Criminal Appeal (SJ) No. 63 OF 1994 ******** Against the judgment and order of conviction dated 24.1.1994 passed in Sessions Case No. 221 of 1992 by the learned 6th Additional Sessions Judge, Bhagalpur. ****** 1. SHEKHAR S/O LATE SHYAM SUNDAR PRASAD SINGH R/O AURANGABAD P.S.- KAHALGAON, DISTRICT- BHAGALPUR 2. SUCHIT KUMAR DUBEY S/O GANESH PRASAD DUBEY R/O GHORI KITA, P.S.- BALBATTA, DISTRICT- GODDA ……..….. Appellants Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : 1. Mr. N.K. Agarwal Adv. : 2. Mr. Manoj Kumar Jha Adv. : 3. Mr. Md. Javed Jafar Khan Adv. For the State : Dr. Mirtunjay Kr. Gautam APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellants have been convicted under Section 363 & 366 I.P.C. and sentenced to rigorous imprisonment for 3 years and each count in Sessions Case No. 221 of 1992 by the learned 6th Additional Sessions Judge, Bhagalpur by the judgment dated 24.1.1994. 2. The prosecution case is that on 3.3.1989 when the informant did not find his sister in the house he suspected the appellants of having kidnapped her for the purpose of marriage since they were young boys and used to reside in the upper portion of the house. 3. During trial the prosecution examined altogether 9 witnesses but the Investigating Officer was not examined. P.W.1 is the informant and brother of the alleged victim whereas P.W.2 is her cousin, P.W. 3 has been declared hostile and P.W.4, 5 and 6 are close relatives of informant, P.W. 7 is the victim herself and P.W.8 is the doctor, P.W. 9 is a formal witness. 4. It appears that P.W.1 has stated in evidence that on the night of occurrence he was woken up by the Inspector of Police who asked him where his sister was and then he started to look for but he did not find her then went to the police station and found her sitting there. It has been submitted that in fact the girl had given a statement under Section 164 Cr.P.C. wherein she had conceded that she had intended to marry the appellant no.1 and had eloped with him willingly but the police had caught the three of them and detained them in the Police Station. However, the statement was denied to have been made by her when she was examined in court. Even considering that the girl was less than 18 years of her age, on appreciation of the prosecution case and its niceties it would come to a conclusion that it appears to a case of consent between the parties and there was no element of kidnapping. Since doctor had opined that the victim was below 18 years of without specifying the estimated age, I am not inclined to accept the Doctor’s evidence. More so, since in such cases a rough estimate of the age gives some clue to the court as to whether an offence is made out or not. 5. Since, it is primary duty of the prosecution to prove its case beyond the reasonable doubt and in the background of the doctor’s evidence and non examination of the Investigating Officer, I am not inclined to accept the prosecution case as trustworthy. 6. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants by the learned 6th Additional Sessions Judge, Bhagalpur by the judgment dated 24.1.1994 passed in Sessions Case No. 221 of 1992 are hereby set aside and they are acquitted of their respective charges. The appellants are discharged for the liabilities from their respective bail bonds. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 22nd April, 2011 NAFR/ Fahad.