L. RATH, J. ( 1 ) APPELLANT No. 1 having been convicted under sections 376 and 366, I. P. C. and sentenced to R. I. for eight years on each count with direction that the sentences would run concurrently, and appellant No. 2 having been convicted under section 366/109, I. P. C. and sentenced to R. I. for six years, have preferred this appeal. ( 2 ) PROSECUTION case in nut-shell is that appellant No. 1 kidnapped on 7-11-1983 P. W. 1, a minor girl, from the lawful custody of her parents from her college premises and after taking her to different places underwent a form of marriage with her and cohabited with her till 17-1-1984. The version of the prosecution as appears from the evidence of P. W. 1 is that since her school going days, i. e. class XI she was being approached by appellant No. 1 through letters which she at first did not respond but later on acknowledged and they grew acquaintance. On the date of the occurrence, the appellant No. 1 met her with a car outside her college and persuaded her to accompany him to Dhauligiri near Bhubaneswar. She though was reluctant at first accompanied him along with another friend of her, Manjushree. On the way appellant No. 1 told her first to go to Konark and then to come back to Dhauligiri. They accordingly went to Konark and there leaving Manjushree in the car, went on a walk in the sea beach. While returning from Konark appellant No. 1 stopped the car near Shiva Guest House at Dhauli Chhak where leaving both the girls in the car he went inside the Guest House and arranged some cold drinks for the girls and then all of them came back to Bhubaneswar. Manjushree got down from the car near Kalpana Chhak. While P. W. was to get down at her home, appellant No. 1 requested her to go to Shiva Guest House to have meals to which she agreed. At the Guest House instead of taking meals in the dining hall they went inside a room with the appellant No. 1 informing P. W. 1 that he had arranged the meals to be taken inside that room. At the Guest House instead of taking meals in the dining hall they went inside a room with the appellant No. 1 informing P. W. 1 that he had arranged the meals to be taken inside that room. After taking meals, appellant No. 1 persuaded P. W. I, and against her wish copulated with her and thereafter both of them came back to Rajmahal Chhak and there while P. W. 1 was sitting inside the car, the appellant No. 1 got down and talked with his friend appellant No. 2 and from there all the three proceeded towards Unit 8. At Unit 8, P. W. 1 was taken to the house of a relation of the appellant No. 2 and left there and appellant No. 2 remained there with her while appellant No. 1 went away with the car. Appellant No. 1 came to that house at about 10 p. m. and both she and P. W. 1 remained in that house, that night. Appellant No. 2 left that house in the night. Next day P. W. 1 was taken to Bapuji Nagar to the house of another person where there were four to five boy friends of the appellant No. 1. Appellant No. 1 went outside and brought a new saree for her. That night she spent with the family members of that house. Next day both the appellants came with another car driven by a driver. P. W. 1 was taken inside the car and made to fall flat on the seat with both the appellants sitting one at her head and the other at her feet and was taken to a room near the Sainik School to the quarters of some person where no family was staying and from there in the evening she was taken to Lakheswar Mahadev temple situated on Bhubaneswar-Cuttack road where some sort of marriage was gone through and there was exchange of garlands. That night they returned to the same quarters of Sainik School and stayed there for four to five days. The appellant No. 1 persuaded her to remain like husband and wife to which she objected but when appellant No. 1 further told that they had married in the temple, she consented and appellant No. 1 had intercourse with her. That night they returned to the same quarters of Sainik School and stayed there for four to five days. The appellant No. 1 persuaded her to remain like husband and wife to which she objected but when appellant No. 1 further told that they had married in the temple, she consented and appellant No. 1 had intercourse with her. Then appellant No. 1 took herto Borhampur in another Ambassador car and kept her in a house for about twelve days and there also the copulation continued. Then she was taken to the house of Binapani Behera in Museum Flat at Bhubaneswar where they stayed for about ten to fifteen days as husband and wife and had sexual intercourse. One day the Crime Branch police came there and interrogated Binapani Behera as to whether any girl was concealed in her house to which she denied and thereafter she was taken to another house where she was locked from outside. The same day at around 10. 