Crl.A. 201/2004 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) Heard Mr. PJ Saikia, learned counsel appearing for the appellant. Also h eard Ms. B Saikia, learned Additional Public Prosecutor, Assam. 2. The appellant herein was convicted by the Additional Sessions Judge, No. 2, Tinsukia, vide judgment dated 02.07.2004 in Sessions Case No. 01(T)/2003 for offence punishable under Section 366 A of the Indian Penal Code (’IPC’ for short ) and was sentenced to undergo Rigorous Imprisonment for 3(three) years and fine of Rs.1,000/- (one thousand) in default of fine 30(thirty) days Simple Imprison ment. 3. Briefly stated, the prosecution case is that on 28.11.1997 informant nam ely Sri Kanta Prasad lodged an FIR in the Talap Outpost under the Doomdooma Poli ce Station stating inter alia that on 24.11.1997, Monday at 4 A.M., the informan t’s daughter who was aged about 16 years was taken away by the petitioner by ind ucing her. On receipt of the FIR so filed, the same was sent to Doomdooma Police Station for registering a case wherein it was registered as Doomdooma Police St ation Case No.387/1997 under Section 366 A IPC against the appellant. The Police started investigation and submitted charge sheet under the aforesaid Section of law. The case being exclusively triable by the Court of Sessions, the learned C hief Judicial Magistrate, Tinsukia committed the case to the Court of Sessions w herein Sessions Case No. 01(T)/2003 was registered and the charge was framed und er Section 366 A IPC. 4. During the trial the prosecution examined as many as 7 (seven) witnesses . The alleged victim was examined as PW 1. Sri Kanta Prasad - the informant and the father of the victim girl, Smti. Jamuna Molia - the mother of the victim, Sm ti. Laxmi Kumari - the younger sister of the victim, one Sri Alia Baraik, who is the neighbour of the victim were examined as PW 2, PW 3, PW 4 and PW 5 respecti vely. Dr. Ranjit Das, who had examined the victim and Sri Manik Nath, Sub-Inspec tor, who had received the FIR and conducted the preliminary investigation of the case were examined as PW 6 and PW 7 respectively. 5. During the examination of the accused person under Section 313 of the Cr .P.C., the accused pleaded not guilty and claimed to be tried. Also declined to adduce any evidence. 6. At the conclusion of the trial, the learned Additional Sessions Judge, f ound the accused appellant guilty under Section 366 A IPC and accordingly convic ted and sentenced him as aforesaid. Hence the present appeal. 7. The factum of the victim girl PW 1 being taken away by the accused and t he recovery of PW-1 from the house of the accused is not in dispute. 8. Section 366 A IPC is being relevant in this case, the same is quoted her eunder: 366 A: procuration of minor girl.-Whoever, by any means whatsoever, ind uces any minor girl under the age of eighteen years to go from any place or to d o any act with intent that such girl may be, or knowing that it is likely that s he will be, forced or seduced to illicit intercourse with another person shall b e punishable with imprisonment which may extend to ten years, and shall also be liable to fine. 9. From a bare perusal of the Section it appears that following ingredients are necessary to rope the accused person under Section 366 A IPC: (i). That the accused induced a girl. (ii). That the person induced was a girl under the age of 18 years. (iii). That the accused induced her with intent that she may be or know ing that it is likely that she will be forced or seduced to illicit intercourse. (iv) Such intercourse must be with a person other than the accused. (v) That the inducement caused the girl to go from any place or to d o any act. From the above, it shows that inducement is the basic requirem ent of law in a case of an offence under Section 366 A IPC. 10. In the ordinary dictionary meaning, i.e. as per Oxford Advanced Learner ’s Dictionary , the words ’induce’ and ’inducement’ mean as under: induce; to persuade or influence somebody to do something . inducement: a thing that persuades somebody to do something . Again in Black’s Law Dictionary the word ’inducement’ is defined as un der: Inducement: The act or process of enticing or persuading another person to take a certain course of action. In The Law Lexicon, the Encyclopaedic Law Dictionary , the words ’induc e’ and ’inducement’ are defined as under: Induce: prevail on; to bring about to persuade. An inducement may amou nt to a Bargain . Inducement: Allurement. It is not easy to give an exhaustive definition , within reasonable terms, of exactly what is meant by the words, ’allurement or inducement’ that legally operate to constitute an invitation to enter the premi ses of another. Mere temptation does not form such an inducement. Keeping in view the legal provision and definition of the words induce and inducement forenoted, now let us appreciate the deposition of the witness es to see as to whether the above ingredients of Section 366 A IPC as well as th e meaning of the words, ’induce’ and ’inducement’ have primarily been fulfilled and satisfied in the case in hand. 11. Since PW 1, the victim girl made a statement before the Investigating Of ficer to the effect that the house of the accused was nearby her house and as su ch she knew the accused very well. She also knew that the accused was a married person. However as she fell in love with him, she called the accused and asked h im to take her away and, accordingly, with her consent they eloped. She was sent for recording her statement under Section 164 Cr.P.C., by a Magistrate, wherein she has stated that her age was 20 years and she made the same statement as was made before the Investigating Officer. The statement under Section 164 Cr.P.C. was recorded on 05.12.1997 i.e., after about 11/12 days of the date of occurrenc e. However she resiled from the statement made under Section 164 Cr.P.C., while deposing in the trial Court as PW 1. If these facts and circumstances are taken into account, it becomes doubtful that she was not a willing party in the elopem ent and in no case it can be inferred that her consent was ’induced’ by force. 