The Allahabad High Court has acquitted a man convicted under Section 366 IPC in a 2011 kidnapping case, holding that the prosecution failed to establish that the prosecutrix was a minor on the date of the incident.

A Bench of Justice Subhash Vidyarthi held that the absence of third molars (wisdom teeth) could not be made a basis for holding that a person had not attained 18 years. The court added that the mere presence of axillary and pubic hair could not lead to an inference that the same were not fully developed.

In its 15-page judgment, the Bench also cautioned the trial court against substituting its own assessment for medical expert opinion.

"When the doctor who had examined the prosecutrix and the radiologist stated her age to be about 18 years, the trial court ought not to have acted as a super-specialist so as to superimpose its own expert opinion over the opinion of the doctor and the radiologist", the Court remarked.

The Court was hearing a Criminal Appeal filed by one Bhaiya Lal Raidas against his conviction under Section 366 IPC. The trial court had sentenced him to seven years' rigorous imprisonment and a fine of ₹10,000. He was, however, acquitted of charges under Sections 363 and 376 IPC.

Case in brief

An FIR was lodged in 2011 after the complainant alleged that the appellant, a married man, had enticed away his minor daughter.

The prosecutrix's medico-legal examination was conducted in May 2011. Her X-ray report assessed her age at about 18 years. The doctor who examined her also stated that she could be 20 years old, while the radiologist estimated her age at 18, with a possible variation of 6 months either way.

However, the trial court independently assessed her age to be between 14 and 17 years.

It relied on the fact that she had 14x14 teeth and that the medico-legal examination report mentioned the presence of axillary and pubic hair, though it did not state that these were fully developed.

The trial court referred to its understanding that axillary and pubic hair normally develop by 17 years, 14x14 teeth are attained between 12 and 14 years and the third molar emerges at about 17 years.

The trial court also relied on an alleged Class VIII marksheet showing her date of birth as September 25, 1993.

High Court's observations

The High Court found that the alleged marksheet was not available on the trial court record. It had no document number or exhibit mark and was not mentioned in the index of the record. The Court therefore remarked:

"In these circumstances, the trial Court could not have taken into consideration the date of birth mentioned in a document which is not a part of its record".

The Court further held that the marksheet could not have simply been produced by the prosecutrix during her examination-in-chief without following the procedure for bringing an additional document on record.

It also noted that the document had not been proved by the Principal, Headmaster or other official of the issuing school.

So far as the assessment of age made by the trial court on the basis of physical characteristics of the prosecutrix was concerned, the High Court said the doctor and radiologist had both opined that the prosecutrix was about 18 years old, but the trial court had “itself acted as an expert” in assessing her age from her teeth and hair.

The Court observed thus:

"Mention of presence of auxiliary and pubic hair cannot lead to an inference that the same were not fully developed when the medico-legal examination report does not say so".

Regarding the trial court's conclusion on the third molars, the High Court remarked that the emergence of the third molars is not essential, and the absence of the third molars cannot be made a basis for holding that the person had not attained the age of 18 years.

Relying on Supreme Court judgments, the High Court noted that radiological age assessment carries a margin of error of two years on either side.

The Court observed that although the medical opinion placed the prosecutrix's age at about 18 years, adding the two-year margin meant that she could even be treated as 20 years old on the date of the incident.

It consequently held that the prosecution has failed to establish that the prosecutrix was a minor on the date of the incident.

The High Court also considered the prosecutrix's statements recorded at different stages.

In her statements before the Investigating Officer and the Magistrate under Sections 161 and 164 CrPC, she had stated that she went with the appellant "out of her own free will" and did not level any allegation against him.

The Court noted that she did not disown those statements even during her testimony before the trial court.

Although she later alleged that the appellant had made her inhale something, causing her to fall unconscious, the High Court found it difficult to accept that the appellant alone could have taken an unconscious grown-up woman from Unnao to Ludhiana. It also noted that she stayed with him for seven months without alleging use of force.

Thus, the Court held that the trial court had convicted the appellant under Section 366 IPC without adverting to the aforesaid aspects of the matter, which vititated the trial court's findings.

Accordingly, the High Court allowed the appeal and set aside the trial court's February 8, 2013, judgment convicting the appellant under Section 366 IPC.

Case Title - Bhaiya Lal Raidas vs. State of U.P. 2026 LiveLaw (AB) 695

Citation: 2026 LiveLaw (AB) 695

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