JUDGMENT
Vishnudeo Narayan, J.
1. This appeal has been directed by the sole appellant named above against the judgment and order dated 17-8-1996 passed in S.T. No. 459/93/TR.No. 62/93 by Shri Alok Kumar Sinha, Sixth Additional Judicial Commissioner, Ranchi whereby the appellant was found guilty for the offence punishable under Section 366-A of the I.P.C. and he was convicted and sentenced to undergo R.I. for three years.
2. The prosecution case has arisen on the basis of the written report of P.W. 2 Gopal Singh, the informant and father of the alleged victim girl Soni Kaur stated to be 13 or 14 years old lodged before Sukhdeonagar P.S. Ranchi on 9-8-1990 at 10.00 a.m. regarding the occurrence which is said to have taken place on 6-8-1990 at 10.30 a.m. at Piska Chowk near Ratu Road, P.S. Sukhdeonagar, District Ranchi.
3. The prosecution case, in brief, is that Soni Kaur had gone from his house at 10.30 a.m. on 6-8-1990 for purchasing ‘Rakhi’ (sacred thread) but she did not return till 11.00 a.m. and the informant started making search of her and he also lodged an information before the Sukhdeonagar P.S. on 7-8-1990. It is alleged that in course of search the informant tearnt that Pancham Ram and his son Manoj Ram and Pradeep Ram have kidnapped her as one month ago also Pancham Ram had confined her in his bathroom and on pressure he has allowed Soni Kaur to go out of that place. It is also alleged that Soni Kaur aforesaid had earlier told the informant that Manoj Kumar used to vex her while going to school.
4. In course of investigation Soni Kaur was recovered at Gaya in the company of the appellant and, thereafter, she was brought to Ranchi and statement of Soni Kaur was recorded under Section 164, Cr.P.C. in which she has specifically named Manoj as one of the person along with another person forcibly kidnapping her and putting her in a Maruti car. She has also stated in her statement under Section 164, Cr.P.C. that on her intimation the appellant had come to her at Kokar where she was kept and the said intimation was given by Manoj and Bhola. However, the charge-sheets in this case have been submitted only against appellant-Binod Kumar Rajak.
5. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been illegally implicated in this case.
6. The prosecution has examined nine witnesses in this case to substantiate the allegation levelled against the appellant. P.W. 1 Soni Kaur is the alleged victim girl of this case. P.W. 2 is her father. P.Ws. 3, 4 and 5 are the mother and full brothers of P.W. 1. P.W. 6 has recovered Soni Kaur aforesaid in the company of the appellant from Gaya. P.W. 9 is the medical witness and P.Ws. 7 and 8 are the I.Qs. of this case. No oral or documentary evidence have been adduced on behalf of the defence. However, it is pertinent to mention here that the appellant in his statement under Section 313, Cr.P.C. has specifically asserted that he has not induced or kidnapped Soni Kaur but she has gone with him as per her sweet will.
7. In view of the evidence on the record the learned Court below found the appellant guilty for the offence under Section 366-A of the I.P.C. and convicted and sentenced him as stated above.
8. It has been submitted by the learned counsel for the appellant that the trial Court has misdirected himself in scrutinizing the evidence on the record and has failed to properly appreciate the evidence and has, accordingly, erred in finding the appellant guilty. It has been submitted that P.W. 1 Soni Kaur is a major girl, above 18 years of age and the age as assessed by P.W. 9, the medical witness is variable by two years either side. In support of his contention he has referred the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir AIR 1982 SC 1297 in which the Apex Court has held that margin of error in age ascertained by radiological examination is variable by two years on either side. It has also been submitted that P.W. 1 Soni Kaur the alleged victim girl has deposed in -most clear and unequivocal terms that the appellant has not kidnapped her. She has further deposed that she has voluntarily gone with the appellant out of her free will and she was recovered, by the police on 18-8-1990 with the appellant. It has also been submitted by the learned counsel for the appellant that there is no iota of legal evidence on the record even prima facie to give an inkling of the fact that the appellant has induced P.W. 1 Soni Kaur and in this view of the matter the charge under Section 366-A of the I.P.C. against the appellant is not substantiated in this case. It has further been submitted that the intention or knowledge for commission of offence under Section 366-A must be for having illicit intercourse and the testimony of P.W. 9, the medical witness, shows that P.W. 1 Sony Kaur was not at all harassed or sexually assaulted as medical witness has found her hymen intact. Lastly it has been submitted that there has been a subsequent event in this case and P.W. 1 Soni Kaur has solemnized her marriage with the appellant and she is leading a happy conjugal life with the appellant and she has been blessed with two children from his loins and in the changed circumstances and for the ends of justice also the appellant should be acquitted. In support of his contention he has also referred the case of Kanhaiya Mahto alias Manhaiya Prasad alias Kanhaiya Singh v. State of Bihar 1989 East Cri C 492 (Pat).
