Judgment I. P. Singh, J. 1. This appeal is directed against the judgment dated 17th October, 1985 passed in Sessions Case No.12/85 (M) by Shri Ram kishore Singh, 2nd Additional Sessions Judge, Saharsa convicting both the appellants under Sections 363, 366 and 403 of the Indian Penal Code and sentencing them to undergo rigorous imprisonments for 5 years, 10 years and 2 years respectively. The sentences were ordered to run concurrently. 2. The prosecution case, in short, is that on 23-1-1984 at about 10 A. M. , Gangia Devi (P. W.4) along with her neighbour, Kiran Devi (P. W.1) came to Singheshwar temple to offer Puja. At about 12 A. M. both the appellants named above came there and talked to P. W.4 privately. After that P. W.4 asked P. W.2 wait there for some time till she returns from Dera. Saying so, P. W.4 went away with both these appellants P. W.1 waited for her for some time but when she did not return back she came back to her house and narrated the entire story to ganeshwar Modi (P. W.5), father of P. W.4. P. W.5 went out in search of P. W.4 and on the following day he saw her near Saharsa railway station. He rescued P. W 4 from the clutches of the appellants and brought her to his house. Subsequently he lodged the F. I. R. (Ext.4 ). The police after completing the investigations submitted the charge sheet. The cognizance of the offence was taken and the appellants were convicted in the manner indicated above by the learned Sessions judge. 3. In this appeal, the appellants have contended that from the prosecution story itself, it will become clear that P. W.4 was not ill-treated by them. No case under Sec.363, 366 or 403 of the Indian Penal code has been made out against the appellants. The prosecution has completely failed to prove its case and findings of the learned court below to the contrary are based on conjuctures and surmises. The necessary legal ingredients of Sections 363 and 366 of the Indian Penal Code have not been satisfied. The prosecution has miserably failed to prove its case. The appellants have been falsely implicated in this case since they demanded higher wages from P. W.5. The necessary legal ingredients of Sections 363 and 366 of the Indian Penal Code have not been satisfied. The prosecution has miserably failed to prove its case. The appellants have been falsely implicated in this case since they demanded higher wages from P. W.5. On these grounds amongst others, it has been contended that the judgment of conviction be set aside and the appellants be acquitted. 4. At the outset, it has been seriously contended before me by the learned counsel appearing on behalf of the appellants that there has been inordinate delay in lodging the F. I. R. According to the case of the prosecution the alleged occurrence had taken place at about 12 A. M. on 23-1-1984. The F. I. R. (Ext.4) was lodged at about 4 P. M. on 27-1-1984 even when the police station at Singheshwar was only 2 miles away from village Patori to which the informant (P. W.5) belonged. Even according to P. W.5 the girl (P. W.4) was located at Saharsa in the morning of 24-1-1984. The prosecution has come forward with some explanation for this delay in lodging the F. I. R. The explanation, however, does not inspire confidence. In paragraph 2 of his evidence the informant (P. W.5)has stated that he did not lodged the F. I. R. since his daughter (P. W.4)was still unmarried and the F. I. R. could have brought some stigma in her name. However, there is no such explanation in Ext.4. P. W.2 w o happens to be the son of the informant has stated in Paragraph 11 of his evidence that appellant Jhabbar Rishideo had informed him on Wednesday that he is trying to find out the articles with respect to which the offence under Sec.403 of the Indian Penal Code was alleged to be committed. It was only when those articles were not returned that on Friday F. I. R. was lodged. This is a clear circumstance to show that actually no offence under Sec.363 and 366 of the Indian Penal Code was committed as otherwise P. W.2 could not have stated that if the articles were have been returned to them no case against the appellants could have been lodged. Ext.4 will, however, show that the Panchayati was called on 24-1-1984 itself in which the appellants did not appear. Ext.4 will, however, show that the Panchayati was called on 24-1-1984 itself in which the appellants did not appear. If this was so there does not appear to have any earthly reason for not lodging the F. I. R. on 25-1-1984. So far as the informant (P. W.5) is concerned, in paragraph 3 of his evidence he has clearly admitted that appellant Jhabbar Rishideo was in his service from before. He called the father of this appellant in the village who promised that he will return back the stolen articles. He waited for two days in the hope that those articles would be returned. However, when these articles were not returned the F. I. R. was lodged. This explanation also does not inspire confidence. It, thus, appears that delay in lodging the F. I. R. has not been satisfactorily explained by the prosecution. 