JUDGEMENT V.K. Ahuja , J.: This is an appeal filed by the appellant against the judgment of the Court of learned Sessions Judge, Solan, dated 23.10.2003, vide which the appellant has been held guilty under Sections 376 and 366 and 363 I.P.C. and sentenced as under:- “(i) To undergo Rigorous imprisonment for a period of five years and to pay a fine of Rs.5000/- under section 366 of the Indian Panel Code and in default of making the payment of fine he shall further undergo a simple imprisonment for a period of one year, AND (ii) The convict aforesaid is also sentenced to undergo Rigorous imprisonment for a period of 7 year for the offence of rape punishable under Section 376 IPC and to pay a fine of Rs.10,000/- and in default of payment of fine aforesaid he shall further undergo simple imprisonment for a period of one year.” No separate sentence was passed by the learned trial Court under Section 363 I.P.C. observing that it has merged in the sentence imposed under Section 366 I.P.C. 2. Briefly stated, the facts of the case are that on 29.11.2001 Kumari (S) daughter of Shri Uma Dutt, student of 10+1, had gone to the school and did not return from the school. After one month, that is, on 29.12.201, a daily diary report vide rapat Ext. PG was lodged with the police by Uma Dutt, father of the girl that his daughter had gone to school and was missing and he had searched for her in her relatives, but she is not traceable. On 13.1.2002, the complainant, father of the girl, lodged a report with the police that his daughter aged about 17½ years was missing, for which a report was lodged on 29.11.2001. He alleged that his daughter has been taken by the appellant, hereinafter also referred to as the accused, who is the son of elder brother of the complainant. On this report, FIR Ext. PD was registered. On 10.2.2002, the said Uma Dutt learnt from one Padma, who is the daughter of his God sister that she has received a telephonic message from the prosecutrix, who had informed her that she alongwith the accused would be visiting Kalka Temple on the next day. The father of the girl sought police help, went to Kalka and recovered the girl alongwith the accused and Recovery Memo was prepared. The father of the girl sought police help, went to Kalka and recovered the girl alongwith the accused and Recovery Memo was prepared. The girl was medically examined and after the investigation, the challan was filed before the Court of Chief Judicial Magistrate, Solan, who committed the case to the learned Sessions Judge, who framed the charge under Sections 363, 366 and 376 I.P.C. and tried the appellant, leading to his conviction as detailed above. 3. I have heard learned counsel for the parties and have also gone through the record. 4. The first point which arises for consideration is the delay in lodging the FIR, but the said point was not urged by the learned counsel for the appellant and rightly so, for various reasons, which may be mentioned hereinafter. The first report about the missing of the girl was lodged within one month, in which the father of the girl had specifically mentioned that he had been searching for the girl in his relatives and, therefore, could not lodge the report. Thereafter, he learned that the accused may have taken the girl after more than one year and then he lodged the FIR with the police, in which he expressed his doubt upon the appellant. After the said report was registered after one month, the girl was recovered from Kalka alongwith the accused and the case was investigated by the police. The facts of the case are very clear that the missing report was lodged with the police within one month after search of the girl proved futile and till that date, the father of the girl had no doubt that the appellant who was the son of his elder brother was involved in this matter and thereafter, about after one month, recovery was effected. In such type of cases the report cannot be lodged immediately since the honour of the family was involved and, therefore, the delay in question has not affected the merits of the case at all and rightly so, no submissions were made in this regard. 5. The first point which arises for consideration is as to the age of the girl at the time of the commission of the offence. A reference has to be made to the evidence led by the prosecution in this regard. The prosecution had examined PW-1 Dr. 5. The first point which arises for consideration is as to the age of the girl at the time of the commission of the offence. A reference has to be made to the evidence led by the prosecution in this regard. The prosecution had examined PW-1 Dr. Anita Sood, Medical Officer, who was posted as Radiologist, who took the X-rays of the girl for determining radiologist age. She gave her opinion that on perusal of X-rays Ext. P-1 to P-4, according to her opinion Ext. PA, the age of the prosecutrix was in between 17 to 19 years. According to law, there has to be a margin of two years and as such, the age of the girl can be either 15 or it can go upto 21 years. 6. The other evidence led by the prosecution to prove the age was by examining PW-11 Kenclarke, Superintendent of the school, who has stated that the police had taken into possession the copy of the admission, date of birth and the last school attendance vide Memo Ext. PH, which is signed by him, given under the signatures of the Principal. He though stated that the copy of date of birth was also taken into possession, but no such copy was proved and the only document proved was Ext. P-6, which is a certificate issued under the signatures of the Principal. A perusal of the same shows that it reads as under:- “This is to certify that Ms. …… D/o Shri. U.D. Sharma was a bonefide student of this school, and her date of birth as per our school admission register is (23.06.1984) Twenty third June Nineteen eighty four)”. 