9. The learned A.P.P. has contended that P.W. 1 Soni Kaur is a minor girl below 18 years of age and she has disclosed her age as 18 years on 20-9-1993 when she has taken oath in this case and the occurrence has taken place in the year 1990 and in this view of the matter as per her own evidence she is a minor and the testimony of P.W. 9, the medical witness also shows that she was aged about 16 years at the time of occurrence. It has also been submitted that P.W. 1 has been recovered in the company of the appellant by the police at Gaya which clearly established the fact that the appellant has kidnapped her.
10. The crux of the matter in this case is the age of P. W. 1 on the date of occurrence. P.W. 2 Gopal Singh, the informant has deposed that P.W. 1 Soni Kaur was born in the Sadar hospital, Ranchi but he does not recollect her date of birth. However, he has deposed that Soni Kaur may be of 17 years of age. P.W. 2 has been examined in this case on 31-9-1993. As per the evidence of P.W. 2 the age of Soni Kaur comes to 15 years on the date of occurrence. Soni Kaur has deposed her age to be 18 years in the year 1993 and the learned Court below has also assessed her age as 18 years in the year 1993. The date of occurrence is 6-8-1990 and as such the age of Soni Kaur as per her own showing comes to 16 years. P.W. 9 the medical witness has assessed the age of Soni Kaur about 16 years on 19-8–1990 that is about 13 days after the occurrence. P.W. 9 in para 4 of her cross-examination has also deposed that in assessment of age, it may be one year plus. Therefore, the assessment of the age by P.W. 9, the medical witness cannot be said to be correct. Since P.W. 1 Soni Kaur was born in the Sadar Hospital, Ranchi and as such there is authentic record of her date of birth. No attempt has been taken by the prosecution to bring on the record the most authentic document regarding the age of P.W. 1 Soni Kaur. The Apex Court in the case of Jaya Mala (supra) has held that it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Considering all the aspects in totality and in the absence of any authentic document regarding the age of P.W. 1 Soni Kaur vis-a-vis the ratio of Jaya Mala’s case (AIR 1952 SC 1297) (supra) I have no hesitation to come to the finding that P.W. 1 Soni Kaur was not a minor on the date of the occurrence.
11. To constitute an offence under Section 366A of the I.P.C. the prosecution has to prove that the accused has induced the victim girl below 18 years of age to go from a place or to do an act with an intent that said girl may be seduced to illicit inter course. Let us now scan the evidence on the record. P.W. 1 Soni Kaur, the alleged victim girl is the most important witness in this case. She has deposed in clear and unequivocal terms that the appellant has not induced her or kidnapped her or had taken her away anywhere. She has further deposed that she has voluntarily accompanied him. The evidence of P.W. 1 totally negates the prosecution case regarding any inducement by the appellant to P.W. 1 for taking her away or kidnapping her. The statement of P.W. 1 recorded under Section 164, Cr.P.C. is Ext. 1 in this case which is very relevant. P.W. 1 Soni Kaur has stated that she has been kidnapped by Manoj and Bhola and she was brought to Kokar in the house of the relative of the appellant. She has further stated that the appellant came there at 3 o’clock in the day and he was sent by Manoj and Bhola at the request of Soni Kaur and she has narrated the entire occurrence to him. She has also said that Panchan Ram and his driver also came their and asked her to go with the appellant somewhere and also provided ‘money to her. Ext. I, which has been taken into evidence by the Court below clearly, demolishes the fact that this appellant has induced P.W. 1 Soni Kaur with intent to seduce her to sexual inter-course. Since P.W. 1 is not a minor, the offence under Section 366A of the I.P.C. is not at all substantiated in the facts and circumstances of this case against the appellant. And to crown all in view of the subsequent event, i.e. P.W. 1 Soni Kaur marrying the appellant, leading happy conjugal life with him and also having blessed with two children, a lenient view has to be taken in this case and its benefit definitely accrue in favour of the appellant. The statement under Section 313, I.P.C. of the appellant, admitting the fact that P.W. 1 Soni Kaur has gone with him cannot be treated as substantive evidence and a conviction cannot be based solely on the statement recorded under Section 313, Cr.P.C. of the appellant. The learned Court below did not meticulously consider the evidence on the record in proper perspective and has erred in coming to the finding of the guilt of the appellant. There is no legal evidence at all on the record to substantiate the prosecution case and to prove the charge levelled against the appellant.
12. There is merit in the appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside. The appellant is not found guilty of the charge levelled against him and he is, accordingly, acquitted and is discharged from the liability of the bail bond.