JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 03.09.2004, passed by learned 1st Additional Sessions Judge-cum-Special Judge, Gumla, in Sessions Trial No. 16 of 2000, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 366 (A) and 376 of the Indian Penal Code and Section 3 (i) (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities) Act, 1989. The appellant has been awarded rigorous imprisonment for seven years with a fine of Rs. 1000/- each separately for the offence committed and punishable under Sections 366 (A) and 376 of the Indian Penal Code and has further been awarded rigorous imprisonment for five years with a fine of Rs. 1000/- for offence committed and punishable under Section 3 (i) (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities Act), 1989. However, in case of default in payment of fine, the appellant shall further undergo rigorous imprisonment for one year. All the sentences are directed to run consecutively. 2. The prosecution case is based upon the complaint petition filed by Tarsisiya Khalkho (P.W. 2) before the Court of learned Chief Judicial Magistrate, Gumla, which was registered as C 76/1999 for an occurrence committed on 13.04.1999. The complainant/informant has stated that her daughter Jyoti Khalkho, aged about 13 years went to telephone booth to talk with her elder daughter, who is residing at Delhi. The complainant has alleged that at around 11.00 A.M., the victim Jyoti Khalkho connected the phone and handed over the same to the complainant. It was stated that Jyoti Khalkho was talking with the appellant Rozan Mian @ Rojna Mian outside the telephone booth. The informant has seen, both victim and the appellant were talking in a pleasant mood. The informant came out of the telephone booth then, Rozan Mian told her that he is taking Jyoti Khalkho for stroll at Gumla market. Since Rozan Mian was known to the informant and her family members, she has allowed the appellant, without any suspicion. The informant was waiting for her daughter till 3.00 P.M. but her daughter did not return and thereafter informant came to her house, informed her husband, who is suffering from paralysis and inquired whether their daughter has returned or not, upon which her husband disclosed that she has not returned. The informant was waiting for her daughter till 3.00 P.M. but her daughter did not return and thereafter informant came to her house, informed her husband, who is suffering from paralysis and inquired whether their daughter has returned or not, upon which her husband disclosed that she has not returned. Thereafter, informant was waiting for return of her daughter but on the next date i.e. on Wednesday, at around 9.00 A.M., witness no. 3, namely Kishor Bek informed her that Rozan Mian along with 3-4 unknown persons took the daughter of informant in a jeep towards Tangar Toli. The informant has tried her best to search her daughter but could not get any information. The informant has claimed that Rozan Mian along with 3-4 persons have enticed her minor daughter and have taken her for illicit sexual intercourse. 3. On the basis of complaint petition, which was referred to the local police station, Gumla under Section 156 (iii) of the Cr.P.C., police has registered Gumla P.S. Case No. 84 of 1999 dated 14.05.1999, under Section 366 (A) of the Indian Penal Code and subsequently, vide order dated 12.11.1999 Section 376 of the Indian Penal Code has also been added. 4. After investigation, the police has submitted charge sheet against the appellant vide charge sheet no. 193 of 1999, dated 30.11.1999, under Sections 366 (A) and 376 of the Indian Penal Code and under Section 3 (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities) Act, 1989. It is made clear that during investigation, the statement of the victim Jyoti Khalkho has been recorded under Section 164 Cr.P.C. on 04.11.1999, where her age has been assessed as 17 years and the victim has disclosed her age to be 19 years. 5. The cognizance of the offence has been taken vide order dated 06.12.1999 and the case has been committed to the Court of Sessions vide order dated 11.01.2000. 6. The charge has been framed against the accused/appellant under Sections 366 (A) and 376 of the Indian Penal Code and Section 3 (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities) Act, 1989 vide order dated 25.06.2001, to which the accused has pleaded his innocence and thus, he was put under trial. 7. The prosecution, to prove its case, has examined altogether six witnesses and exhibited a number of documents upto Exhibit- 3, in support of its case. 7. The prosecution, to prove its case, has examined altogether six witnesses and exhibited a number of documents upto Exhibit- 3, in support of its case. Jyoti Khalkho, victim of the case has been examined as P.W. 1 and has been declared hostile by the prosecution, Tarsisiya Khalkho, informant of the case and mother of the victim, has been examined as P.W. 2, Kishor Bek has been examined as P.W. 3, Jasinta Tirkey, sister-in-law of the victim, has been examined as P.W. 4, Ramashish Paswan, investigating oficer of the case, has been examined as P.W. 5 and Jitiya Oraon, a formal witness has been examined as P.W. 6. The statement of Jyoti Khalkho recorded under Section 164 Cr.P.C. has been proved and marked as Exhibit- 1, formal F.I.R. has been proved and marked as Exhibit- 2, complaint petition has been proved and marked as Exhibit- 2/1 and paragraph 1 to 27 of the case diary has been proved and marked as Exhibit- 3. 