7. It is clear from the above discussion that there is nothing to show that the girl was admitted for the first time in the school and rather the evidence of the father shows that she was firstly admitted in Chandigarh and then in third Class at Solan. The witness has not proved any copy of the birth entry produced at the time of her admission in the school. No record was summoned from Chandigarh to prove that when the girl was admitted. A copy of the birth certificate of the girl was attached therein and on that basis, the entries were made in the school register. The witness has not proved any copy of the birth entry produced at the time of her admission in the school. No record was summoned from Chandigarh to prove that when the girl was admitted. A copy of the birth certificate of the girl was attached therein and on that basis, the entries were made in the school register. This certificate is only as per the school register that the date of birth is 23.6.1984, but it is not on the basis of any certificate of Panchayat, Health Department or any other authority under law, which could prove the date of birth of the girl. This was secondary evidence and not primary evidence and on the basis of this evidence, it cannot be said that the date of birth was recorded correctly on the basis of copy of birth certificate or that the date of birth proved is 23.6.1984. In case this certificate is relied upon, it shows that on the date the girl was taken away by the accused, she was of the age of 17 years and 6 months, but that is not conclusive since the evidence produced is secondary and not primary evidence. In the absence of primary evidence, no finality is attached to the report of the Radiologist and only probable age is given by the Radiologist. To establish the charge under Sections 363/366 I.P.C., it has to be established that on the date of the occurrence, the girl was of the age of less than 18 years, in which the prosecution has failed, since it cannot be held that the age of the girl proved was less than 18 years. Once the prosecution itself has relied upon the evidence which suggests that the girl was of the age of 17 years and 6 months at the time of considering the charge under Section 376 I.P.C., it is only required to be proved that the girl was of more than 16 years and as to whether she was competent to give consent for sexual assault committed upon her. 8. The learned trial Court had made a reference to the statement of the accused recorded under Section 313 Cr.P.C., wherein he admitted the question that the date of birth of the prosecutrix was 23.6.1984 and accordingly, it was held that this stands proved. 8. The learned trial Court had made a reference to the statement of the accused recorded under Section 313 Cr.P.C., wherein he admitted the question that the date of birth of the prosecutrix was 23.6.1984 and accordingly, it was held that this stands proved. I am unable to agree to this conclusion arrived at by the learned trial Court for the reason that it has to be firstly proved by the prosecution as to what was the date of birth of the prosecutrix, which has to be proved by the primary evidence, which is missing in the present case. Once the primary evidence does not establish the given age of the prosecutrix, it cannot be said that since the accused admitted the question, therefore, the prosecution was not required to prove this fact, which questions were put up after all the evidence had been led on record. Once the date of birth was not proved by the prosecution, the accused cannot be held liable on the basis of this admission that the girl was of the age of less than 18 years and the offence under Sections 363 and 366 I.P.C. sought proved against him for kidnapping a minor girl. 9. A perusal of the statement of the prosecutrix as PW-2 clearly shows that on 29.11.2001, that is the day, since she was missing from her house. She stated that she received a telephonic call one day earlier from the accused to meet him at Bus Stand. The accused met her on the day and told her that he was going to Saudi Arabia and she should also accompany him. She refused firstly and then the accused told that he will return back in one or two weeks and he would inform her parents telephonically. He further told that he would take her in the Plane and then took her in Auto to Bus Stand Solan. They went to Chandigarh. She was offered clothes and Bindi by the accused who told her to proclaimthat she was married. Then they went to Ambala, stayed in hotel and then went to Nepal, where they remained till she came back to Kalka and was apprehended. They went to Chandigarh. She was offered clothes and Bindi by the accused who told her to proclaimthat she was married. Then they went to Ambala, stayed in hotel and then went to Nepal, where they remained till she came back to Kalka and was apprehended. A detailed perusal of her statement will show that she has stated about the sequence of events when she was taken from Solan to Chandigarh and then to Ambala, where they stayed in a hotel and they had sexual intercourse. She stated at that time when the accused touched her, she jumped out and the accused abused her and told her that if she would cry for help, he would kill her and then raped her. She stated that she insisted upon the accused to go back to the house of her parents, but again the accused threatened and abused her and they changed three buses and then reached Nepal. It is in her