JUDGMENT : J. Das, J. - This revision arises out of the appellate judgment dated 20-8-1385 passed by Sri Section Panigrahi, Sessions judge, Keonjhar in Criminal Appeal No. 96 of 1984 upholding the conviction and sentence dated 18-12-1984 passed by Sri A.C. Das, judicial Magistrate, First Class, Champua, in G. R. Case No. 480 of 1979 convicting the Petitioner Nirmal Mangal u/s 361 and 368, I.P.C. and sentencing him to undergo R.I. for three years on each count and directing that the sentences would run concurrently. 2. The prosecution case briefly stated is that on 27-10-1979 in the evening Bithal Patra, another accused of Kalikaprasad took away Saibani Behera from her house at Kalikaprasad during the absence of her parents and handed over her to the Petitioner Nirmal Mmgal, who took her to Rampur and concealed her in his house until she was recovered by the police. F.I.R. was lodged by the father of the victim girl. After due investigation, charge sheet was submitted and thus the Petitioner stood his trial and stands convicted and sentenced as above. 3. The defence plea is one of denial. 4. The Trial Court and the appellate Court gave a finding that Saibani was kidnapped by Bithal Patra, who handed over her to Nirmal Mangal, who again took saibani to Rampur and concealed her in his house. 5. The learned advocate for the Petitioner Mr. sahoo argued that the prosecution has failed to prove that there was kidnapping of the victim girl from her lawful guardianship as there is no proof of the age of the girl. Section 361 I.P.C. is as follows: Kidnapping from lawful guardian ship Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a famale, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. As per provision of Section 361, besides other matters kidnapping constitutes only when a female under eighteen years of age is taken out of the keeping of her lawful guardian without consent of such guardian." Thus the age of the girl is the most material fact in a decision reported in Emperor Vs. As per provision of Section 361, besides other matters kidnapping constitutes only when a female under eighteen years of age is taken out of the keeping of her lawful guardian without consent of such guardian." Thus the age of the girl is the most material fact in a decision reported in Emperor Vs. Qudrat and Another, it has been clearly held that in order to prove the charge at kidnapping it is incumbent on the prosecution to prove that the victim is under the prescribed age. 6. In this case it appears that there is no proof of the age of the victim girl. 7. Sirapani Behera (P.W. 1) is the father of the victim girl Saibani Behera and he is the best person to speak about the age of the victim girl. He has clearly stated that he cannot say the year of birth of his son and daughters and he also cannot say as to what is his age. He has also clearly stated that neither he can say the age of his son nor he can say the age of his daughters. Thus, P.W. 1, who is the father has not been able to say what is the age of the victim girl Saibani. No other witness has stated regarding the age of Saibani. Saibani (P.W. 2) appears to have stated in the description portion of her deposition that she is aged about 17 years. This statement of P.W. 2 cannot be very much relied upon specially when her father has not been able, to say regarding her age and when there is no other proof like birth certificate etc. regarding the age of P. W. 2. P.W. 2 has. also affixed her L.T.I. and this goes to show that she is illiterate and she is prone to speak incorrectly regarding her age also. 8. Dr. S.N. Dwibedi (P.W. 7) examined Saibani (P. W. 2) and he has stated that the age of Saibani is 14 years. In cross-examination P.W.7 has stated that he had not made X-ray examination of the bone of Saibani. This goes to show that the examination is incomplete and proper scientific data regarding the age of the victim girl has not been collected and the age has been given by P.W. 7 by superficial observation. In cross-examination P.W.7 has stated that he had not made X-ray examination of the bone of Saibani. This goes to show that the examination is incomplete and proper scientific data regarding the age of the victim girl has not been collected and the age has been given by P.W. 7 by superficial observation. P.W. 7 has also stated that in case of deficiency of food there may not be full growth of the girl even if her age is more. At last P.W. 7 has stated that the age of Saibani may be more than 14 years. The statement of the doctor (P.W. 7) as a whole goes to show that he is not sure about the age of the victim girl. P.W. 7 has also not collected necessary scientific data to ascertain the age of the girl and his opinion is based upon, some superficial examination and observation. P.W. 7 has also clearly stated that the age of Saibani may be more than 14 and due to deficiency of food there may not be hill growth of a girl. In these circumstances, no reliance can be placed in the testimony of P.W. 7 regarding the age of Saibani. 9. In the decision reported in AIR 1989 All 708 (supra) it has been held that the doctor is in a better position to form an opinion about the age of a person than a layman, but his statement is not more than an opinion of a layman specially when it does not appear that he brought any scientific knowledge to bear upon his opinion and indications given by him could be observe by a layman. In these circumstances, it is held that the statement of a doctor based upon certain physical peculiarities such as teeth, height, etc. is no more than an opinion and that cannot take the place of real proof. In this particular case, Dr. B.N. Dwibedi (P.W. 7) has not also clearly stated regarding the particular physical peculiaritres which assisted him in determining the age. Admittedly the doctor (P.W. 7) has not taken the assistance of scientific knowledge and scientific facts to bear upon his opinion. Hence, the opinon of Dr. B.N. Dwibedi (P.W. 7) regarding the age of the victim girl Saibani cannot take the place of legal proof. In a decision reported in 1972 (2) CWR 1836 M.A. Ajij and 4 Ors. Admittedly the doctor (P.W. 7) has not taken the assistance of scientific knowledge and scientific facts to bear upon his opinion. Hence, the opinon of Dr. B.N. Dwibedi (P.W. 7) regarding the age of the victim girl Saibani cannot take the place of legal proof. In a decision reported in 1972 (2) CWR 1836 M.A. Ajij and 4 Ors. v. State it has been held that a medical evidence on age cannot be of mathematical precision and it is all the more risky to convict somebody solely on the basis of medical evidence which is likely to vary. In the light of the observations in the decisions cited above, it must be held that the doctor's opinion cannot be a substitute of legal proof of the age of the victim girl. It has already been found that there is no convincing evidence regarding the age of the victim girl. In these circumstances, it is difficult to say that the victim girl was under the prescribed age of 18 years. Hence, the prosecution has failed to prove the offence of kidnapping and as a consequence of that the offence u/s 368 according to which wrongful concealment or keeping in confinement. Kidnapped or abdcted person is an offence, cannot also be said to have been proved. Hence, the conviction and sentence passed against the Petitioner cannot be sustained. 10. In the result, the criminal revision is allowed, and the conviction and sentence passed against the Petitioner are set aside. Cri. Revision allowed. Final Result : Allowed