JUDGMENT Anima Hazarika, J. 1. The Appellant Dharani Daloi was convicted by the learned Assistant Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 3(DM-1) of 1996 for the offence punishable under Section 366(A) of the IPC and was sentenced to undergo rigorous imprisonment CRD for five years and to pay a fine of Rs. 5,000 in default, to suffer RI for six months. 2. Prosecution case in brief is that an FIR was lodged on 16.5.1990 by one Guna Ram Doloi before Kalaigaon Police Station stating, inter alia, therein that on 14.5.1990 at about 6 p.m. his minor daughter was kidnapped by the accused Appellant on her way to her house. Upon hearing the news, the victim girl was searched by her father, i.e., the informant with the help of other villagers and she was recovered from the house of the accused. On enquiry she told her father that the accused Appellant had committed sexual intercourse against her will. 3. On receipt of the aforesaid FIR police registered a case being Kalaigaon PS Case No. 56/90 under Sections 341/ 342/ 366/ 376 of the IPC and started investigation. During investigation, police arrested the accused and also produced the victim girl before the court to record her statement under Section 164, Code of Criminal Procedure. Accordingly, her statement was recorded by the Judicial Magistrate at Mangaldoi. She was sent to the Mangaldoi Civil Hospital for examination and the Investigating Officer ('I/O') also recorded the statement of the witnesses and on completion of the investigation submitted the charge sheet. 4. The case being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, 1st Class, Mangaldoi committed the case to the court of Sessions for trial wherein on perusal of the materials on record and after hearing the learned Counsel appearing for the parties, the learned Sessions Judge framed charge under Section 366(A)/ 376 of the IPC against the accused. The charge so framed being read over and explained to the accused, he pleaded not guilty and claimed to be tried. Thereafter, the learned Sessions Judge transferred the case to the court of the learned Assistant Sessions Judge, Darrang, Mangaldoi for trial. 5. During the trial, the prosecution examined as many as nine witnesses including the I/O and the Medical Officer. The defence case is of complete denial. The defence adduced no evidence. Thereafter, the learned Sessions Judge transferred the case to the court of the learned Assistant Sessions Judge, Darrang, Mangaldoi for trial. 5. During the trial, the prosecution examined as many as nine witnesses including the I/O and the Medical Officer. The defence case is of complete denial. The defence adduced no evidence. In his statement recorded under Section 313, Code of Criminal Procedure, the accused denied the allegation leveled against him stating that he was falsely implicated in the case at the instance of his enemy. 6. The learned trial court after completion of the trial, on perusal of the evidence adduced on behalf of the prosecution and also materials available on record convicted and sentenced the accused as indicated hereinabove. Thus, being aggrieved, the instant appeal has been filed by the accused Appellant challenging the legality and validity of the judgment of conviction passed by the learned trial court. 7. Heard Mr. N.C. Das, learned senior counsel assisted by Ms. M. Devi, learned Counsel appearing for the Appellant. Also heard Mr. Z. Kamar, learned P.P., Assam. 8. It has been strenuously argued by Mr. Das, learned senior counsel that prosecution has miserably failed to prove its case and, hence, the impugned order of conviction and sentence are liable to be set aside. He further submitted that there are material contradictions in the depositions of the prosecution witnesses. In the charge of kidnapping a minor girl, the burden to prove the age of the victim girl is upon the prosecution. In the instant case, parents of the victim girl did not produce any school certificate or birth certificate to prove the age of the victim girl. On the other hand, PW7, the doctor has opined that the age of the girl will be approximately 15-17 years. There being no conclusive proof of age of the victim girl, the impugned judgment convicting the accused Appellant under Section 366(A), IPC is liable to be set aside and quashed. 9. Per contra, Mr. Kamar, learned P.P., has submitted that prosecution has proved its case beyond all reasonable doubt and, hence, there is nothing to interfere with the conviction and sentence passed by the learned trial court, inasmuch as, there is nothing to show on record that the victim or her family had any animosity with the accused Appellant for which they had falsely implicated him in the case. As such, according to the learned P.P., the appeal has no merit and is liable to be dismissed. 10. The factum of the victim girl PW6 being taken away by the accused Appellant and the recovery of PW6 from the company of accused is not in dispute and the accused was accordingly found guilty of committing the offence under Section 366(A), IPC which refers to procuration of minor girl. Section 366(A), IPC is being relevant in this case, the same is quoted hereunder: 366A. Procuration of minor girl: Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. 11. To establish the offence under Section 366(A), IPC, the prosecution is to prove that PW6 was minor on the day when she was taken away by the accused. In the case in hand, learned trial court has convicted the accused Appellant under Section 366(A), IPC only upon relying the evidence of P Ws 4 and 6. PW4 has stated in his deposition that the age of the victim girl was 13 years and PW6, the victim girl herself stated that her age was 12 years. However, the learned trial court did not accept the opinion of PW7, the doctor regarding the age of the victim without showing any reason. 12. In the above circumstances, the point for determination in the instant case will be whether the conviction and sentence of the accused Appellant under Section 366(A), IPC is sustainable in law, when the prosecution has miserably failed to prove the case under Section 366(A), IPC. 13. Regarding the age of PW6, the father of the victim girl, i.e., PW4 while deposing in the court has stated that at the time of occurrence her age was 12 years, on the other hand, in the FIR lodged by the father of the victim, her age was stated to be 13 years whereas the doctor has opined that her age was approximately between 15 to 17 years. However, learned trial court has found that at the time of the incident the victim girl was minor. However, learned trial court has found that at the time of the incident the victim girl was minor. 