JUDGMENT
Dipak Misra, J.
1. This appeal is preferred against the judgment of the learned Assistant Sessions Judge, Boudh convicting the appellant for an offence under Section 366, Indian Penal Code (IPC in short) and sentencing him to undergo rigorous imprisonment for eight years and to pay a fine of Rs. 10,000/- in default to undergo further R. I. for one year. There is also a direction that the fine amount realised would be paid to the victim girt under Section 357(1) Cr.PC.
2. Briefly stated, the prosecution case is that on 17-1-1992 at 3 p. m. when the parents of Sanjukta Sahu, PW 4, were absent home, she was found missing from the house. After the parents came they received the information from the younger daughter, end in search of Sanjukta, her father PW 3 went to his father-in-law’s house at Daspalla with the help of his brother-in-law,. Ladu Kishore Sahu (PW 6) they came to Madhapur Out-Post, and reported at Adenigarh Out-Post with regard to the elopement of PW 4. The victim girl was rescued from the house of the appellant on 21-1-l992. She was sent to the District Headquarters Hospital, Phulbani for medical examination. PW 9, the doctor did not find any sign of recent sexual intercourse. On ossification test, her age was found to be more than15 years and less than 17 years. She was sent to F.M.T., M.K.C.G. Medical Hospital where PW 12 considering the physical and radiological findings opined that she was more than 14 years and less than 16 years. On further investigation and compliance of formalities charge-sheet was filed by PW 13, the Investigating Officer.
3. The accused took the plea of complete denial.
4. To bring home charges against the appellant the prosecution examined 13 witnesses and number of documents which included the school register (Ext. 4), the ossification, test report submitted by PW 9 (Ext. 7), report of the Professor of Radiology (Ext. 10) and some other documents were brought on record. On behalf of defence no evidence was adduced. The wearing saree which was given by the father of the accused, to the victim girl was brought on record as M.O.I.
5. The learned trial Judge on analysis of the oral and documentary evidence came to hold that the victim girl was a minor and she had eloped with the accused with the hope and aspiration of bright marital prospects and as there was enticement by the accused, he was liable to be convicted under Section 366, IPC and accordingly passed the order of conviction and sentenced him as indicated before.
6. Shri. B. M Patnaik the learned counsel for the appellant has assailed the impugned judgment on two grounds, namely, (i) PW 4 was not a minor at the time of the alleged occurrence but a major; and (ii) if the victim girl was a major the offence under Section 366, IPC would not be attracted as there had been no compulsion on the part of the accused compelling the victim to marry. In essence, the submission of Mr. Patnaik is that as the ingredients of Section 366 are not satisfied, the appellant cannot be made liable for the aforesaid offence and the judgment of conviction is liable to be set aside. To substantiate his contention he has referred to the evidence of PW 8, the doctor who conducted the ossification test, and has also placed reliance on the evidence of the mother PW 11 as well as the evidence of PW 4.
7. Mr. Sangram Das, the learned Addl. Standing Counsel, controverting the submissions of Mr. Patnaik has contended that there is ample evidence on record to come to a definite conclusion that PW 4, the victim girl, was a minor. In this regard he has referred to the evidence of PWs 8 and 12. He has also highlighted the entry in the school register (Ext. 4), which has been brought on record through PW 5. Mr. Das has also taken pains to lay emphasis on the evidence of PW 4 where she has stated that she was tempted by the accused as he made a promise to her that he would purchase gold for her and , he would marry her, and further that she wanted to shout but the appellant stopped him. Thus, the submission of Mr. Das is, there is no infirmity in the judgment passed by the learned trial Judge and the same does not call for interference by this Court.
8. To appreciate the rival contentions it is essential to find out whether PW 4 was a minor or a major. PW 4 in her evidence has stated that she passed Class-VII from Dasapalla M. E. School in the year 1988. The occurrence had taken place on 17-1-1992. PW 11, the mother of PW 4, in paragraph 4 of her cross-examination has stated that Sanjukta (PW 4) was her second child who was born three years after the first one. Her evidence is that the first child was born one year after the marriage and died. Thus, as per her evidence Sanjukta was born 4 years after her marriage. Computing on this basis her age would come to 20, but as observed by the learned trial Judge she being rustic woman some margin has to be given. Keeping in view this oral evidence, the medical evidence has to be appreciated. PW 8 the doctor who conducted the ossification test, has stated that the age of the girl was more than 15 years and less than 17 years at the time of the examination. PW 12 has stated that she was more than 14 and less than 16 years. The prosecution has also brought the school admission register on record to indicate that she was admitted in Madhapur Sevashram School on 3rh June, 1981 and her date of birth was 5-2-1976. In this regard reference may be made to a decision in the case of Pravakar Pati v. Ajaya Kumar Das : 81 (1996) CLT 592 wherein this Court held thus:
“What is stated in the school admission register as to the age of a student cannot be treated to be correct since the guardians understate the age of their children than the real one at the time of admission in the school.”
