JUDGMENT Sheema Ali Khan, J. 1. No body appeared on behalf of the appellant Nathuni Thakur in Criminal Appeal (SJ) No. 164 of 2000. 2. Accordingly, Mr. Rashid Alam, Advocate is appointed as Amicus Curiae to assist this Court on behalf of the appellant Nathuni Thakur in Criminal Appeal (SJ) No. 164 of 2000. 2. These two Appeals arise out of a common judgment by which all the four appellants have been found guilty for the offences under Section 365/34 of the Indian Penal Code and have been directed to undergo R.I. for five years. They have also been found guilty under Section 366/34 of the Indian Penal Code and have been sentenced to undergo R.I. for eight years by the 5th Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No. 571 of 1996. 3. The appellant, Sobarati Ansari is the father of Abdul Ansari, who has supposedly run away with Ruby Roshan @ Lahasaniya whereas Amanullah Ansari and Nathuni Thakur are friends and co-villagers of Abdul Ansari. The appellant Abdul Ansari has remained in custody for about three years and nine months in this case. The informant of the case is P.W.8 Sheikh Zaheer, who is the uncle (Chacha) of the victim girl. He alleges in his fardbeyan that the victim girl had gone to attend the call of nature on 01.06.1996 at about 5. 00 A.M. in the morning at Banthanka which is about a half kilometer from her house. It is said that he learnt from P.W.1 Md. Khurshid Alam, Sheikh IZahar P.W.2 and Sheikh Abdul Lais P.W.3 that the appellants of Criminal appeal No. 162 of 2000 were seen at the place of occurrence. They had surrounded the victim girl. When the victim girl did not return home, the informant took steps to recover her, he went to the house of Sobarati Ansari (appellant) who promised that the victim girl will be returned within a few days. However, when the informant went to visit him for the second time, Sobarati Ansari (appellant) said that it was not possible for him to return the girl and, as such, he lodged the case on 30.06.1996. 4. Two questions arise before this Court: (1.) Firstly whether the girl was kidnapped without her consent? (2.) Secondly; whether she was a minor? 5. This Court will first deal with the age of the girl in question. 4. Two questions arise before this Court: (1.) Firstly whether the girl was kidnapped without her consent? (2.) Secondly; whether she was a minor? 5. This Court will first deal with the age of the girl in question. The informant and the father i.e. P.W.11 have tried to make out a case in Court that the girl was 13 years of age. In order to substantiate the case, they have examined the Headmaster of the Government School where the victim girl had studied till Class-V. A certificate has been produced by the Headmaster P.W.12 which would indicate that the girl was a minor. According to the Headmaster he has not granted any School Leaving Certificate after 1997. The evidence indicates that so-called certificate produced by the Headmaster has been obtained for the purpose of this case. In any event, the Court will rely on the medical evidence, Exhbit-2. In this context, I must refer to the statement of the Doctor P.W.9. According to P.W.9, it is said that the girl is between 16 to 17years. He has specifically stated as follows: “Vide X-ray’s plate no. 42; pelvis crest of Ilium- not fused.” Therefore, the opinion aforesaid if compared the statement with Exhibit-2 which are quoted below: “(a) For Age determination X-ray of wrist, elbow and tibia - expert advised- (1) Lower end of radius and ulna just fused. (2) X-ray elbow AP-EP (torn) or all the bones are fused. X-ray pelvis-crest or illion found (torn). According to Radiologist Sadar Hospital her probable age is between 16 to 17 years vide Plate No. 42. 6. The statement of the Doctor is contrary to Exhibit-2. Exhibit-2 states that the bones are “just fused”. 7. Thus, this Court concludes that the medical evidence would suggest that the girl was anywhere between 17 to 18 years of age. The oral evidence of the father P.W.11 indicates that she was married five months after her recovery and that she was major at the time of her marriage (paragraph 15 of evidence). Thus, this Court concludes that the girl who have been any way between the age of 17 to 18 years. This Court may also point out that the evidence of the Doctor in Court and Exhibit-2 vary with each other. Thus, this Court concludes that the girl who have been any way between the age of 17 to 18 years. This Court may also point out that the evidence of the Doctor in Court and Exhibit-2 vary with each other. In Court, the Doctor claims that there is no fusion of the bones whereas Exhibit-2 indicates that the fusion of the bones had already taken place. 