00 a. m. she was rescued by the police. ( 3 ) IN a case under sections 376 and 366, I. P. C. the age of the victim girl is of paramount importance her consent being a necessary ingredient in the offences depending upon her age. If her age is below sixteen years and she was raped, her consent is immaterial, but if she is above sixteen, sexual intercourse with her consent would not amount to rape. So far as the offence under section 366, I. P. C. is concerned, it would not be a case of kidnapping if she is above eighteen years though it may amount to abduction. ( 4 ) THE prosecution has sought to establish its case as regards the age of P. W. 1 on the basis of her own evidence, the evidence of the medical officer P. W. 8 who had examined her, the evidence of the clerk of the school who produced the admission register and the evidence of P. W. 11, father of P. W. 1. So far as lack of her consent is concerned, the prosecution relies on the evidence of the victim girl. On the other hand, the defense relies on the evidence of P. W. 8, the doctor, Ext. 11, the medical report as also Ext. 4, the letter written by P. W. 1 to appellant No. 1. So far as lack of her consent is concerned, the prosecution relies on the evidence of the victim girl. On the other hand, the defense relies on the evidence of P. W. 8, the doctor, Ext. 11, the medical report as also Ext. 4, the letter written by P. W. 1 to appellant No. 1. So far as the age is concerned, it is the statement of P. W. 1 that her date of birth is 19-6-1966 and as such by the date of the occurrence her age would be 17 years 4 months 19 days. That being so, if her consent to the act of sexual intercourse is found, the offence of rape would not be established against appellant No. 1, a position which is readily conceded by the learned Addi. Govt. Advocate. As such for the offence under section 376, I. P. C. the only question to be considered is whether there was consent of the prosecutrix P. W. 1, which I will examine a little later. ( 5 ) ADMITTEDLY it is the prosecutrix's case that she was more than seventeen years on the date of the occurrence. It is to be seen whether she was actually eighteen or more so as to disprove the charge of kidnapping. The evidence of P. Ws. 10 and 11 does not improve the evidenceofp. W. 1 in any manner because all of them stick to the date of birth as mentioned in the school admission register, i. e. 19-6-1966. Hence the evidence of the doctor assumes importance. From his evidence it is seen that one of the third molars, i. e. one wisdom tooth had appeared in the lower jaw in the right quadrant. According to the doctor, wisdom tooth (third molars) generally appear during 17 years to 25 years of age. In Modis Medical Jurisprudence and Toxicology, 20th Edition, such opinion appears at page 29. According to Taylors Principles and Practice of Medical Jurisprudence, 12th Edition, at page 131, third molar erupts between 17 years to 21 years of age and calcification completes between 18 years to 25 years of age. Similarly Lyons Medical Jurisprudence, 10th Edition, at page 108 says that the first of the wisdom tooth erupts during the 17th or 18th year. According to Taylors Principles and Practice of Medical Jurisprudence, 12th Edition, at page 131, third molar erupts between 17 years to 21 years of age and calcification completes between 18 years to 25 years of age. Similarly Lyons Medical Jurisprudence, 10th Edition, at page 108 says that the first of the wisdom tooth erupts during the 17th or 18th year. In the Medical Jurisprudence of Jhala and Raju, 5th Edition, at page 164 the opinion is that the third molars erupt from 17th to 21st year of age and wisdom tooth, if erupted, suggest completion of eighteen years. From such authorities it would be established that the girls age was between 17 to 18 years. ( 6 ) THE next medical evidence to be seen is the result of the radiological test. The X-ray report shows that the epiphysis for sternal end of clavicle had appeared and not fused. The table given at page 178 of Cox's Medical Jurisprudence and Toxicology, 6th Edition, shows the times of union of epiphysis of different joints so far as clavicle is concerned. The fusion of the sternal end takes place between 25 years and 28 years. But in the present, case, the fusion had not taken place though the sternal end of the clavicle had appeared. From this a definite opinion cannot be reached regarding the age though it can certainlyt be said that the girl was beyond 17 years. The fact also showed the epiphysos for tip of coracoid process and acromion of scapula had appeared arid had fused. The epiphysos for head of humerus had appeared and had partially fused. A reference to thy table shows that the union of epiphysos of acromion takes places from 18 to 19 years and the union of epiphysos of head of humerus takes place between 19-1/2 to 20-1/2 years. According to the table, the union of such epiphysos takes place between 18 to 19 years. In P. W. I, according to the report, epiphysos for distal end of radius and ulna had appeared and had partially fused with their respective shafts. According to Ccx, union of epiphysos of distal end of ulna takes place from 18 to 19 years. So far as pelvis is concerned, the union of epiphysos of tuberosity takes place between 19 to 20 years. This in the girl had appeared but not fused. According to Ccx, union of epiphysos of distal end of ulna takes place from 18 to 19 years. So far as pelvis is concerned, the union of epiphysos of tuberosity takes place between 19 to 20 years. This in the girl had appeared but not fused. Similarly, epiphysos for crest of ilium had appeared and not fused, and the fusion time is given as 18 to 19 years. The fusion time for the proximal end of fibula and tibia is given as 18-1/2 years. So far as the girl is concerned, this had already appeared and fused. From this evidence it would appear that the probable age of the girl was above eighteen years which is more correct than the age mentioned in the school admission register. It is a notorious fact that in our country correct date of birth is never disclosed in the school admission register, a fact which was noticed by the Supreme Court in Brij Mohan Singh v. Priya Brat Narain Sinha