1. This appeal is directed against the judgment and order dated 29.09.2007, passed by the learned Additional Sessions Judge, (FTC) No. 4, Kamrup, Guwahati in Sessions Case No. 61(K)/2007 convicting the accused appellant u/s 366 of the IPC and sentencing him to RI for 4 years and to pay fine of Rs. 1000/- with a default stipulation.

2. The accusation against the accused appellant is that on the night of 29.05.2005, the accused appellant kidnapped the minor daughter of the informant aged about 15 years while she was sleeping in her house. Written FIR to that effect was lodged on that very day on the basis of which a case was registered and on completion of investigation charge sheet was submitted u/s 366 A of the IPC against the accused Ranjit Kalita and Ripunjoy Kalita. The accused Ripunjoy was acquitted by the trial court and the present appeal has been preferred by Ranjit Kalita challenging his conviction.

3. During trial the prosecution examined 10 witnesses including the MO and the IO. The accused pleaded that he had love affair with the alleged victim and she herself eloped with him. He denied that he kidnapped her. In support of his defence he examined 3 witnesses.

4. I have heard Mr. N. Sarkar, learned counsel for the appellant and Mr. B.B. Gogoi, learned Addl. PP, Assam.

5. Learned counsel for the appellant made strenuous submission to convince me that the alleged victim girl at the relevant time was a major and she herself eloped with the accused and as such, no offence u/s 366 of the IPC has been made out against him. By relying on the judgment of the Bombay High Court in the case of Balasaheb vs. State of Maharashtra, 1994 Crl. L.J. 3044 and Rajinder Chandra vs. State of Chhattisgarh and Another, (2002) 2 SCC 287 the learned counsel contends that though the medical report reveals the age of the victim girl below 16 years and above 15 years on the basis of the ossification test, the margin of error might be plus 3 years. If that be so, the victim girl could have been a major at the time of occurrence and as such she being a consenting party the accused appellant deserves to be acquitted.

6. On the other hand, learned Addl. PP, drawn my attention to the various provisions of the penal code more particularly, Section 363, 366A to contend that the age of majority is 18 years and by inviting my attention to the evidence of the doctor he submits that the doctor on examination of the girl found her age to be above 15 years and below 16 years which cannot be tinkered with.

7. Before adverting to the submission advanced by the learned counsel for the parties, it is necessary to delve into the evidence adduced by the witnesses. The evidence of the victim girl is of utmost importance for the prosecution. According to her on the night of occurrence at about 2 a.m. while she was sleeping with her grandmother and younger sister somebody knocked on the door and when she came out and opened the door she saw both the accused persons outside and they gagged her mouth with clothes and took her outside. Thereafter she was taken in a Maruti van. Later on she came to know that she was taken to Sipajhar where she was kept in the house of brother in law of the accused appellant Ranjit. In Sipajhar both the accused asked her to write a letter stating that she went along with the accused on her own will and was staying at Sipajhar. Her evidence also reveals that there was dispute between the father of the accused Ripunjoy and the father of the victim girl. She was also taken to the house of another person wherefrom she was recovered by police and during that period though the appellant Ranjit tried to commit rape on her but failed due to her resistance. In cross examination she reveals that her father was convicted in a murder case filed by the father of the accused Ripunjoy. Her statement u/s 164 of the CrPC was recorded by the JM and before the Magistrate she stated that she had love affair with the accused and she herself elo