JUDGMENT Anima Hazarika, J. 1. Heard Mr. S.C. Biswas, learned Counsel for the Appellant. Also heard Mr. D. Das, learned Addl. PP, Assam. 2. The Appellant herein was convicted by the Addl. Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 184 of 2000 for offence punishable under Section 363 IPC and was sentenced to undergo rigorous imprisonment ('RI' for short) for a period of 5 year and a fine of Rs. 2,000/- in default, to suffer further RI for six months. 3. Briefly stated the prosecution case is that an FIR was lodged with the Officer-in- Charge (O/C for short), Tezpur Police Station by the father of the victim girl alleging inter alia that on 1.9.2000, his minor daughter, a student of Class-VII was found missing and she did not return home. He suspected that his daughter might have been kidnapped and therefore, requested the O/C to take appropriate steps in this regard. 4. On receipt of the FIR, police registered a case and started investigation. During investigation, police recovered the victim girl and arrested the accused. After completion of the investigation, police submitted charge sheet under Section 366 IPC against the accused Appellant. The case was committed to the Court of Sessions. On being satisfied with the materials available on record, learned trial Court framed charge under Section 366 IPC against the accused. The charge being read over and explained to the accused, he pleaded not guilty and claimed to be tried. The defence case is of total denial. The defence did not adduce any evidence. 5. In order to bring home the charge, the prosecution has examined altogether six witnesses, including the informant, the victim girl, the Investigation Officer (I/O for short) and the Medical Officer. The statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein he denied the charge. At the conclusion of the trial, learned Sessions Judge, Sonitpur found the accused Appellant guilty as aforesaid. Hence, the present appeal. 6. The factum of taking away of the victim girl (PW-3) by the Appellant and recovery of the said victim girl from the company of the Appellant is not in dispute and therefore, the accused Appellant was convicted under Section 363 IPC which refers to punishment for kidnapping from lawful guardianship. Hence, the present appeal. 6. The factum of taking away of the victim girl (PW-3) by the Appellant and recovery of the said victim girl from the company of the Appellant is not in dispute and therefore, the accused Appellant was convicted under Section 363 IPC which refers to punishment for kidnapping from lawful guardianship. Section 361 IPC which defines the offence "kidnapping from lawful guardianship" reads as follows:- 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. Explanation: The words "lawful guardian" in this section include any person lawfully entrusted with the care of custody of such minor or other person. Exception: This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. In view of Section 361 IPC as quoted hereinabove, let us now scan the evidence adduced by the prosecution to see as to whether the accused Appellant is guilty of the offence under Section 363 IPC or not? 7. PW-1 is a doctor, who examined the victim girl and upon examination he found as follows: 1. Arundhuti Bora is of average built with normal gait. 2. Her height and weight are 150 cm and 39 kg. respectively. Total number of teeth 29 (14 x 14) Auxiliary hairs are scanty. Breasts not fully developed. Public hairs are normal, vulva-normally developed. Hymen-intact, admits tip of finger only. No injury was found anywhere in the body. All cloths were clean. Semen from introitus fail to disclose any spermatozoa. X-Ray of Elbow joint, wrist joint and ill-crist taken on 5.9.2000 vide No. 2561-2562, 2563 revealed following: Elbow joint-Epiphysis of the long bones of elbow joints are united. Wrist joint-Epiphysis of the distal radius and ulna are not united. Cg-eli crest-Epiphysis eli-crest are not united. Opinion: Age between 15 years and 17 years. Opinion: 1. X-Ray of Elbow joint, wrist joint and ill-crist taken on 5.9.2000 vide No. 2561-2562, 2563 revealed following: Elbow joint-Epiphysis of the long bones of elbow joints are united. Wrist joint-Epiphysis of the distal radius and ulna are not united. Cg-eli crest-Epiphysis eli-crest are not united. Opinion: Age between 15 years and 17 years. Opinion: 1. As per general appearance and radiologist the age of victim girl is between 15 to 17 years. 2. In absence of any physical findings no opinion can be given whether she was raped or not. 3. No mark of violence was noticed in the body. In the opinion of P.W.-1, the doctor, the age of the victim girl was between 15-17 years. During cross-examination, he has stated that he came to the conclusion regarding the age of the victim girl on the basis of the report of the Radiologist. According to him, epyphysis of long bones and elbow joint starts from 15 years and it completes at the age of 18 years; 2 years may vary either way. 8. P.W.