JUDGMENT 1. - Ganga Ram appellant was convicted under Section 366 IPC and sentenced to 13 months' rigorous imprisonment with a fine of Rs. 200/- and in default to undergo one months simple imprisonment by learned Additional Sessions Judge, Bhilwara by his judgment dated 19.12.1984 in Sessions Case No. 23/84. 2. Briefly stated, the story of the prosecution is that Devi Singh was an employee of C.R.P 61 Battalion and was posted in Assam. He belongs to village Dablachanda where his minor daughter Chand Kanwar aged 13 years was residing alongwith Sajjan Singh and Bhagwan Singh who are her real brothers. Devi Singhs wife had expired five years ago. Before about four months from 6.6.1983 Manohar Singh went to the house of complainant and asked Chand Kanwar to go alongwith him in order to see a film at Bhilwara. He was accompanied by his daughter Manju Kanwar. Devi Singhs elder son Sajjan Singh, Ganga Ram and Manohar Singh took the prosecutrix in village Haripura of Madhya Pradesh where they married Chand Kanwar with Bahadur Singh of village Matakhera without the consent of the guardian of girl though Chand Kanwar resisted it. Bahadur Singh thereafter took Chand Kanwar to Matakhera. When Devi Singh came to know about this fact he sent a report to the Superintendent of Police, Bhilwara whereupon a case was registered and during investigation Chand Kanwar was recovered from the house of Bahadur Singh. She was medically examined and her age was found to be 14-15 years. Bahadur Singh, Sajjan Singh, and Ganga Ram were prosecuted. Sajjan Singh and Ganga Ram were charged with offence under Section 366 IPC while Bahadur Singh under Secs. 363 and 366/1,09 IPC. They all denied their indictment. Thereafter prosecution examined six witnesses. Then the accused persons were examined under Section 313 Cr.P.C. who produced Bhagwan Singh as a defence witness. Learned Sessions Judge convicted and sentenced the accused appellant as stated above. Bahadur Singh was convicted under Section 342 IPC and was given benefit under Probation of Offenders Act. Sajjan Singh was acquitted. It is Ganga Ram who preferred this appeal.I have heard the learned counsel for the appellant as well as learned Public Prosecutor and have gone through the entire evidence in order to reappreciate the same. 3. Bahadur Singh was convicted under Section 342 IPC and was given benefit under Probation of Offenders Act. Sajjan Singh was acquitted. It is Ganga Ram who preferred this appeal.I have heard the learned counsel for the appellant as well as learned Public Prosecutor and have gone through the entire evidence in order to reappreciate the same. 3. The foremost point to be decided in the case is as to what was the age of the prosecutrix at the time of offence ? 4. In S. Varadarajan v. State of Madras, AIR 1965 SC page 942 , the word taking out of lawful guardianship under Section 361 IPC was considered. In that case the girl had attained the age of discretion and was on the verge of attaining majority. The occurrence took place on 1.10.1960 when she left the house and telephoned the accused to meet her on certain road and went to the road herself. Her date of birth was undisputedly 13.11.1942. Thus she was though technically minor yet had attained the age of discretion. The Supreme Court after threadbare discussion came to the conclusion that no offence under Section 366 IPC was established against the appellant as the girl had attained the age of discretion and had herself gone to accused appellant Vardarajan. 5. Learned counsel submitted that in the case in hand the prosecution has different versions about the age of the girl. He submitted that in no case the girl was less than 18 years and had gone on her own consent. He drew drew my attention to various documents and the statements. Ex.P/1 the first information report mentions that the prosecutrix was 16 years of age. Prosecution has not supplied any date of birth of Chand Kanwar but there is a horoscope on record which was obtained from Bahadur Singh co-accused vide Ex.P/9. This horoscope has not been proved either by pandit who prepared it nor its contents have been proved. This is irrelevant as it mentions the year 2039(1983) which was the year of occurrence. Therefore, this piece of evidence is of no help to the prosecution. 6. Now to the medical evidence about the age of girl. It was PW 6 Dr. Fateh Singh who examined the prosecutrix in relation to her age. This is irrelevant as it mentions the year 2039(1983) which was the year of occurrence. Therefore, this piece of evidence is of no help to the prosecution. 