JUDGMENT : The instant Criminal Appeal has been preferred against the judgment of conviction dated 08.01.2004 and order of sentence, dated 09.01.2004, passed by learned 1st Additional Sessions Judge, Fast Track Court, Garhwa, in Sessions Trial Case No. 364 of 1999/T.R. No. 180/2002, whereby the sole appellant has been convicted for the offence committed and punishable under Section 366 (A) of the Indian Penal Code and has been awarded rigorous imprisonment for six years with a fine of Rs. 500/-and in default of payment of fine, to further undergo simple imprisonment for one month. By the same impugned judgment, the learned trial court has acquitted the co-accused Pragash Singh from the charge under Section 366 A of the Indian Penal Code. 2. The prosecution case is based upon the written report submitted by Vijay Prasad Keshri (P.W. 9) before the Officer-in-Charge, Ranka Police Station on 20.02.1999 alleging inter alia that on 14.02.1999 (Sunday) at around 5.00 AM, informant's sister namely Usha Kumari, aged about 15 years alongwith younger brother Sanjay Kumar Keshri went to Godarmana bazar and from the bazar, brother of the informant, Sanjay Kumar Keshri returned at 7.00 P.M. and disclosed that in the market co-villager Pragash Singh has asked him to go and search co-villager Mangri in the market, upon which after leaving his sister, he went in search of Mangri and met Mangri and asked her to come as Pragash has called her, upon which she disclosed him that why he has come before her as his sister has been taken away by Anirudh Singh, son of Hari Charan Singh; resident of village-Mangrahi, to some unknown place. It is alleged that brother of the informant returned but his sister was not there and thereafter, he came to the house and disclosed the occurrence to his brother (informant). The informant has claimed that Anirudh Singh @ Uday Singh has taken her sister for purpose of marriage. The informant has explained the delay in lodging the F.I.R. as time consumed in searching the victim. 3. On the basis of written report, police has registered Ranka P.S. Case No. 16 of 1999 dated 21.02.1999, under Section 366 (A) of the Indian Penal Code against two accused persons namely Pragash Singh and Anirudh Singh @ Uday Singh. 4. After investigation, the police has submitted charge sheet against the both accused persons vide charge sheet no. 3. On the basis of written report, police has registered Ranka P.S. Case No. 16 of 1999 dated 21.02.1999, under Section 366 (A) of the Indian Penal Code against two accused persons namely Pragash Singh and Anirudh Singh @ Uday Singh. 4. After investigation, the police has submitted charge sheet against the both accused persons vide charge sheet no. 51 of 1999, dated 31.05.1999, under Section 366 (A) of the Indian Penal Code. It is relevant to state here that the victim was examined during investigation under Section 164 CrPC on 22.03.1999, where she has categorically stated that, she is aged about 19 years and she has gone with Uday Singh on her own. Uday Singh has not taken her rather she has taken Uday Singh and after residing one month at Ambikapur, they have solemnized marriage in a temple and she wants to live with him. The statement of the victim recorded under Section 164 CrPC has been proved and marked as Exhibit-A by the defence, during trial. 5. The cognizance of the offence has been taken vide order dated 22.06.1999 and the case has been committed to the Court of Sessions vide order dated 07.09.1999. 6. The charge has been framed against both the accused including the appellant under Section 366 (A) of the Indian Penal Code vide order dated 11.01.2000, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether ten witnesses. 6. The charge has been framed against both the accused including the appellant under Section 366 (A) of the Indian Penal Code vide order dated 11.01.2000, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether ten witnesses. Indradeo Singh, hearsay witness, has been examined as P.W. 1, Ram Chandra Singh, hearsay witness has been examined as P.W. 2, Kailash Singh has been examined as P.W. 3 and has been declared hostile by the prosecution, Shiv Kumar Singh, has been examined as P.W. 4 and has been declared hostile by the prosecution, Mangari Devi has been examined as P.W. 5 and has been declared hostile by the prosecution, Sanjay Kumar Kesari, brother of the informant, who was accompanying the victim prior to the alleged time of occurrence has been examined as P.W. 6, Birendra Prasad Keshari, father of the victim, has been examined as P.W. 7, he is a hearsay witness, Usha Devi, victim of the case has been examined as P.W. 8, Vijay Prasad Keshri, informant of the case and brother of the victim, has been examined as P.W.9 and Ganesh Prasad, an Advocate Clerk has been examined as P.W. 10 under Section 311 CrPC and has proved the signature of the Officer-in-Charge on the fardbeyan which has been marked as Exhibit- 2, being a formal witness. The prosecution has also adduced documentary evidence. Signature of doctor on medical report of the victim has been proved and marked as Exhibit-1 and the signature of the Officer-in-Charge on the fardbeyan has been proved and marked as Exhibit- 2. 