Crl.A. 254/2002 BEFORE THE HON’BLE MRS.JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) The appellant Dharani Daloi was convicted by the learned Assistant Sessions Judg e, Darrang, Mangaldoi in Sessions Case No.3(DM-1) of 1996 for the offence punish able under Section 366(A) of the IPC and was sentenced to undergo rigorous impri sonment (’RI’ for short) for five years and to pay a fine of Rs.5,000/- in defau lt, to suffer RI for six months. 2. Prosecution case in brief is that an FIR was lodged on 16.5.90 by one Gu na Ram Doloi before Kalaigaon Police Station stating inter alia therein that on 14.5.90 at about 6 PM his minor daughter was kidnapped by the accused appellant on her way to her house. Upon hearing the news, the victim girl was searched by her father, i.e. the informant with the help of other villagers and she was reco vered from the house of the accused. On enquiry she told her father that the acc used appellant had committed sexual intercourse against her will. 3. On receipt of the aforesaid FIR police registered a case being Kalaigao n PS Case No.56/90 under Section 341/342/366/376 of the IPC and started investig ation. During investigation, police arrested the accused and also produced the v ictim girl before the Court to record her statement under Section 164 CrPC. Acco rdingly, her statement was recorded by the Judicial Magistrate at Mangaldoi. She was sent to the Mangaldoi Civil Hospital for examination and the Investigating Officer (’I/O’ for short) also recorded the statement of the witnesses and on co mpletion of the investigation submitted the charge sheet. 4. The case being exclusively triable by the court of Sessions, the learned Judicial Magistrate, 1st Class, Mangaldoi committed the case to the court of Se ssions for trial wherein on perusal of the materials on record and after hearing the learned counsel appearing for the parties, the learned Sessions Judge frame d charge under Section 366(A)/376 of the IPC against the accused. The charge so framed being read over and explained to the accused, he pleaded not guilty and c laimed to be tried. Thereafter, the learned Sessions Judge transferred the case to the court of the learned Assistant Sessions Judge, Darrang, Mangaldoi for tri al. 5. During the trial, the prosecution examined as many as nine witnesses inc luding the I/O and the Medical Officer. The defence case if of complete denial. The defence adduced no evidence. In his statement recorded under Section 313 CrP C, the accused denied the allegation leveled against him stating that he was fal sely implicated in the case at the instance of his enemy. 6. The learned trial Court after completion of the trial, on perusal of the evidence adduced on behalf of the prosecution and also materials available on r ecord convicted and sentenced the accused as indicated hereinabove. Thus being a ggrieved, the instant appeal has been filed by the accused appellant challenging the legality and validity of the judgment of conviction passed by the learned t rial Court. 7. Heard Mr. NC Das, learned Senior counsel assisted by Ms. M Devi, learned counsel appearing for the appellant. Also heard Mr. Z Kamar, learned PP, Assam. 8. It has been strenuously argued by Mr. Das, learned Sr. counsel that pros ecution has miserably failed to prove its case and hence, the impugned order of conviction and sentence are liable to be set aside. He further submitted that th ere are material contradictions in the depositions of the prosecution witnesses. In the charge of kidnapping a minor girl, the burden to prove the age of the vi ctim girl is upon the prosecution. In the instant case, parents of the victim gi rl did not produce any school certificate or birth certificate to prove the age of the victim girl. On the other hand, PW-7, the doctor has opined that the age of the girl will be approximately 15-17 years. There being no conclusive proof o f age of the victim girl, the impugned judgment convicting the accused appellant under Section 366 (A) IPC is liable to be set aside and quashed. 9. Per contra, Mr. Kamar, learned PP has submitted that prosecution has pro ved its case beyond all reasonable doubt and hence, there is nothing to interfer e with the conviction and sentence passed by the learned trial Court, inasmuch a s, there is nothing to show on record that the victim or her family had any anim osity with the accused appellant for which they had falsely implicated him in th e case. As such, according to the learned PP, the appeal has no merit and is lia ble to be dismissed. 10. The factum of the victim girl PW-6 being taken away by the accused appel lant and the recovery of PW-6 from the company of accused is not in dispute and the accused was accordingly found guilty of committing the offence under Section 366 (A) IPC which refers to procuration of minor girl. Section 366 (A) IPC is being relevant in this case, the same is quoted h ereunder: 366A. Procuration of minor girl: Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will b e, forced or seduced to illicit intercourse with another person shall be punisha ble with imprisonment which may extend to ten years, and shall also be liable to fine. 11. To establish the offence under Section 366(A) IPC, the prosecution is to prove that PW-6 was minor on the day when she was taken away by the accused. In the case in hand, learned trial Court has convicted the accused appellant under Section 366(A) IPC only upon relying the evidence of PWs-4 and 6. PW-4 has stat ed in his deposition that the age of the victim girl was 13 years and PW-6, the victim girl herself stated that her age was 12 years. However, the learned trial Court did not accept the opinion of PW-7, the doctor regarding the age of the v ictim without showing any reason. 