Judgment P.K.Deb, J. 1. The sole appellant has been convicted under Sec. 376 read with Sec. 312 of the Indian Penal Code by the Ten Additional Sessions Judge. Munger, in Sessions Trial No. 621/86 and sentenced to three years rigorous imprisonment under Sec. 312 of the Indian Penal Code and seven years rigorous imprisonment under Sec. 376 of the Indian Penal Code. 2. PW 3 Jitan Yadav, a co-villager of the appellant lodged fardbeyan on 72-1985 at 6 p.m. at his house before the S.I. of Sono Police Station (PW 5) alleging therein that his daughter Vmani Devi (sin & deceased) aged about fifteen years was bleeding from her private part two days earlier and when her mother Chamia Devi (PW 2) enquired from her she was told that she was in the process of menses. On the previous day she was found bed-ridden having pain and then again enquiry was made by PW 2 from her daughter and then only she disclosed that she was having pregnancy of three months through accused-appellant Sakaldeo Sah and with a view to abortion the appellant is alleged to have put herbal root kept or inserted in her private part by one lady of village Terukha. After insertion of that herbal root the abortion took place in the early morning of the next day but the bleeding did not stop. It was further staled in the fardbeyan that the condition of his daughter was deteriorating faster. It was disclosed in the fardbeyan that his daughter Vmani Devi was married but her "Gauna had not yet been done. It was also stated that she was preparing Biri for supply to Sakaldeo Sah. On the basis of the aforesaid fardbeyan formal FIR was registered being Sono P.S. Case No. 11/86 and then the investigation had been taken up. The victim girl Vmani Devi was medically examined and she was taken to hospital and she remained in hospital for some days but because of strike of the employees of the hospital she was taken back home and as per doctors advice treatment was going on but such treatment did not recover the girl rather her condition further deteriorated and then she was shifted to Jhajha hospital where she remained for treatment for about two days and on the third day she died and then she was cremated. During the course of investigation, it appears that the statement of the victim girl was recorded by the Investigating Officer and there was also prayer for recording her statement under Sec. 164. Cr. P.C. before the Magisterial Court but her statement was not recorded. 3. The defence is complete denial rather it was urged that as there was land dispute between the informant and the accused-appellant he has been falsely implicated in the case. The charge-sheet was submitted against the accused-appellant on completion of investigation under Secs. 376/313 of the Indian Penal Code. On commitment charges were framed in the Sessions Court under the same Sections of the Indian Penal Code. When the charges were read over, and explained to the accusedappellant he pleaded not guilty. For and on behalf of the prosecution as many as five witnesses have been examined including the Investigation Officer who is PW 5. PW 1 Borhan Yadav while PW 2 is Chamiya Devi, mother of the victim girl. PW 3 Jitan Yadav is the father of the victim. PW 4 is Dr. Nirmala Singh who had medically examined Vmani alias Dimani Devi. For and on behalf of the defence, three witnesses have been examined to prove false implication because of land dispute between the informant and the accused-appellant. 4. On carefully scrutinising the impugned judgment, it could be found that the learned Sessions Judge when found that there was no much legal evidence for the purpose of conviction of the accusedappellant he had resorted to surmises, conjectures, etc. as the crime as alleged was definitely of serious nature. At the very outset, it should be mentioned here that except the reported evidence of the victim girl, there is no other evidence on record directly involving the, accused-appellant with the crime. It is surprising to note that although the girl was examined by the investigating agency and during the course of investigation, she gave her statement before the police officer under Sec. 161, Cr. P.C. should have been converted into a dying declaration and should have been brought on the record at least in support of the evidence of the reported witnesses, but for the reasons best known to the prosecution the same has not been done. P.C. should have been converted into a dying declaration and should have been brought on the record at least in support of the evidence of the reported witnesses, but for the reasons best known to the prosecution the same has not been done. When the statement of the victim girl is not on the record although her evidence or statement was possible to be brought on the record this evidence of reported witnesses becomes inadmissible for the purpose of conviction. The evidence of reported witnesses are supporting evidence to the direct witness and when the directed evidence is possible to be received but the same has been with held by the prosecution, no reliance can be placed on the evidence of the reported witnesses. 5. In the present case, the vital witnesses for the prosecution are definitely partisan witnesses, i.e., the parents and relations of the victim girl, They narrated the story as was reported to them by the victim girl Umani alias Dimani regarding the relationship of the victim girl and the accused-appellant. Nothing could be established except the fact that the girl had reported that she used to supply Biri to the accused-appellant but that fact could not be brought by any independent witnesses before the trial Court. Supposing the fact that the girl was having illicit relationship with the accused-appellant but that was on the face of it with the consent of the victim girl Umani alias-Dimani Devi but that consent of her cannot be said to be a valid consent if she could be shown to be a minor girl. In the oral evidence, the parent tried to mini mise her age even what was recorded in the fardbeyan itself. In the evidence of the doctor on physical feature and on X-ray her age was determined to be 16-17 years. 6. According to Modis Jurisprudence two years has to be left on either side arithmetical and other error of examination. If she was more than sixteen years of age then her consent is valid consent for the purpose of offence under Sec. 376 of the Indian penal Code as the same is a settled principle of law, considering the growth of the females in the summer country like India. If she was more than sixteen years of age then her consent is valid consent for the purpose of offence under Sec. 376 of the Indian penal Code as the same is a settled principle of law, considering the growth of the females in the summer country like India. Thus, on doctors evidence when the girl is aged 16-17 years she was having valid consent in illegal intercourse with the accused appellant supposing that fact is considered to be a true one. In that view of the matter, there cannot be a conviction under Sec. 376 of the Indian Penal Code. Now coming to the penal Section, i.e., Section 312 of the Indian Penal Code it appears that although charges were framed under Sec. 313 of the Indian Penal Code but as there was consent of the victim girl for the miscarriage the conviction has been brought down to Sec. 312 of the Indian Penal Code. In this connection may again reiterate that the insertion of herbal root in the private part of victim girl by the lady of another village remains wholly a surmise as there is only evidence of reported witnesses. Sec. 312 of the Indian Penal Code provides that the person who had caused miscarriage even with the consent of the victim girl he or she is liable for conviction under Sec. 312 of the Indian Penal Code. In the present case, the lady who inserted herbal root could not be searched out by the investigating agency for trying the lady along with the present accused-appellant. Against the present accused-appellant nowhere it is in the evidence that he was also present or he had induced the lady or the victim girl in inserting herbal in her private part. She herself being a consenting party, she can also be convicted or tried under Sec. 312 of the Indian Penal Code but neither the lady nor the victim girl has been made accused in the case. That Sakaldeo Sah, the present accused-appellant has caused miscarriage even indirectly there is no evidence to that effect. In that view of the matter, although the offence is serious I find that the present case has no legal evidence against the accused-appellant and, hence, conviction arrived at by the learned court below on surmises and conjectures is bad in the eye of law. 7. In the result, the appeal is allowed and. In that view of the matter, although the offence is serious I find that the present case has no legal evidence against the accused-appellant and, hence, conviction arrived at by the learned court below on surmises and conjectures is bad in the eye of law. 7. In the result, the appeal is allowed and. the impugned judgment of conviction and sentence is hereby set aside. The accused-appellant is acquitted and is released from his bail-bond.