JUDGMENT S.Z. Hasan , J. - This is an appeal against the judgment and order dated February 1, 1982 passed by Sri S.K. Srivastava, IInd Additional Sessions Judge, Lakhimpur Kheri, convicting and sentencing the accused to Seven Years R.I. under Section 376, I.P.C. and to five years' R.I. Under Section 366, I.P.C. Both the sentences were ordered to run concurrently. The accused was acquitted of the charge under Section 363, I.P.C. 2. The prosecution case is that on March 3, 1978 at about 12 in the noon Sankey accused approached the mother of Km. Phul Kumari and requested her to send her daughter to his crusher to feed cane in the expeller. He also enquired as to where Parmeshwar, the father of the girl, was gone the lady replied that he had gone to Sheopuri. Ultimately the mother of Km. Phul Kumari permitted her daughter to go to the crusher of the accused to do the needful. The prosecution case is that while the girl was busy in her work at the crusher, accused Bankey approached her and told her dolt she was wanted by her father at Sheopuri and she may accompany him to that place. The girl acted according to his advise, but accused Bankey instead of taking her straight to Sheopuri, took her on Chak roads, mends etc. This aroused the suspicion of girl, but the accused threatened her with dire consequences and ultimately she submitted to his wishes. Bankey accused took her to Gopalpur village where she was kept in a sugarcane field and one Sanwalia Pasi and his brother Buddha also met her there. From there she was taken to village Tusura where Bankey accused confined her in the house of ane Suresh for five-six days. On each night Bankey accused repeatedly raped her against her will. He did not permit her to raise hue and cry. From there the accused took her to village Bhudauri where he kept her in the house of one Gaya Prasad who was his sister's husband. The gill was confined in a Kothri there for about three months and the accused repeatedly raped her against her will under threat to kill her. After so many months the accused carried the impression that the matter had probably died down and he brought back Km. The gill was confined in a Kothri there for about three months and the accused repeatedly raped her against her will under threat to kill her. After so many months the accused carried the impression that the matter had probably died down and he brought back Km. Phul Krnmari within the limits of village Gopalpur and kept her in a sugarcane field belonging to one Raja Ram for six-seven days. Duteig all this period the girl was subjected to criminal assault against her will by the accused. It was in the night on July 1. 1978 that accused Bankey Lal and Km. Phul Kumari were sitting on the mend of the field whin they were accosted by the police party led by S.I. Inder Bahadur Singh. The accused managed to escape in the darkness, but Km. Phul Kumari was recovered from that place by the police party and after completing necessary formalities she was produced at the pa ice station in the next morning. She was medically examined in the Mahila Hospital, Lakulmpur Kheri on July 2, 1978. but since the X-ray machine was not in w eking order 'here, the girl was sent District Hospital, Sitapur where the X-ray Examination took place on July 3, 1978. Thereafter Km. Phul Kumari was given in the Super dig of her father. 3. Parmeshwardin. the father of the girl, returned back from Sheopuri village the same evening. He enquired from his wife as to where Km. Phul Kumari was. He was told by his wife that Bankey accused had taken the girl to his cane crusher. He then wert to the came crusher where he met Ram Bhajan and Hardwari who told him that Bankey accused had brought Km. Phul Kumari to the cane crusher at about 12 noon. They further informed him that Bankey had taken the girl from the cane crusher on the pretext that she was wanted by her father at Sheopuri. Thereafter Parmeshwar Din searched for his missing daughter in the neighbourhood but without any success. He then lodged a written report Ext. Ka-1 at P.S. Neemgaon on March 6, 1978 at 6.15 p.m. A case under Sections 363 and 374, I.P.C. was registered. Thereafter Parmeshwar Din searched for his missing daughter in the neighbourhood but without any success. He then lodged a written report Ext. Ka-1 at P.S. Neemgaon on March 6, 1978 at 6.15 p.m. A case under Sections 363 and 374, I.P.C. was registered. The investigation of the case was entrusted to S.I., Inder Bahadur Singh who made local inspection of the place, recorded the statements of the witnesses and ultimately succeeded in recovering the girl in the night of July 1, 1978 from the field of Raja Ram of village Gopalpur. The accused managed to escape. The Investigating Officer recorded the statements of the prosecutrix Km. Phul Kumari. The accused surrendered in court. After completing investigation the charge-sheet was submitted. 