SHARMA, J. ( 1 ) IN Session Trail nko. 102 of 1980, Additional Session Judge, Damon convicted the appellant under Sections 366/376 I P. C. He sentenced him to rigorous imprisonment for three years under Section 366 I P. C. and to rigorous imprisonment for five years under Section 376 I. P. C. Both the sentences were ordered to run concurrently. ( 2 ) ANSUIYA (P. W. 1) is the daughter of Bhailal (P. W. 2 ). This Bhailal, his wife Kalabai and daughter Ansuiya used to work on the crusher of one Govindram at Kilain-Naka. At that very place there were huts in which Bhailal along with his wife and children used to reside. Appellant Gopal also used to work on that crusher as a Mistry. Ansuiya (P. W. 1) sometimes used to work even at Gopals residence. ( 3 ) BHAIHL (P. W. 2) in the morning of 27-4-1980 at about 8 30 A. M. had lodged the First Information Report Ex. P. I alleging therein that in the night he, his wife Kalabai and daughter Ansuiya were working. In the night Nathu Munshi asked him as to where Ansuiya was. She was, however, not found. Kanhaiya a labourer told him that she had gone towards the road, but even there she was not found. It was then learnt that Mistry Gopal Yadav is also not traceable. He, therefore, expressed an apprehension that appellant with whom Ansuiya had occasionally been working has kidnapped her. ( 4 ) HARBHAJAN Singh (P. W. 6) has his bicycle shop in Damoh near motor-stand. He has stated that on 26. 4. 1980 Gopal Yadav had taken a bicycle on hire from his shop of which an entry was made in the register. This register was seized vide memorandum Ex. P: 14. In cross-examination he has stated that the bicycle was issued in the name of one Gorelal, but in the bracket name of Gopal has been mentionej. To this name Gopal, Yadav was added after a day or two. ( 5 ) BHAGWAN Singh (P. W. 7) is the MUK-KADAM on the crusher machine of one Hiralal Thakur at Sadguwan. He has stated that the appellant had come on their crusher machine with a girl and worked on that crusher machine. The appellant used to describe that girl as his wife. ( 5 ) BHAGWAN Singh (P. W. 7) is the MUK-KADAM on the crusher machine of one Hiralal Thakur at Sadguwan. He has stated that the appellant had come on their crusher machine with a girl and worked on that crusher machine. The appellant used to describe that girl as his wife. Then there was some whispering between the women that this girl does not appear like the write of the appellant. Thereafter the appellant expressed that he docs not want to work and after taking his money went away. ( 6 ) FROM the evidence it does not clearly appear as to when and in what circumstances was Ansuiya Bai recovered. However, what Ansuiyabai (P. W. I.) who did not Support the prosecution, states that they had gone to Mahuawalay where the bicycle ,was left and from there they went on fool to Aslana. From Aslana, they went by train to Lithora and from there went to Makroniya. At Makroniya they worked for few days. She further states about having gone to Sagar and from there by a bus to a village. From that village they went to Mahuiwala where people caught hold of the appellant and informed her parents. The parents met her on the way and the appellant had fled away. ( 7 ) DR. P. P. Choube (P. W. 3) had conducted the ossification test for determination of the age of Ansuiyabai. On the basis of that examination he stated that Ansuiya was above 16 years and below 18 to 19 years in age. Ex P. 8 is his report and X-Ray plates arc Ex. P. 9 and Ex. P. 10. Dr. Shrimati Laxmi Das has conducted the physical examination of Arsuiyabai. The report of that examination is Ex. P. 5. According to that report she was below 18 years and was habituated to sexual intercourse. The hymen had old ruptures. Since she had also some difficulty in speaking, that report Ex. P. 5 was proved by her husband Dr. B. M. Das (P. W. 12 ). Dr. R. C. Rai (P. W. 11) had examined the appellant and found him capable of committing sexual intercourse. ( 8 ) THE appellant in his examination admitted that he had been working on the crusher of Govind Ram. Rest of the allegations with regard to talking and rape were denied. He did not examine any witness in defence. Dr. R. C. Rai (P. W. 11) had examined the appellant and found him capable of committing sexual intercourse. ( 8 ) THE appellant in his examination admitted that he had been working on the crusher of Govind Ram. Rest of the allegations with regard to talking and rape were denied. He did not examine any witness in defence. ( 9 ) LEARNED trial Judge found that the prosecution has failed to prove that Ansuiyaba (P. W. 1) at the time of the incident was below 18 years in age. He, however, found that she was abducted fraudulently on being told that the appellant will marry her. He also found that the sexual intercourse committed by the appellant on her was with consent which was obtained by practicing fraud on her and so such consent cannot be taken to be a valid one. He has also commented adversely on the evidence of Ansuiyabai who gave conflicting statement, as according to the learned trial Judge pressure had been brought on her to give a statement favorable to the appellant. ( 10 ) IN my opinion, the conviction of the appellant cannot be upheld. The prosecution itself, with the permission of the Court, cross-examined Ansuiyabai. She was contradicted with her statement to the police. On her own evidence she cannot be held to be a reliable witness. She held first stated that the appellant had told her that her mother was calling her on the road. She also stated that she voluntarily went with the appellant on his bicycle. In cross-examination, she has stated that the contractors, as have been named by her and who were present in Court, got the matter settled and she has thus pardoned the appellant. She has stated some further facts with regard to the said compromise. Even if it appears as the learned Judge says, that she was made to change her statement, the fact remains that before finding the appellant guilty of the offences, there has to be some legal evidence against him. ( 11 ) IF, as the prosecution case is, the appellant had taken her away by practicing fraud on her by deceitful means, she would have talked about it to someone during all those 15 to 16 days when she was with the appellant and moving from place to place. ( 11 ) IF, as the prosecution case is, the appellant had taken her away by practicing fraud on her by deceitful means, she would have talked about it to someone during all those 15 to 16 days when she was with the appellant and moving from place to place. From her testimony, it is apparent that she was a consenting party in going along with the appellant: One solitary sentence from her testimony about the appellant having proposed her to marry, cannot in the circumstances be picked up so as to hold that she had accompanied the appellant because of that allurement or deception. Similarly, but for her own testimony there is no other evidence to hold that rape as defined in Section 375 I. P. C. had been committed on her by the appellant. The statement of Ansuiya bai in any event required corroboration, which is lacking in the instant case. The finding of seminal stains and human spermatoza on her petticoat cannot in the circumstances be treated to be sufficient corroboration so as to accept a part of her testimony. Hariram (P. W. 4) and Anarilal (P. W. 5) did not also support the prosecution case and so they were contradicted by the public prosecutor with their statement to the police. ( 12 ) IN my opinion, therefore, the conviction of the appellant cannot be upheld and has to be set aside. ( 13 ) CONSEQUENTLY, this appeal is allowed. The convictions and sentences of the appellant are set aside. The appellant is on bail. His bail bonds are discharged and he need not surrender to them. Appeal allowed .