8. After closure of the prosecution evidence, the statement of the accused/appellant, has been recorded under Section 313 Cr.P.C. on 27.08.2004, where the appellant has categorically stated that he has been falsely implicated in this case as he has taken Jyoti Kahlkho with the consent of the informant/complainant and after solemnizing marriage, they are living as husband and wife having children and because of some misunderstanding, the complainant has filed the complaint case but no defence witness or document has been brought on record on behalf of the appellant. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence, whereby the learned Trial Court has convicted the appellant Rozan Mian @ Rojna Mian for the offence committed and punishable under Sections 366 (A) and 376 of the Indian Penal Code and Section 3 (i) (xii) of the Schedule Caste and Schedule Tribe Prevention of Attrocities Act, 1989. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has filed the present criminal appeal before this Court assailing the same. 10. Heard, learned counsel for the appellant, Mr. Sunil Kumar, Advocate. 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. 10. Heard, learned counsel for the appellant, Mr. Sunil Kumar, Advocate. 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 Jyoti Khalkho (P.W. 1) has not supported the prosecution case rather, she has supported her earlier version recorded under Section 164 Cr.P.C. by the learned Judicial Magistrate during investigation, which has been proved and marked as Exhibit- 1. The victim has categorically stated that after informing her mother, she went along with the appellant Rozan Mian and subsequently went to Delhi and entered into a matrimonial relation with the appellant and subsequent thereto they had physcial relationship, they have been blessed by children and they are residing peacefully. Learned counsel for the appellant has further submitted that victim has disclosed her age as 19 years while recording her statement under Section 164 Cr.P.C. and the court has also assessed her age as 17 years. Learned counsel for the appellant has further submitted that at the relevant point of time, to attain majority by a girl, age was 16 years and as such, the victim was major at that time. Learned counsel for the appellant has further submitted that the prosecution has not brought any legal material to prove that victim was minor at the time of occurrence and as such, the conviction of the appellant under Section 366 (A) is not sustainable in the eyes of law. Learned counsel for the appellant has further submitted that victim in her statement recorded under Section 164 Cr.P.C. has categorically replied to the query made by the learned trial court at question no. 12 and 13 with respect to the sexual relationship established between them, prior to their marriage or after the marriage, to which the victim has categorically stated that after marriage, the sexual relationship was established and as such, in absence of any ingredient to constitute an offence under Section 375 of the Indian Penal Code, the appellant cannot be convicted under Section 376 of the Indian Penal Code. Learned counsel for the appellant has drawn the attention of this Court towards Section 3 (i) (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities) Act, 1989 and has submitted that there is no material on record to constitute an offence under Special Act and as such, the conviction of the appellant under Special Act is not sustainable in the eyes of law. Learned counsel for the appellant has further submitted that the doctor has not been examined in this case and as such, the learned trial court has convicted the appellant on the basis of perverse finding. The learned trial court has not taken judicial notice of the statement of the victim recorded under Section 164 Cr.P.C. (Exhibit- 1) and has wrongly convicted the appellant. On the basis of such submissions, learned counsel for the appellant has submitted that the appellant may be acquitted of the charges and judgment of conviction passed by learned the learned trial court. 11. Heard, learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the material available on record and the learned Trial Court has rightly convicted the appellant under Sections 366 (A) and 376 of the Indian Penal Code and Section 3 (i) (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities) Act, 1989 as victim belongs to scheduled tribe community and the appellant was already married at that time and cannot solemnize marriage with the victim by enticing her. Learned counsel for the State has thus, submitted that the impugned judgment of conviction and order of sentence is well founded, on the basis of materials available on record. 