-2 is the father of the victim girl. He has stated that the accused was known to him. On the day of incident, i.e. 1.9.2000, his daughter, who was a student of Class-VII came from tuition but she did not return home. Therefore, he made search to trace out his missing daughter but could not find her out. On the next day, he went to the police station and lodged the FIR Ext-1 whereupon Ext-1 (1) is his signature. On 4.9.2000, one Binod Bora reported him that his daughter and the accused have got down from one vehicle. Then P.W. 2 immediately reported the matter to the police. Police went to the place of occurrence and rescued his daughter and also arrested the accused. Police got her examination by doctor. Her statement was recorded under Section 164 Code of Criminal Procedure. During cross-examination, he has stated that the house of the accused is situated at a distance of 3 km from his house. He further stated that the accused was known to him since before and he used to visit his house. 8. PW-3 is the victim girl who has stated that she knows the accused. On 1.9.2000, at about 3-4 p.m., she went to tuition. He further stated that the accused was known to him since before and he used to visit his house. 8. PW-3 is the victim girl who has stated that she knows the accused. On 1.9.2000, at about 3-4 p.m., she went to tuition. On arrival at the teacher's house, she came to know that there would be no tuition on that day and so she came back by bicycle and while she reached the Employment Exchange Office, the accused called her and asked her as to why she came back from tuition. In the meantime, a Maruti Van came and accused forcibly dragged her into the van. Her bicycle was lying in the spot. She remained unconscious and when she regained her senses, she found herself at Nagaon. She started crying, so the accused brought her back to village Parua in Tezpur town. She was again taken to Nagaon in a Night Super Bus and then to Guwahati. On the next day, accused took her to Shillong. On 3.9.2000, she was again brought back to Guwahati and the accused kept her in the house of his relatives. On 4.9.2000, accused took her back to Parua and also took her to his own house. In the meantime, police came along with her parents. Police brought back her and the accused to the police station. She has further stated that she was not sexually abused by the accused. During cross-examination, she has stated that the accused was known to her since before and sometimes he used to visit her residence. Ext-ka is the diary and Ext-ka (1) is her handwriting. Ext-kha and ga are two letters written by her. She called the accused 'Bhaiti da'. She has admitted that vide Ext-kha she had requested the accused to take her away. She has further stated that when she was kidnapped by the accused from the place near the Employment Exchange Office she raised no alarm. At around 7 p.m., on that day die and the accused reached Nagaon Bus stand. But she did not report it to anybody. She has also admitted that during the transit period she did not tell the incident to anybody. According to her, on 4.9.2000, she came back to Tezpur. Police came and rescued her and arrested the accused. She has also stated that though she stayed for 3-4 days, yet she was not subjected to sexual abusement. She has also admitted that during the transit period she did not tell the incident to anybody. According to her, on 4.9.2000, she came back to Tezpur. Police came and rescued her and arrested the accused. She has also stated that though she stayed for 3-4 days, yet she was not subjected to sexual abusement. 10. PW-4, who is the mother of the victim girl, on oath deposed in the tune of her husband (P.W.-2). P.W.-5 has not stated anything about the occurrence. 11. PW-6 is the I/O, who has stated that on 2.9.2000, on receipt of the FIR (Ext-1) from the father of the victim girl, the Officer-in-Charge, Tezpur Police Station registered a case and entrusted him to take up the investigation. During investigation, he visited the place of occurrence, examined the witnesses and also recovered the victim girl from the house of the accused. The victim girl was forwarded to the hospital for medical examination and thereafter, her statement was recorded by the Magistrate under Section 164 Code of Criminal Procedure. On completion of the investigation, he collected the medical report and submitted charge sheet. During cross-examination, he has stated that the place of occurrence is at a distance of 1 km from the police station. He has stated that he rescued the victim girl on 4.9.2000. P.W.-6, however, admitted that P.W.-2 did not tell before him that one Binod Bora reported him that he saw the boy and the girl. He has further stated that he has not collected any school certificate of the victim girl. Other suggestions put to him have been denied. 12. Referring to the above evidence adduced by the prosecution witnesses, Mr. Biswas, learned Counsel appearing for the Appellant has submitted that Section 363 IPC specifies the punishment for the offences defined under Sections 360 and 361 IPC. To support the conviction for kidnapping from lawful guardianship, the act of the accused must come within the ambit of Section 361 IPC, i.e. the person against whom the offence is committed must be under the age of 16 years, if male, or under the age of 18 years, if female. This Section 363 IPC must be read with Section 361 IPC and the offence of kidnapping from lawful guardianship penalized by this Section is the offence, which is defined under Section 361 IPC. Mr. This Section 363 IPC must be read with Section 361 IPC and the offence of kidnapping from lawful guardianship penalized by