Criminal Appeal (SJ) No.317 of 1997 [Appeal against the judgment and order dated 19.9.1997 passed by the 1st Additional Sessions Judge, Darbhanga in Sessions Trial No.113 of 1996/ 34 of 1996] Saryug Pathak son of late Kawal Pathak, resident of Village Koela Belwa Tola Bangra, Police Station Chakia, District East Champaran …………………….. Appellant Versus THE STATE OF BIHAR ………….. Respondent For the Appellant : Mr. Madhu Prasoon, Amicus Curiae For the Respondent : Mr. Ramesh Chandra, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/ss.363 and 366 I.P.C. and while he has been sentenced to R.I. for seven years u/s.366 I.P.C. no separate sentence could be passed u/s.363 I.P.C. by a judgment dated 19.9.1997 passed by the 1st Additional Sessions Judge, Darbhanga in Sessions Trial No.113 of 1996/ 34 of 1996. 2. The case of the prosecution according to P.W.5 Yogendra Pal Singh, who is the Officer Incharge of Katra outpost is that on 26.10.1995 he learnt that two persons were staying at a temple with a minor girl, who had been kidnapped by them, upon which information he went to the place of occurrence and apprehended the present appellant and one Ghanshyam Mishra (who has been acquitted by the Trial Court) along with one girl, namely, Runni Kumar alias Kiran, daughter of Banaras Lal Das. The girl stated before the informant that she had left her house 2 having been displeased by her father and when she reached Laheriasarai Railway Station she met the appellant, who asked her to accompany him to Banaras, where she was introduced to co-accused Ghanshyam Mishra, who assured her of marriage and, therefore, they had come to the place of occurrence for performing the marriage but were instead apprehended. 3. During trial, the prosecution has examined seven witnesses. Out of whom, P.W.1 has been declared hostile whereas P.W.2 is the victim girl and she has categorically stated that when she reached Laheriasarai Railway Station she met the present appellant who asked her to accompany him to Banaras and she left with him voluntarily without any pressure. She also stated that without any pressure she had agreed to marry co- accused Ghanshyam Mishra. P.W.3 is a formal witness, whereas P.W.4 is the father of the victim and merely on the point of the girl having been missing and thereafter having been recovered from Faizabad. P.W.5 is the informant, who supported the fact of apprehension of the three persons and the statement of the girl. P.W.6 is tendered witness, whereas P.W.7 is the Investigating Officer. 4. On going through the evidence of the alleged victim, I find that there is total absence of ingredients of Section363 or 366 I.P.C. more so because there is no medical evidence about the age of the victim. The victim in her evidence has stated that she was aged about 20 years on the date of occurrence and, therefore, she was major. Once she herself stated that she had 3 gone with the Appellant with consent evidently no offence is made out. 5. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellant on 19.9.1997 by the 1st Additional Sessions Judge, Darbhanga in Sessions Trial No.113 of 1996/ 34 of 1996 is set aside. The appellant is discharged from the liability of his bail bonds. 6. Let a copy of this judgment be handed over to Mr. Madhu Prasoon, Amicus Curiae. Patna High Court Dated, 30th June, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )