JUDGMENT Harries. C.J. 1. This is a petition for revision of orders passed by the courts below convicting the Petitioner of an offence of kidnapping and sentencing him to undergo rigorous imprisonment for a period of six months. The Petitioner was convicted by a learned magistrate and his appeal was dismissed by a learned Sessions Judge. 2. The charge against the Petitioner was that he had kidnapped a young boy named Anil, who was said to be the son of a woman known as Hajaribala Dasi. The boy was said to be about 10 or 11 years of age. 3. The case for the prosecution was that, on June 6, 1948, the Petitioner took this boy on the pretext of going to see a cinema performance in another village. Witnesses were called, who saw the Petitioner on a cycle with the boy either on the pillion or on the cross-bar and one witness stated that they had told him that they were going to the cinema. Whether they ever reached the cinema we do not know and the boy has not been heard of since that date. 4. Though the boy was missing, nothing was done by the mother until June 23, 1948, when she made a complaint alleging that the Petitioner had kidnapped her son. 5. The woman died during the course of the proceedings and she did not give evidence. The learned magistrate appears to have thought that the boy must have been taken out of the custody of his lawful guardian, the mother, without her consent. But that is a fact which must be established by the prosecution. The learned Sessions Judge appears to have thought that the Petitioner must have deceived the mother by saying that he would take the boy to the cinema when he had no intention of doing so. Again I must point out that there is no evidence of this deceit, because the prosecution did not establish that they never went to the cinema. They may well have gone to the cinema and the boy may have disappeared later, in which case there was no deception at all. 6. Again I must point out that there is no evidence of this deceit, because the prosecution did not establish that they never went to the cinema. They may well have gone to the cinema and the boy may have disappeared later, in which case there was no deception at all. 6. It is quite clear that the courts seem to have thought that, as the facts were within the knowledge of the accused, he ought to have stated whether they went to the cinema or not and in the absence of a statement by him, the Court seems to have inferred that they could not have gone to the cinema. 7. Again there is no evidence as to what happened to the boy or the accused. All that we know is that he did not come home. 8. It would appear that his failure to return home caused no surprise. If this was a boy of tender years, one would have imagined that a complaint would have been made fairly soon. Yet nothing was done for seventeen days. That would suggest that the boy was accustomed to go away from home and that his absence caused no surprise. Further, the fact that he went off with this Mahomedan to another village to a cinema performance suggests that he could not have been of the tender age of 10 or 11 years. The evidence as to age is not very satisfactory. A number of witnesses stated that he was 10 or 11 years of age, but they can give very little definite evidence. The defence suggested that he was very much older and that the prosecution were substituting this boy for another younger son who had died. In any event, it is unnecessary to come to any clear finding on this question of age, because it appears to me that there is no evidence at all upon which a charge of kidnapping could be upheld. 9. It is true that the accused knows what happened to the boy, but, though the facts may be entirely within his knowledge, no inference can be drawn against him, because he has not made a statement. This is quite clear from a comparatively recent decision of the Privy Council in the case of Stephen Seneviratne v. The King (1936) 41 C.W.N. 65. This is quite clear from a comparatively recent decision of the Privy Council in the case of Stephen Seneviratne v. The King (1936) 41 C.W.N. 65. In that case, their Lordships held that Section 106 of the Ceylon Ordinance No. 14 of 1895 (the same as Section 106 of the Indian Evidence Act) does not cast any burden on an accused person to prove that no crime was committed by proving facts lying specially within his knowledge. The section does not warrant a direction that, if anything is unexplained, which the jury think the accused could explain, they not only may, but must find him guilty. 10. In the present case, what happened to the boy is wholly unexplained and the accused could give such an explanation as the facts are entirely within his knowledge. However, their Lordships lay down the rule, that he cannot be convicted merely because he does not explain what is within his knowledge. In short, Section 106 of the Indian Evidence Act does not affect the onus of proof in a criminal trial. That section reads: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 11. It might be suggested that what happened to this boy is a fact within the special knowledge of the accused and therefore, the burden of proving the fact is on the accused. That was the argument in the Privy Council case, but it was rejected on the ground that Section 106 does not in any way affect the onus of proof in a prosecution. 12. The prosecution in this case had first to prove that the boy was taken out of the lawful custody of his mother without her consent. There is no evidence at all of that fact and the learned Additional Sessions Judge, as I have said, was wholly wrong in coming to the conclusion that the mother had been deceived, as there is no evidence that the couple had not gone to the cinema. Before deceit could be found the prosecution would have to establish affirmatively that the couple never went to the cinema. There is no such evidence. Further there is no evidence at all as to what happened to the boy and as to whether the accused is in any way responsible for his continued absence. Before deceit could be found the prosecution would have to establish affirmatively that the couple never went to the cinema. There is no such evidence. Further there is no evidence at all as to what happened to the boy and as to whether the accused is in any way responsible for his continued absence. The facts may give rise to suspicion, but the accused cannot be convicted on suspicion. Had the onus rested on the accused to give a satisfactory explanation, very different considerations would arise. But as the accused is under no duty to offer any explanation whatsoever and as no inference can be drawn against the accused for offering no explanation, it must be held that it has not been established that the Petitioner kidnapped this boy. That being so, the Petitioner should not have been convicted. 13. The result, therefore, is that this petition is allowed. The conviction and sentence are set aside and the Petitioner is acquitted. The Rule is made absolute. 14. The Petitioner who is on bail need not surrender to his bail and his bail bond is discharged. Lahiri J. 15. I agree.