ORDER :

1. The sole appellant has challenged the judgment of conviction under section 366A IPC and under section 376 IPC dated 06.08.2001 and the order of sentence of R.I. for Seven years with fine of Rs. 5000/- under section 366A IPC and R.I. for Ten years with fine of Rs. 5000/- under section 376 IPC dated 09.08.2001 passed by the 5th Additional Sessions Judge, Dhanbad in Sessions Trial No. 249 of 1990.

2. The appellant was granted bail by this Court by an order dated 28.01.2002.

3. The informant of this case is father of the victim girl. On the basis of his fardbeyan recorded on 18.02.1990 that his daughter is missing since 13.02.1990, Jharia P.S Case No. 65 of 1990 was registered under section 366A IPC against the accused-appellant. However, after the investigation a charge-sheet was filed under section 366A IPC and section 376 IPC and by an order dated 14.05.1993 charges for the aforesaid offences were framed.

4. During the trial, the prosecution has examined altogether 8 witnesses; the informant is PW-2 and the victim girl has been examined as PW-5.

5. The investigating officer of this case has not been examined and Dr. Leena Priya who has been examined to prove the medical report has denied that she has medically examined the victim girl.

6. The learned 5th Additional Sessions Judge, Dhanbad, however, has held that the prosecution has proved the charge under section 366A IPC and under section 376 IPC against the appellant and, accordingly, convicted him for the aforesaid offences.

7. Ms. Aprajita Bhardwaj, the learned Amicus, submits that: (i) there is no investigation on the Ambassador car and the other person who was accompanying the appellant when he took away the victim girl, (ii) no one from the school or the shops near the school has been examined; victim girl herself admits presence of 200-300 students in the school, (iii) there is discrepancy in her evidence recorded before the Magistrate under section 164 Cr.P.C. on offering Pan Parag to her by the appellant, (iv) there is no allegation of assault upon the victim girl by the appellant and (v) the victim girl does not say that she resisted the sexual assault upon her or tried to escape from the house of the appellant.

8. Mother of the victim girl has deposed that the appellant's behaviour with her daughter was bad, however, he did not assault her. She says that it might be possible that her daughter was born in the year, 1971. The victim girl in her cross-examination has failed to give her date of birth. She says that she was born at Matri Sadan. Her mother also says that her daughter namely, Runu Dutta was born at Matri Sadan, however, no certificate disclosing the date of birth of the victim girl has been produced by the prosecution. No witness from the school of the victim girl has been examined and no documentary evidence has been produced by the prosecution to establish that at the time of occurrence the victim girl was a minor.

9. Section 366A IPC defines the offence of procuration of a minor girl. Under section 366A IPC a girl who is under the age of 18 years is minor. It further provides that whoever induces any minor girl to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with “another person” shall be punished with imprisonment which may extend to Ten years, and shall also be liable to fine. Ms. Aprajita Bhardwaj, the learned Amicus, submits that it is not the prosecution's case that the victim girl was forced or seduced to have illicit intercourse with another person and while so, the offence under section 366A IPC is not proved. We concur with the learned Amicus. We find that the prosecution has failed to prove that the victim girl was a minor. We further find that the offence under section 366A IPC has not been proved against the appellant and, therefore, the appellant must be acquitted of the charge framed under section 366A IPC. Accordingly, his co