Crl.A. 29/2004 BEFORE THE HON’BLE MR JUSTICE A.K. GOSWAMI JUDGMENT AND ORDER (Oral) This is an appeal under Section 374 read with Section 482 of the Code of Criminal Procedure, 1973 against the Judgment and Order dated 31-3-03 p assed by the learned Addl. Sessions Judge (Ad hoc), Barpeta, Assam in Sessions C ase No.6/2002 awarding a sentence of 3 years rigorous imprisonment with fine of Rs. 2000/-, in default, simple imprisonment for 2 months for conviction of the a ppellant under Section 366-A IPC. 2. The prosecution case, in brief, is that on 23-3-2001 at about 1 PM, accused Hemen Roy, the appellant herein, had abducted one Smti. Pampi Devi f rom near about Saukhuti High School and to that effect an ejahar was lodged by m other of Pampi Devi, namely, Geeta Devi, on 26-3-2001 before the In-Charge of Pa thsala Police Outpost. It was also stated in the ejahar that till then there was no trace of the abducted girl. On receipt of the ejahar, GD entry No.678 dated 26-3-2011 was recorded and subsequently, the same was forwarded to Patacharkuchi Police Station, wherein Patacharkuchi PS Case No.49/2001 under Section 366-A IP C was registered. 3. The investigation commenced and during the course of such invest igation, Pampi Devi was recovered from the custody of the appellant and statemen t of Smti. Pampi Devi was recorded under Section 164 CrPC on 7-4-2001. On conclu sion of the investigation, finding materials against the appellant, chargesheet was submitted against the appellant under Sections 366-A/376 IPC. The case was c ommitted to the learned Sessions Judge, Barpeta on 30-1-2002. On 1-10-2002 charg es under Sections 366-A/376 IPC had been framed against the accused appellant. T he charges being read over, the accused appellant pleaded not guilty and claimed to be tried. 4. During the trial, prosecution examined 6 witnesses. However, def ence did not adduce any evidence. The complainant was examined as PW-1 and Pampi Devi was examined as PW-5. Father of Pampi Devi, namely, Sashi Mohan Sarma was examined as PW-2 and the Doctor who had medically examined the victim on 5-4-200 1 was examined as PW-3. One Sri Gokul Sarma who happened to be a brother of the complainant, thus being an uncle of Pampi Devi, was examined as PW-4. The Invest igating Officer of the case was examined as PW-6. 5. The accused appellant was examined under Section 313 CrPC and on such examination, while denying the accusation and circumstances appearing agai nst him, the accused appellant had also stated that Pampi Devi had accompanied h im voluntarily. 6. PW-1 in her evidence narrated about the filing of ejahar which w as exhibited as Ext-1. In her evidence, PW-1 stated that at the time of occurren ce, the age of the girl was around 15/16 years and that the accused appellant us ed to frequent her house as he was a friend of her eldest son. In the cross-exam ination, PW-1 had stated that the accused appellant was like a family member and previously also, the accused appellant and her daughter used to move about toge ther. It also came out in her cross-examination that Pampi Devi had informed her that she had gone to her sister’s place. PW-1 was also unequivocal in her cros s-examination when she stated that the accused appellant had not taken Pampi Dev i with improper or ill motive. It further appears from the cross-examination of PW-1 that during the time of occurrence, Pampi Devi was aged about 20 years. 7. PW-2 deposed that at the time of the incident his daughter was a bout 15 years old and that the accused had forcibly abducted his daughter. In cr oss-examination, he acknowledged the fact that the accused was a friend of his s on and that he used to frequent his residence. He further stated that his wife l odged the ejahar as Pampi had gone with the accused without informing her. 8. PW-3 in his evidence had deposed that on the basis of the medica l examination conducted on 5-4-2001, he did not find any sign of rape on Pampi D evi and that he had given an opinion that the age of the victim girl should be c onfirmed by a Radiologist. The evidence of PW-4 does not further the case of the prosecution in any manner, save and except that he was told that Pampi had elop ed with someone. 9. The statement of the victim girl, PW-5, made under Section 164 C rPC before the learned Magistrate is exhibited as Ext-2. In her cross-examinatio n, she emphatically stated that the accused had not taken her forcefully and tha t the accused who happens to be a friend of her brother used to visit their resi dence very frequently and that her mother had lodged the case out of misundersta nding. She also stated in her cross-examination that she had made her statement under Section 164 CrPC as tutored by the police. 10. The PW-6 had deposed about recovery of Pampi Devi from the house of the accused appellant and he had also proved the chargesheet laid by him as Ext-3. In his cross-examination, he stated that the victim had informed him tha t she had voluntarily gone there and she was not confined illegally. 11. The above is the brief sketch of the materials brought on record by the prosecution through the examination of witnesses. 12. I have heard Mr. K.K. Mahanta, learned Senior counsel ably assis ted by Mr. K. Sinha, learned counsel for the appellant as well as Mr. K. Munir, learned Addl. Public Prosecutor, Assam. 13. Mr. Mahanta, learned Senior counsel for the appellant submitted that the ingredients of Section 366-A is non-existent in the instant case and th erefore, the conviction of the accused appellant cannot be sustained in law. He has also submitted that the prosecution miserably failed to prove that Pampi Dev i was less than 18 years on the date of occurrence. With reference to the eviden ce of PW-5, the learned counsel submits that there is no doubt that Pampi Devi h ad voluntarily gone with the accused. His further submission is that in view of the evidence on record as adduced by PW-1 and PW-5, it is apparent that Pampi De vi was more than 18 years at the time of occurrence and it is in this context th at the learned counsel submits that the statement given by PW-5 under Section 16 4 CrPC stating that she was about 16 years is of no consequence, more so when th e maker of the statement had clarified in Court that such statement was given as tutored by the police. 