statement that where she stayed in Nepal, there were some houses nearby and she used to address the landlady as Didi. The bazaar was at a distance of half K.M. She stated that she used to sit idle throughout the day and the accused and after few days, the accused had been bringing the pearls for making garments and give work to her and she used to return the same to the accused. There were 5-6 houses in the village and there was a phone of the landlady at Nepal. She further stated that she had a phone number of Padma Didi, who was daughter of his father’s god sister and she had been conversing with Padma Didi of and on. She was working in her father’s clinic and was living nearby and once she had been conversing of and on, it is clear that she had no opportunity to talk to her, inform her, if she had been forcibly taken and she was not a village girl, who had studied earlier at Chandigarh, then at Solan and was a student of 10+1. Her father was medical practitioner and her other relatives are placed similarly a stated by her and once she was not an illiterate girl , was studying in 10+1, knew the phone number of the employee/God sister of her father and had been conversing with her, which clearly suggests that she had opportunity available to lodge a report about her having been taken forcibly and conveying it to her parents. She clearly states that she came from Solan to Chandigarh, then to Ambala and then to Nepal. Thus, there was an opportunity for the girl to raise an alarm to the people or the passengers in the bus toseek necessary assistance, if she was being taken forcibly, but she did not raise any protest or made any efforts to inform her parents or the police and particularly it is so when she was having the phone number also and the phone was available in the house of landlady. She was not kept in confinement in the house and was free to move during the day to fetch water and to do other works and all these suggest that in case any threat was given to her for the sexual intercourse, she could have easily protested or taken steps to free herself, but she remained there for a considerable period of about one year and did not lodge any protest with the authorities or inform her parents. She is quite aware that the accused was her cousin brother and in the Hindu society, no sex with cousin brother or marriage with cousin brother is permitted, but the accused indulging in sexual intercourse with her and she did not take any steps to stop him from having sexual intercourse with her, which continued for the period, she stayed with him at Nepal for over one year. The oral statement of the father of the girl that she was less than 18 years, was not sufficient to prove the age. 10. PW-5 Dr. Amrish Kappor, Medical Officer, had examined the girl and gave certificate Ext. PB. He stated that Vagina admitted two fingers easily and hymen was ruptured. According to the opinion given in Ext. The oral statement of the father of the girl that she was less than 18 years, was not sufficient to prove the age. 10. PW-5 Dr. Amrish Kappor, Medical Officer, had examined the girl and gave certificate Ext. PB. He stated that Vagina admitted two fingers easily and hymen was ruptured. According to the opinion given in Ext. PB, he did not state specifically that the girl was habitual to sexual intercourse, but his statement clearly shows that the Vagina admitted two fingers easily, meaning thereby that the girl was habitual to sexual intercourse and for that matter, her own statement was sufficient that the sexual intercourse was committed by the accused with her, which statement has not been shattered. However, it is clear that no efforts were made by the prosecutrix to free herself or raise protest or seek help for a period of over one year, which clearly shows that she was the consenting party to immoral act committed by the accused and as such, the charge under Section 376 I.P.C. does not stand proved since she could give the consent being above the age of 16 years. 11. Coming to the charge under Sections 363 and 366 I.P.C., this charge can remain against the appellant once it is proved that the girl was of the age of less than 18 year. I have also held above that the prosecution evidence does not conclusively establish that the girl was of the age of less than 18 years. Until and unless this fact is proved by the primary evidence that the girl was of the age of less than 18 years, the appellant cannot be held guilty under Sections 363 and 366 I.P.C. 12. The Hon’ble supreme Court had the occasion to consider the provisions of Section 366 I.P.C. in Thakorlal D. Vadgama Vs. The State of Gujarat, AIR 1973 Supreme Court 2313. While referring to the provisions of Section 361 I.P.C., it was observed as under:- “Brief Note: - (A) Section 361 uses the expression ‘whoever takes or entices any minor’. The word ‘takes’ no doubt, means physical taking but not necessarily by use of force or fraud. The word ‘entice’ seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. The word ‘takes’ no doubt, means physical taking but not necessarily by use of force or fraud. The word ‘entice’ seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time in achieving its ultimate purposes of successful inducement. The two words read together suggest that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence of kidnapping. