Sudhindra Mohan Guha, J.
1. This revision arises out of an application by Sachindra Nath Ma-jumder, the father of the victim girl (third party) against the order of acquittal passed by the learned Assistant Sessions Judge, Nadia In a case under Sections 366 and 368, I.P.C.
2. According to the prosecution P.W. 5 Mintu Mazumder is the daughter of P.W. 1 Sachindra Nath Majumder, On 13-10-1975, on the day of 'Nabamipuja' at about 7 P.M. Mintu went out of her house to see the Goddess 'Durga' but she did not return home till late at night. The family members along with others searched for her in vain. It was gathered that the accused Bistu Pada Das had enticed her away from the lawful guardianship of the father. In the night on 15-10-75 Mintu was recovered from the house of accused Kesta Pada, brother of Bistu Pada Das. Bistu married Mintu who was said to be aged 15/16 years, after such enticement. The F. I. R. was lodged at Mohanpur P. S. on 16-10-75 at 6-05 A.M. On completion of investigation the accused persons were charge-sheeted and they were committed to the court of Session by the Sub-Divisional Judicial Magistrate, Ranaghat.
3. On trial the learned Assistant Sessions Judge found the accused persons not guilty and acquitted them of all the charges.
4. It is against this order of acquittal the father of the girl has come to this Court in revision.
5. If the ingredients of the offence under Section 363 I.P.C. are proved along with the intention or knowledge that the girl might be compelled to marry against her will, a charge under Section 366 I.P.C. is established. Thus, it is to be proved that the girl Mintu P.W. 5 was under 18 years of age on the date of occurrence and the accused took or enticed her from the custody of her lawful guardian without his consent or by deceitful means.
6. According to parents, Mintu P.W. 5 was a minor girl. In order to prove the age the prosecution produced the horoscope. This was handed over to the I. O. on 8-12-75 that is, after about two months of the occurrence. The best evidence on the point namely, the School Admission Register was not made available. There was, however, opinion of the Radiologist (P.W. 14) Dr. J. C. Nath upon ossification test on the girl that the girl on 5-12-75 was in between 17 to 18 years. The ossification test is not a sure test, although this is generally accepted (as) best available test for the determination of the age of human beings. Thus, on the evidence on record coupled with the expert opinion the learned Assistant Sessions Judge was of the view that the prosecution, could not establish beyond reasonable doubt that Mintu (P.W. 5) was below 18 years of age on 13-10-1975.
7. Next, it was to be proved that the accused was materially instrumental either in counselling the minor to leave or helping her in leaving the guardian's protection. The victim girl P.W. 5 stated in her evidence that she had left the guardianship of her father on her own accord, as she was in love with accused Bistu whom she married subsequently. True, the girl was recovered from the house of the brothers namely, accused Bistu Pada and Kesto Pada, but a man is not bound to return to her father's custody a girl who without any inducement on his part has left her home and come to the accused later on. It must be shown that the man took some active step by persuasion or otherwise to cause the girl to leave her home. In the absence of any evidence as to inducement or actual taking, mere finding of the accused and the victim girl living under the same roof would not substantiate the prosecution case of kidnapping.
8. The girl in this case stated in her evidence that she had abandoned the guardianship of her father on her own accord, as her father was reluctant to give her in mariage to accused Bistu. A minor may not be competent to give her consent to her taking, but a minor is certainly competent to leave the protection of her guardian on her own accord. Thus, the position remains that P.W. 5 left her parent's guardianship on her own accord only because her guardian was not approving the proposed marriage. In the circumstances, the girl even if she had been found under 18 years, would not be said to have been kidnapped by the accused. Mintu P.W. 5 and accused Bistu are said to have been married subsequently. It was not the case of the prosecution that the marriage was solemnised against the will of the girl.
9. In the above facts and circumstances of the case the learned Assistant Sessions Judge acquitted both the accused persons.
10. It would not appear that the learned Assistant Sessions Judge failed to consider the evidence adduced or relied upon inadmissible evidence, nor there was a manifest error on a point of law resulting in flagrant miscarriage of justice. Thus, there was absolutely no defect or error in the view of the law or evidence taken by the Assistant Sessions Judge. The findings in no way can be said to be wrong or perverse. In this view of the matter no interference is called for.
11. The Rule is accordingly discharged.