JUDGMENT 1. -On April 14, 1982, at about 8.00 A.M., PW.2 Rameshwar lodged a report with P/s. Gudha alleging therein that during the intervening night of 13-14 April, 1982, when he was sleeping at his Dhani alongwith other members of his family, including his minor daughter PW.4 Santosh, the appellants alongwith one mala Ram, Sarpanch, (since acquitted by the trial court), reached there, belaboured him and his wife Smt. Parmeshwari, PW.3, and forcibly kidnapped his minor daughter Santosh, PW.4. On this report PW.6 Ramdhan Sharma, S.I., registered a case for the offences Under Sections 363, 395, 147 and 323 IPC against the appellants and one Mala Ram, aforesaid and commenced the investigation. 2. On 24.5.82 PW.6 Ramdhan Sharma, S.L, received an information from his Dy. S.P, who was supervising the investigation, that the appellants had brought the kidnapped girl PW.4, Santosh, to the court premises. Sh. Ramdhan Sharma, therefore, reached the court premises and found Santosh, PW.4, there in the company of the appellants. He arrested the accused persons PW.8 Sobha Singh. A.S.I., and PW.9 Kanwardheer, Inspector C.I.D., completed the investigation and charge-sheeted the present appellants and Mala Ram Sarpanch (aforesaid), in the case. 3. The learned Sessions Judge tried the present appellants and Mala Ram for the offences Under Sections 363, 366, 376, 323 and 342 IPC. He, however, acquitted Mala Ram, Surpanch, but convicted and sentenced the present appellants in the following manner: 1. Gordhan, Dedha Ram,Dharampal, Mam Chand and Jairam for the offence U/s. 363 IPC 1 years's R.l. + Rs. 100/-fine. for the offence U/s. 366 IPC 2 year's R.l. + Rs. 200/- fine. 2. Man Chand and Jai Ram for the offence U/s. 343 IPC 6 months R.l. 3. Mam Chand for the offence U/s. 323 IPC 3 months R.l. 4. Jai Ram for the offence U/s. 376 IPC 4 years's R.l. + Rs. 200/- fine. 4. The learned counsel for the appellants urged that PW.4 Santosh was much above the age of 16 years at the time of alleged commission of offence and that she had herself left the house of her parents in order to live with Jairam, appellant, as his wife. It was submitted that PW.2 Rameshwar thought of marrying PW.4, Santosh, with one Devi Sahai of Sirohi, a widower with two children, but with whom Santosh did not want to marry. It was submitted that PW.2 Rameshwar thought of marrying PW.4, Santosh, with one Devi Sahai of Sirohi, a widower with two children, but with whom Santosh did not want to marry. Therefore, PW.4 Santosh had herself come to the house of her elder sister Vimla DW.4, who was married with Mam Chand, appellant, at village Gadhla. It was further submitted that Smt. Santosh was never forced to have sexual relations with Jairam, appellant, against her will and consent and that she was never raped by him. It was further submitted that the prosecution theory did not inspire confidence and, therefore, the appellants should have been acquitted. 5. The learned public Prosecutor, however, submitted that in view of the statements of PW.3 Smt. Parmeshwari and PW.2 Rameshwar, the mother and father of Santosh, PW.4, respectively, the prosecutrix was a minor girl of about 13-14 years and since she had been kidnapped by the appellants from the lawful guardianship of her parents, the appellants had committed an offence Under section 363 IPC. The learned Public Prosecutor further submitted that since Santosh was a minor girl below 16 years of age and was subjected to sexual intercourse, may be with her own consent, the offence Under section 376 IPC was also committed against her by Jairam, appellant. The learned Public Prosecutor thus supported the case of the prosecution. 6. I have closely examined the evidence on the record of the lower court. In order to prove the charges against the appellants, prosecution had examined 10 witnesses. PW.2 Rameshwar and PW.3 Parmeshwari are the father and mother or Smt. Santosh, prosecutrix. The substance of their evidence is that during the fateful night all the appellants alongwith Mala Ram, the acquitted co-accused, had reached the Dhani of the witnesses in the late hours of the night and after having given a beating to PW.2 Rameshwar and PW.3 Parmeshwari, they had kidnapped Smt. Santosh. Dharampal, appellant was stated to be the driver of the Jeep. The report of the incident had been filed in the following morning at 8.00 A.M. and the version of kidnapping of Santosh by the present appellants had been given therein. Soon after the occurrence, PW.1 Dr. Vidyadhar had examined PW.3 Parmeshwari and had found swellings on two places of her body and such injuries had been caused to her with some blunt edged weapon within the past 24 hours. Soon after the occurrence, PW.1 Dr. Vidyadhar had examined PW.3 Parmeshwari and had found swellings on two places of her body and such injuries had been caused to her with some blunt edged weapon within the past 24 hours. This evidence, therefore, suggests that the appellants had certainly reached the 'Dhani' of the witnesses and forcibly taken Santosh, PW.4, with them, after causing simple hurt with blunt weapon to PW.3 Smt. Parmeshwari. 