12. From the above, it is seen that there was no ’inducement’ on the part of the accused. In other words, she was never enticed or persuaded to go with the accused nor did the appellant forced her to go from any place or to do any act w ith the intent or knowledge as contemplated under Section 366 A IPC. As such the primary ingredient of Section 366 A IPC appears to be absent in the present cas e. 13. In the case in hand, if this Court goes by the statement recorded under Section 164 Cr.P.C., vis-a-vis, the opinion of the Doctor in regard to the age o f the victim girl and statement recorded under Section 313 Cr.P.C., it would be evident that the victim girl is not minor, nor she was induced by the accused bu t both of them eloped with the consent of the victim girl, they being in love. 14. To establish the offence under Section 366 A IPC, the prosecution has to prove that PW 1 was minor i.e., under 18 years of age, on the date when she was taken away from her house. 15. In regard to the age of the victim girl, the prosecution relied on the e vidence of PW 1, PW 2, PW 3 and PW 6. PW 1, at the time of deposition has stated that she was 15 years old on the date of occurrence whereas PW 2 father of the victim stated her age to be 16 years and PW 3, mother of the victim stated that on the date of occurrence, the victim was aged about 16/17 years. On the other h and, PW 6, the Doctor has stated that she was about 16 years old at the time of her examination i.e., on 04.12.1997 and the occurrence took place on 24.11.1997. In cross examination, PW 6 admitted that the said age is not the exact age beca use there may be variation of two years in either side. He further deposed that she may be of 18 years or 14 years on the day of her examination. 16. In the present case, the parents of the victim girl did not produce any school certificate or birth certificate to proof the age of the victim girl. On the other hand, as per the parents of the victim girl her age was 16/17 years on the date of occurrence which is supported by the Doctor (PW 6), wherein at the examination-in-chief, the Doctor categorically stated that the age of the victim girl was about 16 years and again on cross examination PW 6 stated that she may be of 18 years of age on the day of examination i.e., after 11 (eleven) days of the date of occurrence. The learned trial Court also mentioned in the impugned judgment that though PW 1 stated that she was 15 years old at the time of occurr ence but from the evidence of PW 2 and PW 3 together with the evidence of PW 6, it is crystal clear that the victim girl was 16/17 years of age on the date of o ccurrence. The learned trial Court has further held that the Court is bound to l ook at the deposition of the parents of the victim who have clearly and categori cally stated that she was 16/17 years of age at the time of occurrence of the of fences and thus convicted the accused for the offence under Section 366 A IPC, w ithout considering the fact that while recording her statement under Section 164 Cr.PC. after 11-12 days of the date of occurrence, the victim girl stated her a ge to be 20 years. 17. From the arguments advanced by the learned counsel appearing for the par ties, the judgment and conviction of the appellant have been subjected to scruti ny in appeal, which centres round the following points: (a) The appreciation of evidence on record by the learned trial Court ha s been challenged by the appellant. (b) The inference of guilt of the accused appellant by the trial Court has also been challenged. (c) The conduct of the victim girl PW 1 in making two different statemen ts, i.e. while recording her statement under Section 164 CrPC and during deposit ion before the trial Court, which have been overlooked by the trial Court. (d) The cumulative effect of all these points above refer to an illegal conviction of the appellant under Section 366 A IPC. 18. In the above circumstances, the point for determination in the instant c ase will be: Whether the conviction and sentence of the appellant under Section 366 A IPC is sustainable in law; when the prosecution has miserably failed to prove the case under Section 366 A IPC. 19. Arguments advanced by the learned counsel have been considered and also perused the materials available on record. In the instant case, admittedly, if t he court goes through the statements of the victim girl recorded under Sections 164 CrPC vis-à-vis the opinion of the doctor in regard to the age of the victim girl and the statements of the accused recorded under Section 313 CrPC wherein h e has also stated that the victim girl was about 20 years old, a doubt has been created as to whether the girl was 18 years or 16 or 17 years on the date of occ urrence. Therefore, the benefit of doubt should go to the accused and I rely the opinion of the Doctor PW 6 who has stated that the girl might be of 18 years of age. While the learned trail Court had the opportunity of seeing the victim gir l who appeared in Court as PW 1, ought to have scrutinize strictly, not only her evidence but about her age from a rough estimation of appearance, movement, gui lt etc. But that has not been done in the instant case. For this ground alone, t he conviction and sentence passed by the learned trial Court requires interferen ce. 20. That being the position, this Court is inclined to hold that the convict ion and sentence of the appellant under Section 366 A IPC cannot be sustained in law and accordingly, the impugned order of conviction and sentence is set aside . 21. The accused appellant was granted bail by this Court vide order dated 31 .01.2005 and hence, the bail bond so furnished by the appellant shall stand disc harged. 22. In the result, the appeal is allowed. 23. Send down the lower court record.