5. Ext.2 is the statement of P. W.4 recorded under Sec.164 of the Code of Criminal Procedure. This statement was recorded on 28-1-1984. In this statements P. W.4 has stated that at the time when she was kidnapped she was carrying a sum of Rs.1850/- and also some gold ornaments. She was relieved to those articles by the appellants and was kept at Saharsa for two days. It is important to remember in this connection tha t in the charge framed under Sec.403 of Indian Penal code no description of gold ornaments has been given. Only it has been stated that those ornaments weighed one Bhari If really gold ornaments were taken away from P. W.4, I see no earthly reason who the names of those gold ornaments could not be disclosed by her. This also goes to show that the prosecution case on this point is not correct. On the other hand, the prosecution case appears to be improbable. In this connection a reference may be made to the evidence of P. W.1, Kiran Devi, who was the girl accompanying to P. W.4 at time when the alleged occurrence had taken place. In her cross-examination she has clearly stated that at the time of the alleged occurrence except for the wearing apparel P. W.4 did not have anything with her. Her this statement is clear and positive. In her cross-examination she has clearly stated that at the time of the alleged occurrence except for the wearing apparel P. W.4 did not have anything with her. Her this statement is clear and positive. If really P. W.4 was carrying Rs.1850/- in cash and gold ornaments, there was no earthly reason why P. W.1 could not have mentioned about the same in her evidence. Moreover P. Ws.1 and 4 had gone to Singheshwar temple to offer Puja. It does not sound probable that at the time P. W.4 would be carrying Rs.1850/- in cash and gold ornaments. 6. In Ext.2, which is the statement of P. W.4 recorded under Section 164 of the Code of Criminal Procedure, she has stated that the appellants have compelled her to board a tempo and took her to Madhepura. At that time she was protesting and also raising Hallah. In her evidence also P. W, 4 has stated so. However, it is surprising to note that in the f. I. R. (Ext.4) there is no story that any force was used by the appellants against P. W.4. On the other hand, P. W.4 herself came and informed P. W.1 that she is going along with the appellants voluntarily. Another thing important to note in this connection is that in Ext.4 there is no story that the appellants had removed P. W.4 on a temple, ft, however, appears that the story of temple was subsequently added by p. W.4 in her evidence. P. W.4 has, however, not stated that the appellants had appeared near the temple as per some pre-arrangement and it was with them that she eloped. On the other hand, she has stated that she was forcibly taken away by the appellants and removed on a temple. Under this circumstance, it sounds highly improbable that P. W.4 will go to the temple for offering Puja along with Rs.1850/- in cash. 7. It is the specific case of the appellants that appellant Jhabbar rishideao was in the employment of P. W.5 and there was some dispute between them over the payment of wages. P. W.7 has admitted that this appellant was in service of P. W.5 from before the alleged occurrence. This fact has been admitted by no body else the informant (P. W.5)himself. He has stated that this appellant used to live with him and worked as his ploughman. P. W.7 has admitted that this appellant was in service of P. W.5 from before the alleged occurrence. This fact has been admitted by no body else the informant (P. W.5)himself. He has stated that this appellant used to live with him and worked as his ploughman. He also used to feed his cattle. He has denied the suggestion that he has falsely implicated the appellants since they were demanding the wages from him at the rates fixed by the Government. He has admitted that even on the date of the alleged occurrence in the morning this appellant was working at his place. He has further denied the suggestion that at the time of the alleged occurrence P. W.4 was aged about more than 18 years. The age of P. W: 4 assumed importance since she has been described as a minor and the appellants have been charged for the offence of having kidnapped a minor so that she may be seduced to illicit intercourse against her will. In her evidence P. W.4 has disclosed her age to be 14 years. But the court has estimated her age to be 17 years, though in Ext.2 her age has been recorded as 13 years. In this connection a reference may be made to the evidence of the Doctor (P. W.3), Dr. J. B. Singh who had examined P. W.4. It is really surprising to note that though he was produced for his examination ; she was simply tendered for cross-examination. He had examined the victim girl medically and as such his evidence on the point of her age would have been of great importance. It is not clear why P. W.3 was not examined by the prosecution to testify about the age of P. W.4. This is a great circumstance against the case of the prosecution. 8. It is, however, important to remember in this connection that p. W.4 was in custody of the appellants for two days. It is no bodys case that in this period she was seduced to illicit intercourse by any of the appellants or to marry any one of them against her will. 8. It is, however, important to remember in this connection that p. W.4 was in custody of the appellants for two days. It is no bodys case that in this period she was seduced to illicit intercourse by any of the appellants or to marry any one of them against her will. If really the intention of the appellants was to kidnap her so that she may be seduced to illicit intercourse or married against her will, there was nothing to prevent them from doing so since P. W.4 was in their custody for two days. This also shows that the charge under Sec.366 of the Indian penal Code cannot be sustained. It is also important to note in this connection that in this case the Investigating Officer could not be examined. The attention of some of the P. Ws. was drawn to their alleged statements said to have been made before the police which they have denied. Since the Investigating Officer has not been examined those contradictions could not be taken. Non-examination of the Investigating Officer is a circumstance against the case of the prosecution. 9. From the detailed discussions, it becomes clear that prosecution has not been able to prove its case beyond all reasonable doubt and the appellants are entitled to be acquitted of the charges framed against them. 10. In the result, this appeal is allowed. The judgment of conviction of the learned court below is set aside and the appellants are acquitted of the charges framed against them. They are directed to be set as liberty. Appeal allowed.