JUDGMENT A.P. Subba, J. 1. This appeal filed under Section 374 Code of Criminal Procedure 1973 by the accused-Appellant is directed against the judgment and order dated 6.12.2002 passed by Additional Sessions Judge No. 1, Tinsukia, Assam in Sessions Case No. 145 (M) 2000 convicting the Appellant under Section 366 IPC and sentencing him to undergo rigorous imprisonment for 5 years and a fine of Rs. 3000/- in default to undergo rigorous imprisonment for 3 months. 2. The prosecution case, in brief, is that one Kailash Kumar Mittal (PW-1) lodged an FIR with Margherita PS on 3.1.2000 alleging that his daughter Sabita Kumari Mittal, P W-5 (aged 16 years and a minor) had gone missing from his house since about 7 P.M. on 31.12.99. On search and enquiry being made by him, he had come to learn that his missing daughter was taken away by one Shri Mukul Saikia, Wireless Operator of the Office of the Superintendent of Police of Changlang District. On the basis of such information, Margherita PS Case No. 3/2000 under Section 366(A) IPC was registered and investigation was taken up. During the investigation, sufficient incriminating evidence against the accused came to light and on the basis of such information the victim girl was recovered from the possession of the accused on 22.1.2000. The accused was arrested and on 23.1.2000 the victim girl was produced before the SDJM Margherita and her statement was recorded under Section164 Code of Criminal Procedure. On completion of the investigation a charge-sheet under Section366A IPC was filed. On consideration of materials on record and upon hearing the parties the learned trial court was of the view that the materials on record made out a prima facie case under Section366 IPC. A charge was accordingly framed under this section and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Accordingly, the accused-Appellant was placed on trial. 3. During the trial, eight witnesses in all were examined by the prosecution in support of the prosecution case. Shri Kailash Kumar Mittal the informant was examined as PW-1, Shri Adhir Das who is a businessmen of the locality was examined as PW-2, Smti. Accordingly, the accused-Appellant was placed on trial. 3. During the trial, eight witnesses in all were examined by the prosecution in support of the prosecution case. Shri Kailash Kumar Mittal the informant was examined as PW-1, Shri Adhir Das who is a businessmen of the locality was examined as PW-2, Smti. Bimala Devi Mittal, wife of the informant was examined as PW-3, Shri Rakesh Kumar Mittal who is the son of the informant was examined as PW-4, Smti Sabita Mittal the victim girl was examined as PW-5, Dr. Kumud Chandra Das who had examined the victim girl was examined as PW-6, SI Mahendra Nath Bora, ASI attached to Margherita PS who had conducted the investigation was examined as PW-7 and SI Amulya Gogoi attached to the same Police Station who had filed the charge-sheet was examined as PW-8. 4. After hearing the prosecution and the defence and on going through the materials on record, the learned Additional Sessions Judge, Margherita PS came to the conclusion that the prosecution had proved the guilt of the accused-Appellant beyond reasonable doubt under Section 366 IPC and accordingly, passed the order of conviction and sentence as already noted above. It is against this order of conviction and sentence that the present appeal has been filed. 5. Mr. D.R. Gogoi assisted by Mrs. M. Bordoloi and Mrs. D. Baruah, learned Counsel for the accused-Appellant and Mr. B.N. Singh, learned PP Assam were heard. 6. It is the submission of Mr. Gogoi that the evidence on record clearly shows that the victim girl left her home voluntarily to accompany the Appellant. Hence, the essential ingredients of the offence of abduction having not been proved satisfactorily, conviction of the Appellant under Section 366 IPC was bad in law and was thus liable to be set aside. 7. Gogoi that the evidence on record clearly shows that the victim girl left her home voluntarily to accompany the Appellant. Hence, the essential ingredients of the offence of abduction having not been proved satisfactorily, conviction of the Appellant under Section 366 IPC was bad in law and was thus liable to be set aside. 7. A bare reading of Section 366 IPC goes to show that the following are the essential ingredients of the offence which are required to be proved by prosecution to bring home; the charge against the accused :(1) Kidnapping or abduction of any woman; (2) Such kidnapping or abduction must be--(i) with intent that such kidnapped or abducted woman may be compelled or knowing it to be likely that, such woman will be compelled to marry any person against her will; (ii) or in order that she may be forced or seduced to illicit intercourse or knowing it likely that she will be forced or seduced to illicit intercourse or (iii) by means of criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse. 8. Referring to Section 362 IPC which defines abduction and Section 366 which