this Section is the offence, which is defined under Section 361 IPC. Mr. Biswas has submitted that to prove the offence of kidnapping from lawful guardianship, the following ingredients are to be proved: (i) that the person in question, was at the time of commission of the offence, a minor under 16 years of age (if male), (ii) or under 18 years of age (if female); or that such person was of unsound mind. The age of the girl must be proved by the prosecution. The prosecution is to further prove that such minor or person of unsound mind was, at the time, lawfully entrusted to the keeping by a guardian and that the accused took or enticed such minor or person of unsound mind out of such keeping. Mr. Biswas has further submitted that Section 361 IPC defines 'minor', in case of a male, below 16 years and in case of a female, below 18 years. In the present case in hand, on medical examination, the victim girl was found to be between 15 years and 17 years. She could give her valid consent. Kidnapping and enticing away from the lawful guardianship in this case has not been proved. Further in the instant case, there is no evidence to show that the accused enticed the minor girl from lawful guardianship and thus, the accused ought not to have been convicted under Section 363 IPC merely on solitary circumstance that the minor girl was recovered from the house of the accused. 13. The age of the victim girl being the most important factor while convicting the accused under Section 363 IPC and the age of the girl being not proved by documentary evidence, the accused is entitled to benefit of doubt, inasmuch as, in the instant case, as per the opinion of the doctor, the age of the girl was between 15 years and 17 years on the date of occurrence, submitted Mr. Biswas. 14. In support of his submission, Mr. Biswas. 14. In support of his submission, Mr. Biswas has relied upon the decision reported in 2006 Cri LJ 2034: Naresh Sonkusare v. State of Maharashtra wherein the Apex Court after going through the evidence of the victim girl found the evidence highly discrepant and unreliable and thus acquitted the accused from the offence under Section 366 IPC. Mr. Biswas has, therefore, submitted that in the present case also no reliable and dependable evidence is available against the accused Appellant so far as other ingredients of the offence under Section 363 IPC are concerned. In view of prosecution's failure to prove the case beyond reasonable doubt it is the submission of the learned Counsel that impugned conviction and sentence passed by the learned trial Court are not sustainable in law. 15. Mr. Das, learned Addl. PP, Assam on the other hand, supporting the judgment of conviction has submitted that the learned trial Court after thorough discussion of the evidence and materials available on record has passed the order of conviction and in the appeal the same may not be interfered with by this Court. 16. I have heard learned Counsel appearing for the parties. Also perused the materials available on record. Regarding the age of the victim girl, on examination of the evidence on record, it would reveal that as per radiological report, the doctor, P.W.-1 found her age between 15 years and 17 years. Though, according to the evidence of P.W.-2, at the time of occurrence, the victim girl (P.W.-3) was a student of Class-VII at Tezpur Convent School, no certificate whatsoever from the school authority nor any birth certificate was produced by the prosecution to prove her age. On the other hand, the opinion of the P.W.-1 in respect of her age, which he found to be between 15 years and 17 years, which may vary one year on either side. The prosecution has failed to prove that the victim girl was below 18 years of age at the time of occurrence. Apart from that from the Exts-ka, kha and Ga, it transpires that P.W.-3 was in love with the accused Appellant. She has also admitted this fact during her cross-examination by defence. Therefore, the possibility of going or eloping the victim girl (P.W.-3) willfully with the accused Appellant cannot be ruled out in the instant case. 17. Apart from that from the Exts-ka, kha and Ga, it transpires that P.W.-3 was in love with the accused Appellant. She has also admitted this fact during her cross-examination by defence. Therefore, the possibility of going or eloping the victim girl (P.W.-3) willfully with the accused Appellant cannot be ruled out in the instant case. 17. In the instant case, even if the P.W.-3 is believed about her taking away by the accused Appellant from the custody of her parents no direct or circumstantial evidence were brought on record to warrant a conviction under Section 363 IPC. Sole testimony of P.W.-3 is not enough to convict the accused Appellant under Section 363 IPC when her own movements from place to place along with the accused was very much unreliable. 18. In view of the above discussion, I hold that the prosecution has failed to prove its case beyond reasonable doubt. Hence, the appeal is allowed and the impugned conviction and sentence are set aside. 19. It is submitted at the Bar that the accused has already been granted bail by this Court vide order dated 8.4.2002 in Cr. Misc. Case No. 80 of 2002. Accordingly, the bail bonds furnished by the accused stand discharged. 20. Send down the lower Court records. Appeal allowed.