4. The prosecution in support of its case examined P.W. 1 Parmeshwar Din, P.W. 2 Km. Phul Kumari, P.W. 3 Net Ram, P.W. 4 Hardwari and P.W. 5 Sub-Inspector Inder Bahadur Singh. The accused pleaded not guilty against the charges framed against him and maintained that he was implicated due to enmity. The learned trial Judge believed the prosecution version and sentenced the accused as aforesaid. Hence this appeal. 5. There is no written proof regarding the age of the prosecutrix. The oral evidence shows that she was 17 years of age. According to the doctor, she was between 16 and 18 years of age. The learned trial Judge observed in his judgment however, as the prosecutrix is a border line one. I proceed to scrutinise this aspect of the matter of my own in the larger interest of justice'. At this stage I may add that the accused was acquitted of the charge under Section 363, I.P.C. The doctors have yet to find any instrument or method to measure the age with exactitude. It is a border line case. So, to my mind, the prosecution has failed to prove the girl was below 18 years of age. The facts and figures mentioned in the medical report and the conduct of the girl go to suggest that she was above 1S years of age. 6. The main question to be seen is as to whether the girl was a consenting party or not. The learned trial Judge observed that the girl was in the court room for hours and she locked a picture of innocence and during cross-examination she was in tears. 6. The main question to be seen is as to whether the girl was a consenting party or not. The learned trial Judge observed that the girl was in the court room for hours and she locked a picture of innocence and during cross-examination she was in tears. He further observed that the girl locked a picture of innocence and seemed incapable of doing any thing fishy, so she has been without-blemish. All these facts induced the learned Judge to believe her. His reasoning is quite sentiment. It would suffice to say that according to the medical report this girl being unmarried was used to sexual intercourse. So I am not going to extend any such presumption in her favour nor any appeal to sentiments should be allowed. The accused went to the house of the prosecutrix and asked her mother to send her daughter for working because the father of the prosecutrix was out and it was also disclosed by the mother to the prosecutrix that her husband had gone to Sheopuri. It is said that the girl, who comes from labour class, used to work as labourer, so she went to work as labourer at the crusher of the accused and after she had worked for some time the accused is said to, have told her that her father had called her to Sheopuri and so he would take her there from her answers and the medical report appears that she is major and capable of giving intelligent answers to questions put to her. Under the circumstances of the case, she should have in the normal course told the accused that her mother should be approached first. There was no sense in going ail alone with that man to Sheopuri. She met several persons. She was taken to a good number of places. but at no stage she mate any protest. When she was sitting outside the field on the mend along with the accused in dark night a torch was flashed, but she never cried that she was a prisoner and that the person who was flashing the torch should come to her rescue. She disappeared on March 3, 1978 and was recovered on July 1, 1978. During this long period she was taken to various places and she met various persons. She could have easily informed at least independent persons s about her plight. She disappeared on March 3, 1978 and was recovered on July 1, 1978. During this long period she was taken to various places and she met various persons. She could have easily informed at least independent persons s about her plight. A least in one village she reached in the morning and it would he nu-surd to imagine that she did not meet any one. 7. It was contended that the accused is an old one-eyed man and this young girl could not marry him and, therefore, there as no question of any consent. 'Wealth can purchase any thing'. So far as sex is concerned, necessary 'arrangement' can be made a women if she so desires. So, to my mind, the girl was a consenting party. The prosecution case is that she was below 18 years of age. The probabilities are that she was above 18 years of age. The prosecution has failed to make out a case against the accused. 8. The appeal is allowed, the order of conviction and sentence is set aside and the appellant is acquitted of the charges refer to above. He is on hail. His hail bonds rep discharged.