JUDGMENT O. N. Asthana, J. This is the criminal appeal against the judgment and order of 2nd Additional Sessions Judge, Katihar Stated 20th July, 1983, Where the trial Judge held these accused appellants guilty for the offence punishable under Sections 451 & 366 IPC. Further the trial judge held the accused appellants kamla Paswan, Bouna & Bonai Paswan and Sattan Paswan guilty for the offence punishable under Section 366A I.P.C. and held the accused-appellant Jai Prakash Paswan further guilty for the offence punishable under Section 376 I.P.C. 2. The trial judge awarded the sentence of life imprisonment to the accused-appellant Jai Prakash Paswan @ Prakash Paswan for the offence Punishable under Section 376 I.P.C. The trial judge awarded the sentence of ten years rigorous imprisonment for the offences under Sections 366 & 366A I.P.C. and awarded the sentence of two years rigorous imprisonment for the offence punishable under Section 451 I.P.C. 3. Briefly the prosecution version is that in the night of 4/5. 8. 1977 at about 10. P.M. while Kumari Sulochana (P.W.6) aged 15/16 years was sleeping along with her mother and guardian Most Chippi (P.W.4) in the house of her mother at village Haflaganj, these accused-appellants Jai Prakash Paswan, Kamla Paswan, Sattan and Bouna committed lurking house-trespass in the night and entered inside the house of Most. Chippi and all the four accused-appellants caught hold Kumari Sulochana who was sleeping on a mat on the floor and those accused-appellants forcibly took her away along with them uttering that they will marry her with Jai Prakash Paswan as she and her mother had lodged a criminal case against him (Jai Prakash Paswan) for indecent assault and attempting rape on her. Smt. Chippi was awake and she gave cries for help and the nearby residents Uchit Paswan, Anirudh Paswan and Kisto Paswan arrived there and these village men saw that these accused-appellants were forcibly taking away Kumari Sulochana from the house of her mother. The accused-appellants lodged kumari Sulochana in the house of the accused-appellant Jai Prakash Paswan separated by a distance of two hundred houses from the house of Smt. Chippi. This house of the accused Jai Prakash Paswan is two roomed house with adjacent house of other villagemen on three sides, and the parents and two unmarried daughters of the accused Jai Prakash Paswan lived with Jai Prakash in that Aabadi house. This house of the accused Jai Prakash Paswan is two roomed house with adjacent house of other villagemen on three sides, and the parents and two unmarried daughters of the accused Jai Prakash Paswan lived with Jai Prakash in that Aabadi house. The prosecution version further is that the accused-appellant Jai Prakash Paswan kept Kumari Sulochana at her (his) house for eight days and repeatedly committed forcible rape on her during all these days. 4. Smt. Chippi came to the house of the village Mukhia next day in the morning but Mukhia was not there. Probably not satisfied with the investigation and the conduct of the police in the earlier criminal case lodged by her Smt. Chippi sent an application giving the information relating this crime against her daughter Kumari Sulochana to the District Magistrate. It appears that the District Magistrate sent her information petition to the Station Officer of the Police Station for investigation. The Investigation Officer, Sri Shashi Bhushan Mallik (PW 8) stated that this information petition of Smt. Chippi Devi was received at the Police Station but that information petition has not been filed by the prosecution in the case. 5. Shashi Bhushan Mallik, Police Sub-Inspector of the Police Station arrived in the village on 11th August, 1977, and Smt. Chippi gave him the information relating this crime. This fardbeyan of Most. Chippi is Exhibit-1. Later on its basis the formal first information report was prepared in the records of the Police Station, which is Exhibit-2. The Investigation Officer, Shashi Bhushan Mallik made the recovery of Kumari Sulochana in the presence of public witnesses Haradhan Paswan and Narad Paswan P.Ws. 2 & 3 from the residential house of the accused Jai Prakash. The recovery memo is Exhibit-4. Kumari Sulochana was sent for medical examination. Dr. R. D. Rohtagi examined her. The medical report is Exhibit-3. 