In the aforesaid decision reference has been made to the two decisions of the apex Court in the case of Brijmohan Singh v. Priyabrata Narain Singh and Ors. reported in AIR 1965 SC 282 and Ram Murti v. State of Haryana, reported, AIR 1970 SC 1029.
9. Testing by the aforesaid touch stone, the school admission register cannot be regarded as the sole clinching factor for determination of the age. The next which requires analysis is the ossification report. Mr. Das has given immense emphasis on the aforesaid aspect. Ossification test is one of the tests to find out the age. It is well-known in a the determination of age by ossification test is neither absolute nor exact. This Court in the case of Sribatcha Khamari v. State of Orissa reported 77(1994) CLT 711 while dealing with the concept of ossification test has held that variation of age in the ossification test can be up to 3 years in either way. It is pertinent to state here that this view was taken after referring to the admission made by the Doctor who had conducted the ossification test, and also after referring to Modi’s Medical Jurisprudence. Mr. Patnaik has relied on a decision of Bombay High Court in the case of Balasaheb v. The State of Maharashtra reported in 1994 Crl LJ 3044 wherein the said Court after referring to Modi’s Medical Jurisprudence and Toxicology (21st Edition) expressed thus :
“It is observed that the error in the case of age based on ossification test may be 3 years.”
I have indicated earlier PW 8 who had Conducted the ossification test has stated that the victim girl was between 15 to 17 years and PW 12 who had also conducted the said test has opined that the age of the girl would be more than 14 years and less than 16 years. No doubt there can be an error between the periphery of 3 years. I am inclined to believe that PW 4 was more than 18 years as the benefit of advantage has to go in favour of lthe accused in the present case inasmuch as PW 11 the mother has indicated when PW 4 was born. Even if some margin is granted to her because of her rustic background, it cannot be stated that she had no idea when PW 4 was born. Even if a year or two is excluded, as indicated in the evidence of PW 11, she would be more than 18. In view of this oral evidence I am of the considered view that the benefit of advantage has to be given to the accused and PW 4 should be regarded as a major at the time of occurrence.
10. The next question that falls for consideration is whether the appellant had induced PW 4 to go with him or had compelled her to marry or it was a voluntary move on her part. PW 4 has clearly stated in her examination-in-chief that the appellant promised her that he would purchase gold for her and he would marry. She has not stated that she was taken by force. On the contrary, she has stated that she went to the house of the accused and stayed there for 4 days. She has admitted in her cross-examination that she was jiving, freely in the house of the accused. She has also admitted that on the second day of her stay in the house of the appellant his father had given her a saree. Mr. Das has taken pains to emphasise that PW 4 intended to shout at the time of leaving her house, but she was restrained by the, accused. . I am afraid, no significance can be attached to this as the said witness has not. stated anything in this regard while she was examined-in-chief. Reading her evidence as a whole the tenor is contra-indicative. There is no allegation whatsoever that she was at any point of time compelled to marry the appellant. . This Court in the case of Biswanath Mallik v. State of Orissa reported in 80(1995) CLT 269. while dealing with an offence under Section 366, IPC has held thus:
“In the case at hand the victim (PW 2) has nowhere stated that there was any intention for compulsion to marry against her will. By merely finding the accused abducted or kidnapped the woman the charge underSection 366 cannot be held to have been proved. It is further necessary to find that he abducted or kidnapped the woman for any of the purpose mentioned in Section 366. In the absence of such finding the charge fails.
In this regard, I may profitably refer to a decision of the apex’ Court rendered in the case of Shyam and another State of Maharashtra reported in AIR 1995 SC 2169 wherein their Lordships held that where a prosecution is not putting up struggle or raising alarm while being taken away by the accused and appears to be a willing party to go with the accused on her own culpability of the accused cannot be established.
11. In the case in hand, it is clear as day that the appellant at no point of time had committed any overt act from which it can be inferred that PW 4 was under any compulsion to marry him against her will Except the bald statement that the accused promised to marry her there is no other evidence on record. This by no stretch of imagination can be construed as compulsion. Her evidence read in its entirety does not indicate any kind of hostile reaction against the desire of the applicant to take her. The only conclusion that flows from her evidence that she was a voluntary party who willingly followed the path paved by the appellant. Reasons are best known to her but they cannot have the acceptability for the purpose of compulsion, or equated with compulsion. Analysing the facts in their proper perspective, I am of the considered view that the ratio in the case of Biswanath Mallik (supra) would apply in full force to the present case.
In view of the preceding analysis, the judgment of conviction and the order of sentence passed by the learned Assistant Sessions Judge, Boudh cannot stand scrutiny and are liable to be set aside and accordingly I do so. The appellant shall be set at liberty forthwith if his detention is not required in connection with any other case.
12. Resultantly, the appeal is allowed.