JUDGMENT : Heard Mr. Shailesh, learned counsel appearing on behalf of the appellant assisted by Mr. Ashish Kumar, Advocate. 2. Heard Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing on behalf of the State. 3. Present Criminal Appeal has been preferred against the judgment of conviction dated 01.09.2004 and order of sentence dated 7.09.2004 passed by learned Additional Sessions Judge-XIII, Dhanbad, passed in Sessions Trial No. 242 of 1989, whereby the appellant, Sanjay Das has been convicted for the offence committed and punishable under Section 366 of the Indian Penal Code and awarded rigorous imprisonment for 7 years and also a fine of Rs.500/- in default of payment of fine, the appellant shall undergo further rigorous imprisonment for three months. 4. The prosecution case is based upon the fardbeyan of Partu Harijan (P.W. 4) recorded by A.S.I., K. Pandey of Sudamdih Police Station on 25.10.86 at 11:30 hrs., whereby the informant has alleged that he was on the duty and while he was returning, his two sons and his wife disclosed that his daughter Urmila Kumari, aged about 16 years is missing from her house. The informant has also alleged that his neighbour namely Sanjay Das, Bhim Ram, Madhu das are also absconding from their house. The informant has further stated that Rs. 9,000/- which he had kept in his house for purchasing land is also taken by the accused persons by enticing his daughter in which, Baldeo Dhobi, Bijay Bilaspuria and Kamraj Paswan are also involved. Informant has further stated that these six accused persons are bad elements and have also molested daughters and daughter-in-laws of other persons of the same locality. The informant has stated that he searched, his daughter at Dhanbad station and other places but did not find his daughter. The informant has further stated that Sanjay Das, Bhim Rai and Madhu das have also not returned to their house. The informant has thus claimed that accused persons have forcibly taken the minor daughter of the informant for the purpose of illicit relationship and solemnizing marriage. On the basis of the fardbeyan, the police registered Jorapokhar (Sudamdih) P.S. Case No. 459/1986 dated 25.10.1986 under Section 366A/120B of the Indian Penal Code against Sanjay Das, Bhim Rai, Baldeo Dhobi, Bijay Bilas Puriya, Madhu Das and Kamraj Paswan. 5. After investigation, police submitted charge sheet against Sanjay Kumar Das and Ratan Chandra Das vide charge sheet no. On the basis of the fardbeyan, the police registered Jorapokhar (Sudamdih) P.S. Case No. 459/1986 dated 25.10.1986 under Section 366A/120B of the Indian Penal Code against Sanjay Das, Bhim Rai, Baldeo Dhobi, Bijay Bilas Puriya, Madhu Das and Kamraj Paswan. 5. After investigation, police submitted charge sheet against Sanjay Kumar Das and Ratan Chandra Das vide charge sheet no. 80 dated 04.03.1987 under Section 366, 368 and 376 of the Indian Penal Code. Baldeo Dhobi, Madhu Das, Bijay Bilaspuria, Bhim Rai and Kamraj Paswan have not sent for trial. 6. The cognizance of the offence has been taken vide order dated 14.04.1987 and the case has been committed to the court of Sessions vide order dated 22.05.1989. 7. Charge has been framed against the present appellant under Section 366 and 376 of the Indian Penal Code and against Ratan Chandra Das under Section 368 of the Indian Penal Code vide order dated 22.01.1994. 8. The prosecution to prove its case has examined five witnesses namely Ram Chandra Mahato as P.W. 1, Urmila Kumari, victim of the case as P.W. 2, Manrajo Devi, mother of the victim as P.W. 3, Firtu Harijan, father of the victim and informant of the case as P.W. 4 and Dr. Tara Chand Sah, medical officer, as P.W. 5. Apart from the oral evidence, the prosecution has also brought the signature of the informant on the fardbeyan which has been proved and marked as Ext.-1. 9. After closure of the prosecution evidence, the appellant and Ratan Chand Das have been examined under Section 313 of the Cr. P.C. on 16.07.2004 whereby they have denied the allegation and submitted that they are innocent and have been falsely implicated in this case. The defence has not adduced any oral evidence but has exhibited number of documents such as statement of the victim girl recorded under Section 164 of the Cr. P.C. which has been proved and marked as Ext.A and medial report of victim Urmila Kumari has been proved and marked as Ext. B. 10. The defence has not adduced any oral evidence but has exhibited number of documents such as statement of the victim girl recorded under Section 164 of the Cr. P.C. which has been proved and marked as Ext.A and medial report of victim Urmila Kumari has been proved and marked as Ext. B. 10. After hearing counsel for the parties and on the basis of materials available on record the learned trial court has passed the impugned judgment of conviction and order of sentence convicting the appellant under Section 366 of the Indian Penal Code, but by the same impugned judgment the learned trial court has acquitted the appellant of charge under Section 376 of the Indian Penal Code and co-accused Ratan Chand Das of charge under Section 368 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has preferred the present appeal before this Hon’ble Court assailing the same. 11. Heard Mr. Shailesh, learned counsel appearing on behalf of the appellant assisted by Ashish Kumar, Advocates. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that the victim was examined by the Doctor, P.W. 5, who has assessed her age to be almost 18 years on the basis of Radiological evidence. Learned counsel for the appellant has further submitted that the victim is a major lady and left her house herself, as she has stated in her statement recorded under Section 164 of the Cr. P.C. which has been proved and marked as Ext.-A, without objection from the prosecution. Learned counsel for the appellant has further submitted that it is the case where a major girl had eloped with the appellant and at that time she was married lady having girl child and no charge under Section 497 of the Indian Penal Code has been framed against the appellant. Learned counsel for the appellant has further submitted that the appellant cannot be convicted for the offence committed and punishable under Section 366 of the Indian Penal Code as half of the prosecution case has already been disbelieved by the learned trial court as the appellant has been acquitted of the charge under Section 376 of the Indian Penal Code. Learned counsel for the appellant has further submitted that the appellant cannot be convicted for the offence committed and punishable under Section 366 of the Indian Penal Code as half of the prosecution case has already been disbelieved by the learned trial court as the appellant has been acquitted of the charge under Section 376 of the Indian Penal Code. Learned counsel for the appellant has further submitted that acquittal of the appellant under Section 376 IPC has not been challenged by the State or by the informant and as such the same attained finality. Learned counsel for the appellant has buttressed his argument on the basis of judgment passed by Hon’ble Supreme Court in the case of Kuldeep K. Mahato versus State of Bihar, reported in (1998) 6 SCC 420 , where the Hon’ble Supreme Court has held that in absence of evidence to indicate that the appellant kidnapped the victim with intention to marry her against her will or in order that she may be forced to illicit intercourse, conviction of the appellant under Section 366 cannot be sustained in the eyes of law. Learned counsel for the appellant has further placed the judgment passed in the case of Shyam and Anr. Vs. State of Maharashtra reported in AIR 1995 SC 2169 , where the Hon’ble Supreme Court has held that prosecutrix not putting up struggle or raising alarm while being taken away by accused it appear that the prosecutrix appears to be a willing party to go with the accused on her own, culpability of accused of committing offence under Section 366 is not established. Considering the statement of the victim recorded under Section 164 of the Cr. P.C. which has been proved and marked as Ext.-A, the conviction of the appellant cannot be sustained in the eyes of law under Section 366 of the Indian Penal Code and as such the appellant may be acquitted of the charge under Section 366 of the Indian Penal Code. P.C. which has been proved and marked as Ext.-A, the conviction of the appellant cannot be sustained in the eyes of law under Section 366 of the Indian Penal Code and as such the appellant may be acquitted of the charge under Section 366 of the Indian Penal Code. Learned counsel for the appellant has further submitted that Investigating Officer has not been examined in this case and the appellant has suffered serious prejudice, as the appellant could not draw the attention of the court with respect to the statement of the victim recorded under Section 164 Cr.P.C. (Ext.-A) at the stage of investigation itself and on the basis of wrong charge sheet, the appellant has been convicted by the learned trial court. 12. Heard Mrs. Vandana Bharti, Additional Public Prosecutor learned counsel for the State. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of materials available on record. Learned counsel for the State has further submitted that the prosecution has examined altogether 5 witnesses and has also exhibited the signature of the informant on the fardbeyan which has been proved and marked as Ext. 1. Learned counsel for the State has further submitted that Ram Chandra Mahato is a hearsay witness, but he has supported the case of the prosecution. Victim, Urmila Kumari has been examined as P.W. 2. She has supported the prosecution case by submitting that altogether six accused persons have kidnapped her along with money kept in her house. She could only identify the appellant when he has removed his cloth from the face which he had tied to conceal the identity and thereafter the accused has taken her to different places and also committed rape against her will. The mother of the informant, Manrajo Devi has been examined as P.W. 3. She has also supported the case of the prosecution. Informant, Firtu Harijan (P.W. 4) is hearsay witness., Dr. Tara Chand Sah (P.W. 5) has proved the medical certificate of victim Urmila Kumari issued by lady Doctor, which has been marked as Ext. X for identification. Although the Doctor Tara Chand Sah has identified the signature and handwriting of the lady doctor. Informant, Firtu Harijan (P.W. 4) is hearsay witness., Dr. Tara Chand Sah (P.W. 5) has proved the medical certificate of victim Urmila Kumari issued by lady Doctor, which has been marked as Ext. X for identification. Although the Doctor Tara Chand Sah has identified the signature and handwriting of the lady doctor. Learned counsel for the State has further submitted that since the victim has stated against the appellant, the learned trial court is justified in passing the impugned judgment of conviction and order of sentence which does not warrant any interference by this Hon’ble Court. 13. Heard, learned counsel appearing on behalf of the appellant Mr. Shailesh, assisted by Mr. Ashish Kumar, Advocates and Mrs. Vandana Bharti, learned Additional Public Prosecutor, and perused the evidence available on record including the F.I.R., framing of the charge, evidence of five prosecution witnesses, one prosecution Ext., statement of the appellant recorded under Section 313 of the Cr. P.C., two defence Ext. and impugned judgment of conviction and order of sentence. This court has scrutinized the evidence brought on record. The victim was examined under Section 164 Cr. P.C. The victim was found to be a major girl during her medical examination which has been proved and marked as Ext.-B without objection. Since no objection has been put forward by the prosecution at the time of exhibiting the statement of the victim as Ext. A and the medical report of the victim as Ext. B. This court has accepted both the documents as legal document for adjudication of the present appeal. P.W. 1, Ram Chandra Mahato is hearsay witness, P.W. 4, Firtu Harijan, being the informant is also hearsay witness. Manrajo Devi, mother of the victim is P.W. 3, but she is not an eye witness to the occurrence, rather she stated to her husband that their daughter is missing from the house. Urmila Kumari, victim of the case has been examined as P.W. 2. She has stated in her statement recorded under Section 164 of the Cr. P.C. that at the time of the occurrence she was already married having girl child. She left the house along with the appellant, went to Ranchi and after eight days, returned to the house of the appellant from where she was recovered by the police and her statement was recorded under Section 164 Cr. P.C. that at the time of the occurrence she was already married having girl child. She left the house along with the appellant, went to Ranchi and after eight days, returned to the house of the appellant from where she was recovered by the police and her statement was recorded under Section 164 Cr. P.C. which has been exhibited as Ext.-A. Nothing has been alleged against the appellant, but subsequently while deposing as P.W. 2 in the court, she has alleged everything against the appellant, though the learned trial court acquitted the appellant of the charge under Section 376 IPC. The judgment of acquittal under Section 376 of the Indian Penal Code has not been assailed by the State or by the informant. The judgment placed by the learned counsel for the appellant are applicable in the present case as victim being a major girl left the house herself along with the appellant without any fear or threat. She has not raised any alarm while she was travelling in the train and as such both the judgment placed by learned counsel for the appellant are applicable in the present case. 14. Considering the statement of the victim recorded under Section 164 Cr. P.C. which has been exhibited as Ext. A without objection, the appellant is entitled for benefit of doubt. Under the aforesaid circumstance, the impugned judgment of conviction dated 01.09.2004 and order of sentence dated 7.09.2004 passed by Additional Sessions Judge XIII, Dhanbad in S.T. No. 242/1989 is hereby set aside. 15. The appellant who is on bail is discharged from the liability of the bail bonds. 16. Let the lower court records be sent along with a copy of this judgment to the court concerned at once.