provides for punishment for kidnapping and abduction, the Orissa High Court in Shyamasundar Kar v. The State, reported in 1969 Cri. LJ 1310 has observed as follows: From these two sections it is clear that in order to bring home the charge against the Appellant the prosecution must establish the following elements. (a) The Appellant induced the complainant to go from any place; (b) Such inducement was by deceitful means. (c) Such abduction took place with intent that the complainant may be seduced to illicit intercourse; and (d) the Appellant knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Similarly, a Division Bench of Delhi High Court in State v. Musha and Ors. (c) Such abduction took place with intent that the complainant may be seduced to illicit intercourse; and (d) the Appellant knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Similarly, a Division Bench of Delhi High Court in State v. Musha and Ors. reported in ILR (1970) 2 Delhi 198 has observed as follows: ...The only requirement of the section is that the person kidnapped or abducted must be a woman and that the accused should do so with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. The section also makes it punishable if any person who by means of criminal intimidation as defined in the Code (Section503) or abuse of authority or any other method of compulsion induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. 9. As already noted above, the contention urged by the learned defence counsel is that the prosecution has failed to prove the essential ingredients of the offence of abduction and, as such, the conviction of the accused-Appellant under Section 366 was bad in law. 10. In order to appreciate the above contention urged by the learned Counsel, it would be essential to advert to the evidence of relevant witnesses. 11. The prosecutrix who was examined as PW-5 stated that she knows the accused. According to her, at about 7 P.M. on 31.12.99 she happened to come out of her house when the television programme she was watching with her mother came to an abrupt end following sudden power failure. No sooner had she come out of her house a boy turned up and informed her that someone who was waiting outside on the road wanted to have a word with her. On being led to the road at the backside of the house, she found the accused waiting for her in a white coloured ambassador car. No sooner had she come out of her house a boy turned up and informed her that someone who was waiting outside on the road wanted to have a word with her. On being led to the road at the backside of the house, she found the accused waiting for her in a white coloured ambassador car. The accused who was sitting inside the car told her that he had something to talk over and she may join him in the car. On being so invited, she boarded the car and took her seat by the side of the accused. After she sat in the car the man at the wheel started the car and headed for Dibrugarh. On reaching Dibrugarh they halted in a hotel for the night and early next morning they boarded a bus and reached Nagaon where they stayed with the aunt of the accused in her house for 20 days. After 20 days, the accused took her to his own house at Changlang. When they were staying in the house of the accused at Changlang, the Police came and took them both to Margherita Police Station. The prosecutrix further stated that when they were at Nagaon, the accused proposed to her but she told him that she would need the consent of her parents to marry him. 12. Smti Bimala Devi Mittal/PW-3, mother of the prosecutrix stated that she knew the accused. According to her, at about 6:30 to 7 P.M. on 31.12.99 she was watching a television programme with her daughter i.e. the prosecutrix. At that point of time, a PP call came in their phone for their neighbour called Kutti. When the call came her daughter went out to fetch the said Kutti. After some time her daughter returned with Kutti and Kutti received the call. After 5-10 minutes thereafter, her daughter went out to answer the call of nature but this time she did not return. When her daughter failed to return she went out to the houses of her neighbours but nowhere could she locate her daughter. Her son Rakesh Kumar Mittal/PW-4 informed her that he happened to notice the accused at Margherita Chariali when he was coming back from the market. She then reported the incident to her husband PW-1 when he came home later. Her husband then reported the incident to the Police. Her son Rakesh Kumar Mittal/PW-4 informed her that he happened to notice the accused at Margherita Chariali when he was coming back from the market. She then reported the incident to her husband PW-1 when he came home later. Her husband then reported the incident to the Police. On enquiry they got information that the accused who hailed from Changlang had kidnapped her daughter. The Police later recovered her daughter from Changlang. 