JUDGMENT :

Ananya Bandyopadhyay, J.

1. This appeal is preferred against judgment and order of conviction dated 31.07.2007 passed by Learned Additional Sessions Judge Fast Track Court ‘1’, Krishnanagar, Nadia in Sessions Trial No. ‘V/October/2005’ arising out of Sessions Case No. 33 (4) 2005 convicting the appellant under Section 363 of the Indian Penal Code sentencing him to rigorous imprisonment for 3 years and to pay a fine of Rs.2000/-, in default to suffer further rigorous imprisonment for 6 months.

2. The prosecution case originated from a complaint dated 18.11.2004 filed by Rabindranath Raha, the father of victim alleging that his daughter Annapurna Raha alias Nandita Raha aged 14 Years 10 Months, her date of birth being 16.12.1990, was missing since the night of 11.11.2004. The complainant returned from his workplace immediately and searched for his daughter. On 15.11.2004 his daughter was traced out to be present in the house of the appellant who refused to part with his daughter despite request. The appellant had forcefully eloped with his minor daughter in order to marry her. Earlier, the brother of the complainant had lodged a diary at the Police Station of Nakashipara on 11.11.2004. The complainant urged to rescue his daughter and to punish the perpetrator.

3. Based on the aforesaid complaint, Nakashipara P.S. Case No. 272 of 2004 dated 17.11.2004 was instituted under Section 363/366 of the Indian Penal Code. Investigation ensued and concluded with submission of charge-sheet. Charges were framed, to which the appellant pleaded no guilty and claimed to be tried.

4. The prosecution in order to establish its case cited 11 witnesses and exhibited certain documents.

5. The Learned Advocate for the appellant submitted the delay to lodge the complaint was not explained. The victim i.e., PW-3 did not incriminate the appellant and stated to have left her house at her own volition as the father of the victim did not agree to her marriage with the appellant belonging to a different caste. The evidence of PW-5 and PW-6 was contradictory to each other. The Learned Trial Judge should have released the appellant on bond on provision of good conduct. The prosecution failed to establish the mens rea on the part of the appellant and accordingly the appeal shall be allowed.

6. The Learned Advocate for the victim girl submitted that the victim has married the appellant and are parents to a child. The victim has been released from the shelter whom and resides with the appellant as a married couple.

7. The Learned Advocate for the State submits that the consent of the minor is immaterial in an offence under Section 363/366 of the Indian Penal Code. The prosecution proved the age of the minor at the time of the commission of offence to be 15 years of age (approximately) and the Trial Court has rightly convicted the appellant.

8. Assessing the evidence of the prosecution witnesses it transpired PW-1 deposed the potency of the appellant with regard to his sexual functionality. PW-2 the Medical Officer attached to District Hospital, Krishnanagar, Nadia conducted ossification test of the victim and concluded her age to be 15 years with certain variation as depicted in the medical report prepared and signed by him marked as ‘Exhibit-2’. He further identified the X-Ray plate concerning thereto marked ‘MAT Exhibit (i)’ collectively. PW-3 the victim girl deposed to have known the appellant being involved with him romantically and got married to him in the year 2004 on the date of Kalipuja. She identified her signatures recorded under Section 164 of Code of Criminal Procedure marked ‘Exhibit-3, Exhibit-3/1 and Exhibit-3/2’. She further identified her signature on the ossification test report marked as ‘Exhibit-4’. The victim stated to be more than 18 years of age at the relevant time and that “Accused did not do with me anything with promise to marry me.” PW-3 had come to the Court from the district shelter home on the date of the testimony. During her cr