1. Instant appeal has been preferred against the judgment of conviction and order of sentence dated 10.12.2008 & 17.12.2008 respectively passed by the Additional Judicial Commissioner, Fast Track Court No.1, Bermo at Tenughat (Bokaro), in connection with Sessions Trial No.431 of 1989 corresponding to G.R. Case No.543 of 1989 arising out of Bermo P.S. Case No.84 of 1989 whereby and whereunder the appellant has been convicted for the offence under Section 363 and 366 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and fine of Rs.500/-under Section 366 of the Indian Penal Code. In case of default in payment of fine, the appellant has to undergo simple imprisonment for one month.

2. The prosecution story, in brief, as per the statement made in the F.I.R. dated 20th June, 1989 wherein it has been reported by one Md. Idris that he is resident of Nichupara Kargali gate railway colony. That on 20th June, 1989 at 4.00 a.m. his daughter namely Soni Kumari, aged about 14 years, both awaken at 4.00 a.m. and went to Bagan to bring coal but did not return thereafter. After a short while he along with his wife searched out about his daughter but she was found nowhere. He has stated that in the same colony one boy namely Shankar Ghasi who used to come to his residence and on enquiry it was found that he is also traceless as such he must have taken away his minor daughter, hence, the F.I.R.

3. Instant case was registered for the offence under Section 363 of the Indian Penal Code being Bermo P.S. Case No.84 of 1989. The police has investigated the matter, submitted charge-sheet against the appellant. After taking cognizance the case was committed to the court of Sessions whereafter the charges have been framed for the offence under Section 363, 366-A and 377 of the Indian Penal Code to which the appellant pleaded not guilty thereafter put on trial.

4. The trial court, after examining the prosecution witnesses an the materials available before it has passed the judgment of conviction and sentence acquitting the appellants for the commission of offence under Section 376 I.P.C. but convicted him for commission of offence under Section 363 and 366 I.P.C. and accordingly sentenced him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.500/-, hence the appeal has been preferred against the aforesaid judgment.

5. Mr. Rajesh Kumar Singh, learned counsel appearing for the appellant, while assailing the impugned judgment has submitted that there is no cogent evidence to convict the appellant under Section 363 or 366 I.P.C. because the ingredient of the aforesaid sections is lacking which is evident from bare perusal of the deposition of the prosecution witnesses. He submits that it is evident from the deposition of the victim girl that she herself has desired to go to visit Ranchi town and as such it cannot be said that appellant in deceitful manner has taken away her from her house and therefore, ingredient of Section 366 I.P.C. is not made out. He also submits that ingredient of Section 363 I.P.C. is not made out for the reason that the age of the victim has not been ascertained because nothing has been brought on record justifying the age of the victim girl since in the F.I.R. It has been claimed that she was minor at the time of occurrence, therefore, ingredient of offence either under Section 363 or 366 I.P.C. is not made out. He, in alternative, has argue that even accepting that the offence has been made out but since the appellant has been sentenced for two years along with fine, therefore, the appellant has already undergone the sentence of about 17 months and therefore, the sentence may be reduced to the period already undergone in custody.

6. Mr. Ravi Prakash, learned A.P.P. representing the State of Jharkhand has submitted by refuting the argument that the ground raised by the learned counsel for the appellant by submitting that it is incorrect to say that ingred