6. Now to the medical evidence about the age of girl. It was PW 6 Dr. Fateh Singh who examined the prosecutrix in relation to her age. He found following details:- Height : 46", Weight : 31.5 Kg., Breasts were not well developed, there was no space for 8th tooth. The pubic hair were black and soft but axillary hair were not present. Secondary sexual characteristics were present. X- ray examination was done A.P. and lateral view of right and left elbow joint was done and it was found that epiphysis of bones was formed and lower end of humerus and upper end of radius and ulna were fused partially. 7. On these details the doctor was of the opinion that the age of the girl was between 14-15 years. Generally third molars or wisdom teeth appear in between 17th to 25th years of age but Modi as he states, at page 39 of his book Medical Jurisprudence and Toxicology, (Twenty-first Edition), that he had seen the left lower third molar tooth and in a Mohamedan boy and a Mohamedan girl, both aged 14 years and in a Hindu boy of 15 years. He has also given such instances seen by other doctors and a doctor found that a man cut his third molar at the age of 64 years. Therefore, absence of third molar or wisdom tooth may not be the sure test to determine the age in this case. Of course ossification of bones is helpful but even that is not also very sure test as owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of the different states of India. There is not a uniform standard for determination of age of the union of epiphysis for the whole of India. Modi says at page No. 40 of his book (supra) that from an investigation carried out in certain provinces it has been concluded that the age at which the union of epiphysis takes place in Indians particularly of Bengal, Punjab and South India is about 2 to 3 years in advance of the age incidence in Europeans and that the epiphyseal union occurs in females somewhat earlier than in males. According to Modi at page No. 40 of the book (supra) D.R. Kothari working in Marwar region of Rajasthan reported that the fusion occurs earlier in girls than in boys. According to Modi the range of error in ossification test may be upto three years. 8. The settled position of law is that there may be a difference of 3 years of age if the same is arrived at after radiological examination. Therefore, when doctor himself says that the age of the girl was 14-15 years and if we add three years that means that the girl was about 18 years of age on the date when the occurrence took place. 9. The prosecutrix herself is a her when she says that her age was only 12 years even on the date when she was examined by learned Sessions Judge on 11.7.1984. Learned Sessions Judge has given a note that she was about 16 years on that date. Prosecutrix stated that she was residing at the residence of his father who was serving outside. Her brothers Sajjan Singh and Bhagwan Singh were residing with her. According to her on the date of incident Manohar Singh asked her in the midnight to go with him in order to see film. She further stated that it was Ganga Ram who asked to go to behold a film then she and her cousin Manju who was the daughter of Manohar Singh went with them. She has obsolved Sajjan Singh by saying that he was not present as he was out of station. But it may be stated that earlier while during investigation she had involved even Sajjan Singh. She admitted in the cross examination that she did not state to the police in her statement Ex.D/1 that accused appellant Ganga Ram asked her to go with him in order to see a film at Bhilwara on that fateful night. She was cross examined at length and she stated that Bahadur Singh took her away by force and that when he went she was weeping. But this statement does not appear to be correct because there is nothing on record to show that when she was being taken in a vehicle to Bhilwara she did not make any hue and cry. Had she done so people would have definitely attracted. But this statement does not appear to be correct because there is nothing on record to show that when she was being taken in a vehicle to Bhilwara she did not make any hue and cry. Had she done so people would have definitely attracted. Manju Kanwar was her cousin but she has not been produced as a witness on behalf of the prosecution. She was a material witness as the case of the prosecution is that she accompanied the prosecutrix. The story appears that it was Manohar Singh who asked the prosecutrix and Manju Kanwar to accompany him and go to see film at Bhilwara on the midnight. Both girls accompanied him. The case of