1. Heard Mr. F.H. Laskar, learned counsel appearing for the accused/appellants in Criminal Appeal No. 90/2006. Heard also Mr. S. Bhattacharjee, learned counsel appearing for the accused/appellant in Criminal Appeal No.77/2006. Heard also Mrs. A. Begum, learned Additional Public Prosecutor, Assam. 2. The above appeals are directed against the judgment and order dated 31.3.2006 passed by the learned Additional Ad hoc Sessions Judge, Karimganj. In Criminal Appeal No.90/2006, appellants, Sri Eaja Ghosh @ Khona and Sri Santosh Das (a) Narayan Das were convicted under section 366 read with section 109, IPC and sentenced to undergo rigorous imprisonment for 5 years and a fine of Rs. 5000 in default to suffer additional 6 months simple imprisonment. In Criminal Appeal No.77/2006, the appellant Smt. Rani Bala Paul was convicted under section 306 read with section 109, IPC and sentenced to undergo rigorous imprisonment for 5 years and a fine of Rs. 1,000 and in default to suffer additional 6 months imprisonment. Since the above appeals are against the common judgment and order, these appeals are taken up together for hearing and disposal. 3. The prosecution case is based on the written FIR lodged by PW3, wherein it is stated that on 9.1.2003 at about 9 a.m. when the victim girl, Smt. Maumita Banerjee @ Sanu, minor daughter of the informant was returning home from private tutor's house, the accused Sri Raja Ghosh with the help of his father, mother, elder brother and another person kidnapped her. On receipt of the FIR, the police registered a case and after investigation submitted charge sheet against the accused, Shri Raja Ghosh, @ Alok, Smt. Rani Bala Paul, Sri Narayan Das@ Santosh Das and Sri Mithu Paul under section 143/366A, IPC. The case against Sri Mithu Paul was dropped on the police report that he had expired. 4. The case was committed to the court of the Session for trial against 4 accused persons. On the basis of the materials on record charge was framed under section 366/366A/109, IPC against the accused persons, who on being read over and explained pleaded not guilty and claimed to be tried. The prosecution examined in all 5 witnesses while the defence examined none. On appreciation of evidence and materials on record, the learned trial court convicted and sentenced the accused persons as stated earlier. 5. The prosecution examined in all 5 witnesses while the defence examined none. On appreciation of evidence and materials on record, the learned trial court convicted and sentenced the accused persons as stated earlier. 5. Since the charge has been framed under section 366A, IPC, it is first necessary to find out whether the victim girl was minor on the date of occurrence. As per the FIR filed by the informant-father the victim was a minor girl. He maintained the same statement before the learned trial court at the time of making his deposition. The informant father of the victim was examined as PW 3. The victim girl who was examined as PW 1 in her deposition before the trial court stated that she was aged about 15 years. The Medical Officer, PW 2, stated that he examined the victim girl and after perusing the X-ray report and looking at the physical appearance, he opined that the age of the victim girl would be below 16 years but in the cross-examination he stated that the X-ray was not conducted in the Government Hospital and he did not know where and how the X-ray was taken. It appears that the Medical Officer offered his opinion on the basis of the ossification test report which is not final. The age of the victim girl could be ascertained on the basis of other available evidence. For this purpose, I would refer to the evidence of PW 1, the victim girl, who in her cross-examination, amongst other stated that she was reading in Class X on the date of occurrence. If it is so, she was about 16 years or little above. In the cross-examination she also stated that she got plucked twice and if 2 years is added, it is obvious that she crossed the age of 18 years at the time of occurrence. 6. Admittedly, the prosecution did not produce and exhibit any certificate like School Certificate or Birth Certificate issued by the concerned authorities to prove the victim's age. In absence of such documents, the court has to determine the age of the victim girl on other informations and here we have fond that she was 16 years at the time of occurrence and she got plucked twice in her academic career and from this it can be reasonably concluded that she was above 18 years. In absence of such documents, the court has to determine the age of the victim girl on other informations and here we have fond that she was 16 years at the time of occurrence and she got plucked twice in her academic career and from this it can be reasonably concluded that she was above 18 years. Once the age of the victim girl is found above 18 years at the time of occurrence, the charge under section 366A, IPC would not be applicable to the accused persons, particularly, the accused Sri Raja Ghosh. In view of the above, the order of the learned trial court discharging the appellant Sri Raja Ghosh stands upheld. 7. Coming to the charge under section 366, IPC, it is necessary to discuss and appreciate the evidence on record how and under what circumstances the victim girl accompanied the accused/appellant, particularly, accused Raja Ghosh. From the evidence of the prosecution witnesses it is found that the victim girl attended tuition on the date of occurrence and she was looking for rickshaw to return home. The victim, PW 1, herself stated in her evidence that a rickshaw puller came to pick up and drop her home. According to her, in fact, the rickshaw puller told her that the said rickshaw was sent from her house to take her home and accordingly she boarded the said rickshaw. She was taken to the house of accused Rani Bala Paul, appellant in Criminal Appeal No. 77 of 2006. The accused persons were already present in Rani Bala's house and one of them went out to call for a vehicle/taxi. When the Taxi (Maruti Van) was brought to Rani Bala's house accompanied by two other male members, the victim girl boarded the vehicle at around 3 p.m. and moved towards Agartala via Manu. From Agartala the accused Sri Raja Ghosh and the victim girl flew away to Kolkata. Thereafter they returned to Guwahati by flight and on reaching Guwahati they left for Jorhat by night super bus. Both accused Raja Ghosh and the victim girl stayed few days in the house of the relatives of Raja Ghosh. The police recovered the victim girl from the house of Raja's relative. Thereafter they returned to Guwahati by flight and on reaching Guwahati they left for Jorhat by night super bus. Both accused Raja Ghosh and the victim girl stayed few days in the house of the relatives of Raja Ghosh. The police recovered the victim girl from the house of Raja's relative. In her evidence the victim girl did not make even a whisper that she was forced to accompany the accused appellant, Raja Ghosh to Agartala and to Kolkata and Jorhat via Guwahati. She has never stated that she was put under threat while she was taken from one place to another by the accused/appellant Sri Raja Ghosh. 