Hon'ble CHAUHAN, J.—Being aggrieved by the judgment dated 26.8.1988 passed by the Sessions Judge, Jodhpur, whereby the learned Judge had convicted the appellant for offence under Section 363 I.P.C. and had sentenced him to one year rigorous imprisonment and had imposed a fine of Rs. 50/- and had further convicted the appellant for offence under Section 366 I.P.C. and sentenced him to two and half years of rigorous imprisonment and had imposed a fine of Rs. 50/-, the appellant has approached this Court. 2. Brief facts of the case are that on 17.1.1986 around 11.00 a.m. Ram Singh (P.W.1) had lodged an oral report at the Police Station, Shastrinagar, Jodhpur, wherein he had claimed that he lives behind the Christian cemetery and works as a coolie at the Jodhpur Railway Station. According to him, he reaches the station at 5.00 a.m. comes back for lunch and goes back to the railway station, from where he returns back to his house around 10-11.00 p.m. On 17.1.86, he left his daughter in his house; around 12.00 a.m. his brother-in-law informed him that his daughter, Manohar Kanwar, has been kidnapped by the appellant, Manohar Singh. According to the complainant, the appellant had been visiting his house for quite some time and had been expressing his desire to marry his daughter. However, the complainant refused to do so. According to him, his daughter had taken clothes with her. On the basis of this report, a formal FIR was registered for the aforementioned offences. During the course of investigation, after a period of one month, Manohar Kanwar was recovered from Jaipur. After a thorough investigation, a charge-sheet was filed against the appellant for the aforementioned offences. 3. In order to support its case, the prosecution examined six witnesses and submitted few documents. In his statement under Section 313 Cr.P.C., the appellant had claimed that Manohar Kanwar had informed him that she was more than eighteen years old, and she had willingly accompanied him. But after going through the oral and documentary evidence, the learned Judge ahs convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 4. Mr. P.D. Bohra, the learned counsel for the appellant has contended that the learned Judge has mis-read the evidence with regard to the age of the prosecutrix. But after going through the oral and documentary evidence, the learned Judge ahs convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. 4. Mr. P.D. Bohra, the learned counsel for the appellant has contended that the learned Judge has mis-read the evidence with regard to the age of the prosecutrix. According to Ram Singh (P.W.1), he as married in Samvat 2020 and the prosecutrix was born one year thereafter i.e. in Samvat 2021. Since, the occurrence had taken place in 1986 which is equivalent to Samvat 2042-2043, obviously the prosecutrix was twenty-one years old. Secondly, the learned Judge erred in relying on the medical evidence according to which prosecutrix was anywhere between 14-15 years old. According to learned counsel, the age determined by the medical doctors is an approximate age which is subject to a variation of two years. Thus, the prosecutrix would approximately be 17 years old. Hence, she would be borderline case. The learned counsel has relied upon the cases of S. Varadarajan vs. State of Madras ( AIR 1965 SC 942 ), and the case of Shyam Sunder vs. The State of Rajasthan (1991 Cr.L.R. (Raj.) 555 = RLW 1991(1) Raj. 269). In the case of S. Varadarajan (supra) the Hon'ble Supreme Court and had opined that a girl who was on borderline of being an adult, she would be mature enough to understand the consequences fo her own act. Moreover, in the S. Varadarajan (supra), the Hon'ble Supreme Court has also opined that in case a prosecutrix were to go on her own with the accused persons, then the element of "enticing" or "taking away" does not exist. Learned counsel for the appellant has emphasized on the testimony of Smt. Manohar Kanwar, (P.W.6), wherein she has clearly stated that when she had left the house, she had taken clothes with her. Although, she claims that she was forced to travel with the appellant from the medical college to the Rai-ka-Bagh Station, but from Rai-ka-Bagh Station at Jodhpur, she had traveled to Jaipur without any protest. Moreover, she further admits that she lived with the appellant's relatives and their children at Jaipur without any protest. According, to the learned counsel, these admissions clearly prove that she had gone with the appellant out of her own free will. Thus, the elements of "taking away" or "enticing" do not exist. Moreover, she further admits that she lived with the appellant's relatives and their children at Jaipur without any protest. According, to the learned counsel, these admissions clearly prove that she had gone with the appellant out of her own free will. Thus, the elements of "taking away" or "enticing" do not exist. Hence, the learned trial Court erred in convicting the appellant for the aforementioned offences. 