and others and Ram Murti v. State of Haryana as also other cases. In Dayachand v. Sahib Singh and anothe the conflicting evidence of the school registers as regards age was not accepted in view of the more determinative evidence of the radiological examination and other physical characteristics available for ascertainment of the age. ( 7 ) CONSIDERING such evidence I would have no hesitation to hold that the girl was above eighteen years of age as on 7-11-1983 and hence the charge can be brought home against the appellants only if her consent is not found. ( 8 ) SO far as this aspect is concerned, the evidence of the medical officer P. W. 8 who had examined the girl at the first instance may be examined. P. W. 1 made her statement before him while he was taking the history of the case. Before him she had categorically stated to have voluntarily fled away with appellant No.-lon 7-11-1983 to Dhouligiri and Konark, having married him and then fled away to Berhampur and remained there for ten to twelve days and to have again come back to Bhubaneswar when she was caught by police. This statement made by her almost strikes the death knell against what she has subsequently stated. This statement made by her almost strikes the death knell against what she has subsequently stated. But even in her own statement there are several indications of her, to be the consenting party both to the act of sexual intercourse as also to the act of running away from the college. Admittedly the girl had attained the age of discretion, she was a college going girl very much conscious of her responsibilities and the consequences of her own actions. According to her own evidence, she was in correspondence terms with the appellant No. 1. She willingly left the college premises during college hours to Konark without informing anybody at home. After coming back from Konark and leaving her friend at Kalpana Chhak she again accompanied the appellant No. 1 to Shiva Guest House at Dhouli Chhak for lunch without bothering that it was 5. 00 p. m. and she was due back at home. At the hotel if she was subjected to forcible intercourse after having the meals, then the first reaction that would have been expected of her was to have got down from the car while the car stopped at Rajrnahal Chhak, call a rickshaw and go home and to have informed others that she was forcibly abducted and was subjected to forcible intercourse. Her evidence further shows that she had consciously concealed her relationship with the appellant No. 1 throughout, had not the appellant No. 1 in the Forest Park on 3-11-1983, had gone out to enjoy the sea beach at Konark along with appellant No. 1 leaving Manjushree in the car, gave an unresisting ear to the solicitations made by the appellant No. 1 that he would marry her, became a party to the marriage which was purported to be solemnised at the Laksheswar Mahadev temple and thereafter lived as husband and wife. Ext. 4 is a letter written by her after she was rescued by police and she and the appellant No. 1 had been separated. Ext. 4 is a letter written by her after she was rescued by police and she and the appellant No. 1 had been separated. In that letter she expressed rejoicing on receiving letter from appellant No. 1, addressed appellant No. 1 as her darling; and had written that she was kissing him, expressed sympathy for the anxious time the appellant No. 1 must be spending because of the separation, gave him advice to make means of steady income so that nobody would object to give her hand in marriage to him and entreated him to do it within that month. In the letter she eloquently stated of making their life a joint venture. From all those, it cannot but be inferred that P. W. 1 had consent throughout not only to the act of going away, but to the act of sexual relationship also. So far as kidnapping is concerned, it was observed in S. Varad, arajan v. State of Madras that where the girl concerned has attained the age of discretion and has prevailed over the boy to marry her, the requirement of section 366 I. P. C. of taking awayt would not be satisfied. In Thakorlal D. Vadgama v. The State of Gujarat, the decision in A. I. R. 1965 S. C. 942 (supra) was explained to mean that where the girl was not subjected to any indurement even in the past so as to form the foundation for the present as regards her leaving the parental home, the offence would be complete, but where it was the will of the girl herself to desert home and in such act she was merely helped by the accused, the offence of kidnapping would not be committed. A narration of the facts as above would show there being no evidence of the appellant No. 1 to have held out any inducement on his own rather it seems that the act of running away from home was a joint venture of both though more discussion on this aspect is not necessary in view of the fact of conclusion having already been reached of the girl being a major. ( 9 ) IN that view of the matter, I hold the prosecution not to have been able to bring home the charges against appellant No. 1 and as regards appellant No. 2 it is frankly conceded by the learned Addi. Govt. ( 9 ) IN that view of the matter, I hold the prosecution not to have been able to bring home the charges against appellant No. 1 and as regards appellant No. 2 it is frankly conceded by the learned Addi. Govt. Advocate that the charges have not been substantiated against him at all. ( 10 ) IN the result, the appeal is allowed. The conviction and sentences of the appellants are set aside. Appeal allowed.