The prosecution's failure to establish crucial elements of the offence, such as the age of the victim, can lead to the acquittal of the accused.

The solitary appellant Tengar Miyan @ Raza Azad was convicted for the offence under Section 366 IPC and was directed to suffer rigorous imprisonment for five years as also to pay a fine of Rs.1,000/-, else to suffer rigorous imprisonment for further period of six months.

2. P.W.5 Thag Sah filed a written report after 20-21 days of the disappearance of Jyoti Kumari claiming that she was his daughter and she was found missing on 09.10.1998 from his house at 3/4 P.M. The prosecution story further was that the informant (P.W.5) filed a petition before the Sub Divisional Magistrate, Siwan of the above facts and made a hectic search for the girl at all imaginable places of his relation, but could not find out a lady nor his daughter could be recovered by the police.

3. The investigating officer Akshaya Lal (P.W.6) would say that he took the investigation of the case after drawl of the FIR and recorded the statements of different persons, besides inspected the place of occurrence also. P.W.5 Thag Sah produced a letter on 14.11.1998, i.e., after 11 days of the lodging of the report which was claimed having been written by the appellant giving blandishment to the young girl to come out of her father’s house to go out with him. It was stated, as such, that it was this appellant Tengar Miyan @ Raza Azad who had committed the offence under Section 366A IPC. P.W.6 on the basis of the information given to him, searched the house of this appellant and recovered the lady Jyoti Kumar from there and sent her for medical examination and also produced her before a Magistrate for her statement. The mother of the lady was examined as P.W.3 and she stated that she contacted the appellant Tengar Miyan @ Raza Azad and wanted him to give back Jyoti Kumari, but he stated that the girl was not in his pocket and the lady P.W.3 retorted back that she would ensure that the girl was brought out of his pocket, as appears stated by the witnesses in paragraph-3 of her evidence. Both P.Ws.3 and 6 were cross-examined on the age of the victim and it was suggested to P.W.5 that the school records showed that the date of birth of the girl was 18.08.1978 and, as such, she was a major on the day of occurrence.

4. It appears admitted by P.W.3 in her evidence that Jyoti Kumari was very much residing in her house but she was never produced for her evidence. The doctor was also not produced and, as such, what was the age of the lady which was determined medically was also not allowed to come on the record. The suggestion of the defence that the lady was major, i.e., more than 18 years of age, on the day of occurrence was there and on consideration of the evidence of the witnesses what appears is that there was purposeful concealment of the age of the lady probably to ensure non-application of the provision of law appropriately to the facts of the case. It has been admitted by P.W.5, the informant of the case that Jyoti Kumari had filed an application before the Sub Divisional Magistrate, Siwan stating that she was a step daughter of P.W.5 and the man was of bad character who wished to establish physical relationship with the girl and that was the reason that she had left the house of P.W.5 out of her own volition. If this admitted fact was the reason probably for which the lady had left the house of P.Ws.3 and 5 out of her own free will, then the elements of ‘taking away or being enticed away’ which are necessary ingredients of an offence under Section 366A IPC cannot be said to be constituted on facts. I have already noted that there was systematic, purposeful attempt by the prosecution witnesses not to allow the age of the victim to come on record. The prosecution also appears guilty of making that attempt as it had withheld not only Jyoti Kumari who was lying very much in the custody of P.Ws.3 and 5 but had also withheld the doctor who could have been produced to testify as to what was the age of Jyoti Kumari. A particular date was suggested to P.W.6 as the date w