6. Dr. Rohtagi noted that Kumari Sulochana had twenty eight teeth and the x-ry of the bones of her arm was taken on 13th August. 1977, and looking to the stage of fusion Dr. Rohtagi was of the opinion that her age was between fifteen to sixteen years. Further Dr. Rohtagi reported after physical examination that there were no marks of injury on any part of the body or genital. Further vegina swab was sent for microscopic examination and no sperm was found. The prosecution did not examine Dr. Rohtagi was of the opinion that her age was between fifteen to sixteen years. Further Dr. Rohtagi reported after physical examination that there were no marks of injury on any part of the body or genital. Further vegina swab was sent for microscopic examination and no sperm was found. The prosecution did not examine Dr. Rohtagi in the case. 7. The prosecution has examined Shashi Bhushan Das PW 1, Haradhan Paswan PW 2, Narad Paswan PW. 3, Chippi Devi PW 4, Sabhapati Yadav PW 5, Kumari Sulochana PW 6, Dr. Chandra Lekha Sharma PW 7 and Shashi Bhushan Mallik PW 8. 8. Accused persons have examined Kisto Paswan D.W. 1 as defence witness. 9. Shashi Bhushan Das PW 1 has been declared hostile by the prosecution. 10. Haradhan Paswan PW 2 has stated on oath that the Police Officer recovered Kumari Sulochna from the residential house of the accused-appellant hi Prakash Paswan in his presence. The prosecution tendered the statement of other recovery witness Narad Paswan PW 3 The deposition of Haradhan Paswan PW 2 establishes that Kumari Sulochana was recovered from the house of the accused Jai Prakash Paswan on 11th August, 1977 by the Investigation Officer, Shashi Bhushan Mallik in pursuance of the report of Most. Chippi. 11. Sabhapati Yadav PW 5 has proved formally the preparation of the first information report in the records or the Police Station. 12. Dr. Chandra Lekha Sharma PW 7 formally proved the signature of Dr. Rohtagj on the medical report (Exhibit-3). 13. The witnesses of fact are the prosecution witnesses Smt. Chippi PW 4 and Sulochna Devi PW 6. 14. Learned Advocate for the appellants contended that the prosecution witnesses are not reliable and the statements of these witnesses along with the facts and circumstances of the case do not establish any of the alleged charges. 15. 13. The witnesses of fact are the prosecution witnesses Smt. Chippi PW 4 and Sulochna Devi PW 6. 14. Learned Advocate for the appellants contended that the prosecution witnesses are not reliable and the statements of these witnesses along with the facts and circumstances of the case do not establish any of the alleged charges. 15. Advocate for the appellants point out that the earliest information relating this occurrence sent by Smt. Chippi to the District Magistrate was received at the police Station from the office of the District Magistrate, and the same has not been filed by the prosecution Advocate for the appellants has drawn/attention to the statement of Smt. Chippi P.W.4, where she stated in paragraph 9 that she did not make any allegation in her petition to the District Magistrate that the accused persons kidnapped or abducted her daughter Sulochana and urged that in view of this statement it was incumbent upon the prosecution to file that information petition of Smt. Chippi in the trial court. The non-filing of that petition sent by Smt. Chippi to the District Magistrate giving information relating this occurrence creates a doubt in the prosecution case. 16. Obviously on the record of the trial court is the report made by Smt. Chippi after eight days to the Police Officer. 17. The prosecution has not examined any of the independent witnesses disclosed by Smt. Chippi in her report to the Police Officer in order to prove the alleged allegation that these accused-appellants took away her daughter forcibly in the night of 4/5th March, 1977. On the other hand, the accused persons have examined one of the named witnesses of the report of Smt. Chippi, namely, Kisto Paswan D.W.1. This witness kisto Paswan has stated on oath that his house is adjacent to the house of Smt. Chippi and in the night of 4/5th August, 1977 he did not hear any cries of help and he did not see any of these accused-appellants carrying away Sulochana from the house of her mother Smt. Chippi. 