JUDGMENT (ORAL) Ashok Agarwal, J. - The appellant is original accused No. 1. He, alongwith accused No. 2, was charged for offences punishable under Section 363 and 366 of the Indian Penal Code for having, on the 3rd of April, 1986, at about 4.00 p.m. at Sunanda Niwas, Kisan Nagar No. 3, Wagale Estate, Thane, in furtherance of their common intention kidnapped P.W. 3 Mohini Manohar Sawant, a minor aged about 16,12 years, from out of the lawful guardianship of her parents, with the intent that she may be compelled to marry against her will with accused No. 1. By the impugned judgment and order, passed by the trial Court, accused No. 2 was acquitted, whereas accused No. 1 came to be convicted under both the counts and was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 100/-, in default to suffer simple imprisonment for three months, on each count. The aforesaid judgment and order, in so far as it records an order of conviction and sentence against accused No. 1, is impugned in the present appeal. 2. P.W. 3 Mohini, who is the prosecutrix in the present case. P.W. 2 Manohar Raghoba Sawant is her father. He is the complainant in the present case. His First Information Report is at Exhibit-49. P.W. 1 Laxmi Manohar Sawantis the mother of the prosecutrix. P.W. 6 Shivaram Balka Mandavkar is the person in whose House the accused took the prosecutrix. It is in his house that the prosecutrix stayed for two days. P.W. 5 Anil Anang Mohan Bose is the person who helped the accused in securing the place of Shivaram for giving shelter to the prosecutrix. He, however, declined to support the case of the prosecution and was declared hostile. P.W. 7 Krishnaji Atmaram Parab is a head constable who alongwith accused No. 2 had proceeded to the house of Shivaram and traced the prosecutrix and accused No. 1. P.W. 4 Dr. Prakash Dattatray Ambedkar 1s a Medical Officer who examined the prosecutrix. The medical certificate issued by him is at Exhibit-14. P.W. 9 Uday Manohar Eamant has produced the extract of the birth register in respect of the prosecutrix. The birth certificate is at Exhibit-25. It shows that the prosecutrix was born on 27th of January, 1970. P.W. 4 Dr. Prakash Dattatray Ambedkar 1s a Medical Officer who examined the prosecutrix. The medical certificate issued by him is at Exhibit-14. P.W. 9 Uday Manohar Eamant has produced the extract of the birth register in respect of the prosecutrix. The birth certificate is at Exhibit-25. It shows that the prosecutrix was born on 27th of January, 1970. P.W. 8 Keshav Narayan Rane is the P.S.I. attached to the Wagale Estate Police Station who has investigated into the instant offence. This is the entire evidence which has been led by the prosecution. By way of rebuttal accused have examined D.W. l Govind @ Ganesh Bhai Tilve to prove the alibi of accused No. 1. As per his version, accused No. 1 had lodged a private complaint (Exhibit-27) against one Head Constable Dhangar and certain other police Officers. On the day of the alleged incident i.e. on the 3rd of April, 1986, accused No. 1 and the witness himself were in Court in connection with the said prosecution. In fact, the evidence of accused No. 1 (Exhibit 28) and D.W. 1 Tilve (Exhibit-29) was recorded on the 3rd of the April, 1986. This was done in the afternoon session between 3.45 p.m. and 5.15 p.m. Accused No. 1 was in Court in the company of the witness till 5.30 p.m. The above evidence was led in order to prove that accused No. 1 could not have been present at the time and place where the alleged incident of kidnapping is said to have been taken place. 3. The case of the prosecution can be summarised as under: At the relevant time Mohini was a minor below the age of 18 years. She was then studying in the 11th Standard at a college in Mulund. 3rd of April, 1986 was a holiday. The prosecutrix was in the midst of her annual examinations. She was apparently studying. Her mother Laxmi asked her some questions which she was unable to reply. Laxmi, therefore, scolded her saying that she would fail. Mohini got annoyed and left the house. She first went to the house of their neighbour, a lady by name Naik. She was not available. So, she proceeded to the house of another girl friend Beena Soniya. She was also not to be found. She, therefore, proceeded towards her school. On the way, she met the accused. Mohini got annoyed and left the house. She first went to the house of their neighbour, a lady by name Naik. She was not available. So, she proceeded to the house of another girl friend Beena Soniya. She was also not to be found. She, therefore, proceeded towards her school. On the way, she met the accused. This was at about 5.00 p.m. Both the accused asked her to accompany them. When she showed her unwillingness to accompany then they threatened her saying that they will outrage her. They asked her to see them near a municipal lake. So she went towards the municipal lake. There, accused No. 2 had already come and was waiting for her. After sometime accused No. 1 also came there. They both took her to a house in Chiragnagar. The accused told her that they will take her to Delhi where accused No. 1 will marry her. She stayed in the house of Shivaram for two days. On the 1st day neither of the accused kept her accompany. On the second day accused No. 1 also stayed in -the house of Shivaram but in a separate room. 4. In the meanwhile, since the prosecutrix was missing, her father Manohar lodged a missing report on the 4th of April, 1986 at about 2.45 p.m. Manohar, with the assistance of P.W. 5 Anil, and the accused No. 2 proceeded to the house of Shivaram in the company of P.W. 7 - Head Constable Krishanaji Parab. This was on the 5th of April, 1986 at about 5.00 a.m. There, the prosecutrix and the accused were apprehended. Manohar, thereafter, lodged his First Information Report (Exhibit 9). On the aforesaid facts accused were charge sheeted and prosecuted for the aforesaid offences. 