JUDGMENT P.K. Musahary. J. 1. Heard Mr. A. Choudhury, learned Counsel for the Appellant and also heard Mr. B.B. Gogoi, learned Addl. P.P., Assam. 2. This appeal has been preferred against the judgment dated 10.9.2002 passed by learned Sessions Judge, Morigaon in Sessions Case No. 94/2000 convicting the accused Appellant Under Section 366, IPC and sentencing him to undergo rigorous imprisonment for 4 (four) years with fine of Rs.1,000 in default for another rigorous imprisonment for 2 (two) months. 3. The prosecution is founded on an ejahar lodged by the victim girl with the Officer in-Charge, Mikirbheta Police Station on 24.12.1998 stating that from the year 1996, she had love and intimacy with the accused Appellant Nareswar Nath, who used to frequently visit her house and also sexually enjoyed her by assuring to marry her. As a result, she conceived for 2/3 months. On 5.12.1998, while she was returning home from her examination hall, the Appellant took her to his own house but accused Pradip Nath and Tusendra Nath were against the action of the Appellant and the said accused Pradip Nath and Tusendra Nath rebuked her with slang language and kept her in the outer house without providing her meal. The accused persons assaulted her with blows, kicks causing injuries to her person. Due to kicks on her abdomen, her pregnancy was aborted. The accused persons along with Damayanti Devi and Sankar Nath physically tortured her and drove her out of their house. While she was coming to her own house, the accused persons chased her to assault. So, she was compelled to file ejahar with police and the Officer-in-Charge of the Mikirbheta registered a case being Mikirbheta PS. Case No. 109/98 Under Sections 420/493, IPC. During investigation, the O.C. forwarded the girl for medical examination, collected the injury report and produced the girl before the magistrate to record her statement Under Section 164, Code of Criminal Procedure The I.O. also visited the place of occurrence, seized as many as 17 letters written by the Appellant to the victim including one school certificate, collected evidence and arrested the accused persons. 4. After completion of investigation, the I.O. submitted charge sheet Under Sections 366/367/313, IPC against the accused persons namely, Nareswar Nath, Pradip Nath, Damayanti Nath, Tosendra Nath and Sankar Nath. The case was committed to the Court of Sessions, Morigaon, which was registered as Sessions case No. 94/2000. 4. After completion of investigation, the I.O. submitted charge sheet Under Sections 366/367/313, IPC against the accused persons namely, Nareswar Nath, Pradip Nath, Damayanti Nath, Tosendra Nath and Sankar Nath. The case was committed to the Court of Sessions, Morigaon, which was registered as Sessions case No. 94/2000. The learned Sessions court, at the time of consideration of charges, did not find any material against the accused Sankar Nath, Tosendra Nath, Damayanti Nath and Pradip Nath for which they were discharged Under Section 227, Code of Criminal Procedure However, on finding case, the learned Sessions Court framed charge against the present accused Appellant Nareswar Nath Under Sections 366/417, IPC. The charges were read over and explained to the accused Appellant to which he pleaded not guilty and claimed to stand trial. In order to bring home the charge, the prosecution examined as many as 6 witnesses including the Investigating Officer and the Medical Officer but the defence examined none taking plea of total denial. 5. It may be noted that even after due diligence, the learned trial court failed to compel the appearance of the victim girl and she could not be examined in connection with the case as she was already given to marriage and was residing at Delhi during trial. The learned trial court even issued notice on the guardian to produce the victim girl before the court for her evidence but her appearance could not be compelled. Under such circumstances, the learned trial court, after examination of other witnesses including the I.O. and M.O. and on consideration of the evidence and materials available on record and after hearing the learned Counsel for the parties, passed the impugned judgment convicting and sentencing the accused Appellant as stated earlier. 