8. After the recovery the victim girl Ruby Roshan @ Lahasaniya (P.W.4), a case has been made out that she was kidnapped and that she was not a willing partner to the said kidnapping. Ruby Roshan @ Lahasaniya has been examined as P.W.4. At the outset, I would like to state that her evidence is rather exaggerated and it is impossible to believe and cannot be given any credibility by this Court. She has made out a case that she went to Banhatti in the morning where she was surrounded by the appellants of Criminal Appeal No. 162 of 2000 who forcibly took her to the house of Sobarati Mian. In the evening, she was taken to Ghorasahan bus-stand and from where Abdul Ansari and the victim girl went to Patna. It is said that they took a train to Sahganj. I may mention here that Sahebganj lies beyond Bhagalpur and is now in the State of Jharkhand. She stayed at Sahganj with the appellant for about 25 days, thereafter they left for Motihari and from Motihari, they went to village Dhanhari in Nepal through Raxaul. She stayed at Dhanhari for about 15-20 days. Later it is said that Sobarati came to Dhanhari and informed them that the police was searching for the victim girl. Thereafter it is stated that she was taken to village Itahari in Sitamarhi district where she and Abdul Ansari were residing in the house of Noor Jahan. 9. The case is that she (victim girl) was forcibly taken to Ghorasahan bus-stand along with four appellants to board a bus. In this context, the evidence of P.W.5 Narad Mukhiya would be important. According to P.W.5 Narad Mukhiya, there is no bus for Patna or Muzaffarpur from Ghorasahan bus-stand. It is, therefore, clear that Ruby Roshan @ Lahasaniya was not speaking the truth regarding the manner in which the occurrence took place. In this context, the evidence of P.W.5 Narad Mukhiya would be important. According to P.W.5 Narad Mukhiya, there is no bus for Patna or Muzaffarpur from Ghorasahan bus-stand. It is, therefore, clear that Ruby Roshan @ Lahasaniya was not speaking the truth regarding the manner in which the occurrence took place. According to her, she boarded the train for Sahganj from Patna which is again quite a difficult to believe as there is no direct train to Sahganj from Patna. Moreover, there is no requirement for her to come to Patna to go to Sahganj. According to her, she stayed 25 days with the appellant and thereafter left for Nepal via Motihari and Raxaul. It is the specific case that while they were going to Raxaul, she was riding as a pillion rider on a motor-bike with the appellant Abdul Ansari, whereas, Nathuni and Amanullah were also accompanying them on a motorcycle. According to the evidence led by her in Court there were two motorcycles that were not stopped at Raxaul border, which again is unbelievable version of the occurrence, as it is an essential that the Nepal Border Security Force and immigration grants certificate for entry into Nepal for Indians. Finally, she came to village Itahari at Samastipur district where she was recovered from the house of Noor Jahan. 10. During the entire period while she was travelling from place to place after she had left her home, the victim girl was with Abdul Ansari and had ample opportunity to raise a protest, call for help especially in view of the fact that she was travelling all alone with Abdul Ansari. It is not the case that she was drugged or a semi conscious state or that she was not aware of what was happening to her, or her whereabouts, rather she was completely conscious while travelling on the bus or train where she had ample opportunity to raise a protest and call for help. The prosecution has tried to meet this lacuna by saying that the girl was threatened. However, this Court cannot imagine that the victim girl could have been under threat at all times when she was travelling from one place to another. This fact would also be apparent from the statement regarding recovery from the house of Noor Jahan. The prosecution has tried to meet this lacuna by saying that the girl was threatened. However, this Court cannot imagine that the victim girl could have been under threat at all times when she was travelling from one place to another. This fact would also be apparent from the statement regarding recovery from the house of Noor Jahan. As per the case of the Investigating Officer, P.W.10, he had recovered the girl from the house of Noor Jahan. The evidence of Noor Jahan was recorded under Section 161 of Cr.P.C. however; she was not examined as a witness in this Court. According to the Investigating Officer, Noor Jahan was found alone in the house at the time of recovery. The Investigating Officer had gone to the house of Noor Jahan along with the uncle i.e. the informant and the brother of P.W.4 Ruby Roshan @ Lahasaniya. It is also apparent that Abdul Ansari was not recovered along with the appellant nor is it the case of the Investigating Officer or the uncle and brother who were present with Abdul that the appellant ran away on seeing the Investigating Officer and others. Even at this stage Ruby Roshan @ Lahasaniya did not make any attempt to convince Noor Jahan to inform her parents regarding her whereabouts. This Court found it rather strange that Noor Jahan would give evidence to the Investigating Officer regarding the recovery of the girl and, therefore, the Court looked into the case diary, to understand the circumstances under which the recovery was made. I am not relying on the evidence of Noor jahan in the case