13. Shri Kailash Kumar Mittal/PW-1 father of the victim girl stated that he knew the accused who was working in the Office of the Superintendent of Police at Changlang. The occurrence took place on 31.12.99. His wife PW-3 reported to him that their daughter had gone missing since about 7 P.M. They searched for their daughter in the house of their relations but they could not find her anywhere. Their son Rakesh Mittal/PW-4 informed them that he had seen the accused at Margherita Chariali at about 6:30 P.M. Since the accused was not on duty on that day, his suspicion fell on him and he reported the incident to the Superintendent of Police at Changlang verbally. Thereafter, he lodged an FIR on 3.1.2000, his daughter was later recovered from the house of the accused by Margherita Police with the help of Changlang Police. 14. Shri Rakesh Kumar Mittal/PW-4 son of PW-1 stated that when he returned home from the market at about 6 P.M. on the day of the incident, he found his parents searching for his sister i.e. the victim girl. On enquiry, his parents told him that his sister had gone missing and was not at home. He informed his parents that he had seen the accused at Chariali when he was on his way back from the market. According to him his sister was recovered from Changlang after 15-20 days. 15. Shri Adhir Das/PW-2 who is a co-villager stated that he knew both the accused and the victim girl. According to him he only heard that the victim had eloped with the accused. 16. Dr. Kumud Chandra Das/PW-6 is M & HO-l attached to Civil Hospital Margherita. He examined the victim on 22.1.2000 and on examination he found the following: 1. Identification mark:- Scar mark lies laterally on the right hand. 2. Injury marks on her private parts, breast and other parts of the body--Nil. 3. General behaviour--Normal. 4. Mental Condition-- Good. 5. Gait--Normal. 6. Kumud Chandra Das/PW-6 is M & HO-l attached to Civil Hospital Margherita. He examined the victim on 22.1.2000 and on examination he found the following: 1. Identification mark:- Scar mark lies laterally on the right hand. 2. Injury marks on her private parts, breast and other parts of the body--Nil. 3. General behaviour--Normal. 4. Mental Condition-- Good. 5. Gait--Normal. 6. Secondary sexual character--Developed. 7. Menarche--Obtained. 8. The clothes and stains on clothing could not be examined since she was examined after 22 days of kidnapping. 9. X-ray was advised for age determination. According to the X-ray report given by Dr. S.N. Todi, Radiologist of Todi's Diagnostic Centre Pvt. Ltd., MakumRoad, Tinsukia; the age of Smti. Sabita Mittal is 1614 and 17 years. 17. SI Mahendra Nath Borah/PW-7 is the I/O who had conducted the investigation. The case was endorsed to him on 3.1.2000 for preliminary investigation by O/C Margherita Police Station. In course of the investigation, he visited the place of occurrence, examined the informant and other witnesses. According to the information gathered by him, the accused was working in the Superintendent of Police's Office at Changlang. On coming to know that he was working in the Superintendent of Police Office at Changlang, he addressed a message to the concerned Superintendent of Police at Changlang. Thereafter, he was sent to Changlang by the O/C and accordingly he proceeded to Changlang accompanied by a woman constable on 21.1.2000. On reaching Changlang they found both the accused and the victim girl at the Police Station where they had surrendered themselves. They took charge of the accused and the victim and brought them both to Margherita Police Station. On the way both the accused and the victim girl were examined by a doctor in Margherita Civil Hospital. On 23.1.2000 the statement of the victim was recorded under Section 164 Code of Criminal Procedure by the SDJM, Margherita and on 22.1.2000 he forwarded the victim to Todi's X-ray clinic for age determination in terms of the reference made by the Medial Officer, Margherita Civil Hospital. After completing investigation he submitted the case diary and charge-sheet to O/C Margherita. 18. SI Amulya Gogoi, Margherita PS who was examined as PW-8 stated that on receipt of the case diary from PW-7, he submitted the charge-sheet, exhibit-4 against the accused under Section 366(A)IPC. 19. After completing investigation he submitted the case diary and charge-sheet to O/C Margherita. 18. SI Amulya Gogoi, Margherita PS who was examined as PW-8 stated that on receipt of the case diary from PW-7, he submitted the charge-sheet, exhibit-4 against the accused under Section 366(A)IPC. 19. The story that emerges from the evidence narrated above is that the victim girl left her house at about 8 P.M. on 31.12.99. On coming out of the house she came upon a boy who informed her that the accused, who was waiting in the car on the road, wanted to have a word with her. On reaching the road being led by the said boy, she found the accused waiting in a white coloured ambassador car. The accused who was sitting in the car, invited her inside the car to have a word with her. The victim joined the accused in the car and they headed for Dibrugarh where they spent a night in a hotel. Early next morning, they boarded a bus and reached Margherita where they stayed in the houses of the aunt of the accused for 20 days. Thereafter, they left Margherita and reached the house of the accused at Changlang. At Changlang, they both surrendered before the Police. 