12. In the above circumstances, the point for determination in the instant c ase will be- whether the conviction and sentence of the accused appellant under Section 366(A) IPC is sustainable in law, when the prosecution has miserably fai led to prove the case under Section 366(A) IPC. 13. Regarding the age of PW-6, the father of the victim girl, i.e. PW-4 whil e deposing in the court has stated that at the time of occurrence her age was 12 years, on the other hand, in the FIR lodged by the father of the victim, her ag e was stated to be 13 years whereas the doctor has opined that her age was appro ximately between 15 to 17 years. However, learned trial Court has found that at the time of the incident the victim girl was minor. 14. While examining the victim girl, PW-7 the doctor has found as follows: 1) General configeration-Good 2) Number of teeth-above 14/14 3) Hairs-axillary/scanty 4) Breast-Well developed. 5) sign of violence on her person- nil. 6) External and internal genitalia-developed; admit 1 finger 7) vaginal smear (slide no.3325/17.5.90--No spermatozoa seen. 8) X-ray-wrist joint- Incomplete union of epiphysi diaphysis of lower radiu s and alna. 2) Iliac crest- incomplete union of iliac crest with body of ileum. From the description of above datas it appears to me- 1) No sign of rape could be detected; 2) Her age will be approximately between 15-17 yrs. 15. Regarding the age of the victim girl, the specific evidence of PW-7, the doctor was that her age was between 15-17 years on the date of occurrence. PW-7 determined the age of the victim on the basis of physical examination as well a s X-ray report. In this background if one examines the evidence of PWs-4 and 6, it would be clear that their evidence is wholly unreliable. PW-4 has stated in h is deposition that the age of the victim girl was 13 years and the victim girl h erself stated that her age was 12 years. While discussing about the age of the v ictim girl, the learned trial Court has not considered the evidence of PW-7, i.e . the doctor nor it gave any finding as to why the evidence of PW-7, i.e. the do ctor has not been accepted. The learned trial Court merely relied on the evidenc e of PWs-4 and 6 accepting the same in the face value without discussing the med ical evidence. 16. The victim girl has categorically deposed that the accused had not given any proposal nor had any intention to have sexual intercourse. She further depo sed that the accused is her related brother and while filing the FIR her father did not ask any question. PW-2 one of the co-villager has deposed that the accus ed had married the victim and taken away to his home. PW-3, i.e. brother of PW-6 has deposed that after attending marriage, when his sister, i.e. PW-6 was retur ning alongwith her friend Parmita Kakati, Dipali Deka and Sangita Kakati on the way to her residence about 1 km away from the marriage place, the accused had fo rcefully kidnapped his sister which is not at all believable, inasmuch as, the a ccused was alone and the victim was accompanied by her three friends that too 1 km away from the marriage place of the village. In cross-examination, he has dep osed that Dipali did not inform him about the kidnapping. He has further deposed that in the house of the accused the village Headman enquired about the inciden t from the victim. He did not enquire about the incident and she also did not te ll anything else. Had the victim been kidnapped by the accused she would have im mediately told her brother regarding kidnapping which shows that the victim went to the accused with her own consent. PW-4 the father of the victim, in cross-ex amination, has deposed that his wife, i.e. mother of the victim went inside the house of the accused and recovered the victim. They did not ask anything to the victim and he also did not enquire about the incident. PW-5 one of the co-villag er has stated that at about 8 pm in the night, on the next day of the incident h e met the accused with the victim and he asked the victim to return back to her house and informed the same to the father of the victim as his house is near to her house which shows that the victim girl accompanied the accused with her cons ent. 17. Regarding the age of the victim neither birth certificate nor age certif icate has been produced on behalf of the prosecution to prove that on the day of occurrence, the victim was a minor girl. Regarding non-consideration of age of the victim while convicting the accused under Section 366 A IPC, it would be pro per to rely upon the decision in Samsul Haque @ Samsul Alam Vs- State of Assam r eported in 2005 (3) GLT 105 wherein this Court relying upon the decision of Jaya Mala -Vs- Home Secretary, Jammu & Kashmir reported in AIR 1982 SC 1297 held at para 9 as thus: In view of the above, the age of the victim becomes more relevant facto r. From the oral evidence on record PW-6 was studying in Class-IX at the relevan t time. As held by the Apex Court that birth certificate and the school certific ate are the best evidence as regards age. But admittedly no birth certificate no r the school certificate or the school register has been produced to show the ac tual age of PW-6. PW-6 claimed to be 23 years of age when she deposed before the Court on 10.9.2002. The incident had taken place on 20.8.1997 i.e. about 5 year s prior to her deposition before the court and hence from the oral evidence we f ind that the victim was 18 years old at the time of the incident. Besides the ot her witnesses, prosecution also examined the Doctor who held the ossification te st and opined that the age of the victim is above 16 years and below 18 years. I n the case of Jaya Mala v. Home Secy. J & K, AIR 1982 Sc 1297, the Apex Court ha s held that ossification test is no doubt a surer test but the margin of error i s two years on either side. Hence, this being a case of voluntary elopement and not forcible kidnapping, the benefit of this must go to the accused and therefor e, we hold that PW-6 was not a minor and she voluntarily went with the accused a nd we find that no case for kidnapping or rape is made out. 18. In view of the discussion made above, it seems that the evidences are no t sufficient and not beyond reasonable doubt to hold the accused appellant guilt y under Section 366 (A) IPC. 19. Accordingly, the appeal stands allowed. 20. It is stated at the Bar that the accused appellant is on bail. His bail bond stands discharged. 21. Send down the lower court record.