7. However, the main point for consideration in the present case is whether Smt. Santosh had achieved the age of discretion/judgment/understanding at the relevant time so as she could be said to be a consenting party to her alleged kidnapping or abduction, as the case may be, and also to her having been allegedly subjected to sexual intercourse by Jairam, appellant. It may be stated here that on her examination by PW.7 Dr. N. Hussain and PW.10 Dr. Kusumlata Sharma at B.D.K. Hospital, Jhunjhunu on 24.5.82 at 5.00 RM., PW.4, Santosh, had been found to have undergone sexual experience. They had opined that Santosh had been subjected to sexual intercourse, though the period of such intercourse could not be told by them. Santosh was young girl of marriageable age and, therefore, kidnapping or abducting her, in the facts and circumstances of the case, clearly suggests that she had been taken with the intention that she may have sexual intercourse with a male. Jairam, appellant, in this case. Therefore, the pertinent question to be answered in the present case is whether in the facts and circumstances, attending on the commission of the alleged offences against PW.4, Santosh, it may be stated that in taking Santosh with them the appellants had committed the offences, with which they had been charged. 8. In the consideration of the above question the age of Santosh at the relevant time is of much relevance and importance. PW.2 and PW.3 Rameshwar arid Smt. Parmeshwari, her father and mother respectively, have stated that Santosh was a girl of 13-14 years of age at the time of the commission of the offence in the present case. Both these witnesses are quirt illiterate and they could tell the age of Santosh on the basis of their memory and with reference to the ages of their other children. PW.2 Rameshwar stated in his cross-examination that Santosh was five years younger to his another daughter DW.4 Vimla. Both these witnesses are quirt illiterate and they could tell the age of Santosh on the basis of their memory and with reference to the ages of their other children. PW.2 Rameshwar stated in his cross-examination that Santosh was five years younger to his another daughter DW.4 Vimla. Smt. Vimla has herself entered into the witness box as.DW4 and she has stated that she was 25 years of age in 1982 when her statement was recorded in the court. If the age of Santosh is determined with reference to the age of DW.4 Smt. Vimla then certainly she was much above the age of 16 years, and for that matter, even the age of 18 years at the time of commission of the offence in the present case. PW.2 Rameshwar and PW.3 Smt. Rameshwari being quite illiterate and having made no correct account of the age of Smt. Santosh, a reference may be made to the clinical age Of Smt. Santosh as has been given in the present case by PW.7 Dr. N. Hussain and PW. 10 Dr. Kusumlata Sharma. Both these expert witnesses had examined Smt. Santosh for determination of her age as also for proof of commission of rape on her. With reference to the X-ray examination of the relevant bones of Smt. Santosh both the expert witnesses have opined that she was above 16 years but below 17 years of age on the date of examination on 24.4.82. The witnesses have also given the scientific data, which helps determination of the age of Smt. Santosh. They have stated that she was having 28 teeth, her breast and aerola were well developed and that the Epiphysis around the elbow joints had been fused and the Epiphysis of the lower end of radius and distal end of ulna had been partially fused. PW.7 Dr. N. Hussain has admitted that according to Dr. J.S. Saxena and Dr. S.K. Vyas, Ephyseal union at the wrist of the females takes place around 17-18 years of age. The witness has further admitted that Modi is of the opinion that epiphysis around elbow joints and around the wrist joint of the distal end of radius and ulna appears in female around the age of 17-18 years. J.S. Saxena and Dr. S.K. Vyas, Ephyseal union at the wrist of the females takes place around 17-18 years of age. The witness has further admitted that Modi is of the opinion that epiphysis around elbow joints and around the wrist joint of the distal end of radius and ulna appears in female around the age of 17-18 years. Though the evidence of an expert witness is relevant Under section 45 of the Evidence Act otherwise such evidence being the evidence of a third person is not of much help but if the evidence of such witness is based on some scientific date then the scientific date given by the witnesses makes direct evidence in the case and on examining the opinion of expert witnesses with reference to the scientific date found by him, the court may make its own opinion on the point in question. In the present case the scientific date given by the two expert witnesses is direct evidence Under section 51 of the Evidence Act and makes the basis for the opinion of the expert witnesses and is accordingly a relevant evidence for the consideration by this court. Since the oral evidence on the point besides being interested is not specific and the clinical age, determined by the two expert witnesses is found based on scientific date, collected by the witnesses, such expert evidence should be given due weight. After having considered the entire facts and circumstances on the point I am of the opinion that Smt. Santosh was about 18 years of age at the time of commission of the offence and that at that age she had acquired the age of discretion and understanding so as to make her independent judgment. 