20. The question is whether in the facts and circumstances of the case stated above, the accused can be said to have used force or any deceitful means to induce the victim to accompany him to the different places right from Margherita to Dibrugarh, from Dibrugarh to Nagaon and then to Changlang. 21. In her statement made soon after she was recovered from Changlang and recorded under Section 164 Code of Criminal Procedure the victim stated as follows: On oath, my present age is 19 years running. Earlier I studied in the Govt. Higher Secondary School situated at Changlang. I read upto class-X and in the year 1996 I left my studies. I was born in 1981. But my father procured the Birth Certificate stating 1981 as my year of birth. That way also I am above 18 years. I love Mukunda Madhab Saikia (Wireless Operator, S.P. Office, Changlang (A.P). I love him. Therefore, I called in him to me. My parents harassed me as I was in love with him. Still, they for not leaving him told me that I would have to go with him myself. That way also I am above 18 years. I love Mukunda Madhab Saikia (Wireless Operator, S.P. Office, Changlang (A.P). I love him. Therefore, I called in him to me. My parents harassed me as I was in love with him. Still, they for not leaving him told me that I would have to go with him myself. Then I called in Mukunda Saikia on 31.12.99 and went out with him in the evening. After that on 3.1.2000 we married with social rituals. Thereafter, on 12.11.2002 we performed Civil Marriage Registration at Nagaon. Mukunda Saikia is my husband. I am matured and married on my own accused. I will go with my husband. I won't go with my father. As I am married I would go with my husband. This much I have to say. I won't go with my father. R.O&A.C Sd/-D.S. Haque SDJM(M) 23.1.2000 22. The above statement recorded under Section 164 Code of Criminal Procedure makes it clear that she was in love with the accused. However, her affair with the accused did not find approval of her parents. So, in the evening of 31.12.99 she called in the Appellant and left her home with the Appellant at her own sweet will. Thereafter they got married on 3.1.2000 duly performing necessary rituals after which civil marriage was performed on 21.1.2000 at Nagaon. She made it clear that she was married with the accused of her own accord and she will go with her husband-accused and not with the father. 23. Relying on the above statement given by the victim, the learned defence counsel submitted that the statement fully lends support to the defence stand that the prosecutrix had voluntarily accompanied the accused. The learned defence counsel drew additional support from the fact that the victim girl did not raise any hue and cry even when she had ample opportunity when they stayed in a hotel in Dibrugarh, then while going to Nagaon by public bus, while staying at Nagaon in the house of the aunt of the accused and also while being taken to Changlang by road via Margherita i.e. her own home town. All these circumstances, according to the learned Counsel, go to show that the prosecutrix had actually eloped with the accused was not abducted. 24. I find considerable force in the above submission of the learned defence counsel. All these circumstances, according to the learned Counsel, go to show that the prosecutrix had actually eloped with the accused was not abducted. 24. I find considerable force in the above submission of the learned defence counsel. The above statement recorded under Section 164 Code of Criminal Procedure brings into focus the circumstances in which the victim girl left home on 31.12.1999. None of the circumstances highlighted above give the slightest indication of use of force or for that matter use of deceitful means when she was taken away from her house. In a Patna case where the prosecutrix had admitted before Magistrate in her statement recorded under Section 164 Code of Criminal Procedure that she had voluntarily accompanied the accused and had got married with her, the conviction of the Appellant was not found sustainable, Section 1997(4) Cri 52. Similarly, in a Bombay case where movement of the prosecutrix from place to place was not attributable to the accused it was held that the conviction of the accused under Section 366 IPC was not sustainable in law, 1993 (3) Cri 454. 25. No doubt, the prosecutrix did not stand by her statement recorded under Section 164 Code of Criminal Procedure while deposing before the Court. Even though she stated in her examination-in-chief that she made the statement exhibit-2 before the Magistrate at Margherita Court in her cross-examination, she stated as follows: The statement made before Magistrate at Margherita on 23.1.2000 is different from my evidence before Court today. I made the statement before the Magistrate at Margherita on oath. It is a fact that I have deposed falsely before the Court as tutored by my parents. 