18. The deposition of Smt. Chippi relating the alleged lurking house trespass in the night by the accused appellants and forcibly taking away kumari Sulochana from the house of her mother in the night of 4/th August, 1977 does not inspire confidence. 18. The deposition of Smt. Chippi relating the alleged lurking house trespass in the night by the accused appellants and forcibly taking away kumari Sulochana from the house of her mother in the night of 4/th August, 1977 does not inspire confidence. She has admitted in her cross examination that she did not mention in her information petition to the District Magistrate this alleged forcible taking away of Kumari Sulochana by the accused-appellants from her house. Though the statement of Sulochana Devi (P.W.6) made under Section 164 of the Code of Criminal Procedure before the Magistrate has not been exhibited formally, the statement of Sulochana P.W.6 shows that her attention was drawn by the State Prosecutor to her earlier statement before the Magistrate and she told trial court that she gave the statement before the Magistrate under threat from the accused Jai Prakash Paswan. She mentioned in her earlier statement before the Magistrate that she went to the house of Prakash Paswan voluntarily and willingly as she developed love and affection for the village-man Jai Prakash Paswan, and she voluntarily went to the house of the accused Jai Prakash Paswan in the afternoon at 4 P.M. and stayed at his house for long. The records of the case show that this accused Jai Prakash Paswan was lodged in jail custody on 12.8.1977, and kumari Sulochana came from her mother's custody on 16th August. 1977 in the court of the Magistrate to give her statement which was recorded under Section 164 Cr. P. C. Obviously there should not be any threat or from the accused Jai Prakash Paswan on Sulochana to make a statement favourable to Jai Prakash Paswan. The statement given by Sulochana to the Magistrate is her voluntary statement keeping in view this statement of Kumari Sulochana made earlier on oath before the Magistrate, the deposition of Kumari Sulochana P.W.6 made in the trial court deserves no credence. 19. Accordingly we hold that the prosecution has failed to establish the charges under Sections 451. 366 and 366A I.P.C. against any of the accused-appellants. 20. The statement of the prosecutrix Sulochana before the trial court is not believable as she made the statement on oath ,earlier before the Magistrate that she went to the house of the accused-appellant Jai Prakash Paswan with her free will and voluntarily. 21. 366 and 366A I.P.C. against any of the accused-appellants. 20. The statement of the prosecutrix Sulochana before the trial court is not believable as she made the statement on oath ,earlier before the Magistrate that she went to the house of the accused-appellant Jai Prakash Paswan with her free will and voluntarily. 21. Relating the age of Kumari Sulochana, Kumari Sulochana made the specific statement on oath in paragraph 11 that she was sixteen years of age on the date of occurrence. Her mother Smt. Chippi did not give the year Samvat, month or date relating the birth of Sulochana. Dr. Rohtogi has not been examined by the prosecution to prove the age of Sulochana. The prosecution has also not brought on record the x-ray plates and the report relating the examination of Kumari Sulochana for ascertaining her age. Thus we find that there is no evidence on record to establish that Kumari Sulochana was under sixteen years of age while she and the accused Jai Prakash Paswan entered into sexual intercourse. 22. It appears that in this case when Sulochana the only child of the widow Smt. Chippi happened to develop love and affection with accused appellant Jai Prakash and the happened to go to the house of accused-appellant Jai Prakash Paswan against the wishes of her mother Chippi and that is why Smt. Chippi happened to send the petition to the District Magistrate to get an inquiry carried in the matter. 23. The prosecution evidence does not establish any of the charges under Sections 451, 366, 366A or 376 I.P.C. against any of these accused-appellants. 24. The appeal is hereby allowed. The judgment and order of the trial judge dated 20th July, 1985 are hereby set aside. The accused-appellants are on bail, their bail bonds stand discharged. S. N. Jha, J. I agree. Appeal allowed.