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian’s custody or keeping and going to the guilty party then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. ……” 13. A reference can be made to the decision in Baldeo Vs. State of U.P., 1993 CRI. L.J. 1915. The observations made in Para-16 of the judgment are relevant, which are being reproduced below:- “16. So far as the taking away of the prosecutrix out of the keeping of the lawful guardian is concerned, the age of the girl has to be determined first. According to the prosecution version, she was aged about 13 or 14 years at the time of incident, but on the basis of the X-ray reports the Doctor has found her to be 16 or 17 years old because the Doctor found Epiphysis around elbow joints fused and around the lower ends of radius and ulna not fused. I may point out here that, according to , distal end of ulna is fused at the age of (18-19) years. If the lower end of radius and ulna were not found fused by the Doctor, it means that she was less than 19 years of age. I may point out here that, according to , distal end of ulna is fused at the age of (18-19) years. If the lower end of radius and ulna were not found fused by the Doctor, it means that she was less than 19 years of age. The learned counsel for the appellant relied upon two Supreme Court decisions reported in AIR 1982 SC 1297: (1982 Cri.LJ 1777)and AIR 1989 SC 1329 and on the basis of those decisions he argued that one can take judicial notice of the fact that the margin of age as ascertained by Radiologist may be two years either side and in this manner, it cannot be said that the girl was minor at the time of incident and even if it is assumed so, she had attained the age of discretion and was on the verge of attaining majority as has been held in the case of Warad Rajan V. State of Madras, reported in AIR 1965 SC page 942: (1965 (2) Cri LJ 33).” 14. A reference can be made to the decision in Shyam and another Vs. State of Maharashtra, AIR 1995 Supreme Court 2169, wherein it was observed as under:- “While testing the applicability of section 366, abduction of girl who had not attained the age of 18 years of age, the Supreme Court has observed that when the victim/ prosecutrix did not put up struggle or raised alarm while being taken away by accused, in such situation, the victim /prosecutrix appearing to be willing party to go with accused on her own, in such a situation, culpability of accused not established and conviction is set aside in reference to section 366 of IPC.” 15. A reference can also be made to the decision of this Court in Trilok Chand Vs. State of H.P., 1996(1) Sim. L.C. 187, wherein it was observed that the victim/prosecutrix being more than 16 years of age but less than 17 years of age, consented to sexual intercourse on her by accused as she was in love with accused and eloped with him undisputedly and without any sign or evidence of influence or coercion on the part of accused, victim/prosecutrix has left her house voluntarily to elope with accused in night hours without raising any hue and cry in a planned manner of elopement. In such a situation despite being less than 17 years of age and despite sexually assaulted by accused, the accused could be acquitted for the charge under section 366 of IPC. 16. A Division Bench of this Court in State of H.P. Vs. Harinder Pal, 2010 (2) Him. L.R. (DB) 625, in reference to offence under Sections 363, 366 and 376 I.P.C. has held as under:- “It has been observed that if the prosecutrix is above age of consent and slightly below age of discretion (18 years) and from attendant facts and circumstances of case on an overall view of the matter, if an interference is deducible that minor prosecutrix had left protective umbrella of her natural guardian out of her free and independent volition and respondent had not taken any active part in such exercise, it would not be safe to return a guilt to the accused, as the victim/prosecutrix, in the facts and circumstances was the willing party to go with respondent/accused of her own sweet will had been submitting herself to all such alleged acts , in such circumstances, the victim/prosecurtix could be treated as a willing and consented party at the relevant time and the accused cannot be held guilty of offence under Sections 363, 366 and 376 IPC.” 17. It is, therefore, clear from a perusal of the above discussion that the Courts have taken the view that even if the age was little less than 18 years, but there is no evidence to suggest that the accused had forcibly taken the prosecutrix out of the lawful guardianship of her father by inducing threat, promises etc., the charge under Sections 363 and 366 I.PC. cannot be said to have been proved. However, in the present case, on the basis of the evidence, it cannot be held that the girl was a minor and as such, the charge under Sections 363 and 366 I.P.C. was not substantiated. 18. In view of the above discussion, I accordingly, hold that the charge under Sections 376, 363 and 366 I.P.C. was not proved beyond any reasonable doubt and the findings to the contrary of the learned trial Court are liable to be set aside, which are set aside accordingly. The sentence of substantive imprisonment and the fine imposed is set aside. In view of the above discussion, I accordingly, hold that the charge under Sections 376, 363 and 366 I.P.C. was not proved beyond any reasonable doubt and the findings to the contrary of the learned trial Court are liable to be set aside, which are set aside accordingly. The sentence of substantive imprisonment and the fine imposed is set aside. The fine if realized/deposited, shall be refunded to the appellant by the learned trial Court after the expiry of the period of appeal or in case of appeal after the decision thereof. 19. In view of the above, the appeal stands allowed and bail bonds furnished by the appellant is discharged. ************************************************************************