Judgment D.N.Prasad, J. 1. This appeal is directed against the judgment of conviction and sentence passed by 1st Additional Sessions Judge, Palamau in S.T. No. 31 of 1983, whereby and whereunder the learned Sessions Judge convicted the sole appellant for the offence under Sec. 363 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for three years. 2. The case of the prosecution in brief as stated that the Informant submitted a written report alleging therein that the appellant, Md. Reyasat was an employee in the shop of the Informant and at time, he used to stay in the house of the Informant. But, on account of certain reason, he was removed from service on 13.7.1980. Thereafter, the appellant was doing service in the shop of one Gulam Rasool. It is further alleged that from. 20.7.1980 at about 5 a.m., his daughter aged about 14 years had gone to church for prayer but did not return home. His son started searching for his daughter Albina but she could not be traced and on 23.7.1980, he came to know from one Manual Oraon that Albina was seen with the appellant at Daltonganj Court. Thereafter, Pitar Munjant went to Daltonganj to search out his sister and she was traced there and accordingly, F.I.R. was lodged for the offence under Secs. 363 and 366, I.P.C. The police investigated the case and submitted charge-sheet against the appellant. The charge was framed under Sec. 366A, I.P.C. against the appellant, to which he pleaded not guilty. 3. The witnesses were examined in the Court below. After considering the evidence on record, the trial Court convicted and sentenced the appellant, in the manner, as stated above. 4. Not being satisfied with the judgment of conviction and sentence, the appellant preferred this appeal alleging therein that the learned trial Court has committed error in convicting the appellant, as the victim girl, Albina Munjani was quite major at the relevant time and he has accompanied the appellant with her consent and so the question of kidnapping does not arise. Not being satisfied with the judgment of conviction and sentence, the appellant preferred this appeal alleging therein that the learned trial Court has committed error in convicting the appellant, as the victim girl, Albina Munjani was quite major at the relevant time and he has accompanied the appellant with her consent and so the question of kidnapping does not arise. It is also stated that the Investigating Officer has not been examined in the case due to which the case of the appellant is highly prejudiced as well as one of the friends who was present with the victim Albina Munjani has also not been examined to substantiate the story of kidnapping in the manner as alleged. Thus, the judgment of conviction and sentence passed by the trial Court, is fit to be set aside. 5. As many as five witnesses have been examined in this case on behalf of the prosecution in support of its case. Of whom, P.W. 5 is the doctor, who claimed to have, examined the victim girl, Albina Munjani and according to him, her age was assessed to be about 16 years on her appearance. He admitted in clear terms that no X-ray was done, nor she was examined radiologically and as such, just he has stated that he assessed her age only on physical appearance and he also proved his report, Ext. 2. 6. P.W. 1 stated in his evidence that the appellant, Md. Reyasat Mian was employed under the Informant prior to the occurrence and he proved the report, Ext. 1. According to him, the appellant, Reyasat had worked for about three years in his shop. He further admitted in clear terms that he cannot say as to whether his daughter (informant) had actually gone to the appellant herself, as he came to know later on, on his return that his daughter is not present in the house. 7. P.W. 2 stated that he had seen the appellant along with victim girl at Daltonganj Court. 8. P.W. 3 Albina Munjani stated that the appellant had taken her at Daltonganj and from there she was taken to Patna. She further claimed that she was staying in the night and in the next morning, she along with the appellant was present at the Daltonganj Court when the appellant fled away on seeing her brother. 8. P.W. 3 Albina Munjani stated that the appellant had taken her at Daltonganj and from there she was taken to Patna. She further claimed that she was staying in the night and in the next morning, she along with the appellant was present at the Daltonganj Court when the appellant fled away on seeing her brother. She stated in clear terms in her cross-examination that she had not made any objection though he remained along with appellant even in the night and in the next morning, she had gone to Daltonganj Court along with the appellant. 9. P.W. 4 claimed to have traced the victim but she could not be traced out as it was reported that she had gone to Patna. According to him, Sarpanch had reported that both the appellant and the victim girl were present at the Daltonganj Court. 10. The appellant was examined under Sec. 313, Cr.P.C. and he denied the allegation. 11. It may be noted here that the appellant was charged by the trial Court for the offence under Sec. 366A, but obviously, the trial Court did not find the case true under Sec. 366A, rather the appellant has been convicted for the offence under Sec. 363, I.P.C. In this respect, it may be mentioned that the doctor who claimed to have examined the victim Albina Munjani clearly opined that he found her age to be approximately about 16 years, but neither X-ray was done nor the victim girl was examined by any Radiologist to ascertain her correct age at the relevant time. The doctor admitted in his cross-examination that on the basis of physical appearance, he could assess the age of the victim girl, which could not be the definite and actual age of the girl as she was not examined scientifically/medically as required. The victim a girl was examined in the Court, but trial Court and the learned Magistrate assessed her age to be 20 years, when she was examined in the year 1987. 12. The medical jurisprudence also provides two years relaxation in either side. Thus, it is apparent that the age of victim, Albina Munjani could have been 18 years at the relevant time and he must have been major. 12. The medical jurisprudence also provides two years relaxation in either side. Thus, it is apparent that the age of victim, Albina Munjani could have been 18 years at the relevant time and he must have been major. Moreover, admittedly, the victim girl went with the appellant and remained for so much long period and she did not raise any objection which itself indicates about her willingness and consent. Moreover, where the minor leaves her fathers house knowing and having capacity to know, the full import of what she is doing, and voluntarily joins the accused-person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. The victim, P.W. 3 did not utter a single word in her evidence about ill-treatment or mis-behaviour of the appellant at any point of time. By remaining silent and keeping a mum throughout for such a long period itself is sufficient to infer that there was consent and willingness of the girl. It is for the prosecution to prove that the accused either took or enticed her from her house. The mere fact that she left her home and was found a day and a half later in the company of the accused would not be suffice to show that he must either have taken her or enticed her. Apart from above shortcomings, there are vital contradictions in the evidence of prosecution. The Investigating Officer has also not been examined in this case which makes volumes of doubt ness about the occurrence in the manner as alleged. 13. Considering the whole facts and circumstances of the case, it is apparent that the prosecution has miserably failed to establish the charge under Section 363, I.P.C. as well and the appellant is entitled for the benefit of doubt. 14. Thus, I find merit in the appeal, which is accordingly allowed. The judgment of conviction and order of sentence passed by the learned trial Court is, hereby, set aside. 15. The appellant appears to be on bail and as such, he is discharged from the liability of the bail-bond.