JUDGMENT Bartley, J. - The three Appellants in this case have been convicted under sec. 366 of the Indian Penal Code in accordance with the majority verdict of the jury. It is clear from the very start that the learned Judge himself did not understand the law relating to the offence of which the Appellants were tried In taking the verdict of the jury he insisted that they should come to a finding whether each of the accused was guilty, under sec. 366 of the Indian Penal Code, of the offences both of abduction and of kidnapping with the intent specified in the section. 2. Now, it is perfectly clear that there cannot be any such verdict under sec. 366 of the Indian Penal Code. A person kidnaps a woman with the intent or knowledge specified in the section and thereby commits an offence under sec. 366 if the evidence establishes that the woman is under 16: If she is not, the offence under the section is abduction. 3. It is a complete misunderstanding of the section to ask for a verdict under both heads of kidnapping and of abduction and this is what the learned Judge has done. On that ground alone we should be unable to support the verdict of the jury in the present case. For other reasons also we are satisfied that the verdict cannot be sustained, because of the infirmities in the charge of the learned Judge. 4. The case for the prosecution was that Mista Sundari, the wife of the complainant Khitish Chandra Das and daughter of Sahadeb Das, was carried off by the three Appellants about 11 o'clock at night when she went out to answer a call of nature. They gagged her, bound her eyes and took her away in a boat. She was first brought to Krista's house, then to Balai's house and finally to the house of one Brindaban who sent for her father Sahadeb and he took her home. Her own story is that during this time the Appellants made immoral proposals to her. This, however; is not the whole prosecution story. The father filed a complaint in Court against these Appellants three days after the occurrence. He then attempted to withdraw the case and finally refused to adduce evidence in support of it. The Appellants were discharged. Her own story is that during this time the Appellants made immoral proposals to her. This, however; is not the whole prosecution story. The father filed a complaint in Court against these Appellants three days after the occurrence. He then attempted to withdraw the case and finally refused to adduce evidence in support of it. The Appellants were discharged. Then in September the husband of the woman filed a fresh petition of complaint which formed the basis of the present case. 5. The girl Mista Sundari was living with her father all this time and apparently made over by the Magistrate to her husband in the month of October, 1939. The learned Judge in his charge to the jury casually mentions these facts. But he entirely failed to put them before the jury clearly with proper emphasis. With reference to the evidence of the girl herself, he says that it appears to him to be defective and points out that when first examined by the Magistrate she was unable to say who took her away and to what house. The present Appellants were implicated subsequently. 6. Now it has been laid down in many cases in this Court that the Judge should direct the jury that it is unsafe in cases of this character to convict one of offences of the nature of kidnapping or abduction or sexual offences on the uncorroborated testimony of the prosecutrix but that he should tell the jury that inspite of the warning if they are satisfied that the girl is telling the truth, they are at liberty to convict him. 7. In this case however all that the learned Judge does is to tell the jury that the girl is obviously lying and therefore her evidence is defective. This direction is clearly most inadequate. 8. On another material aspect of the case the learned Judge's charge is equally lacking in correctness. He tells the jury that with regard to the charge of kidnapping the age of the girl, is very material. He then says that there is no medical evidence and no horoscope and that the only proof of the girl's age is the statement of her father that she is 13 or 14 and the statement of a man who was a priest at her marriage and who says that she was 11 or 12 years old at that time. He then says that there is no medical evidence and no horoscope and that the only proof of the girl's age is the statement of her father that she is 13 or 14 and the statement of a man who was a priest at her marriage and who says that she was 11 or 12 years old at that time. He does not however point out to the jury that when the girl was originally examined by the Magistrate, she said she was 17 years of age or add, as he might very well add, that on the record of the case there was no evidence to justify a finding that the girl was under 16 years of age. 9. There are other infirmities in the charge of the learned Judge to which it is not necessary for us to refer. Sufficient has been said to establish the position that the charge is bad for misdirection and for non-direction upon material points. 10. The majority verdict of the jury and the conviction of the Appellants and sentences passed thereon cannot therefore be maintained and must be set aside. On a consideration of the entire evidence on the record and in view of the manifest weaknesses in the prosecution case, we do not think it necessary to direct a re-trial. 11. In the result the appeal is allowed and the conviction of the Appellants and sentences passed on them are set aside, and they are acquitted and released from custody. Sen, J. I agree. The story told by the prosecution is a most improbable one. The improbabilities have not been placed in the proper light by the learned Judge. Again, there is hardly any evidence to prove the age of the girl. In order to establish kidnapping it must be proved beyond all reasonable doubt that the girl's age is below 16. It is true that the learned Judge did draw the attention of the jury to the evidence regarding age. But in my opinion he did not emphasise sufficiently that the jury had to come to a conclusion beyond all doubt regarding the age of the girl. Nor did he emphasize sufficiently the worthlessness of the evidence regarding age. In these circumstances I agree with my learned brother in the order which he has passed.