8. After closure of the prosecution evidence, statement of the accused persons have been recorded under Section 313 Cr.P.C. on 18.12.2003, to which the accused persons have pleaded their innocence and have submitted that there is no evidence against them. Defence has also examined Tapeshwar Singh as D.W. 1, an Advocate Clerk to prove the statement of the victim recorded under Section 164 CrPC by the Court of learned Judicial Magistrate which has been marked as Exhibit-A. 9. Defence has also examined Tapeshwar Singh as D.W. 1, an Advocate Clerk to prove the statement of the victim recorded under Section 164 CrPC by the Court of learned Judicial Magistrate which has been marked as Exhibit-A. 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 Uday Singh for the offence committed and punishable under Sections 366 (A) of the Indian Penal Code but by the same impugned judgment acquitted co-accused Pragash Singh of the charge under Section 366 A of the Indian Penal Code. 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 which was admitted on 08.07.2004 for hearing and sentence has been suspended by enlarging the appellant on bail. 10. Heard, learned counsel for the appellant, Mr. Arvind Kumar Sinha, Advocate assisted by Praveen Kumar and Babban Prasad, 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 informant has filed the present case after a delay of approximately five days knowing fully well that his sister Usha Kumari, being a major girl, has eloped with the appellant Uday Singh and as such, there was a delay in lodging the First Information Report, so as to generate confidence before lodging the First Information Report. Learned counsel for the appellant has further submitted that victim Usha Kumari was examined under Section 164 CrPC before the learned Magistrate and in her statement, she has categorically stated that she has gone on her own along with Uday Singh and she has taken Uday Singh, who has not kidnapped her. She has further stated that both lived at Ambikapur for a month and solemnized marriage in a temple. The statement of the victim recorded under Section 164 CrPC has been proved and marked as Exhibit-A by the defence without any objection from the prosecution. She has further stated that both lived at Ambikapur for a month and solemnized marriage in a temple. The statement of the victim recorded under Section 164 CrPC has been proved and marked as Exhibit-A by the defence without any objection from the prosecution. Learned counsel for the appellant has further submitted that in the statement of the victim recorded under Section 164 CrPC, she has categorically stated her age to be of 19 years and as per the medical report of the doctor, who has examined the victim (though has not been examined in this case), age of the victim has been found between 14 years to 16 years. Learned counsel for the appellant has further submitted that at the relevant time in the year, 1999, for constituting an offence under Section 366 A IPC, the age of the victim must be less than 16 years. Learned counsel for the appellant has submitted that on the basis of the medical evidence, the age of the victim cannot be ascertained, in view of settled propositions of law. Learned counsel for the appellant has further submitted that apart from medical examination, the age of the victim may also be assessed by the Court and as such, in view of the judicial pronouncement, it is always ± 2 years in favour of the appellant. Learned counsel for the appellant has further submitted that prosecution has deliberately not brought the birth certificate or certificate of admission from the first school to bring the actual date of birth of the victim, knowing fully well that victim is a major girl and as such, in absence of proof of the same, the appellant is entitled for benefit of doubt. Learned counsel for the appellant has further submitted that Indradeo Singh (P.W. 1) and Ramchandra Singh (P.W. 2) are hearsay witnesses. Kailash Singh (P.W. 3), Shiv Kumar Singh (P.W. 4) and Mangari Devi (P.W. 5) have been declared hostile by the prosecution. Learned counsel for the appellant has submitted that as per the First Information Report, informant Vijay Prasad Keshri (P.W. 9) got knowledge about the commission of offence by Sanjay Kumar Keshri (P.W. 6), his younger brother, aged about 12 years. Learned counsel for the appellant has