6. The father and mother of the informant were examined as PW-1 and PW-2 respectively. PW-1 deposed that one Bhola Nath and Tosendra Nath informed him that his daughter 'Rita' (not real name) was at the house of accused and having come to know about it, he went to the house of the accused along with 2 Sarkari Gaon Burahs (Village Headmen), PW-3 and PW-4, to the house of the accused and he found his daughter there. Accused Nareswar expressed his willingness to keep his daughter and when he enquired his daughter (victim), she disclosed him about her pregnancy. Accused Nareswar expressed his willingness to keep his daughter and when he enquired his daughter (victim), she disclosed him about her pregnancy. According to him, subsequently, accused Nareswar applied some medicines and assaulted at her stomach and head, as a result of which, abortion took place and thereafter, his daughter was sent out. He further stated that his victim daughter 'Rita' took shelter in the house of her maternal uncle. During her life time, 'Rita' told him that the pregnancy was from none other than Appellant Nareswar. In cross-examination, PW-1 deposed that 'Rita' remained in the house of the Appellant for about 20 days but within this period, no further visit took place to the house of each other. PW-2 substantially corroborated the evidence of PW-1. She, however, stated that her daughter was a student of Class-DC and she was aged 15 years. On the date of occurrence, her daughter went to School to appear in the examination but in the evening she did not return home. They searched for their daughter but they could not trace her. 7. The Sarkari Gaon Burah, PW-3, deposed that he knew the victim girl remained untraced on a particular day but she was found on the next day. He along with Lakhim Nath (PW-5) Sarkari Gaon Burah, Mohan Nath and Monur Ali and Chandra Kanti Sharma (PW-1), father of the victim girl, came to the house of the accused where they found the victim girl. According to him also, the girl stated that she was pregnant of 3 months and as such, the accused kept her at his house but after 20/22 days, the accused drove her out from their house. In his cross-examination, PW-3 stated that mother of the accused denied the relation of her son with the victim girl and she asked them to take back the girl but since the girl was in advanced stage, the 'Raij' (members of the public) did not agree to bring her back. The other Sarkari Gaon Burash (PW-4) also deposed in the same manner. However, he added that at the time of occurrence, the victim girl was a student of Class-VIII. The medical officer (PW-5) deposed that he examined the victim girl on 23.12.1998. He stated that during examination, he found no mark of violence on her private parts nor any semen stain in her garments. He, however, found her hymen ruptured. However, he added that at the time of occurrence, the victim girl was a student of Class-VIII. The medical officer (PW-5) deposed that he examined the victim girl on 23.12.1998. He stated that during examination, he found no mark of violence on her private parts nor any semen stain in her garments. He, however, found her hymen ruptured. He found evidence of injury in her left ear, scalp due to forceful pulling of hair. He found evidence of "sexual intercourse for repeated times" but it was not recent. In his opinion, the radiological age of the girl would be 18 year, but no report of radiologist was produced before the court. The I.O. was examined as PW-6, who stated that during investigation, he sent the girl for medical examination and produced before the court for recording her statement Under Section 164, Code of Criminal Procedure arrested the accused and after completion of investigation submitted charge sheet. 8. After completion of the evidence of prosecution witnesses, the accused Appellant was examined Under Section 313, Code of Criminal Procedure pointing out to him the incriminating evidence recorded against him. 9. In order to make the accused liable for offence Under Section 366, IPC, it must be proved that the accused took away and/or enticed a minor girl out of lawful guardianship without consent of the guardian and that he induced/compelled the girl/woman by force to go in a place by deceitful means with intent that she may be seduced to illicit intercourse and the accused knew it to be likely that the girl/woman may be seduced to illicit intercourse as a result of her abduction. It is necessary to establish first of all that the victim girl in respect of offence Under Section 366, IPC is below 18 years. In the present case, the learned trial court, on the basis of school certificate seized by the I.O., wherein the date of birth of the victim was recorded as 1.1.1982, came to a conclusion that she did not complete 17 years till 5.12.1998, i.e., the date of occurrence on which she was alleged to have been kidnapped but the said certificate was not proved by the Headmaster of the school concerned. The said certificate remains on record without being marked as an exhibit. The said certificate remains on record without being marked as an exhibit. Further, the learned trial court recorded that the name of the victim girl in the school certificate appears to be 'Chitra Sharma' and not 'Rita Sharma' although the name of the father is same, i.e., Chandra Kanta Sharma. While