12. Heard, learned counsel for the appellant, Mr. Sunil Kumar, Advocate and learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor and perused the evidence brought on records including the F.I.R., framing of charges, evidence of six prosecution witnesses, three prosecution exhibits, the statement of the appellant recorded under Section 313 Cr.P.C. and the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. Laxmi Murmu, Additional Public Prosecutor and perused the evidence brought on records including the F.I.R., framing of charges, evidence of six prosecution witnesses, three prosecution exhibits, the statement of the appellant recorded under Section 313 Cr.P.C. and the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. Jyoti Khalkho (P.W. 1), victim of the case, who has not supported the prosecution case, rather she has supported her earlier statement recorded during investigation under Section 164 Cr.P.C., which has been proved and marked as Exhibit- 1. Tarsisiya Khalkho (P.W. 2), informant of the case has reiterated her version made in the complaint petition but she has admitted that Rozan Mian has kept Jyoti Khalkho as his wife. Nothing has been brought on record to suggest, except the oral statement of the informant that the victim was aged about 13 years. From the evidence brought on record, i.e. Exhibit- 1, it appears that victim while examining under Section 164 Cr.P.C. has disclosed her age to be 19 years and the learned trial court has also assessed her age to be 17 years and as such, victim was major at the relevant time. The evidence of P.W. 2 is of no help for the prosecution as the victim has not supported the prosecution case and has been declared hostile by the prosecution nor any document has been brought on record to establish that victim was minor. Kishor Bek (P.W. 3) has admitted that Jyoti has been kept by the appellant as wife and she is still residing with Rozan (appellant). Jasinta Tirkey (P.W. 4), sister of the appellant and sister-in-law of the victim has stated that victim was appearing as minor when she was brought to her house but during cross-examination, this witness has categorically stated that victim was residing with appellant at his house. Ramashish Paswan (P.W. 5), investigating officer of the case has proved the signature of the victim on her statement recorded under Section 164 Cr.P.C. which has been proved and marked as Exhibit- 1 and has further stated that during investigation it was found that the matter relates to love affair, although the accused was married earlier also. Ramashish Paswan (P.W. 5), investigating officer of the case has proved the signature of the victim on her statement recorded under Section 164 Cr.P.C. which has been proved and marked as Exhibit- 1 and has further stated that during investigation it was found that the matter relates to love affair, although the accused was married earlier also. Nothing has been brought on record to suggest that appellant has committed an act which constitute an offence under Section 366 (A) of the Indian Penal Code, which reads as follows: “[366-A. Procuration of minor girl.- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” Further, nothing has been brought on record by the prosecution to constitute an offence under Section 376 of the Indian Penal Code or Section 3 (i) (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities) Act, 1989. Jitiya Oraon, a formal witness, has been examined as P.W. 6 and has proved the formal F.I.R., which has been marked as Exhibit- 2. 13. The evidence brought on record including the statement of the appellant recorded under Section 313 Cr.P.C., suggest that appellant has stated before the learned trial court that appellant and the victim were having love affair and as per consent of the victim, both entered into matrimonial relationship which was known to the complainant and the appellant has further submitted that victim is happy as the marriage has been performed with her consent and they have now children and are residing happily but the complainant under some confusion has filed the present case. 14. Considering the evidence brought on record, this Court is of the opinion that prosecution has miserably failed to prove the charge under Section 366 (A) of the Indian Penal Code as nothing has been brought on record to suggest that victim was minor or victim was taken for the purpose of seducing illicit intercourse. There is nothing on record to suggest that appellant has committed rape with the victim as stated in reply to court question no. There is nothing on record to suggest that appellant has committed rape with the victim as stated in reply to court question no. 12 and 13 by the victim. There is also no material to suggest that appellant is guilty of offence committed under Section 3 (i) (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities) Act, 1989. 15. In the result, the impugned judgment of conviction and order of sentence, both dated 03.09.2004, passed by learned 1st Additional Sessions Judge-cum- Special Judge, Gumla, in Sessions Trial No. 16 of 2000, in connection with Gumla P.S. Case No. 84 of 1999, corresponding to G. R. No. 272 of 1999, is hereby set aside and the appellant is acquitted of the charge and conviction under Sections 366 (A) and 376 of the Indian Penal Code and Section 3 (i) (xii) of the Schedule Caste and Schedule Tribe (Prevention of Attrocities) Act, 1989 by giving benefit of doubt. 16. The appellant, who is on bail, is discharged from the liability of his bail bond. 17. Accordingly, the present criminal appeal is allowed. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. Appeal allowed.