submitted that as per the First Information Report, informant Vijay Prasad Keshri (P.W. 9) got knowledge about the commission of offence by Sanjay Kumar Keshri (P.W. 6), his younger brother, aged about 12 years. Sanjay Kumar Keshri (P.W. 6) has disclosed before the informant that Pragash Singh has asked him to search Mangri in the bazar, upon which, he left his sister before Pragash Singh and went in search of Mangri where Sanjay disclosed to Mangri that she has been called by Pragash, upon which Mangri said that go and save your sister from Anirudh Singh @ Uday Singh, who has taken her away somewhere else. Learned counsel for the appellant has further submitted that even Sanjay Kumar Keshri has not seen Uday Singh and on the basis of presumption, as disclosed by Mangri, name of the appellant has been mentioned in First Information Report. Learned counsel for the appellant has further submitted that during investigation, the victim was examined under Section 164 CrPC by the learned Magistrate, which has been marked as Exhibit-A where she has not alleged anything against Uday Singh @ Anirudh Singh but subsequently under pressure while examining as P.W. 8, she has taken a summersault and has given a vivid description of the occurrence by saying that she was taken by the appellant in a bus. Learned counsel for the appellant has relied upon one judgment as reported in 1991 Supp (2) SCC 476 in the case of Phoola v. State of Rajasthan, where it has been held that “for several days, the victim was taken openly to different places but she has never made any protest” and this view has been reiterated by the Hon'ble Apex Court in the case of Kavita Chandrakant Lakhani v. State of Maharashtra & Anr. as reported in 2018 (2) JLJR (SC) 369, where the Hon'ble Apex Court has acquitted the appellant of the charge under Section 366 of the Indian Penal Code as: “mere finding that a woman was abducted is not enough, it must further be proved that accused abducted the woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse unless the prosecution proves that abduction is for the purposes mentioned in Section 366 of the Indian Penal Code, the court cannot hold the accused guilty and punish him under Section 366 of the Indian Penal Code.” Thus, in the absence of strict proof of the date of birth of the the victim at the time of alleged date of occurrence, coupled with the fact that victim has never deposed in the court that she was compelled to marry or forced or seduced to illicit intercourse and as such, the appellant cannot be convicted under Section 366 A of the Indian Penal Code. Learned counsel for the appellant has further submitted that investigating officer and the medical officer has not been examined in this case rather only the signature of the Officer-in-Charge on the First Information Report has been proved and marked as Exhibit-2. Learned counsel for the appellant has further submitted that neither the First Information Report nor the signature of the informant on the written application has been proved and marked as exhibit by the prosecution. Under such circumstances, learned counsel for the appellant has submitted that the conviction of the appellant under Section 366 A of the Indian Penal Code cannot sustain in the eyes of law. 11. Heard, learned counsel for the State, Mr. Vijay Kumar Gupta, 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. The learned Trial Court has rightly convicted the appellant under Section 366 (A) of the Indian Penal Code. Heard, learned counsel for the State, Mr. Vijay Kumar Gupta, 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. The learned Trial Court has rightly convicted the appellant under Section 366 (A) of the Indian Penal Code. Learned counsel for the State has further submitted that victim, Usha Devi, examined as P.W. 8, informant, Vijay Prasad Keshri, examined as P.W. 9 and Sanjay Kumar Keshri, examined as P.W. 6, have supported the prosecution case. Learned counsel for the State has further submitted that, though the victim has not stated anything during examination under Section 164 CrPC during investigation but while examining in the Court, she has fully supported the prosecution case by stating that this appellant has taken her to different places on bus but the victim has not alleged any sexual offence against the appellant, as such the learned trial court has rightly convicted the appellant under Section 366 A of the Indian Penal Code. 12. Heard, learned counsel for the appellant, Mr. Arvind Kumar Sinha, Advocate assisted by Praveen Kumar and Babban Prasad, Advocates and learned counsel for the State, Mr. Vijay Kumar Gupta, Additional Public Prosecutor and perused the evidence brought on records including the F.I.R., framing of charge, evidence of nine prosecution witnesses, two