JUDGMENT 1. - This appeal is directed against the judgment date 13.3.1981 passed by the learned Addl. Sessions Judge No. 2, Jodhpur, convicting the appellant of the offence under section 366 IPC and sentencing him to three years rigorous imprisonment and to pay a fine of Rs. 500/-and in default of payment of fine 5 to further undergo R.I. for three months. 2. The prosecution case as disclosed during the trial is that the accused appellant was friendly with Mst. Pushpa. It is alleged that on 5.8.80 the appellant kidnapped prosecutrix Mst. Pushpa from her house. She was kept in the house of one Banwari Lal for five days. She returned to her home on 10 10.8.80. The FIR was registered on 6.8.80 on the information given by Devilal brother of Mst. Pushpa. After usual investigation, the police filed a charge sheet against appellant Pooran Singh and two other accused viz; Banwari and Mst. Chnoti. The learned trial court held that Mst. Pushpa and the appellant were friendly and that she left the house on her own accord. However, the court held that the charge of rape is not proved as on the date of incident, the prosecutrix was above sixteen years of age. The trial court convicted the appellant of the offence under section 366 IPC as the learned Judge found that the prosecutrix on the date of incident was only seventeen years of age i.e. below 18 years. 3. I have perused the judgment of the learned trial court as well as the statement of the prosecutrix and other evidence on record with the assistance of the learned Public Prosecutor. In my view, the learned Judge has committed error in holding that Mst. Pushpa was of seventeen years of age. According to Dr. Gajendra Kothari, P.W. 14, the age of Mst. Pushpa was years. However, he has admitted that he did not get the x-ray of the teeth and, as such, the age cannot be correctly estimated. In view of the fact that the x-ray of the teeth was not done, the medical evidence in the present case is not of much assistance. PW 1 Devilal has stated that all the brothers and sisters of Mst. Pushpa have a difference of two to three years. The eldest sister is of 34 years. In view of the fact that the x-ray of the teeth was not done, the medical evidence in the present case is not of much assistance. PW 1 Devilal has stated that all the brothers and sisters of Mst. Pushpa have a difference of two to three years. The eldest sister is of 34 years. If a certain calculation with the age of all the brothers and sisters is calculated, taking a difference of two years, then the age of Mst. Pushpa comes to around 22 years, therefore, there is a doubt whether Mst. Pushpa was actually below 15 years of age. On this view of the matter, it is very difficult to assess the age of Mst. Pushpa. In the facts of the case on the ground of age of Mst. Pushpa, the appellant is entitled to the benefit of doubt as the prosecution has failed to establish by a positive evidence that Mst. Pushpa was below eighteen years of age on the date of incident. In view of this, conviction of the appellant under section 366 IPC is not sustainable.Consequently, this appeal is allowed and the judgment dated 13.3.81 passed by the Addl. Sessions Judge No. 2, Jodhpur, is quashed and set aside. The appellant is acquitted of the offence under section 366 IPC. The appellant is on bail. His bail bonds stand cancelled.Appeal allowed. *******