JUDGMENT 1. - This appeal is directed against the judgment dated 31st May, 79' passed by the Addl. Sessions Judge, Udaipur, by which, the appellant has been found guilty u/s. 363, IPC and sentenced to 2 years' RI and a fine of Rs. 200/- and in default of payment of fine, to further undergo 2 months' SI. 2. One Ramchandra, under whose guardianship Mst. Radha was living, lodged a written-report on 1st June, 78. alleging that in the evening at about 5PM, he was informed that one taxi-driver had taken away his niece towards the city, in his taxi. The name of the girl was Mst. Radha, and the Taxi-driver is said to be a 'Harijan'. Prakash, son of Gangadas had seen the taxi-driver taking her away. Prakash and his companion's tried to find out that taxi-driver, but, they could not locate him. It is also stated in the report that the mind of the girl was not upto the mark. Regarding the taxi driver, it is stated that the he used to ply his taxi between the city and the airport. Prakash know the driver very well. So, it was alleged that the driver had kidnapped the girl, Radha, who was about 12-13 years of age. On this report a case u/s. 363, 366 & 376, IPC, was registered. Mst. Radha was found the same night at about 10-11 O'clock, and she was recovered while standing with the accused on the roadside. 3. On completing usual investigation, the police filed a challan against the accused person. The trial court framed charges against him u/sec. 366 & 354, IPC. The accused pleaded not guilty and claimed trial. 4. The contention of the appellant was that he was coming from the airport, and near Partap Nagar, while taking tea at hotel, he found the girl standing there. He was not knowing the girl. The girl told him that she wanted to go towards the city and desired to be accompanied by him. At this, he permitted her to sit in the car. She asked him to take her to Roshan Nagar, where Sindh is used to reside. At Roshan Nagar, she tried to locate her house. She was taking him from one side to another. At this, he permitted her to sit in the car. She asked him to take her to Roshan Nagar, where Sindh is used to reside. At Roshan Nagar, she tried to locate her house. She was taking him from one side to another. At this, the driver judged that her state of mind was not proper, and turned his taxi back; but, both the rear wheels of his taxi were fastened in the sand. He tried to taken the wheels out, but, could not succeed. It is was a dark night. Therefore, leaving the taxi there, he came with girl on the roadside. He knew that the mind of the girl was not proper, and so, he thought that she should not be left alone, and he kept waiting for a bus along with the girl. At that time, 3 persons arrived there, gave him beating first and then took him and the girl to police station. 5. After the trial, the learned Addl. Sessions Judge found that no case u/s 354 & 366. IPC was made out. He, however, found that a case u/s. 363 IPC was established against the appellant and sentenced him as mentioned above. 6. The learned counsel for the appellant argued that informant Ramchandra PW. 5 lodged the report on the information of one Prakash. Ramchandra had not seen the accused taking away the girl in his taxi. The only evidence to this effect is of Prakash, son of Gangadas; but, the prosecution has not examined this Prakash. Therefore, there is no evidence on the record to the effect that the accused had enticed away or kidnapped Mst. Radha in his taxi. 7. The only evidence against the accused is that he was caught by the two prosecution witnesses both named Ashok and was brought to police station. The accused-appellant admits that he was brought to police station by 3 persons along with Mst. Radha, but, his contention is that while he was coming from the airport, Mst. Radha had asked him for a lift to the city in his taxi; and on her request, he had permitted her to sit in his taxi. At Roshan Nagar, she tried to search out her house, but, as the mind of the girl was not found to be perfect, she was unable to judge as to what she was doing. Radha had asked him for a lift to the city in his taxi; and on her request, he had permitted her to sit in his taxi. At Roshan Nagar, she tried to search out her house, but, as the mind of the girl was not found to be perfect, she was unable to judge as to what she was doing. They could not locate her house, and while he was trying to turn his taxi both the rear wheels of his taxi fastened in the sand. Then, they both came to the roadside and both were standing for a bus, when they were caught by the three persons. So, this is the explanation given by the accused. The learned Addl. Sessions Judge has discussed this explanation of the accused in his judgment, and has found it to be improbable. The reasons given by the learned Addl. Sessions Judge, were perused, but I do not agree with them. The important aspect of the case is that there is no evidence about enticing the girl away by the accused-appellant. The only evidence is that of Prakash; but, he has not been examined. So, the case has not been established by the prosecution itself. They have failed to prove that somebody had seen the appellant taking away Mst. Radha in his taxi. So, this fact has not been established. And against this lacuna, the explanation of the accused is on the record, which cannot be said to be improbable. Certainly, a person who is coming from airport in the night upon being approached by a girl for a lift, would not refuse. I think, no sane person would refuse to give a lift to a girl, especially, in the night. If the driver has given a lift in the night to Mst. Radha does not mean that the driver (appellant) had any foul intention. So the explanation given by the accused in his statement u/s 313, Cr.P.C. is a probable explanation; and I see no reason to disbelieve it. The trial court, in my view, has not correctly appreciated the explanation, and incorrectly it found to be unbelievable. So believing whatever explanation has been given by the accused. I find that the case has not been established beyond reasonable doubt against the appellant. In view of the fact that he was found with the girl Mst. The trial court, in my view, has not correctly appreciated the explanation, and incorrectly it found to be unbelievable. So believing whatever explanation has been given by the accused. I find that the case has not been established beyond reasonable doubt against the appellant. In view of the fact that he was found with the girl Mst. Radha and they were brought to police station, it does not mean that he is an offender or that he had enticed away the girl, unless, there is evidence to this effect. 8. I, therefore, find that the trial Court has erred in convicting and sentencing the appellant for offence u/s 363, IPC. 9. Consequently, the appeal is accepted. The appellant is not found guilty of offence u/s 363, IPC, and he is acquitted of this charge. His conviction and the sentence are, therefore, set aside. He is on bail. He need not surrender. His bail-bonds are cancelled.Appeal allowed. *******