26. Then explaining the circumstances in which she was forced to make the statement, she answered the questions put to her by the Court as follows: To Court: At the time of giving statement before Magistrate at Margherita, I was with the parents of accused and I made the statement before Court on being influenced by the parents of accused. The father of the accused told me that if I made any statement against the accused, then the accused will be terminated from service and we both will be jailed. On 23.1.20001 was released in the custody of my parents. Since then I am staying with my parents. 27. The father of the accused told me that if I made any statement against the accused, then the accused will be terminated from service and we both will be jailed. On 23.1.20001 was released in the custody of my parents. Since then I am staying with my parents. 27. The above reasons given by the victim, to say the least, seem to be contrary to the factual position. It becomes clear from the evidence of the I/O (PW-7) that it was 7 P.M. on 21.1.2000 when they reached Margherita from Changlang and the victim girl was kept in the Police Station for the night and while forwarding the victim to Court on 22.1.2000 to get her statement recorded under Section 164 Code of Criminal Procedure she was escorted by a woman constable and was accompanied by her mother. The I/O has very clearly stated that none of the family members of the accused accompanied the victim. Therefore, there is very little possibility of the statement that the parents of the accused influenced her, being correct. That apart, we cannot lose sight of the fact that the statement recorded under Section 164 Code of Criminal Procedure was made immediately after the victim was recovered, whereas the statement before the Court was made nearly two years after the recovery of the victim. It is therefore important to note that the prosecutrix turned against the accused after two long years. This intervening period of two years makes the statement made by the victim girl before the Court not free of embellishment. It has been held by Delhi High Court in Mangal Ram v. State 1987 Cri.L.J. 224 that a victim turning against the accused immediately on recovery shows want of her consent. Such however is not the case in hand. In 1952 CriLJ. 79 it has been held that the statement made soon after the incident is far more trustworthy than later denials or embellishments. 28. Of course, it is a well established position in law that a statement recorded under Section 164Code of Criminal Procedure can never be used as substantive evidence of truth of facts, but it may be used for contradiction or confrontation of the witness who made it. 28. Of course, it is a well established position in law that a statement recorded under Section 164Code of Criminal Procedure can never be used as substantive evidence of truth of facts, but it may be used for contradiction or confrontation of the witness who made it. In the present case, however the witness was never confronted with the statement alleged to be contradictory and with this the defence lost the opportunity to test the veracity of the witness. However, it is not the law that a retracted confession/statement has to be discarded as involuntarily or unlawfully made merely because it has been retracted at the trial. Such statement has to be examined carefully in the light of the surrounding circumstances. Therefore, when the above statement made by the victim under Section 164 Code of Criminal Procedure is examined in the light of the overall circumstances, it does not appear that it is against all probabilities in the case. As already stated above, the evidence on record does not warrant a conclusion that the victim girl was either compelled by force or induced by deceitful means to leave her place by the accused. In Shyamasundar Kar v. The State, 1969 Cri.L.J. 1310 (supra), it has been held by Orissa High Court that if the prosecutrix is found to have gone from one place to another without the accused having adopted any deceitful means for inducing the prosecutrix to go, the abduction cannot be held to have taken place. In Raj Kumar v. State 1996 (1) Cri 626 where the victim had lived with the accused for 2 days without making any protest it was held that the Appellant cannot be said to have forcibly taken her away from her house and his conviction under Section 366 was unsustainable. 29. It is therefore evident from what has been discussed above that the evidence on record does not show that the victim girl has been abducted within the meaning of the word assigned to it under Section 362 IPC. 30. A perusal of the impugned order goes to show that the learned trial court came to the conclusion that the accused abducted the prosecutrix mainly relying on the evidence of the prosecutrix (PW-5) herself and PWs 1, 3, 4 and 7. 