge-sheeted Bodu appellant under Section 366 and 376, IPC while charges under Section 366, IPC. were framed by him against Mst. Jhamku and Mst. Soni. After the trial was over, the Additional Sessions Judge found Bodu appellant guilty under Section 366, IPC only. The other two accused, Mst. Sodi and Mst. Jhamku were found not guilty of any offence and so they were acquitted of the charges framed against them. The Additional Sessions Judge convicted and sentenced Bodu appellant in the manner indicated above. Aggrieved by his conviction and sentences, the appellant has preferred this appeal. 4. I have carefully gone through the record and heard Mr. Jagdeep Dhankar, learned counsel for the appellant and Mr. Shiv Raj Behari Mathur, Public Prosecutor, for the State. Firstly, it has been contended on behalf of the appellant that the medical evidence produced by the prosecution clearly shows that Mst. Leela was not a minor girl under 18 years of age at the time of her alleged removal by the appellant. It was further urged that the Additional Sessions Judge committed a grave error in holding, upon materials on the record, that the appellant kidnapped Mst. Leela from lawful guardianship because the burden to prove that Mst. Leela was under 18 years of age was on the prosecution which it miserably failed to discharge. 5. The learned Public Prosecutor, on the other hand, argued that the estimate of the Medical Officer about Mst. Leela's age cannot be lightly brushed aside as it may provide a solid basis for determining her age. According to the learned Public Prosecutor, the medical expert in this case rightly came to the conclusion on the basis of ossification test and her general physical characteristics and development of body that her age was between 16 and 18 years. 6. I have considered the rival contentions mentioned above. According to the learned Public Prosecutor, the medical expert in this case rightly came to the conclusion on the basis of ossification test and her general physical characteristics and development of body that her age was between 16 and 18 years. 6. I have considered the rival contentions mentioned above. At the outset, I may observe that in order to bring guilt home to the appellant in this case under section 366, IPC it must be established beyond reasonable doubt by the prosecution that the girl kidnapped was 16 and 18 years of age. In the present case, the prosecution led evidence to prove the minority of Mst. Leela at the time of her removal by the appellant. The evidence consists of oral statements of Leela's father Kanhaiya Lal, her husband Dal Chand and the evidence of medical expert based on examination of general physical characteristics and development of her body and ossification test of bones. The evidence of her father Kanhaiya Lal relating to her age highly unsatisfactory. He merely stated in his deposition at the trial that Leela's age was about 15 years at the time when he left her at the bus stand forgoing with her husband Dal Chand. We could not say in which year Leela was born. He admitted in his cross-examination that Leela's name was written in the register of births of the Municipality, Indore, but her name was struck off after her marriage. The prosecution ought to have produced or cause to be produced the relevant entry of the municipal register, because such an entry relating to her age could amount to reliable proof. Apart from this, Leela's mother was not produced, because she would have been the best witness to cease to her daughter's age or date of birth. Leela's father Kanhaiya Lal admitted in his cross-examination that Leela's mother is alive. The prosecution could not afford any reasonable explanation why this material witness was not examined in the trial court in proof of Leela's correct age. Leela's father Kamhaiya Lal is an illiterate person having no idea about Samvat or the year. He could not tell the year of her birth and his own exact age at the time of his marriage or at the time when Leela was born. Hence, no reliance can be placed on the testimony of Kanhaiya Lal regarding his daughter's age. 7. He could not tell the year of her birth and his own exact age at the time of his marriage or at the time when Leela was born. Hence, no reliance can be placed on the testimony of Kanhaiya Lal regarding his daughter's age. 7. Likewise, the evidence of Leela's husband Dal Chand is of no value, because he merely stated that at the time of her removal the age of Mst. Leela was about 15 or 16 years. He was cross-examined on this point in the trial against to his cross-examination he could not tell the date or year or Samvat of his birth. He could not say how he came to know that the age of his wife was 15 or 16 years only. Hence, no importance can be attached to the evidence of Dal Chand also. 8. Similarly the evidence of the medical expert Dr. R.C. Totuka PW 9 is merely an estimate about the age of Leela, which does not amount to proof but is merely an opinion. In his examination-in-chief Dr. R.G. Totuka stated that Mst. Leela's age was between 16 and 18 years and her age was not above 18 years, but in his cross-examination he admitted that his opinion about the age was an approximate one and that even after X ray examination the Doctor cannot pin-point the age. Hence, two inference can possibly be deduced about the age of Leela from the evidence of the medical expert. One is that she might be below 18 years and the other is that she might be more than 18 years. If two such inferences are possible, the benefit of doubt must go to the appellant. The trial Judge did not consider this aspect of the case and failed to draw correct conclusion from the evidence adduced by the prosecution in proof of Leela's age. Hence, it cannot be safely held that the appellant committed the offence of kidnapping Leela from her lawful guardianship. 9. There is no evidence on the record that Mst. Leela was compelled by force or was induced by any deceitful means by the appellant to go from her husband's sister's husband's house. From her testimony, it appears that she willingly accompanied her girl friend Jhamku to her house and lived therein for some days. Thereafter, she willingly went away with the appellant to several places in bus and train. Leela was compelled by force or was induced by any deceitful means by the appellant to go from her husband's sister's husband's house. From her testimony, it appears that she willingly accompanied her girl friend Jhamku to her house and lived therein for some days. Thereafter, she willingly went away with the appellant to several places in bus and train. Had she been compelled by force to go from one place to another or had she been induced by any deceitful means to go from one place to another, she would have surely raised a hue and cry especially when she knew it well at the house of her girl friend Jhamku that the appellant was negotiating with others for her sale. Her conduct in going with the appellant from one place to another without raising any hue and cry shows that she was a consenting party to her removal by the appellant. The trial Judge has already disbelieved the story of rape put forward by the prosecutrix Mst. Leela and acquitted the appellant of the offence under Section 376, IPC. Hence, I do not feel persuaded to hold upon evidence on the record that the appellant compelled Mst. Leela by force or induced her by any deceitful means to go from one place to another with the intention specified in Section 466, IPC. 10. The result of the above discussion is that I accept the appeal filed by Bodu, appellant, set aside his conviction and sentences under Section 366, IPC and acquit him of the same. The appellant is on bail. He need not surrender to his bail bonds which are hereby cancelled.Appeal Accepted. *******