JUDGMENT : 1. Instant appeal has been preferred against the judgment of conviction and order of sentence dated 10.12.2008 & 17.12.2008 respectively passed by the Additional Judicial Commissioner, Fast Track Court No.1, Bermo at Tenughat (Bokaro), in connection with Sessions Trial No.431 of 1989 corresponding to G.R. Case No.543 of 1989 arising out of Bermo P.S. Case No.84 of 1989 whereby and whereunder the appellant has been convicted for the offence under Section 363 and 366 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and fine of Rs.500/-under Section 366 of the Indian Penal Code. In case of default in payment of fine, the appellant has to undergo simple imprisonment for one month. 2. The prosecution story, in brief, as per the statement made in the F.I.R. dated 20th June, 1989 wherein it has been reported by one Md. Idris that he is resident of Nichupara Kargali gate railway colony. That on 20th June, 1989 at 4.00 a.m. his daughter namely Soni Kumari, aged about 14 years, both awaken at 4.00 a.m. and went to Bagan to bring coal but did not return thereafter. After a short while he along with his wife searched out about his daughter but she was found nowhere. He has stated that in the same colony one boy namely Shankar Ghasi who used to come to his residence and on enquiry it was found that he is also traceless as such he must have taken away his minor daughter, hence, the F.I.R. 3. Instant case was registered for the offence under Section 363 of the Indian Penal Code being Bermo P.S. Case No.84 of 1989. The police has investigated the matter, submitted charge-sheet against the appellant. After taking cognizance the case was committed to the court of Sessions whereafter the charges have been framed for the offence under Section 363, 366-A and 377 of the Indian Penal Code to which the appellant pleaded not guilty thereafter put on trial. 4. The police has investigated the matter, submitted charge-sheet against the appellant. After taking cognizance the case was committed to the court of Sessions whereafter the charges have been framed for the offence under Section 363, 366-A and 377 of the Indian Penal Code to which the appellant pleaded not guilty thereafter put on trial. 4. The trial court, after examining the prosecution witnesses an the materials available before it has passed the judgment of conviction and sentence acquitting the appellants for the commission of offence under Section 376 I.P.C. but convicted him for commission of offence under Section 363 and 366 I.P.C. and accordingly sentenced him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.500/-, hence the appeal has been preferred against the aforesaid judgment. 5. Mr. Rajesh Kumar Singh, learned counsel appearing for the appellant, while assailing the impugned judgment has submitted that there is no cogent evidence to convict the appellant under Section 363 or 366 I.P.C. because the ingredient of the aforesaid sections is lacking which is evident from bare perusal of the deposition of the prosecution witnesses. He submits that it is evident from the deposition of the victim girl that she herself has desired to go to visit Ranchi town and as such it cannot be said that appellant in deceitful manner has taken away her from her house and therefore, ingredient of Section 366 I.P.C. is not made out. He also submits that ingredient of Section 363 I.P.C. is not made out for the reason that the age of the victim has not been ascertained because nothing has been brought on record justifying the age of the victim girl since in the F.I.R. It has been claimed that she was minor at the time of occurrence, therefore, ingredient of offence either under Section 363 or 366 I.P.C. is not made out. He, in alternative, has argue that even accepting that the offence has been made out but since the appellant has been sentenced for two years along with fine, therefore, the appellant has already undergone the sentence of about 17 months and therefore, the sentence may be reduced to the period already undergone in custody. 6. Mr. He, in alternative, has argue that even accepting that the offence has been made out but since the appellant has been sentenced for two years along with fine, therefore, the appellant has already undergone the sentence of about 17 months and therefore, the sentence may be reduced to the period already undergone in custody. 6. Mr. Ravi Prakash, learned A.P.P. representing the State of Jharkhand has submitted by refuting the argument that the ground raised by the learned counsel for the appellant by submitting that it is incorrect to say that ingredient of Section 363 or 366 I.P.C. is not made out. It is for the reason that the victim girl has stated in specific word that she has been allured to go out of her residence in deceitful means to show the district Ranchi and hence the victim girl since has corroborated the occurrence and she having the age of below 18 years, therefore, ingredient of aforesaid sections are applicable and hence it cannot be said that the trial court has committed any error. So far as contention of the appellant to reduce the sentence by the period already undergone, he submits that the same may be taken into consideration. 7. Having heard learned counsel for the parties and after appreciating their rival submissions, before going into the legality and propriety of the findings given in the impugned judgment, it would be relevant to refer the provision of Section 363 and 366 of Indian Penal Code which read as follows: “363.Punishmentforkidnapping.-Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will ,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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as a foresaid].” 8. It is evident that Section 363 stipulates about punishment for kidnapping and whoever kidnap any person from lawful guardianship shall be punished with imprisonment of either description of terms which may extend to seven years and shall also be liable to fine while Section 366 speaks about the offence of kidnapping or abduction of any human with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced to seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extent to 10 years and shall also be liable to fine. Abduction has been defined under Section 362 I.P.C. by which it has been defined that whoever by force compels or by any deceitful means induce any person to go from any place is said to be abducted that person. It is in this background of the settled position, the finding of the trial court in the impugned judgment is to be scrutinized as to whether there is ingredient of abduction available against the appellant or not? 9. This Court, in order to appreciate the arguments advanced on behalf of parties has thought it proper to go through the deposition of the witnesses. 