30. A perusal of the impugned order goes to show that the learned trial court came to the conclusion that the accused abducted the prosecutrix mainly relying on the evidence of the prosecutrix (PW-5) herself and PWs 1, 3, 4 and 7. The learned court observed in page 7 of the typed copy of the judgment as follows: The most important witness in the abduction case is generally the abducted girl herself. Here in this case it is clear from the evidence of PW-5 that she was abducted by the accused on the day of incident and recovered by police. 31. As regards the evidentiary value to be attached to the evidence of PWs 1, 3, 4 and 7, it was observed: The evidence of PWs 1, 3, 4 and 7 as regards to the recovery of PW-5 from the company of the - accused is found reliable and convincing. There is no reason why a Police Officer falsely deposed before court implicating the accused. The evidence of PWs 1, 3 and 4 is found reliable as regards to the taking away of PW-5 by the accused and her recovery from the company of the accused. They have not made any exaggeration of the incident in their evidence. The learned court thereafter came to the following conclusion: So it can be safely inferred that the accused abducted her on the day of occurrence by one ambassador car by calling her to tell something and moved her from place to place and finally recovered from his place Changlang. 32. It is clear from the above that the learned trial court has focused its attention merely on the factum of taking away of the victim from the place of her residence. The impugned order nowhere shows that the learned court came to any finding regarding use of force or deceitful means which are the essential ingredients of the offence of abduction. It hardly needs to be observed that merely taking away of a woman without use of force or deceitful means and without the intention specified in the section would not amount to abduction. 33. Be that as it may, one more circumstance relied on by the learned trial court for coming to the conclusion that the accused had abducted the victim is his failure to substantiate the defence plea taken by him during the trial. 33. Be that as it may, one more circumstance relied on by the learned trial court for coming to the conclusion that the accused had abducted the victim is his failure to substantiate the defence plea taken by him during the trial. The following observation made by the learned trial court in this regard would make the matter clear: (i) The accused in his statement Under Section 313 Code of Criminal Procedure denying the allegation stated that the informant and PW-5 falsely implicated him in this case for having a quarrel with the informant for taking goods from his shop on credit. But the defence has not cross-examined the witnesses on that point. So the facts remain that Sabita Mitral was abducted by the accused and recovered by police from his company after twenty days of the abduction. (ii) The defence plea that the accused was falsely implicated by the informant and the witnesses for having a quarrel for goods taking on credit from the shop of the informant appears to be not convincing. There is no evidence on record to show that the informant owned one shop and the accused used to take goods from his shop on credit. Defence has not cross-examined the witnesses on the point. Normally the parents like to prevent the publicity of such occurrence to bring ordeal or emotional injury to their child. 34. There is no doubt and one must concede that the materials on record are not sufficient to substantiate the defence plea, yet to say that merely for such failure of the defence, the accused must be held to have abducted the victim would be against the well established principles of criminal jurisprudence. It is hardly necessary to observe that it is the well accepted principle of criminal jurisprudence that burden of proof rests always on the prosecution in a criminal case. This principle is based on the fundamental principle that the accused should be presumed to be innocent till he is proved guilty by proving the case against him beyond reasonable doubt. It is important to note that such burden of proof never shifts. In this regard, it is also important to note that answers given by an accused during his examination under Section 313 Code of Criminal Procedure are not treated as evidence nor can they be used to fill up the gap in the prosecution case. 35. It is important to note that such burden of proof never shifts. In this regard, it is also important to note that answers given by an accused during his examination under Section 313 Code of Criminal Procedure are not treated as evidence nor can they be used to fill up the gap in the prosecution case. 35. Therefore, it is difficult to subscribe to the finding arrived at by the learned trial court that the accused abducted the victim girl within the meaning of Section 362 IPC, and made himself liable under Section 366 IPC. 36. One more aspect that