A. S. TRIPATHI, J. ( 1 ) APPELLANT/accused has preferred this appeal against the judgment and order dated 6. 6. 1991 passed by Turd Additional Sessions Judge of Vidisha, convicting the appellant u/sections 366 and 376. I. P. C. and sentencing him to undergo seven years R. I. on each count. The two sentences were directed to run concurrently. ( 2 ) THE prosecution story was that appellant had kidnapped one girl Kumari Chanchal on 3rd of March. 1989 at about 7. 00 p. m. from Talaiya Mohalla, Vidisha took her to Bhopal, from where to Ujjain and different places. Ultimately they were apprehended on 22. 4. 1989 at Railway Station of Itarsi while they were moving together. Thereafter, the prosecutrix Kumari Chanchal was medically examined by Dr. Indu Jam and the medical report was proved on record. The doctor has given an opinion that the prosecutrixts age could be between 15 to 17 years. X-ray was also done and in the X-ray report, it was specifically stated that the age of the prosecutrix could be between 15 and 18 years. Dr. M. S. Rajput, P. W. 4 has also examined this girl prosecutrix and he gave an opinion that the age of the girl could be between 14-15 years and 18-19 years. ( 3 ) THE prosecution, after framing of charges, had also examined P. W. 1 Premlata Shrivastava, relation of the prosecutrix, P. W. 2 K. K. Shrivastava father of the prosecutrix. P. W. 3 Dr. (Mrs.) Indu Jam, who had examined the prosecutrix Kumari Chanchal and had found that the girl was used to sexual intercourse and her age was about 17 years. P. W. 4 Dr. M. S. Rajput also gave his opinion about the age of the girl between 17 and 19 years. P. W. 5 prosecutrix Kumari Chanchal was also examined. She narrated the entire story as to how she was induced to go with the appellant and live with him for one and half months, and during that period a show of marriage was also made that her marriage had taken place in a temple at Ujjain. She also admitted that two letters were written by her. Ex. D/1 and Ex. D/2 in that period. P. W. 6 Avadhnarayan if a postman who had seen appellant and the girl/prosecutrix going together in the town of Vidisha. P. W. 7 Dr. She also admitted that two letters were written by her. Ex. D/1 and Ex. D/2 in that period. P. W. 6 Avadhnarayan if a postman who had seen appellant and the girl/prosecutrix going together in the town of Vidisha. P. W. 7 Dr. B. C. Oswal had examined the appellant who was found capable for sexual intercourse. P. W. 8 R. S. Vishwakarma had conducted the investigation and had submitted the challan. ( 4 ) THE appellant/accused had denied the charges. He stated that he was falsely implicated. He produced certain documents in defence and the statement of Kumari Chanchal the prosecutrix recorded u/sec. 164 Cr. P. C. as Ex. D/3. Two letters Ex. D/1 and Ex. D/2 purported to have been written by the prosecutrix were also proved on record and they were put to Kumari Chanchal. prosecutrix who admitted the same. Recovery Memo Ex. D/5 was also produced to show that Kumari Chanchal was recovered at the time when she was wearing a Saree having Sindoor on her head and ornaments indicating marriage with the appellant. ( 5 ) THE learned Trial Court after assessing the evidence found, that prosecutrix Kumari Chanchal was minor at the time of the incident and therefore charges u/secs. 366 and 376 of Indian Penal Code are proved on record and appellant was convicted and sentenced accordingly ( 6 ) IN this appeal first point raised was that the age of the prosecutrix was not properly ascertained by the Trial Court. According to the learned Counsel for the appellant/accused from the medical evidence age of the prosecutrix could safely be inferred to be 18 years. In view of the x-ray report and the medical report and the admission of Doctor M. S. Rajput, P. W. 4 who had admitted that the age of the prosecutrix could be between 14-15 and 18-19 years and, he admits the age to be 18-19 years then it could safely be argued by the defence that the prosecutrix was major at the time of the incident. On this point reliance was placed on the case of Jaya Mala v. Home Secy. , Gout. of J. and K. In that case, although it was a case of NSA yet the Supreme Court laid down principles to ascertain the age in view of medical evidence. On this point reliance was placed on the case of Jaya Mala v. Home Secy. , Gout. of J. and K. In that case, although it was a case of NSA yet the Supreme Court laid down principles to ascertain the age in view of medical evidence. Honble the Supreme Court held as under: However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly therefore, the detenu was a young school going boy. It equally appears that there was some upheavel in the educational institutions. This young school going boy may be enthusiastic about the students rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. T On this point, a decision of this Court in a case, reported as State of M. P. v. Madanlal, was also relied upon by the learned Counsel for the appellant. Honble the Supreme Court therefore, held that there can be a margin of two years in ascertaining the age in view of the report of the radiologist. ( 