9. This Court, in order to appreciate the arguments advanced on behalf of parties has thought it proper to go through the deposition of the witnesses. The most relevant witness is PW-1 namely Kasida Hasmi @ Soni who has disclosed her age at the time of her deposition as 15 years. She has stated that on 20th June, 1989 at 4.30 in the morning while she was sleeping, her mother awaken her for lighting stove and to do that she has gone outside her house to bring coal but she found at that moment that one Shankar Ghasi was standing. He came before her and stated that he will show her a thing to her and enticed her to come with him, she expressed hesitation but he convinced that he will inform her mother. Thereafter she went along with him. Then the appellant has insisted her to come to Ranchi upon which she also stated that she also is willing to see district Ranchi and thereafter both of them rushed to Jaina More, then to Ramgarh, remained there in a house and appellant subjected her to some bad work which leads to outraging her modesty. Thereafter, appellant threatened her to accompany him otherwise she will be killed. She remained with him. In cross-examination she has corroborated what she has stated in the examination-in-chief. 10. PW-2 is Md. Idris who is father of PW-1. He has deposed that the appellant has taken away his daughter and therefore the F.I.R. has been instituted. PW-1 was detected on 23.06.1989, she was kept in Bermo Police Station and on jimmanama she was handed over to him. In cross-examination he has corroborated what he has stated in the examination-in-chief. 11. Syda Khatoon is mother of PW-1 who has been examined as PW-3. She has also corroborated the incident both in the examination-in-chief as well as in the cross-examination. 12. PW-4 Dhuja Ghasi and PW-5 Lalmani Devi have been declared to be hostile. 13. The appellant has been provided an opportunity of defending himself by putting a question under Section 313 Cr.P.C. wherein he has denied the commission of offence so far as the rape is concerned. He has further stated that the victim had shown her wish to go to her maternal grand mother’s house and he has obeyed the direction of his father and subsequently he has been implicated. He has further stated that the victim had shown her wish to go to her maternal grand mother’s house and he has obeyed the direction of his father and subsequently he has been implicated. He has further stated that there was love affairs in between the appellant and PW-1. He has disclosed the age of PW-1 as 19 years and therefore, he has shown his innocence. 14. The trial court, after appreciating the testimony of the prosecution witnesses, more particularly, the evidence of PW-1 pertaining to commission of rape has come to the conclusion that no case is made out under Section 376 I.P.C. The trial court has reached to its conclusion because PW-1 has only stated that the appellant has committed some bad work with her and therefore, on the basis of this vague allegation the commission of offence under Section 376 I.P.C. cannot be said to be attracted. Further the reason to lead the trial court to come to this finding is that there is no medical report brought on record and there is no corroborative piece of evidence to suggest that PW-1 has been subjected to rape. But, however, the trial court has convicted the appellant for commission of offence under Section 363 and 366 I.P.C. Section 363 or 366 I.P.C. speaks regarding punishment for kidnapping or abduction. Abduction has been defined under Section 362 I.P.C. by which whoever by force or by deceitful means compels any person to go with any person is said to have abducted that person. 15. It is evident that for commission of offence either under Section 363 or 366 I.P.C., the age of the victim is of paramount consideration. The age, as per the provision of Section 361 I.P.C. for making an offence of kidnapping is 16 years of age if a male or 18 years of age if a female or any person of unsound mind. Therefore, before convicting the offender either under Section 363 or 366 I.P.C. the cogent evidence regarding the age has to be there. It is evident from the testimony of PW-1 that she has disclosed her age as 15 years. Her father has also disclosed her age as 14 years at the time of commission of offence. Under Section 313 Cr.P.C. the appellant has taken the defence that PW-1 was 19 years of age. It is evident from the testimony of PW-1 that she has disclosed her age as 15 years. Her father has also disclosed her age as 14 years at the time of commission of offence. Under Section 313 Cr.P.C. the appellant has taken the defence that PW-1 was 19 years of age. It is further evident that in cross-examination suggestion has been taken disputing her age wherein she had disclosed her age to be 15 years at the time of commission of offence, therefore, the age of PW-1 is not admitted rather it has been disputed. The prosecution has not produced any evidence before the trial court showing the proof of age which will be said to be cogent evidence to attract the commission of offence either under Section 363 or 366 I.P.C. It is settled that the conviction is to be inflicted upon the offender if the offence is proved beyond all reasonable doubt and if there is any “if” and “but” the benefit is to be given to the appellant. 16. According to the considered view of this Court, since the age has not been conclusively proved, therefore, the conviction inflicted either under Section 363 or 366 of I.P.C. cannot be said to be based upon well founded reason. It is further evident that under Section 313 Cr.P.C. the appellant has taken the plea that there was love affair in between him and PW-1. The appellant was asked by father of PW-1 to accompany her to her maternal grand mother’s house and in order to obey his direction he was accompanying PW-1 and subsequently he has been implicated in false case. PW-1 has disclosed in very first paragraph that she has been allured by the appellant to accompany him and therefore in the deceitful manner she has gone along with him but subsequent to said paragraph she has stated that after hearing offer of the appellant that he will take her to Ranchi upon this she has stated that she is also willing to see Ranchi, therefore, her testimony is not said to be trustworthy and sufficient to hold the appellant guilty for the offence under Section 363 or 366 I.P.C. 17. In view thereof, the judgment of conviction and order of sentence dated 10.12.2008 & 17.12.2008 respectively passed by the Additional Judicial Commissioner, Fast Track Court No.1, Bermo at Tenughat (Bokaro), in connection with Sessions Trial No.431 of 1989 corresponding to G.R. Case No.543 of 1989 arising out of Bermo P.S. Case No.84 of 1989 is quashed and set aside. The appellant who is on bail is discharged with the liability of bail bond. 18. Accordingly, this appeal stands allowed.