examining the victim's father, PW-1, the prosecution did not get it clarified from him whether 'Rita' and 'Chitra' is the same person and if so, and how a different name of her daughter appeared in the school certificate. On the other hand, the doctor, PW-5, in his opinion, stated that the radiological age of girl is 18 years. Whether his opinion can be accepted as no report of radiologist has been produced before the court. It is the established law that the opinion of the medical officer cannot be treated as a conclusive proof of age of a person but it can be treated as an approximate age and such medical report or opinion of the doctor should be used after calculating little above or little below. It means the age of the victim girl may be above 18 years or around 19 years in the higher side and around 17 years or little above 16 years. Such calculation would lead to a conclusion that the victim girl was above 16 years at the time of alleged occurrence. She might be above 18 years also but it will not be proper to accept the age of the girl above 18 years. In any case, she must be treated as above 16 years and she attained the age of majority and she was capable of going out with the Appellant voluntarily without being induced. 10. The FIR itself reveals that she had love and intimacy with the Appellant and the Appellant frequently visited her house and they enjoyed sex. Such relation, as disclosed in the FIR itself, led to conceivement. In the evidence of I.O., PW-6, it is also apparent that there was exchange of love letters between the girl and the Appellant and the said I.O. seized some love letters during investigation. The conduct of the victim girl demonstrates that she voluntarily went off with the Appellant to his house after she became pregnant of 2/3 months. Besides, as disclosed by the prosecution, she had already got married and staying at Delhi. The conduct of the victim girl demonstrates that she voluntarily went off with the Appellant to his house after she became pregnant of 2/3 months. Besides, as disclosed by the prosecution, she had already got married and staying at Delhi. Considering the fact that she had been maintaining sexual relation and got pregnant, the victim girl definitely attained puberty, majority and maturity and she was in all probabilities, 18 years or above 18 years at the time of occurrence. 11. In this regard, I may gainfully refer to Lalta Prasad v. State of M.P. AIR 1979 SC 1276 , wherein the Apex court held that in view of innumerable love letters written by the girl to the accused long before the occurrence ruled out the theory that the girl was compelled to accompany by the accused by threat or allurement. In the said case, dispute arose as to whether the victim girl was below 18 or not. It was also held that the victim girl not only voluntarily abandoned the protection of her parents but also with the consent of her mother joined the accused and then married him. In my considered view, the facts and circumstances of the case is similar to the aforesaid case and the ratio laid down therein would be applicable to the present case. 12. Moreover, the victim girl having preferred not to appear and give evidence before the trial court in spite of giving opportunity to her, the evidence of the prosecution has remained inconclusive. In such a case involving kidnapping/abduction and/or sexual harassment, the evidence of the victim girl occupies utmost importance because it is the victim girl who actually knows what has actually happened and how she was induced, abducted or kidnapped or suffered sexual harassment and the accused can be convicted solely on the basis of the evidence of victim with or even without any corroboration in the evidence of other witnesses provided the prosecutrix/victim is found to be reliable, truthful and trustworthy. Considered in the facts and circumstances of the case and the evidence and materials available on record, it cannot be said that the prosecution has been able to prove its case beyond all reasonable doubts. That being so the accused Appellant is entitled to get the benefit of doubt and resultant acquittal. 13. Considered in the facts and circumstances of the case and the evidence and materials available on record, it cannot be said that the prosecution has been able to prove its case beyond all reasonable doubts. That being so the accused Appellant is entitled to get the benefit of doubt and resultant acquittal. 13. The impugned judgment dated 10.9.2002 convicting and sentencing the Appellant is, thus, liable to be set aside and it is accordingly set aside and quashed. The Appellant stands acquitted giving him benefit of doubt. The bail bond stands discharged. 14. The appeal stands allowed. 15. Send down the LCR to the court below forthwith. Appeal allowed.