JUDGMENT AND ORDER : 1. This appeal is directed against the judgment and order dated 29.09.2007, passed by the learned Additional Sessions Judge, (FTC) No. 4, Kamrup, Guwahati in Sessions Case No. 61(K)/2007 convicting the accused appellant u/s 366 of the IPC and sentencing him to RI for 4 years and to pay fine of Rs. 1000/- with a default stipulation. 2. The accusation against the accused appellant is that on the night of 29.05.2005, the accused appellant kidnapped the minor daughter of the informant aged about 15 years while she was sleeping in her house. Written FIR to that effect was lodged on that very day on the basis of which a case was registered and on completion of investigation charge sheet was submitted u/s 366 A of the IPC against the accused Ranjit Kalita and Ripunjoy Kalita. The accused Ripunjoy was acquitted by the trial court and the present appeal has been preferred by Ranjit Kalita challenging his conviction. 3. During trial the prosecution examined 10 witnesses including the MO and the IO. The accused pleaded that he had love affair with the alleged victim and she herself eloped with him. He denied that he kidnapped her. In support of his defence he examined 3 witnesses. 4. I have heard Mr. N. Sarkar, learned counsel for the appellant and Mr. B.B. Gogoi, learned Addl. PP, Assam. 5. Learned counsel for the appellant made strenuous submission to convince me that the alleged victim girl at the relevant time was a major and she herself eloped with the accused and as such, no offence u/s 366 of the IPC has been made out against him. By relying on the judgment of the Bombay High Court in the case of Balasaheb vs. State of Maharashtra, 1994 Crl. L.J. 3044 and Rajinder Chandra vs. State of Chhattisgarh and Another, (2002) 2 SCC 287 the learned counsel contends that though the medical report reveals the age of the victim girl below 16 years and above 15 years on the basis of the ossification test, the margin of error might be plus 3 years. If that be so, the victim girl could have been a major at the time of occurrence and as such she being a consenting party the accused appellant deserves to be acquitted. 6. On the other hand, learned Addl. If that be so, the victim girl could have been a major at the time of occurrence and as such she being a consenting party the accused appellant deserves to be acquitted. 6. On the other hand, learned Addl. PP, drawn my attention to the various provisions of the penal code more particularly, Section 363, 366A to contend that the age of majority is 18 years and by inviting my attention to the evidence of the doctor he submits that the doctor on examination of the girl found her age to be above 15 years and below 16 years which cannot be tinkered with. 7. Before adverting to the submission advanced by the learned counsel for the parties, it is necessary to delve into the evidence adduced by the witnesses. The evidence of the victim girl is of utmost importance for the prosecution. According to her on the night of occurrence at about 2 a.m. while she was sleeping with her grandmother and younger sister somebody knocked on the door and when she came out and opened the door she saw both the accused persons outside and they gagged her mouth with clothes and took her outside. Thereafter she was taken in a Maruti van. Later on she came to know that she was taken to Sipajhar where she was kept in the house of brother in law of the accused appellant Ranjit. In Sipajhar both the accused asked her to write a letter stating that she went along with the accused on her own will and was staying at Sipajhar. Her evidence also reveals that there was dispute between the father of the accused Ripunjoy and the father of the victim girl. She was also taken to the house of another person wherefrom she was recovered by police and during that period though the appellant Ranjit tried to commit rape on her but failed due to her resistance. In cross examination she reveals that her father was convicted in a murder case filed by the father of the accused Ripunjoy. Her statement u/s 164 of the CrPC was recorded by the JM and before the Magistrate she stated that she had love affair with the accused and she herself eloped with him and the other accused Ripunjoy was not present, but according to her on being tutored by the accused she gave the statement before the court. Her statement u/s 164 of the CrPC was recorded by the JM and before the Magistrate she stated that she had love affair with the accused and she herself eloped with him and the other accused Ripunjoy was not present, but according to her on being tutored by the accused she gave the statement before the court. She also could not recollect if she had stated before police that she had love affair with the accused. Her statement u/s 164 of the CrPC goes to show that she had love affair with the accused appellant Ranjit and they decided to perform marriage in the office of the marriage registrar but due to their arrest it could not be done. 8. The IO also confirmed that the alleged victim girl eloped with the accused appellant to perform marriage with him. Though the girl in her evidence in the Court deposed that she was forcibly taken by the accused appellant and the co accused but because of the improvements made during the trial she was found to be unreliable and trustworthy. Moreover, her statement was recorded by the Magistrate soon after recovery wherein she stated that she eloped with the accused to perform marriage with him as she had love affair with him. The defence also produced some letters which were exhibited through the defence witnesses and marked as Ext. ‘ka’ and ’kha’ and from these letters it is evident that she was madly in love with the accused. Before the doctor also she disclosed that she had love affair with the accused and she was a consenting party. 9. From the materials available on record there is no room for doubt that she had love affair with the accused appellant Ranjit and she herself eloped with him. Now the pertinent question is whether at the relevant time she was a major capable of giving consent. 10. The IO during investigation never made any effort to collect any age certificate of the victim girl. At the relevant time she was a student of Class X and was to appear in the HSLC examination. Evidence shows that she was unsuccessful on earlier occasion. Prosecution mainly relied on the oral testimony of the witnesses coupled with the evidence of the doctor to establish that she was a minor girl at the relevant time. At the relevant time she was a student of Class X and was to appear in the HSLC examination. Evidence shows that she was unsuccessful on earlier occasion. Prosecution mainly relied on the oral testimony of the witnesses coupled with the evidence of the doctor to establish that she was a minor girl at the relevant time. The doctor who has been examined as PW-6 stated that on the basis of the physical, Radiological and Laboratory Investigation he found her to be above 15 years and below 16 years. Though the defence failed to put any question to him regarding the margin of error while determining the age on the basis of Radiological examination but law is well settled that the margin of error is always 2/3 years on either side and if the age of the doctor mentioned in his report as above 15 years is accepted then with addition of 2/3 years she would be a major. Oral evidence also shows that she was unsuccessful on earlier occasion in her class and though she claimed to be aged about 15 years she would be obviously more than 15 years on the date of occurrence. It was the boundan duty of the IO to collect the age certificate of the girl from the school in which she was studying but he miserably failed to do so and consequently, on the basis of the Radiological examination and oral testimony of the witnesses including the evidence adduced by the defence witnesses she must be held to be a major on the date of alleged commission of the crime and was capable of giving consent and she being a consenting party no ingredients of offence u/s 366 of the IPC has been made out against the accused appellant. In the case of Balasaheb (supra) the age of the victim was found to be 14 years to 16 years by Radiological examination and the Division Bench of the Bombay High Court relying on the Modi’s Medical Jurisprudence and Toxicology, 21st Edition, page 40 came to the finding that that the margin of error might be plus 3 years. If that be so, the age of the girl would be 18 years and she being a consenting party, the accused is liable to be acquitted. 11. If that be so, the age of the girl would be 18 years and she being a consenting party, the accused is liable to be acquitted. 11. From what has been discussed above, I am of the considered view that the learned Trial Judge committed manifest error by holding her to be a minor on the basis of the evidence of the doctor which obviously calls for interference in this appeal. 12. Consequently, the judgment of the learned trial court is set aside. The accused appellant is acquitted and set at liberty forthwith. Bail bond, if any, stands discharged. 13. Send down the LCR forthwith.