14. Mr. K. Munir, learned Additional Public Prosecutor, Assam has su bmitted that the evidence on record would disclose that the incident had taken p lace on the last date of the High School Leaving Certificate (HSLC) Examination and in that view of the matter, certainly, the victim girl would be less than 18 years of age. The learned Additional Public Prosecutor also submits that the st atement made by the victim in her 164 CrPC statement cannot be ignored all toget her and from the aforesaid statement, which was first in point of time, it would appear that the victim girl was aged about 16 years and therefore, she being a minor, it is immaterial whether she had gone voluntarily or otherwise. 15. The evidence on record is a pointer to the fact that there was c lose relation between the accused appellant and the informant’s family and the P W-1, the informant herself, had stated that the accused was treated like a famil y member. It has also been brought in evidence that previously also the accused appellant and PW-5 used to go around. In the evidence, PW-5 does not even make a ny statement with regard to the allegations of rape and it is precisely on that count the learned trial court had acquitted the appellant of the charge of 376 I PC. 16. In order to understand the offence under Section 366-A IPC, the same is extracted hereinbelow : 366-A. Procuration of minor girl.- Whoever, by any means whatsoever, induces an y minor girl under the age of eighteen years to go from any place or to do any a ct with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punis hable with imprisonment which may extend to ten years, and shall also be liable to fine. 17. A perusal of the aforesaid section would indicate that there has to be an inducement of some kind to a minor under the age of 18 years to go fro m any place or to do any act with the intention that such girl may be or knowing that it is likely that she will be forced or seduced to illicit intercourse wit h another person. To bring home an offence under Section 366-A, it is imperative for the prosecution to prove that there was such an inducement. 18. The Supreme Court in Sannaia Subba & Anr. V. State of Andhra Pra desh, reported in (2008) 17 SCC 225 stated as follows : 39. So far as Section 366-A is concerned, in such an offence what is required t o be proved by the prosecution is that there is cogent and reliable evidence to prove and establish that a minor girl under the age of 18 years was induced to c ome from one place to the other with the intention that such girl may be forced to have illicit intercourse with another person. Therefore, in such an offence, the chief ingredient is that the girl is made to go from one place to the other with the intention or knowledge that she may be forced to have illicit intercour se. The evidence on record does not reveal any such intention. That the prosecut rix was subjected and forced to have illicit intercourse came to be stated for t he first time only during the trial, which according to us is nothing but embell ishment in order to see that the accused persons are made and are subjected to m ajor punishments. 19. Materials on record does not disclose that there was any inducem ent made by the appellant to Pampi Devi. There is also no evidence whatsoever th at it was possible or it was likely that Pampi Devi would be forced or seduced t o illicit intercourse with any other person. The prosecution has not even allege d any such case, much less led evidence to that effect. In stark contrast, the e vidence of PW 5 leads to the inevitable conclusion that she had voluntarily gone with the appellant, sans any inducement. 20. It is worth noticing that PW-1 in her cross-examination on 4-2- 2003 had stated that Pampi Devi was aged about 20 years. The incident had occurr ed on 23-3-2001 which will mean that Pampi Devi was around 18 years at the time of occurrence. Pampi Devi had stated in her evidence that she was aged about 20 years on the date of deposition recorded on 20-2-2003, effectively putting her a ge to be about 18 years at the time of occurrence. No radiological test had been conducted to ascertain the age of Pampi Devi as suggested by PW 3. The prosecut ion also did not adduce any other unimpeachable evidence with regard to the age of Pampi Devi, which according to the opinion of this Court, was required to be proved to the satisfaction of the Court. It is on record that PW 5 had appeared in her HSLC examination. The contention of Mr. Munir that a presumption can be d rawn that PW 5 was below 18 years, she having taken the HSLC examination, as, ge nerally students below 18 years take the said examination, is without any merit. The prosecution could have produced and proved the School Certificate to prove the age of PW 5. In State of Chhattisgarh v. Lekhram, reported in (2006) 5 SCC 7 36, the Apex Court had stated thus : 12. A register maintained in a school is admissible in evidence to prove date o f birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in disch arge of their public duty &. 13 &. It may be true that an entry in the school register is not conclusive but i t has evidentiary value. Such evidentiary value of a school register is corrobor ated by oral evidence as the same was recorded on the basis of the statement of the mother of the prosecutrix. 21. In Baij Nath Sah v. State of Bihar, reported in (2010) 6 SCC 736 , the Apex Court had laid down that statement under Section 164 CrPC is not subs tantive evidence and can be utilized only to corroborate or contradict the witne ss vis-à-vis a statement made in Court. In other words, it can be utilized only as a previous statement and nothing more. Therefore, in the facts and circumstan ces of the case, Ext-2 is of no avail to the prosecution case. 22. In view of the aforesaid, I am of the considered opinion that th e prosecution has failed to prove the guilt of the accused appellant under Secti on 366-A IPC. The accused appellant is acquitted of the charges framed against h im. Accordingly, the conviction and sentence dated 31-3-03 passed by the learne d Addl. Sessions Judge (Ad hoc), Barpeta, Assam in Sessions Case No.6/2002 is se t aside and quashed. The appellant is set at liberty. 17. In the result, the appeal is allowed. 18. Send back the lower court records.