The prosecution failed to establish the age of the prosecutrix, undermining the case of abduction under IPC sections 363 and 366.

1. This appeal is directed against the judgment dated 27th of August, 1993 passed in Sessions trial No. 122/92 by the Additional Sessions Judge, Sakti.

2. By the impugned judgment, the appellant has been convicted u / S.363 and S.366 IPC and sentenced to undergo R. I. for 5 years.

3. The facts, briefly stated, are as under : -
The prosecutrix (PW - 7) was the adopted daughter of Balram Sharma (PW - 5). Her natural father was Acchutanand (PW - 8), who was brother - in - law (Shadooh) of Balram Sharma (PW - 5). They were residing in village Palarikala, P. S. Bardwar. Sister of Acchutanand was residing in village Bhavreli. Acchutanand, on account of illness of his sister, left the prosecutrix in her house to look after his sister. the prosecutrix was taken to the house of his sister on the bicycle of the appellant. The allegations are that on the next day i.e. on 15-7-1990, the appellant went to the house of the sister of Acchutanand and told about the illness of the mother of the prosecutrix. On this pretext, he took the prosecutrix with him. When Acchutanand came to know about all this, he lodged the First Information Report (Ex.?P / 11). The prosecutrix remained with the appellant for a very long period. They visited many places and ultimately she was recovered. The case of the prosecution is that the appellant abducted the prosecutrix who was a minor on the date of incident, therefore, he was liable for punishment u / S.363
and 366 IPC.
The learned Sessions Judge held that on the basis of evidence available on record, it was established that the prosecutrix was below 18 years of age on the date of incident and she was abducted by the appellant and was taken to different places, therefore, the appellant was liable for punishment u / S.363 and S.366 IPC.

4. Mr. Vishnu Koshta, learned counsel appearing on behalf of the appellant, argued that it was not established by the prosecution that the prosecutrix was below 18 years of age, therefore, the finding of the age was perverse and looking to the conduct of the prosecutrix, no offence u / S.363 and S.366 IPC would be made out.

5. On the other hand, Ms. Sunita Jain, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.

6. I have heard the learned counsel for the parties at length and have also perused the records of the sessions case.

7. The prosecution adduced oral as well as documentary evidence to prove the age of the prosecutrix. So far as oral evidence is concerned, Acchutanand (PW - 8 - father of the prosecutrix) simply deposed that her daughter was aged about 17-18 years on the date of his evidence, which was recorded on 22-2-1993. He very fairly admitted that he cannot tell the date of birth of his daughter. The prosecutrix (PW - 7) has also not deposed about her date of birth, however, she deposed that she was aged about 17 years. As far as documentary evidence is concerned, the school certificates were produced by the prosecution. The duplicate copy of the transfer certificate issued on 25-8-1990 is Ex. P / 9. Mark sheet of Class 9th is Ex. - P / 7 and mark sheet of Class 8th is Ex. - P / 10. In all documents, the date of the birth of the prosecutrix has been mentioned as 25-6-1974. Apart from the above, copy of the school register of Primary School, Palarikala has been filed as Ex. P / 12 (C). According to this document, the prosecutrix was admitted in the school in Class 1st on 10-7-1980 and she left the institution on 1-5-1985 after passing Class 5th. The learned Sessions Judge relied on the evidence of th