requires to be addressed before coming to the final conclusion is the evidence regarding age of the prosecutrix. A perusal of the evidence on record would go to show that the prosecution let in evidence regarding age to show that the prosecutrix was minor being under 18 years of age at the time of occurrence apparently to show that even if the charge of kidnapping and abduction framed under Section 366 fails the accused would be liable to conviction for the offence of kidnapping from lawful guardianship under the related sections of law. In this regard, the submission of Mr. Gogoi, the learned defence counsel is that the age of the victim girl having not been satisfactory proved, the question of taking or enticing the prosecutrix away from the lawful guardianship does not arise. 37. So far as the offence of kidnapping is concerned, it may be noted that of the two kinds of kidnapping namely kidnapping from India and kidnapping from local guardianship as specified in Section 359 IPC, we are concerned with kidnapping from lawful guardianship. Section 361 which defines kidnapping from lawful guardianship runs as follows: Kidnapping from Lawful guardianship -- Whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 38. A bare perusal of the above section makes it amply clear that the offence of kidnapping from lawful guardianship may be committed in respect of either a minor or a person of unsound mind. 38. A bare perusal of the above section makes it amply clear that the offence of kidnapping from lawful guardianship may be committed in respect of either a minor or a person of unsound mind. If the offence alleged to be committed is in respect of a minor as in the present case, such minor should be under 16 years of age if a male and under 18 years of age if a female. The case sought to be made out by the prosecution against the accused-Appellant is that he kidnapped the victim girl a minor from the lawful guardianship. Thus, having regard to the case sought to be made out against the accused and also the essential ingredients of the offence defined in Section 361 IPC, the prosecution would be required to prove that the victim girl was under 18 years of age on the date of occurrence, that she was kidnapped from lawful guardianship, that the accused-Appellant took away the minor victim girl from the keeping of her lawful guardian by enticing her to leave and that such taking away or enticing away of the victim girl was without the consent of such guardian. Therefore, the first and foremost requirement of the offence is that the age of the victim girl should be under 18 years of age. The question that arises is, what was the age of the victim girl and has the prosecution been able to satisfactory prove that the victim girl was under 18 years of age on the date of occurrence? 39. At the outset, it maybe observed that the evidence that has been brought on record to prove the age of the victim girl is scanty and consists only of radiological examination, evidence of the mother of the victim and the evidence of the victim girl herself. No other evidence like school certificate or certificate of birth has been produced. Having regard to such scanty material on record regarding the age of the victim, the contention urged by Mr. Gogoi as already noted above is that the prosecution has not been able to satisfactorily prove the age of the victim girl to be below 18 years on the date of occurrence and question of taking away the victim girl from the lawful guardianship does not and cannot arise. Let us, therefore, see how tenable the contention of the learned defence counsel is. 40. Let us, therefore, see how tenable the contention of the learned defence counsel is. 40. Thus, the evidence with regard to the age of the victim only consist of radiological examination and evidence of witnesses. Dr. Kumud Chandra Das (PW-6) stated that he had advised x-ray for age determination of the victim and accordingly x-ray was done from Todi's Diagnostic Centre Pvt. Ltd, Makum Road, Tinsukia and according to the x-ray report given by Dr. S.N. Todi of the said Diagnostic Centre, the age of the victim girl would be 16/2 to 17 years. The witness made it clear in his cross-examination that his opinion regarding the age of the victim girl was based on the radiological report. The next witness who deposed regarding the age of the victim is Smti. Bimala Devi Mittal (PW-3) who is the mother of the victim. In her examination, she stated that the victim was born on 5.11.82 and her age at the time of occurrence was 17 years. Smti Sabita Kumari Mittal the victim girl deposing as PW-5 stated: My age was 17 years at the time of occurrence. 