P.K. Musahary, J.

1. This appeal is from jail by convict Md. Omar Ali, who was convicted and sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 10,000/-, in default simple imprisonment for another 6 (six) months for each count under Section 366/ 376(1) IPC directing the sentences would run concurrently challenging the judgment dated 19.7.2011 rendered by the learned Sessions Judge, Dhemaji in Sessions Case No. 8 (DH)/2011. The prosecution story is very short which reveals from the written FIR lodged by one Smti Gula Konch. Therein it was stated that informant's daughter Miss 'B' aged about 17 years was kidnapped by an unknown boy on 19.10.2010 and confined in the house of one Chacha of Bijni Mahripara. The police registered a case being Dhemaji P.S. Case No. 317/10 under Section 366/ 376(1) IPC, started investigation and recovered the victim girl from the house of the aforesaid person known as Chacha and arrested the accused appellant. Both the victim and the accused were brought to Dhemaji and were produced before the Magistrate. The statement of the victim girl was recorded by the Magistrate under Section 164 Cr.P.C. and was sent for medical examination in the Dhemaji Civil Hospital.

2. On completion of investigation and after collection of medical report, the I.O. submitted charge-sheet against the appellant under Section 366A IPC. The crime being exclusively triable by the court of Sessions, the learned Magistrate committed the case to the court of Sessions at Dhemaji for trial. A case being Sessions Case No. 8(DH)2011 was registered and after furnishing the necessary police documents to the appellant and providing opportunity of being heard, the learned Sessions Judge framed charge under Section 3667376(1) IPC against the appellant, who on being read over and explained, pleaded not guilty and demanded trial. The appellant however examined no witness in his defence. The prosecution, to bring home the charges mentioned above, examined six witnesses including the victim girl, medical officer and the I.O. The prosecution proved the written Ejahar (Ext. 1), the statement of the victim under Section 164 Cr.P.C. (Ext. 2), Admit Card issued by the Board of Secondary Education, Assam (Ext. 3), School Leaving Certificate (Ext. 4), Medical Examination Report (Ext. 5) and Charge-sheet (Ext. 6). The learned trial court on the basis of the oral evidence and documentary evidence on record and upon hearing the learned counsel for the parties, rendered the impugned judgment convicting and sentencing the appellant as stated above.

3. As per allegation in the FIR, Miss 'B' was a minor girl at the time of occurrence and she was kidnapped by an unknown person. The case was registered under Section 366 AIPC and the prosecution, after investigation found prima facie case under Section 366A IPC against the appellant and accordingly charge was laid under the said Section. The learned trial court however framed charge under Section 366 and 376(1) IPC and convicted and sentenced the appellant thereunder. The question is whether the prosecution has been able to prove that Miss 'B' was a minor girl under the age of 16 years to attract offence under Section 376(1) IPC and above 18 years so as to bring the offence under Section 366 IPC.

4. The informant, P.W. 2, is the mother of the victim girl. She deposed that her daughter Miss 'B', after passing Matric, took admission in the Higher Secondary Class but she does not remember the date of birth of her daughter. P.W. 1, Bhaba Konch, father of the victim girl stated in his evidence that at the time of occurrence his daughter was studying in Higher Secondary 1st year at Manchkhowa College and she was below 18 years of age. He also stated in re-examination that his daughter passed the matric and her date of birth is recorded in the Admit Card. In cross-examination he said that he has not obtained any birth certificate. No horoscope was prepared and her date of birth ha