1. - This appeal has been filed by the accused against a judgment dated 6.2.99 delivered by the learned Addl. Sessions Judge, Bali (Distt. Pali) whereby the accused was found guilty for the offences under Sections 366 and 376 of the IPC. For the offence under Section 366 of the IPC he has been awarded rigorous imprisonment for five years and a fine of Is. 1,000/-. For the offence under Section 376 IPC, 7 years' rigorous imprisonment and a fine of Rs. 1,000/- has been awarded. For non-payment of fine, additional simple imprisonment for three months has been awarded on both the counts.

2. The FIR Ex.P/5 was lodged on 1.7.95 by PW-10 Kheti, who happens to be the maternal uncle of the prosecutrix Smt. Kaniya (PW-6). According to the FIR some 17-18 days prior to the lodging of the FIR Smt. Kaniya disappeared from village Khimara. Her mother PW-3 Smt. Nenu informed the said Kheti and during search, PW-1 Sher Singh gave the information that he had seen Smt. Kaniya going with the appellant and two other persons. A search was made for Jeevaram who was found absent from his village and it was discovered that Jeevaram had gone to somewhere in Madhya Pradesh. A Panchayat was convened but to no avail. Ultimately they went to village Timayachi in Distt. Dhar (MP) where the appellant and his brother Manaram were traced. However, they refused to return Smt. Kaniya and hence the FIR. A case under Section 366 and 363 of the IPC was registered.

3. According to the prosecution story Smt. Kaniya was recovered on 7.7.95 and her statements (Ex.D/3) Under Section 161 of the Cr.PC. were recorded. She stated that while she was returning from the house of the nurse, after getting treated for some minor injury, near the bus-stand the accused alighted from a bus and forced her to go with him in the bus and thereafter, they went up to Sanderao in the bus. From Sanderao they boarded a jeep which took them to Udaipur and from Udaipur they boarded another bus which took them to Rajgarh, where they reached at about midnight. For the remaining night both of them stayed at the bus-stand. Next morning the accused took her to a bungiow where she was made to thumb-mark various papers. According to her statement, from Rajgarh she was taken to Timayachi in MP where the brother of the accused (Manaram) was living with his family and she was also kept there against her wishes till she was recovered by the police from there. She was medically examined by Dr. Roshan Lal, PW-8, who found no injuries of any nature on her person and there was no evidence of forcible sexual intercourse. The Doctor found that she was aged more than 17 years and could be aged up to 19 years at the time of the examination. Ultimately, challan was filed in the court of the Judicial Magistrate, Sumerpur who committed the same to the said trial court. The accused was charged for the offences under Sections 366 and 376 of the IPC and he pleaded not guilty. Prosecution examined 11 witnesses and none was examined by the accused. The learned court heard the arguments and delivered the judgment on 6.2.99 as indicated above and feeling aggrieved the accused has preferred this appeal.

4. I have heard the learned counsel for the appellant and the learned Public Prosecutor for the State and have gone through the evidence recorded in the case. I find that the appeal deserves to be allowed and the findings recorded by the learned trial court are unsustainable.

5. As pointed out earlier, as per the testimony of Dr. Roshan Lal, Smt. Kaniya was aged between 17 to 19 years. In cross-examination the Doctor has admitted that she could be more than 18 years at the time of the examination. There is no other evidence to establish that Smt. Kaniya was aged less than 18 years at the time of the incident. Her mother Smt. Nenu (PW-3) was the best witness in this respect. However, in her examination-in-chief she has not disclosed the actual age of Smt. Kaniya. She has admitted that there was a Ration Card of the fami