JUDGMENT A.H. Satkia, J. 1. Heard Mr. SC Biswas learned counsel for the appellant. Also heard Mr. F.H. Laskar, learned P P, Assam. 2. The conviction and sentence of the appellant under Section 366 IPC imposed by the learned Session Judge, Sonitpur at Tezpur by his judgment dated 19.8.95 in Sessions Case No. 135(S)/93 has been challenged in this Criminal Appeals. 3. The facts in brief, as projected by the prosecution, are that P.W. 1, Md. Hafizuddin, lodged an FIR with the Missamari Police Station on 23.6.1993 alleging that his daughter, Ms. Hasina Khatoon, aged about 14 years, was missing since about 8 P.M. of 20.6.1993 when she went to toilet. It was alleged that the appellant kidnapped his daughter with ill motive. On the basis of this FIR, the Police registered a case under Section 366A IPC and took up the investigation. During the course of investigation, the accused was arrested on 4.8.1993 and the victim girl Ms. Hasina Khatoon was recovered on 5.8.1993 from Tezpur Bus Stand. After completion of the investigation, charge sheet was filed under Section 366A IPC against the appellant alongwith one Abdul Haque and sent them to face trial. Since he is triable by the Sessions Judge, the same was committed by the learned Judicial Magistrate, 1st Class, Tezpur to the Court of Session for trial of the accused. The learned Sessions Judge, on perusal of the materials available on record including the case diary, framed charge against the appellant under Section 366 IPC when other accused Abdul Haque was discharged for want of materials against him. 4. During this trial, prosecution examined as many as 8 witnesses including Doctor, P.W. 1 and the investigating Officer, P.W.7 including Magistrate, Mr. S.K. Sarma, P.W.6 who recorded the confessional statement of Abdul Hamed who was discharged later on as indicated above. On appreciation of the evidence on record and upon hearing learned counsel, for the parties, the learned Sessions Judge convicted the appellant under Section 366 IPC and sentenced him to undergo RI for three years and also to pay a fine of Rs. 1,000 in default to undergo RI for another three months. The learned Judge, in arriving the finding aforesaid, basically relied on the Evidence of P.W. 1, Dr. A.K. Dutta, P.W. 2, the informant and father of the victim girl Md. Hafizuddin and P.W. 3, the prosecutrix. 5. 1,000 in default to undergo RI for another three months. The learned Judge, in arriving the finding aforesaid, basically relied on the Evidence of P.W. 1, Dr. A.K. Dutta, P.W. 2, the informant and father of the victim girl Md. Hafizuddin and P.W. 3, the prosecutrix. 5. Since conviction and sentence were primarily based on the testimony of P.W. 1, P.W. 2 and P.W. 3, it would be pertinent to scrutinise the evidence of those witnesses so as to assess their credibility. 6. As per medical evidence, as deposed by the P.W. 1, according to ossification test conducted by X-ray on the victim girl, her age was found to be below 18 years, though she Doctor opined that the variation of age might be one year on either side. P.W.2, in his deposition, deposed, that his daughter went to toilet at bed time during the night on 20.6.1993, and did never return. Thereafter, he made several enquires visiting the house of one Sultan and Idris and ultimately went to the house of the appellant on suspicion that the appellant might have kidnapped his daughter but the appellant's mother informed him that her son was not at home and she did not know anything. After one and half month of the incident his daughter was recovered by the police and produced before the Court. The prosecutrix, P.W. 3, in her deposition categorically stated that on the night of occurrence when she was on her way to toilet, the appellant alongwith two others namely, Abdul Haque and Aabibur intercepted her and when she was about to make hue and cry, she was gagged by them and thereafter she was boldly lifted by the appellant who put her on a bicycle and they proceeded towards the main road. Other two persons followed them in separate cycles. Initially, they took her to Belsiri Police Station and stayed there for the night and next day she was taken to Rangapra by rail. At Belsiri, it was Abdul Haque and Habibur who accompanied them and stayed at the house of Asar Ali and thereafter, she was taken to Kalekuchi by the appellant, by bus and there they stayed for one and half month and there the appellant treated her as his wife. Thereafter, she was brought to Tezpur where the police recovered the victim girl from the Bus Stand. Thereafter, she was brought to Tezpur where the police recovered the victim girl from the Bus Stand. She stated that her age was 14 years at the relevant time. But in her cross, she testified that her family consisted of 15 to 20 members and her neighbourhood comprised of 20 to 25 houses and on that night she, Hazarat, the appellant, Habibur and Abdul stayed at Belsiri Railway Station and thereafter Abdul Haque and Habibur left. She met many people at Railway Station. At Rangapara they stayed at the house of Asar Ali. She did not tell him about the incident. A marriage was effected between them at Mangaldoi and it was Hazrat who identified her before the Magistrate at Mangaldoi. 7. From a close scrutiny of the deposition of the witness above mentioned, especially, the prosecutrix, P.W.3, it appears that though 20/25 families were residing within the neighbourhood of her house when she was taken in a bicycle, she did not resist such action of the appellant and without making any hue and cry or raising any alarm, she proceeded in the bicycle with the appellant. That apart, during her entire stay of one and half month with the appellant, she herself admitted that she had the occasion to meet many people but she did not utter anything about all those incident before the people she had come across. More surprising fact is that when the entire episode took place at Tezpur, Kalakuchi and Rangapara, P.W.3, suddenly shifted the venue to Mangaldoi and even she was silent at the time of court marriage which was solemnized at Mangaldoi. In the view of the matter, this Court is of the view that the evidence of P.W.2 cannot be accepted as trustworthy and reliable and she was appearing to be willing party to go with the appellant on her own. It also appears that the prosecutrix was found to be below 18 years as per ossification test with the variation of one year of age on either side. Hence on the basis of such evidence, the impugned conviction of the appellant cannot be sustained. 8. The Apex Court, in Shyam and Anr. v. State of Maharashtra reported in in dealing with a case of identical nature, acquitted the accused who was convicted under Section 366IPC. Hence on the basis of such evidence, the impugned conviction of the appellant cannot be sustained. 8. The Apex Court, in Shyam and Anr. v. State of Maharashtra reported in in dealing with a case of identical nature, acquitted the accused who was convicted under Section 366IPC. In the said case, the Apex Court held that the prosecutrix though below the age of 18 years, being a fully grown up girl, did not put up any struggle or raised alarm when she was taken away in a bicycle. Keeping in view the Shyam's case (supra), it appears that the case at hand is squarely covered by the ratio of the said case. Having regard to the Shyam's case (supra) and upon hearing learned counsel for the parties and also on perusal of the materials on record, the impugned conviction and sentence of the petitioner is hereby set aside and quashed. It is stated at the bar that the petitioner has all along been on bail and such the bail bond so furnished by him shall stand discharged. 9. In the result, this criminal appeal succeeds and stands allowed. Appeal allowed