9. It is clearly gathered from the statements of PW.2 Rameshwar and PW.3 Parmeshwari that their elder daughter DW.4 Smt. Vimla was married with Mam Chand, appellant. PW.3 Parmeshwari has admitted in her cross-examination that Mala Ram, Sarpanch, had once or twice talked of Santosh's engagement with Jairam, appellant. Since their elder daughter was married with Mam Chand, appellant it could have been quite reasonable and probable also that the parties could have thought of engaging Smt. Santosh with Jairam, appellant, who happened to be the younger brother of the husband of her own elder sister DW.4, Smt. Vimla. Since their elder daughter was married with Mam Chand, appellant it could have been quite reasonable and probable also that the parties could have thought of engaging Smt. Santosh with Jairam, appellant, who happened to be the younger brother of the husband of her own elder sister DW.4, Smt. Vimla. DW.4 Smt. Vimla had clearly told that Santosh had been engaged with Jairam, appellant, much before the incident in the present case and that gifts in the form of some silver ornaments had also been given by her in-laws to her parents as token of love and affection towards the girl engaged. She had further stated that Santosh used to visit her house, which was at a distance of one kilometre only from her parents house and that she had come in contact with Jairam, appellant and that both of them liked each-other. She has further stated that Santosh had left in the company of Jairam, appellant, for Punjab and that they had lived together for sufficiently long time. This version given by this witness is probablised by the statement of Santosh herself who has stated that after her taking away from her parents house the appellants had taken her to a number of places, namely Suhasara, Bhobhia, Begarh, Ramanwas, Jaisinghpur, Mohanpura and in the end to Jhunjhunu. All these places were those places where the relations of not only the appellants but also of the parents of Santosh lived. It is an undisputed position that Santosh had been found in court compound at Jhunjhunu and her recovery therefrom affords truth to the defence theory that the appellants had themselves taken Santosh to the court compound in order to legalise the relations of Santosh and Jairam, appellant. The frequent movement of Santosh in the company of appellants and her raising no objection against such movement in public itself suggests that she was a willing party to all which happened to her. Here it may be stated that DW.2 Raghuveer Singh and DW.3 Banwari had stated on oath that Santosh had got her affidavit Ex.D.4 executed through them with her own consent and will and similarly her elder sister DW.4 Smt. Vimla had got her own affidavit prepared by them. In the two affidavits it had been deposed by the deponents that Santosh wanted to marry with Jairam, appellant, of her own sweet will. 10. In the two affidavits it had been deposed by the deponents that Santosh wanted to marry with Jairam, appellant, of her own sweet will. 10. In view of the above discussions it is not difficult to hold that in taking Santosh from the house of PW.2 Rameshwar during the intervening night the appellants had infact committed no offence punishable Under section 363, 366 IPC. Jairam appellant had committed no offence Under section 376 IPC in having sexual relation with her consent and will, as is implied by her conduct. The appellants can, therefore, not be guilty of the aforesaid offences. 11. Mam Chand, appellant, is however, found guilty of assaulting his mother-in-law and causing her simple injuries with blunt weapon. Such injuries were caused by him in the course of taking Santosh during the fateful night. It may be quite reasonable that since Rameshwar wanted to marry Santosh to Devi Sahai of Sirohi, who was a widower with two children and Santosh being quite a growing girl might not be liking the idea of getting married with Devi Sahai and, therefore, she herself wanted to go with the appellant, but that does not justify the voluntary assault given by Mam Chand to his mother-in-law PS.3, Smt. Parmeshwari. 12. To sum up, the impugned judgment and order are hereby modified to the extent that all the appellants are acquitted of the offences Under section 363 and 366 IPC. Jairam appellant is further acquitted of the offences Under section 376 and 343 IPC. But Mam Chand, appellant's convicted for offence Under section 323 and 343 IPC is, however, sustained. 13. Mam Chand, appellant appears to have remained in confinement in the present case. His sentence of imprisonment for offence Under section 323 and 343 IPC is, therefore, reduced to the period already undergone by him. 14. The appeal is partly allowed.Appeal partly allowed. *******