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7. The medico legal examination report of the victim revealed no mark of injury or sign of use of force on any part of her body, including her private parts. The hymen was old and torn. The pathological examination report of vaginal swab did not show presence of live or dead spermatozoa. No opinion could be given regarding sexual violence or rape having been committed on the victim as per the medical examination report. As per radiological examination, age of the victim was opined to be between 16-18 years.

22. A bare perusal of Section 361 read with Section 363 shows that there are two essential ingredients which must be present to constitute an offence under the aforesaid section, one is that the victim must be below the age of 18 years and secondly, she must have been "taken away" or "enticed" by the accused.

23. As far as the age of the victim is concerned to decide the culpability of the accused under Section 363, the radiological examination report for the determination of age shows the age of the victim to be between 16 -18 years. In Alamelu and Ors. vs. State represented by Inspector of Police: (2011) 2 SCC 385, the Hon'ble Supreme Court has discussed the aspect of variation which must be allowed to the benefit of the accused when age is computed as per medical examination/test, in the following words: -

"9. ? However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."

47. We are of the opinion, in the facts of this case, the age of the girl could not have been fixed on the basis of the transfer certificate. There was no reliable evidence to vouchsafe the correctness of the date of birth as recorded in the transfer certificate. The expert evidence does not rule out the possibility of the girl being a major. In our opinion, the prosecution has failed to prove that the girl was a minor, at the relevant date."

In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side."

25. In Rajak Mohammad v. State of H.P.: (2018) 9 SCC 248, it was held that: -

"9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.