14. While examining the victim girl, PW7 the doctor has found as follows: (1) General configuration - Good (2) Number of teeth - above 14/14 (3) Hairs - axillary/scanty (4) Breast - Well developed. (5) Sign of violence on her person - nil. (6) External and internal genitalia - developed; admit 1 finger (7) Vaginal smear (slide No. 3325/17.5.90 - No spermatozoa seen. (8) X-ray - wrist joint - incomplete union of epiphysis diaphysis of lower radius and alna. (2) Iliac crest - incomplete union of iliac crest with body of ileum. From the description of above datas it appears to me - (1) No sign of rape could be detected; (2) Her age will be approximately between 15-17 years. 15. Regarding the age of the victim girl, the specific evidence of PW7, the doctor was that her age was between 15-17 years on the date of occurrence. PW7 determined the age of the victim on the basis of physical examination as well as x-ray report. In this background if one examines the evidence of P Ws 4 and 6, it would be clear that their evidence is wholly unreliable. PW4 has stated in his deposition that the age of the victim girl was 13 years and the victim girl herself stated that her age was 12 years. While discussing about the age of the victim girl, the learned trial court has not considered the evidence of PW7, i.e., the doctor nor it gave any finding as to why the evidence of PW7, i.e., the doctor has not been accepted. The learned trial court merely relied on the evidence of P Ws 4 and 6 accepting the same in the face value without discussing the medical evidence. 16. The victim girl has categorically deposed that the accused had not given any proposal nor had any intention to have sexual intercourse. She further deposed that the accused is her related brother and while filing the FIR her father did not ask any question. PW2 one of the co-villager has deposed that the accused had married the victim and taken away to his home. She further deposed that the accused is her related brother and while filing the FIR her father did not ask any question. PW2 one of the co-villager has deposed that the accused had married the victim and taken away to his home. PW3, i.e., brother of PW6 has deposed that after attending marriage, when his sister, i.e., PW6 was returning along with her friend Parmita Kakati, Dipali Deka and Sangita Kakati on the way to her residence about 1 k.m. away from the marriage place, the accused had forcefully kidnapped his sister which is not at all believable, inasmuch as, the accused was alone and the victim was accompanied by her three friends that too 1 k.m. away from the marriage place of the village. In cross-examination, he has deposed that Dipali did not inform him about the kidnapping. He has further deposed that in the house of the accused the village Headman enquired about the incident from the victim. He did not enquire about the incident and she also did not tell anything else. Had the victim been kidnapped by the accused she would have immediately told her brother regarding kidnapping which shows that the victim went to the accused with her own consent. PW4 the father of the victim, in cross-examination, has deposed that his wife, i.e., mother of the victim went inside the house of the accused and recovered the victim. They did not ask anything to the victim and he also did not enquire about the incident. PW5 one of the co-villager has stated that at about 8 p.m. in the night, on the next day of the incident he met the accused with the victim and he asked the victim to return back to her house and informed the same to the father of the victim as his house is near to her house which shows that the victim girl accompanied the accused with her consent. 17. Regarding the age of the victim neither birth certificate nor age certificate has been produced on behalf of the prosecution to prove that on the day of occurrence, the victim was a minor girl. 17. Regarding the age of the victim neither birth certificate nor age certificate has been produced on behalf of the prosecution to prove that on the day of occurrence, the victim was a minor girl. Regarding non-consideration of age of the victim while convicting the accused under Section 366(A), IPC, it would be proper to rely upon the decision in Samsul Haque @ Samsul Alam v. State of Assam, 2005 (3) GLT 105 wherein this Court relying upon the decision of Jaya Mala v. Home Secretary, Jammu & Kashmir, AIR 1982 SC 1297 held at para 9 as, thus: In view of the above, the age of the victim becomes more relevant factor. From the oral evidence on record PW6 was studying in class-IX at the relevant time. As held by the Apex Court that birth certificate and the school certificate are the best evidence as regards age. But admittedly no birth certificate nor the school certificate or the school register has been produced to show the actual age of PW6. PW6 claimed to be 23 years of age when she deposed before the court on 10.9.2002. The incident had taken place on 20.8.1997, i.e., about 5 years prior to her deposition before the court and, hence, from the oral evidence we find that the victim was 18 years old at the time of the incident. Besides the other witnesses, prosecution also examined the Doctor who held the ossification test and opined that the age of the victim is above 16 years and below 18 years. In the case of Jaya Mala v. Home Secy. J&K, AIR 1982 SC 1297 , the Apex Court has held that ossification test is no doubt a surer test but the margin of error is two years on either side. Hence, this being a case of voluntary elopement and not forcible kidnapping, the benefit of this must go to the accused and therefore, we hold that PW6 was not a minor and she voluntarily went with the accused and we find that no case for kidnapping or rape is made out. 18. In view of the discussion made above, it seems that the evidences are not sufficient and not beyond reasonable doubt to hold the accused Appellant guilty under Section 366(A), IPC. 19. Accordingly, the appeal stands allowed. 20. It is stated at the Bar that the accused Appellant is on bail. 18. In view of the discussion made above, it seems that the evidences are not sufficient and not beyond reasonable doubt to hold the accused Appellant guilty under Section 366(A), IPC. 19. Accordingly, the appeal stands allowed. 20. It is stated at the Bar that the accused Appellant is on bail. His bail bond stands discharged. 21. Send down the lower court record. Appeal allowed