JUDGMENT S. Zaheer Hasan, J. - This is an appeal against the judgment and order dated October 17, 1981 passed by Sri K.S. Srivastava, IIIrd Additional Sessions Judge, Lucknow, sentencing the appellant to five years' R.I. under Sec-376, IPC and to three years R.I. under Section 366, IPC. Both the sentences were ordered to run concurrently. 2. The prosecution case in brief is that on May 1977 in the morning Ram Khelawan (P.W.2) father of the prosecutrix Shanti(P.W.1) was out. The accused came to the prosecutrix and told her that her father had received injuries and she should accompany him. Thereafter he brought the girl to the bus stand and from there to District Basti where she was kept for 8-9 days and ultimately she was recovered from the house of the accused which was lying open at the time of recovery (P.W.1) Shanti, (P.W.2) Ram Khelawan complainant, Head Constable Gaya Prasad Dwivedi (P.W.3) Constable Jagjivan Prasad Shukla(P.W.4) and Dr. K.K.Singhal (P.W.5) were examined on behalf of the prosecution. The accused denied the charge and examined two witnesses, namely, Sri Ram (D.W.1) and Daya Ram (D.W.2) to show that the girl was not recovered from the house of the accused. The learned Additional Sessions Judge believed the prosecution version and passed the order under appeal. 3. According to the doctor, breasts were well developed and axillary and pubic hair were long and black. External genitals were well developed and no marks of injury were seen on any part of the body. There were old healed hymen tears and vagina admitted one finger easily. According to the X-ray report, lower epiphysis of both bones of right wrist were not fused, all epiphysis around elbow joint were fused, lower epiphysis of femur and upper epiphysis of tibia and fibula were in state of fusion and lower epiphysis of both bones of right ankle were fused. So, according to the doctor, she was about 17 years of age. So it is a border- line case. Under the circumstances referred to above, it is difficult to say that the prosecution has proved beyond reasonable doubt that the girl was not above 18 years of age at the time of occurrence. 4. One version is that the accused cheated the girl by saying that the father had received injuries. So it is a border- line case. Under the circumstances referred to above, it is difficult to say that the prosecution has proved beyond reasonable doubt that the girl was not above 18 years of age at the time of occurrence. 4. One version is that the accused cheated the girl by saying that the father had received injuries. The other version is that the accused asked her to visit Mela and she told her younger brother and sister that she was going to Mandir and would return shortly. It is admitted that she left for Basti by bus at 10'clock in the night. There is nothing to suggest that at any stage the girl made any complaint against the accused in this connection. So from the evidence and the attending circumstances it appears that she was a consenting party. So, to my mind, no case has been made out against the appellant and he is entitled to acquittal. 5. The appeal is allowed, the order of conviction and sentences is set aside and the appellant is acquisition of the charges referred to above. He is on bail. His bail bonds are discharged.