5. On the other hand, the learned Public Prosecutor has vehemently contended that Ram Singh, (P.W.1), had clearly stated in his cross-examination that he does not remember exactly when the prosecutrix was born. Thus, the learned Judge was justifying in relying upon the medical evidence in order to determine the age of prosecutrix. Secondly, according to the medical evidence, the prosecutrix was 14-15 years old; thus, she was a minor. Thirdly, as she was a minor, she could not have consented to go with the appellant. Even if, she had not protested, the appellant could not have taken her out of the guardianship of her parents without their consent. Therefore, the element of offences under Sections 363 and 366 I.P.C. are present in the case. 6. A bare perusal of Ram Singh's (P.W.1) testimony clearly reveals that although he claims in his cross-examination that he does not remember when his daughter was born, but subsequently he stated that he was married in the Samvat 2020. He further informs the Court that the prosecutrix was born one year, thereafter, i.e. in the Samvat 2021. He further tells the Court that he remembers he year of the marriage as an astrologer has been consulted and auspicious time was fixed. Moreover, tells the Court that prosecutrix was born one year, thereafter. Since, the incident had occurred in the year 1986, i.e. in Samvat 2042-2043, thus, according to Ram Singh, his daughter was 20 years old. However, according to the testimony of Dr. V.K. Malhotra, as (P.W.3), he was posted as medical jurist and had examined the prosecutrix. According to him, prosecutrix was anywhere between the age of 14-16 years. 7. Moreover, according to the Dr. K.K. Sabarwal (P.W.4), who was a Radiologist, the prosecutrix could be anywhere between 14-15 years old. According to him age determined by the doctors is subject to a variation of two years. Thus, the prosecutrix would be anywhere between 16-18 years old. According to him, prosecutrix was anywhere between the age of 14-16 years. 7. Moreover, according to the Dr. K.K. Sabarwal (P.W.4), who was a Radiologist, the prosecutrix could be anywhere between 14-15 years old. According to him age determined by the doctors is subject to a variation of two years. Thus, the prosecutrix would be anywhere between 16-18 years old. In the case of Vardhrajan (supra), the Hon'ble Apex Court was of opinion that a girl who is on the borderline of being a major would be mature enough to understand the consequences of her own act. This observation was made by the Apex ?Court about six decades ago. Such an observation is more pertinent and relevant in the year 1986 when incident had occurred. Moreover, in he case of S. Varadarajan (supra), the Hon'ble Supreme Court has opined that in the case the prosecutrix were to accompany the accused on her own, then the element of "enticing" and "taking away" were non-existent. A bare perusal of prosecutrix's testimony clearly reveals that in her cross-examination she has admitted that when she was called by the appellant to the medical hostel, she went of her own volition. Moreover, while leaving her house, she took clothes with her. Furthermore, while she traveled with the appellant from Jodhpur to Jaipur, she did not raise any hue and cry. Further, according to her, she had lived with the appellant's relatives and played with their children. Thus, she had gone of her own free will and had resided with the appellant for one month at Jaipur. Hence, the element of "enticing" and "taking away" does not exist in the present case. The learned Judge has ignored these facts while appreciating the evidence. 8. Hence, this Court has no hesitation in quashing and setting aside the judgment dated 26.8.1988 and in acquitting the appellant for offence under Sections 363, 366 IPC. Since, the appellant is already on bail, his bail bonds are hereby discharged. The appeal is allowed.