the prosecution further is that Sajjan Singh and Ganga Ram also accompanied. Chand Kanwar absolves Sajjan Singh. In her examination in chief she has stated that Ganga Ram also asked her to go to see the film. But during her cross examination she admitted that she did not state this fact to the police when she was examined by Investigating Officer. That means that she has made addition in the story in her statement before Court in order to implicate this accused appellant. Investigating Officer Raj Singh has admitted in cross examination that Manju Kanwar did not tell that it was accused appellant who had abducted Chand Kanwar. As I have said Manju Kanwar has been witheld by the prosecution and the reason is apparent that she was not favoring the prosecution. She was a material witness. Non production of Manju Kanwar is fatal to the prosecution. 10. PW 1 Devi Singh, who is the father of prosecutrix, was not present and whatever he stated in his statement on oath is hear-say. Sajjan Singh was an employee of this witness in the village and was his driver on a tractor. He admitted in cross examination that Chand Kanwar did not name Sajjan Singh but it is very strange that even then Sajjan Singh was prosecuted. He did state that Ganga Ram was named by Chand Kanwar but on the Court question the witness replied that Chand Kanwar did not tell that Ganga Ram abducted the prosecutrix. When the prosecution is not able to make out a case of abduction/kidnapping against the appellant, his conviction by the Trial Court appears to be wrong. 11. He did state that Ganga Ram was named by Chand Kanwar but on the Court question the witness replied that Chand Kanwar did not tell that Ganga Ram abducted the prosecutrix. When the prosecution is not able to make out a case of abduction/kidnapping against the appellant, his conviction by the Trial Court appears to be wrong. 11. Defence witness Bhagwan Singh who is a caste fellow of Devi Singh has stated that the children of Devi Singh were being looked after by his brother Manohar Singh and they were residing with Manohar Singh, he further stated that once Devi Singh came from leave and asked Manohar Singh that Chand Kanwar was to be married, therefore, a good boy may be searched out for her. PW 1 Devi Singh says in the first information report that he had engaged Chand Kanwar with a boy named Bhanwar Singh and spent a sum of Rs. 5000/- but his brother Manohar Singh performed the marriage of his daughter with a boy without his consent. The demean or of the first information report is that Devi Singh had spent a sum of Rs. 5000/- on engagement which may be obtained from Manohar Singh and Manohar Singh be punished for the offence marrying his minor daughter without his consent. It is on record that the wife of Devi Singh was no more alive and his children were residing in his village alongwith his brother Manohar Singh. Chand Kanwar was perhaps happy after marrying Bahadur Singh as there appears to be such a demeanor from her statement. She has tried to save him by saying that Feras were not taking but only dieing Gethjori of the clothes of both of them was done. Thus she tries to save Bahadur Singh. 12. There is extra ordinary delay in lodging first information report. It is alleged that the occurrence took place about four months before 6.6.1983. The first information report Ex.P/1 does not mention any date, however, the case was registered on 8.6.1983. Devi Singh who is an employee of C.R.P.F. could have reported the matter earlier as soon as he came to know about the incident. The report was received at Police Station from the Superintendent of police on 30.5.1983 on the basis of which case was registered. No explanation is given for this inordinate delay. Devi Singh who is an employee of C.R.P.F. could have reported the matter earlier as soon as he came to know about the incident. The report was received at Police Station from the Superintendent of police on 30.5.1983 on the basis of which case was registered. No explanation is given for this inordinate delay. It appears that the complainant had reconciled but later on the idea came to him that he should obtain the money from .his brother and that's why he lodged. The prosecutrix was never detained by the appellant nor recovered from his possession. 13. In view of what has been stated by me above the prosecution has miserably failed to prove its case. Therefore, the accused appellant deserves acquittal.Consequently, the appeal is hereby accepted. Accused appellant is acquitted from the charge of Section 366 IPC. Bail bonds are discharged. *******