JUDGMENT 1. This appeal has been preferred against the judgment and order dated 19.11.1997 passed by Additional Sessions Judge, Ambikapur, (Sarguja) in Sessions Trial No. 44/1991 convicting the accused/appellants under Sections 363, 366 and 368 I.P.C. and sentencing each of them to undergo rigorous imprisonment for seven years on each count. 2. Facts of the case in brief are that on 19.4.1990 FIR (Ex. P-6) was lodged by Chhatar Sai (PW-5) - father of the prosecutrix (PW-9) alleging that deceased-accused Shiva who wanted to marry his daughter (prosecutrix) took her away with him on 14.4.1990. Based on this FIR, offences under Sections 363, 366 and 368 IPC were registered and on 20.4.1990 prosecutrix was recovered vide recovery memo Ex. P-1. For determination of her age, the prosecutrix was radio-logically examined on 25.4.1990 by Dr. M.K. Jain (PW3) vide Ex. P-3. After completion of investigation, charge sheet was filed on 4.9.1990 for the offences under Sections 363, 366 and 368 read with section 34 IPC. 3. In support of its case, prosecution has examined 09 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges leveled against them and pleaded their innocence and false implication in the case. Accused Kodu and Mohd. Harish died during trial. 4. After hearing the parties, the Court below has acquitted accused Sadhu, Moti Bai and Ramlal of all the charges leveled against them but convicted and sentenced the accused/ appellants Shiva alias Shiv Prasad, Balsai, Baliram, Pradhan Ram and Rajaram as mentioned above. During pendency of appeal, accused/appellant Shiva also expired and therefore this appeal is confined to accused/appellants Balsai, Baliram, Pradhan Ram and Rajaram only. 5. Counsel for the accused/appellants submits that in fact prosecutrix and deceased-accused Shiva got married and both of them swore affidavits Ex. P-11 and P-12 before the oath commissioner clearly indicating that they got married with the consent of their family members. She further submits that as father of the prosecutrix namely Chhatar Sai (PW-5) had refused for the marriage of prosecutrix with deceased-accused Shiva, out of anger and frustration the report was lodged by him. She submits that there is no legally admissible evidence with respect to the age of the prosecutrix and merely on the basis of statement of Dr. M.K. Jain (PW-3) and his report Ex. She submits that there is no legally admissible evidence with respect to the age of the prosecutrix and merely on the basis of statement of Dr. M.K. Jain (PW-3) and his report Ex. P-3, it cannot be said that on the date of incident the prosecutrix was below 18 years of age. Counsel for the accused/ appellants further submits that as per report of ossification test prosecutrix was aged between 14 and 16 at the relevant time which may carry variation of two or three years on either side depending upon nourishment and life style. According to him, father and mother of the prosecutrix have also not given any definite statement with respect to her age. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that prosecution has duly proved the age of prosecutrix below 18 years and therefore conviction of the accused/appellants under Sections 363, 366 and 368 IPC is strictly in accordance with law. He submits that the daredevil act of the accused/ appellants reflects their perverted attitude where just because of refusal by the father of prosecutrix for her marriage with deceased-accused, she was kidnapped by them. 7. Heard counsel for the parties and perused the material available on record. 8. Prosecutrix (PW-9) has stated that at the time of her marriage elsewhere, accused/ appellants entered her house and dragged her away to village Jamdih where she was kept in the house of aunt of deceased-accused Shiva and two days thereafter she was brought back by her father. According to this witness, it is incorrect to say that initially her marriage was fixed with deceased-accused Shiva though she has admitted that his father and mother had come to her house for the marriage of their son (deceased-accused Shiva) with her but the same was refused by her father. She has admitted that when she was taken away by the accused persons, she did not offer any protest. This witness has categorically stated that she did not know the age of her brothers and sisters nor could she tell as to her age at the time of incident. Chhatar Sai (PW-5) - father of the prosecutrix has stated that on the date of incident his daughter (prosecutrix) was forcibly taken by the accused persons and after about 3-4 days when he came to know about the incident, the report was lodged. Chhatar Sai (PW-5) - father of the prosecutrix has stated that on the date of incident his daughter (prosecutrix) was forcibly taken by the accused persons and after about 3-4 days when he came to know about the incident, the report was lodged. According to this witness, he was not aware of the age of the prosecutrix. Then he has stated that she might be aged about 12-13 years. Phulvaso Bai (PW-6) - mother of the prosecutrix has stated that her daughter (prosecutrix) was missing and after about 4 days when she returned home, she came to know that she was taken away by deceased-accused Shiva. This witness too has stated that she was not aware of the age of her daughter (prosecutrix). Jeetu (PW-1) is the witness to recovery memo Ex. P-l. He has stated that the prosecutrix was recovered from the house of accused Sadhu i.e. father of deceased-accused Shiva. Baijnath (PW-2) has not supported the case of the prosecution and has been declared hostile. Dr. M.K. Jain (PW3) is the witness who conducted ossification test of the prosecutrix and gave his report Ex. P-3 stating that at that time she might have been aged in between 14 and 16 years. In cross-examination, he has stated that there could be variation of two or three years on the either side depending upon nourishment and life style. He has however admitted that exact age cannot be determined by ossification test. Prakash Singh (PW-5) is the Patwari who prepared spot map Ex. P-5. Chhtrapati (PW-7) has not stated anything specific against the accused persons. Ram Charan Verma (PW-8) is the investigating officer who has duly supported the case of the prosecution. This witness has also proved the affidavits Ex. P-11 and P-12, sworn by deceased-accused Shiva and the prosecutrix mentioning that they got married of their own. 9. Having thus seen the entire material available on record this Court is of the considered opinion that the prosecution has not been able to prove by leading any cogent and clinching evidence that on the date of incident the prosecutrix was below 18 years of age. Even the parents of the prosecutrix have stated in their statement that they did not know about the age of their daughter (prosecutrix). Even the parents of the prosecutrix have stated in their statement that they did not know about the age of their daughter (prosecutrix). Statement of the prosecutrix also goes to show that she had no idea either with respect to her own age or that of her brothers and sisters. Even Dr. Jain (PW-3) has stated that mere ossification test is not enough to determine the exact age and therefore he gave her approximate age. Thus in the absence of any legally admissible evidence with respect to her age, it cannot be said that on the date of incident she was below 18 and therefore the Court below appears to have misled itself while appreciating the evidence of the witnesses and basing its findings thereon. More so, the prosecutrix and deceased-accused Shiva have sworn their separate affidavits stating that they got married of their own freewill. 10. In view of above, the appeal is allowed Judgment impugned is hereby set aside. Accused/appellants are acquitted of the charge leveled against them. They are already on bail. Their bail bonds stand discharged. Appeal Allowed.