diary, rather this Court has looked into it for the purpose of explaining her statement before the Investigating Officer under Section 161 of the Code of Criminal Procedure, she has stated that she was told that the victim girl was brought to Sitamarhi for treatment and that her husband had gone out for work and she was living alone. She would also become part to the offence of abetment if she would have deposed to the effect that she had full knowledge regarding the circumstances in which Abdul Ansari was living in his house along with Ruby Roshan @ Lahasaniya. She would also become part to the offence of abetment if she would have deposed to the effect that she had full knowledge regarding the circumstances in which Abdul Ansari was living in his house along with Ruby Roshan @ Lahasaniya. The statement of Noor Jahan reveals that she was not aware that Ruby Roshan @ Lahasaniya was kidnapped rather she stated that both of them had come to Sitamarhi to get treatment done. I would also refer to the evidence of the Investigating Officer who has stated that there were no independent witnesses present at the time of recovery. He has mentioned all the facts regarding the recovery in the case diary and in court. 11. Therefore, the circumstances aforesaid lead this Court to conclude that P.W.4 Ruby Roshan @ Lahasaniya was not kidnapped rather she went willingly with Abdul Ansari. The next question would come before this Court, could the appellant be acquitted on the finding that the victim girl was a willing party and had consented to leave her home along with Abdul Ansari when the girl was minor? 12. This Court has already found that the medical evidence indicates that the bones of the victim girl were fused. Thus, it is difficult to conclude whether she was 17 years or had attained the age of 18 years at the time when the occurrence took place. In this view of the matter, the appellant Abdul Ansari has to be given the benefit of doubt. Once the Court comes to the finding that the girl was a consenting party in the entire episode. 13. This Court also refers to the evidence of P.W.8 Sheikh Zaheer and P.W.11 Sheikh Abdul Khair. The informant Sheikh Zaheer P.W.8 has lodged this case after one month. It is surprising that the father of the victim girl had not lodged the case. The explanation given is rather weak. An attempt has been made to explain this lacuna by saying that both the brothers i.e. P.W.8 Sheikh Zaheer and P.W.11 Sheikh Abdul Khair were living jointly on the date of occurrence. It is surprising that although the informant was told about the so-called kidnapping by P.W.1 Md. Khurshid Alam, P.W.2 Sheikh Izahar and P.W.3 Abdul Lais, he took no steps to look for the girl and to try find out where she had gone by searching for her in the village. It is surprising that although the informant was told about the so-called kidnapping by P.W.1 Md. Khurshid Alam, P.W.2 Sheikh Izahar and P.W.3 Abdul Lais, he took no steps to look for the girl and to try find out where she had gone by searching for her in the village. The case that he went to the house of Sobarati Ansari and returned without the girl, is rather weak in view of the fact that date and time has not been disclosed regarding this aspect of the matter. It is also surprising that P.W.1 Md. Khurshid Alam, P.W.2 Sheikh Izahar and Abdul Lais P.W.3 did not raise any protest when they supposedly saw the girl being forced to accompany Abdul Ansari and others. P.W.1 Md. Khurshid Alam, P.W.2 Sheikh Izahar and Abdul Lais P.W.3 have come up with the explanation for the first time in Court by saying that they were leaving the village for the purpose of conducting their business and it is only when they returned to the village, did they take steps to inform P.W.8. Sheikh Zaheer. This is not the natural conduct of a person especially, in a village, who having seen a young girl her in trouble took no steps to help her. The evidence of P.W.11 Sheikh Abdul Khair regarding this aspect of the matter is that according to him he was told regarding his missing daughter at 6.00 P.M. It is surprising that P.W.8 Sheikh Zaheer and Sheikh Abdul Khair P.W.11 did not think it odd that Ruby Roshan @ Lahasaniya had left the house at 5.00 A.M. and had not returned home for the whole day. This fact also indicates that the informant has not come with clean hands before the Court. The evidence of P.W.11 Sheikh Abdul Khair indicates that the girl was a major at the time when she was married, according to Sheikh Abdul Khair, P.W.11, five months after the occurrence took place. This witness also admits that the informant’s son was working in Delhi in M.S. Fashion Tailor. Thus, confirming the defence case that there was an association with Amanullah and the son of the informant. As per the evidence of P.W.11 Sheikh Abdul Khair, Nathuni Thakur is said to be a young leader of the village. This witness also admits that the informant’s son was working in Delhi in M.S. Fashion Tailor. Thus, confirming the defence case that there was an association with Amanullah and the son of the informant. As per the evidence of P.W.11 Sheikh Abdul Khair, Nathuni Thakur is said to be a young leader of the village. It may be noted that the brother of the informant who was witness to the recovery of the victim girl, has not been examined in this case to support the manner of recovery. 