7 ) THE radiologist in this case, has given a report that the age could be between 15-19 years. If two years margin is allowed on the admission of 19 years of age, then definitely the prosecutrix was taken to be major. ( 8 ) THE learned Trial Court placed more reliance on the school leaving certificate in which date of birth of the prosecutrix was recorded as 10th of Oct. , 1973 and on that calculation, she was minor at the time of the incident. But when medical examination had taken place report of the radiologist had come and admission of the doctor is there that the age could be upto 19 years then two years margin on the date can certainly give benefit of doubt to the defence that the prosecutrix might have been major at the time of the incident. This fact was totally ignored by the learned Trial Court. The learned Trial Court mainly placed/its reliance on the school leaving certificate. This fact was totally ignored by the learned Trial Court. The learned Trial Court mainly placed/its reliance on the school leaving certificate. On this point, after examining medical evidence and the statements of the witnesses, it may be taken that the case of the defence that the prosecutrix was major at the time of the incident can be accepted, and the same possibility cannot be ruled out. ( 9 ) THE next point raised by the learned Counsel for the appellant was that the prosecutrix had eloped with the appellant with her full consent. The prosecutrix and the appellant both are roaming from place to place and stayed at different places. A marriage was said to have been solemnised in a temple at Ujjain. This fact is admitted by the prosecutrix Kumari Chanchal P. W. 5 herself. Even the, prosecutrix Kumari Chanchal admits in para 38 of her statement that she had two letters Exs. D/1 and D /2 to her parents on the advice of the sister of appellant. The two letters Exs. D/1l and D/2 are proved on record and they are admitted by the prosecutrix herself. The aforesaid two letters were quoted in the Judgment of the Trial Court which need not be repeated here. Continuous two letters clearly indicate that the prosecutrix had fallen in love with the appellant and she was living with the appellant on her own accord the prosecutrix decided to live with the appellant at different places and to marry in a particular temple at Ujjain. A bare reading of these two letters indicates that she had intimated to her parents not to interfere in her affairs, she had fallen in love with the appellant and decided to live with him. In view of these two letters, implicit consent of the prosecutrix can safely be inferred. This point was not at all properly considered by the learned Trial Court. The learned Trial Court simply observed that the two letters might have been got Written under compulsion, coercion etc. This fact was denied by the prosecutrix herself rather she had admitted that she had written these two letters on the advice of the sister of the appellant to apprise her parents not to bother for them. The learned Trial Court simply observed that the two letters might have been got Written under compulsion, coercion etc. This fact was denied by the prosecutrix herself rather she had admitted that she had written these two letters on the advice of the sister of the appellant to apprise her parents not to bother for them. These two letters were proved on record which indicate that the prosecutrix had left her abode on her own will and accompanying the appellant at different places and told her parents that she was living with the appellant and in that process they are said to have been married in a temple at Ujjain. Later on the prosecutrix denied the marriage but she emphatically admitted that she lived with the appellant for one and half months and stayed at different places, and she had written two letters to her parents that she had left with the appellant on her own account, she is in love with the appellant and had married with him. In view of this admission there was no scope for the prosecution to say that it was a case of kidnapping abduction or rape. ( 10 ) THUS, in view of the findings recorded above and discussions made. I find that the learned Trial Court erred in assessing the age of the prosecutrix to be minor refusing benefit to the appellant of two years margin on either side as came out in the admission of P. W. 4. Dr. M. S. Rajput. Secondly two letters written by the prosecutrix were totally ignored by the trial Court. There is no reason to observe that they were written under coercion or compulsion. Voluntary description in the two letters and as admitted by the prosecutrix herself were clearly indicative of the fact that she was leaving her parents house on her own accord and she advised her parents not to interfere with their affairs. In these circumstances the charges leveled against the appellant could not be made out against him and he is entitled to acquittal. ( 11 ) IN the result the judgment and order of the Trial Court is set aside. Appellant acquitted of the charges u/secs. 366 and 376. I. P. C. He is in jail. He shall be released forthwith. If not wanted in any other case. Appeal allowed. .