8. To establish the charge of kidnapping, abduction, etc., within the meaning of section 366, IPC, there must be evidence to prove that the victim girl was kidnapped or abducted with intention to compel her to marry against her will or may be forced or seduced to illicit intercourse. The victim girl in the present case never stated in her deposition that she was forcefully kidnapped or abducted by the appellants with some illicit intention, which is the essential ingredient of offence under section 366, IPC. It may be noted that both the main accused person and the victim girl and other accused persons belong to same locality and they know each other. Even the Taxi driver, PW 4 who drove the vehicle carrying the victim girl and other accused persons to Agartala, made no statement to the effect that the victim girl, through out the journey, made any cry for help or protest or tried to stop the vehicle on way protesting the alleged kidnapping or abduction. The behaviour and conduct of the victim girl is important to establish the charge that she was forcefully taken away or kidnapped by some body. As the victim girl was at the age of consent being above the age of 16 years, was capable of understanding the intention of the perpetrator after undertaking a long journey from Karimganj town to Agartala. A major girl like the victim could have raised halla or cried for help at any opportune moment during journey in the vehicle. Such attempt was not made by the victim girl at any point of time. Not only that she flew with the main accused to Kolkata and boarding the plane at Agartala Airport. A major girl like the victim could have raised halla or cried for help at any opportune moment during journey in the vehicle. Such attempt was not made by the victim girl at any point of time. Not only that she flew with the main accused to Kolkata and boarding the plane at Agartala Airport. She had opportunity to resist or complain to security personnel on duty. She got the similar opportunity while she landed at Kolkata and returned from Kolkata by flight to Guwahati. She again travelled to Jorhat by bus accompanying the main accused person. These are the circumstances under which the court can easily come to a conclusion that she was voluntarily accompanying the main accused Raja Ghosh and moving with him from place to place more than a week. It is beyond any body's understanding that when a girl is forcibly taken out from the custody of the parents could accompany a male partner without any objection or resistance during the entire journey from Karimgaj to Agartala and then to Kolkata and Jorhat via Guwahati. 9. The prosecution never made an attempt to prove a case of forcible kidnapping or abduction. In such a case of abduction, kidnapping, etc., it is the evidence of the victim girl which should be given prime importance and weight because it is the victim who knows the best about her suffering and bitter experience. Had she not accompanied the main accused Raja with her free will and mind, she would have surely deposed before the court the truth. The truth is that nothing sort of abduction or kidnapping against her will took place. This court would not have spared the main accused, have there been any evidence adduced by her that she was forcibly taken away, kidnapped or abducted. There is one thing to note that a major girl would not have dared or agreed to visit a distant place like Kolkata unless she was confident enough that the person with whom she was visiting the said place is reliable for her. 10. Regarding ill intention, it should be stated that the Medical Officer, PW 2 who examined the victim girl on police requisition recorded the findings in the medical report Ext.2. The Medical Officer said that there is no sign of violence on her person. Even her hymen was found intact. Pregnancy test was also found negative. 10. Regarding ill intention, it should be stated that the Medical Officer, PW 2 who examined the victim girl on police requisition recorded the findings in the medical report Ext.2. The Medical Officer said that there is no sign of violence on her person. Even her hymen was found intact. Pregnancy test was also found negative. The said Medical Officer affirmed the said medical report by his oral evidence and proving the said report. This report along with the evidence of PW 2 testified that there was no sign of sexual intercourse or violence on the victim girl. This being the position, no ill intention could be attributed to the main accused appellant. 11. I do not think it necessary to further appreciate the evidence of other prosecution witnesses. The prosecution has failed to prove the charge under section 366, 1PC against the main accused person and I am afraid that he could be convicted under the aforesaid charge. The charge having not been proved beyond any reasonable doubt, not to speak of beyond all reasonable doubt, the conviction and sentence as recorded by the learned trial court is not sustainable under the law. 12. As regards the other accused Rani Bala Paul and Sri Santosh Das @ Narayan Das, it may be said that if the voluntariness of the victim girl in accompanying and moving for the days together with the main accused/appellant is brought on record and proved in my considered view, the charge under section 366/109 cannot be brought against them. Moreover, there is no evidence to the effect that these two accused appellants accompanied the victim girl and the main convict appellant Raja Ghosh to Agartala and other places and they abetted him in any manner. 13. In view of the above, all the accused appellants are entitled to acquittal. The impugned judgment and order dated 31.3.2006 convicting and sentencing the appellants are liable to be set aside and quashed. It is accordingly set aside and quashed. Appeals succeed. Convict appellants stand acquitted. It is stated at the Bar that the convict appellants are on bail and no order for release is required to be passed. 14. The bail bond stands discharged. Send down the LCR forthwith. _____________