14. An argument has also been raised that the statement of victim girl Ruby Roshan @ Lahasaniya was taken in presence of the uncle and, as such, it is stated that statement was made under pressure of the family members. This aspect of the matter is not very relevant as the statement under Section 164 Cr.P.C. has not exhibited by the prosecution. 15. Turning to the involvement of the three other appellants in this case, this Court could rely on the evidence of P.W.1 Md. Khurshid Alam, P.W.2 Sheikh Izahar and Abdul Lais P.W.3. A suggestion has been made to the informant that he had enmity with Sobarati Mian i.e. the father of Abdul Ansari. It has been suggested to him that one Sakina Khatoon who is the worker (Mazdoor) of Sobarati had filed rape case against him, which was supported by Sobarati. It has also been suggested that the brother of the informant deals in buying and selling of cattle and that the informant is a P.D.S. dealer. It is said that Nathuni and Amanullah had filed a complaint against the informant before the Block Supply Officer and, as such, the informant had a grudge against Nathuni and Amanullah who had filed a complaint against his brother. In this context, learned Counsel for the appellants refers to Exhibit-C2 and Exhibit E which are notices issued by the Block Supply Officer to Md. Zaheer, informant to file a show cause as he had received complaint against him from Nathuni Thakur. The carbon copy of the said notice had been produced, proved and exhibited in the court below without any objection on behalf of the informant or others. This document, therefore, shows that the informant had a motive to implicate Nathuni Thakur. Zaheer, informant to file a show cause as he had received complaint against him from Nathuni Thakur. The carbon copy of the said notice had been produced, proved and exhibited in the court below without any objection on behalf of the informant or others. This document, therefore, shows that the informant had a motive to implicate Nathuni Thakur. It may be noted that all the other accused persons have been implicated in a manner by showing their presence at various places where the appellant Abdul Ansari and the victim girl Ruby Roshan @ Lahasaniya had stayed during the time she was away from home which is rather vague. 16. This Court would also refer to Exhibit D. Exhibit D is a confessional statement of Sheikh Md. Javed, son of the informant Sheikh Javed. It indicates that Md. Javed was working in Delhi with M.S.Fashion Tailor under Amanullah, who was the main cutter for M.S.Fashion Tailor. He has admitted that he has stolen a watch and some money from the shop. The said document is signed by the appellant Amanullah Ansari. It thus, appears that the informant had a motive to implicate Amanullah Ansari who otherwise has nothing to do with the appellant Abdul Ansari. P.W.1, P.W.2 and P.W.3, who are the so-called witnesses to the occurrence which took place at Banhatti also speak about the fact that the informant’s brother i.e. the father of the victim girl was in the business of sale and purchase of cattle from Nepal. They have also admitted that they are in the same business. It has also been argued that these witnesses are interested witnesses and have business rivalry with P.W.11 Sheikh Abdul Khair, father of the victim girl. This Court, therefore, concludes that the implication of Amanullah Ansari and Nathuni Thakur are for extraneous consideration and they have been dragged in the said occurrence, their participation in the said occurrence has already been doubted by the Court. 17. The appellant, Sobarati Ansari is the father of Abdul Ansari. He has been made accused in this case apparently on the ground that P.W.8 Sheikh Zaheer and P.W.11 Sheikh Abdul Khair claimed that they had gone to the house of Sobarati Mian and asked Sobarati to return the victim girl to them. 17. The appellant, Sobarati Ansari is the father of Abdul Ansari. He has been made accused in this case apparently on the ground that P.W.8 Sheikh Zaheer and P.W.11 Sheikh Abdul Khair claimed that they had gone to the house of Sobarati Mian and asked Sobarati to return the victim girl to them. This Court finds from the evidence of P.W.4 Ruby Roshan @ Lahasania, P.W.8 Sheikh Zaheer and P.W.11 Sheikh Abdul Khair that Sobarati had no direct role to play in the so-called kidnapping of Ruby Roshan @ Lahasaniya and, therefore, the appellants Sobarati Ansari, Amanullah Ansari and Nathuni Thakur are acquitted for the offence under Sections 365/34 and 366/34 of the Indian Penal Code. The appellant Abdul Ansari is acquitted giving him the benefit of doubt for reasons mentioned in this order. 18. In the result, this appeal is allowed. The appellants are discharged from the liabilities of the bail bonds furnished earlier in this case. Appeal allowed.