41. The question is whether the above evidence is sufficient to show that the victim girl was under 18 years of age at the time of occurrence. As already noted above, the evidence with regard to the age of the victim consist of the opinion formed by Dr. Kumud Chandra Das (PW-6) on the basis of the radiological report prepared by the Radiologist Dr. S.N. Todi and the evidence of witnesses. So far as the question of the opinion being based on radiological report is concerned, it maybe observed that absolute reliance cannot be placed on such radiological opinion. According to an observation made in Modi's Text Book of Medical Jurisprudence and Toxicology, 20th Edition, radiological examination merely indicates an average age and such age is likely to very in individual cases even of the same province owing to eccentricities of development. Referring to this observation, a Division Bench of Madras High Court in Shanmugham v. The State, reported in 1984 Cri.L.J. 1081 has observed that the determination of age on the basis of radiological examination can only be an approximate factor and it cannot be taken as a decisive and incontrovertible feature. Referring to this observation, a Division Bench of Madras High Court in Shanmugham v. The State, reported in 1984 Cri.L.J. 1081 has observed that the determination of age on the basis of radiological examination can only be an approximate factor and it cannot be taken as a decisive and incontrovertible feature. The learned Bench observed as follows: Courts have taken judicial notice of this fact and have always held that evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person, but the evidence is not of a conclusive and incontrovertible nature and is subject to a margin of error. 42. As regards the margin of error in ascertaining age, the Apex Court in Jayamala v. Home Secretary, Govt. of J. & K. reported in AIR 1982 SC 1297 has observed as follows: However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. 43. Keeping in view the above legal position, we may also take notice of other oral evidence in this regard. As noted above, Smti. BimalaDevi Mittal (PW-3), mother of the victim, the victim girl was born on 5.11.1982 and she had attained the age of 17 years at the time of occurrence. This evidence is however not supported by documentary evidence like birth certificate issued by any competent authority or school certificate or college certificate. Entry in school certificate or in birth and death registers if produced would certainly have been relevant under Section 35 of the Evidence Act. However, no such documents have been produced. The evidence given by the prosecutrix on the other hand is not free from doubt. While in her evidence before the Court she stated that she was 17 years of age at the time of occurrence, in her statement recorded in Section 164 Code of Criminal Procedure soon after she was recovered from the possession of the accused, she had stated that she was 19 years running. The following is her statement- On oath my present age is 19 years running. Earlier I studied in the Govt. Higher Secondary School situated at Changlang. I read up to class-X and in the year 1996 I left my studies. I was born in 1981. The statement which has been marked as exhibit-2 has been duly proved. The following is her statement- On oath my present age is 19 years running. Earlier I studied in the Govt. Higher Secondary School situated at Changlang. I read up to class-X and in the year 1996 I left my studies. I was born in 1981. The statement which has been marked as exhibit-2 has been duly proved. The witness has admitted that exhibit-2 was her statement and exhibit 2(1) and exhibit 2(2) were her signatures. Note may also be taken of the fact that the statement exhibit-2 was made soon after she was recovered from the possession of the accused and her deposition before the Court was made after 2 years. Having regard to the length of time that elapsed after she made her first statement, the possibility of her being tutored cannot be ruled out. Thus, no reliance can be placed on the statement of the prosecutrix regarding age. The result is that the age of the prosecutrix has been left in doubt. As per the observation made by the Apex Court in State of Karnataka v. Sureshbabu Puk Raj Porral, reported in AIR 1994 SC 966 where the age of the victim is doubtful--question of taking her away from lawful guardianship does not arise. 44. Therefore, the age of the victim having not been satisfactorily proved to be below 18 years, it must be held that the case of kidnapping from lawful guardianship does not also stand proved. No doubt, it is a settled law as held by-a Division Bench of Gujarat High Court in Ghanchi Vora v. State of Gujarat reported in AIR 1970 Guj 178 that age of victim not being proved accused could be convicted for abduction under Section 366. However, we have already seen above that the materials on record fall for short of proving a case under Section 366. 45. For the foregoing reasons and observation, the impugned order of conviction and sentence is liable to be quashed and the accused is entitled to an order of acquittal. 46. In the result, the judgment and order of conviction dated 6.12.2002 passed by the learned Additional Sessions Judge No. 1, Tinsukia, Assam in Sessions Case No. 145 (M) 2000 is hereby set aside and the accused Appellant is acquitted.