prosecution exhibits, one court witness, statement of the appellant recorded under Section 313 Cr.P.C., one defence witness and the impugned judgment of conviction and order of sentence. This Court has minutely scrutinized the materials brought on record. From perusal of the evidence, it appears that Indradeo Singh (P.W. 1) and Ramchandra Singh (P.W. 2) are hearsay witnesses. Kailash Singh (P.W. 3), Shiv Kumar Singh (P.W. 4) and Mangari Devi (P.W. 5) have been declared hostile by the prosecution, as they have not supported the prosecution case. P.W. 6, Sanjay Kumar Keshri, the brother of the informant and was accompanying his sister but he has also not seen Anirudh Singh @ Uday Singh, at the place of occurrence. Vijay Kumar Keshri, informant of the case, has been examined as P.W. 9 and he has filed the written application before the police on the basis of disclosure made by Sanjay Kumar Keshri (P.W. 6), as such the entire case revolves around the evidence of P.W. 8 Usha Devi. Vijay Kumar Keshri, informant of the case, has been examined as P.W. 9 and he has filed the written application before the police on the basis of disclosure made by Sanjay Kumar Keshri (P.W. 6), as such the entire case revolves around the evidence of P.W. 8 Usha Devi. From perusal of the evidence brought on record, comparing the same with the statement of the victim recorded under Section 164 CrPC, marked as Exhibit-A and in absence of any documentary evidence brought by the prosecution showing the age of the victim to be minor for constituting an offence under Section 366 A of the Indian Penal Code, this Court has reason to believe the statement of victim recorded under Section 164 CrPC, where the victim has categorically stated that her age is 19 years and has categorically stated that she has gone with Uday Singh. Victim has subsequently stated that she has taken Uday Singh and Uday Singh has never kidnapped her. She has further stated that both resided in Ambikapur for one month and then solemnized marriage in a temple. While deposing as P.W. 8, she has never alleged any act of sexual attempt made by Uday Singh, rather the evidence shows that both were moving in a public bus, which is a public conveyance but she never raised any protest. Learned counsel for the appellant has rightly placed the judgment of Phoola v. State of Rajasthan (supra) and Kavita Chandrakant Lakhani v. State of Maharashtra & Anr. (supra) which demolishes the case of the prosecution so far conviction of the appellant under Section 366 A is concerned. This Court has taken judicial notice, with regard to delay in filing the First Information Report for five days. Non production of the birth certificate or certificate of admission of first school of the victim mentioning the date of birth of the victim coupled with the fact that the investigating officer of the case has not been examined and the doctor has also not been examined but the medical evidence has been proved and marked as Exhibit-1, which shows age of the girl to be more than 14 but less than 16 years. This Court is of the conscious view that assessment made by a doctor is rough assessment and as such, + two years of age should be considered in favour of the accused and at the relevant time i.e. in the year 1999, for constituting an offence under Section 366 A IPC, the minimum age required was 18 years and not 16 years as submitted by the counsel for the appellant. This Court has taken notice of the provisions of Section 366 A of the Indian Penal Code, which defines as follows: “[366 A. Procreation 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.” There is no material on record to suggest that victim was forced or seduced to any illicit intercourse with another person, as such the conviction of the appellant under and conviction Section 366 A of the Indian Penal Code cannot sustain in the eyes of law. Under the aforesaid discussions made above, this Court is of the considered view that conviction of the appellant is not sustainable in the eyes of law, as such the appellant is acquitted of the charge under Section 366 A of the Indian Penal Code. 13. In the result, the impugned judgment of conviction dated 08.01.2004 and order of sentence, dated 09.01.2004, passed by learned 1st Additional Sessions Judge, Fast Track Court, Garhwa, in Sessions Trial Case No. 364 of 1999/T.R. No. 180/2002, in connection with Ranka P.S. Case No. 16 of 1999, corresponding to G. R. No. 117 of 1999, is hereby set aside and the appellant is acquitted of the charge and conviction under Section 366 (A) of the Indian Penal Code by giving benefit of doubt. 14. The appellant, who is on bail, is discharged from liability of his bail bond. 15. Accordingly, the present criminal appeal is allowed. 16. 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.