VIRENDRA SARAN, J. Mohd. Yaseen has filed this appeal against the order dated 6-6-1983 of Sri P. P. Gupta, Additional District and Sessions Judge, Barabanki, passed in S. T. No. 138 of 1982. The learned Trial Judge has convicted the appellant under Section 363 I. P. C. and sentenced him to undergo two years R. I. 2. The prosecution case, in brief, in that the appellant, Mohd. Yaseen had taken a contract for construction of a culvert in village Darveshpur in the year 1980. He used to sleep in a chappar outside the house of Smt. Sundara, the victim of the offence. He stayed there for nearly 3 months. The father of Smt. Sundara was in service out of station and used to reside at the place of his posting while Smt. Sundara was living all alone in the village with the mother and brother. Her brother was a lad of 17 years of age. On the fateful night, the appellant entered into her house and committed rape with her. He also threatened Smt. Sundara with dire consequences in case she made any disclosure of the rape to anyone. There after the appellant started perpetrating rape on her on very 4th day and when smt. Sundara became pregnant she asked the appellant to get an abortion arranged. The appellant agreed to the suggestion made by Smt. Sundara. At the agreed date and time the appellant waited for Smt. Sundara outside the village and Smt. Sundara joined him there. She also took away ornaments and Rs. 200/- cash with her from her house. Both of them set out for Lucknow for an abortion. They came to Barabanki by bus and thereafter went to Dewa. On the way they came across two police constables. Smt. Sundara cried out for help. The police constables overpowered the appellant. They took the appellant and Smt. Sundara to the Police Station where Smt. Sundara lodged the first information report. Thereafter the statement of Smt. Sundara was recorded before a Magistrate under Section 164 Cr. P. C. 3. After investigation, the appellant was charge-sheeted and in due course he was committed to the Court of Sessions. 4. At the trial the appellant denied the charge and claimed to be tried. 5. The learned Sessions Judge partly believed the prosecution story and partly dis believed the prosecution case. P. C. 3. After investigation, the appellant was charge-sheeted and in due course he was committed to the Court of Sessions. 4. At the trial the appellant denied the charge and claimed to be tried. 5. The learned Sessions Judge partly believed the prosecution story and partly dis believed the prosecution case. He convicted the appellant under Section 363 I. P. C. but acquitted him of the charges under Sections 376 and 366 I. P. C. 6. I have heard Sri Virendra Bhatia, learned Counsel for the applicant and the learned State Counsel. 7. The anchor sheet of the prosecution case is the evidence furnished by (P. W. 1) Smt. Sundara. She has narrated the entire story. She has also proved the first information report of the case. Smt. Sundara has stated that when she became pregnant, she asked the appellant for arranging for an abortion. She stated that the appellant did not agree to the suggestion made by her for nearly 8 days but on further pursuation made by her he yielded to take her to Lucknow for an abortion. On the appointed date and time, she left the house with ornaments and cash and met the appellant at the appointed place. Thereafter both proceeded to Barabanki on a bus and from Barabanki they travelled to Dewa. It was also stated by her that two police constables met them on their way to Dewa and she cried out. In her cross- examination she admitted that the she kept the doors of her room open at night which enabled the appellant to come and commit rape with her. She further ad mitted that she did not disclose about the rape to any body on the following day or even thereafter. She did not resist the rape being committed upon her. 8. The entire narration of events by Smt. Sundara goes to show that she was a consenting party and she had deliberately kept the doors open at night for easy ingress of the appellant without there being any noise. The evidence of Smt. Sundara leaves no room for doubt that she was willingly carrying on with the appellant and problem arose only when she became pregnant. It was on her insistence that the appellant yielded to take her to Lucknow for an abortion. The evidence of Smt. Sundara leaves no room for doubt that she was willingly carrying on with the appellant and problem arose only when she became pregnant. It was on her insistence that the appellant yielded to take her to Lucknow for an abortion. Even on the fateful day, the appellant did not go to her house but waited outside village near a culvert where Smt. Sundara joined him and both started for Lucknow. 9. Thus it would be seen that Smt. Sundara herself left her parental house on her own accord and joined the appellant outside the village. The element of taking her out of the lawful guardianship is wanting in the present case as Smt. Sundara herself left the house. 10. The learned Sessions Judge convicted the appellant simply because he was of the view that Smt. Sundara was below 18 years of age on the date of incident. The learned Sessions Judge has lost sight of the fact that there can always be a difference of about 2 years in the assessment of age by a medical expert and thus Smt. Sundara may well be of 18 years of age. Since Smt. Sundara went with the appellant on her own accord not offence is made out against the appellant and the conviction of the appellant cannot be sustained. 11. The appeal is hereby allowed. The conviction and sentence of the appellant are set-aside. The appellant is acquitted of the charge under Section 363 I. P. C. The appellant is on bail. He need not to surrender. His bail bonds are cancelled. Appeal allowed. .