5. The accused pleaded not guilty. Their defence was one of total denial. As far as accused No. 1 is concerned, he is an auto rickshaw driver. He has stated that he had, on the 18th of December, 1985, lodged a private complaint against one Head Constable Dhangar and other police Officers attached to the Wagale Estate Police Station. According to him, the said police Officers had taken a ride in his auto rickshaw to the Police Station but had refused to pay for the same. When he asked for the fare he was unlawfully detained at the police station. According to him, the said police Officers had taken a ride in his auto rickshaw to the Police Station but had refused to pay for the same. When he asked for the fare he was unlawfully detained at the police station. He was kept in detention till he was released on bail on the following date. Hearing of the said complaint had taken place on the 3rd of April, 1986 when the incident is alleged to have taken place. According to the accused, his evidence as also the evidence of his defence witness Govind Tilve was recorded in. the Magistrate's Court. Their evidence was recorded in the second half of the session. The accused No. 1 was, therefore, in Court in company of the said witness till 5.45 p.m. He could not have, therefore, been present at the time of the alleged incident. According to accused No. 1, he was falsely prosecuted on account of the complaint lodged by him against the police Officers. 6. As is the case in most of such prosecution cases, the main evidence is that of the prosecutrix. She has deposed in terms of the prosecution case which I have already reproduced. Her evidence is sought to be corroborated by the evidence of P.W. 6 Shivaram Bandavkar. Accused are supposed to have housed the prosecutrix, in his house for a couple of days. The prosecutrix, as also the accused No. 1, were apprehended from his house, in the early hours of the 5th of April, 1986. This part of the case is deposed by Shivaram as also P.W. 7 Krishanaji Parab, a Head Constable who had accompanied Anil Bose and accused No. 2 to the house of Shivaram. Anil Bose has, however, turned hostile. His evidence, therefore, does not support the case of the prosecution. Finding of accused No. 1 in the house of Shivara is, however, deposed to by. P.W. 6 Shivaram and P.W. 7 Krishnaji Parab. The incident in respect of the prosecutrix having left her house and not returned is deposed to by her father P.W. 2 Manohar and her mother P.W. 1 Laxmi. 7. A question which arises for consideration in the present appeal, is whether the evidence in regard to the taking by the accused of the prosecutrix from the guardianship of her parents can be relied upon so as to bring home the guilt against the accused? 7. A question which arises for consideration in the present appeal, is whether the evidence in regard to the taking by the accused of the prosecutrix from the guardianship of her parents can be relied upon so as to bring home the guilt against the accused? In this behalf, the evidence against accused Nos. 1 and 2 is basically the same. Both had met the prosecutrix and both had taken her and deposited her in the house of Shivaram. Accused No. 2, however, has been acquitted. On evidence substantially similar, accused No. 1 has been convicted. It is this conviction which is challenged in the present appeal. 8. In order to appreciate the evidence of the prosecutrix Mohini, certain background, which was prevailing at the material time, needs to be noted. In her cross-examination, the defence has produced two letters (Exhibits 11 and 12) which were addressed by the prosecutrix to the accused. The prosecutrix has admitted having addressed those letters. The letters indicate that the prosecutrix was in love with one Haresh. Haresh is the son of Head Constable Dhangar against whom the accused No. 1 in the present case had lodged a complaint (Exhibit 27). The complaint was pending on the date of the incident. In fact, accused No. 1 was in Court giving evidence against Head Constable Dhangar and others on the date of the incident. Coming back to the letters, it appears that, her love for Haresh had come to an end. The prosecutrix, it appears, has made overtures towards accused No. 1 and has gone on to suggest love towards him. 9. The day of the incident was a holiday. Prosecutrix was in the midst of her exams and was studying. Her mother asked her questions regarding her studies which she could not reply. Thereupon her mother scolded her saying that she will be failing that year. Because of this, she got annoyed and left. She first went to her neighbour Smt. Naik, she was not found. She, therefore, went to another friend Beena. She was also not found. She, thereafter, proceeded towards her school. Both accused Nos. 1 and 2 met her. The accused asked her to accompany them. When she told her unwillingness accused gave threats. They asked her to come to the municipal lake. So she went towards the municipal lake. She, therefore, went to another friend Beena. She was also not found. She, thereafter, proceeded towards her school. Both accused Nos. 1 and 2 met her. The accused asked her to accompany them. When she told her unwillingness accused gave threats. They asked her to come to the municipal lake. So she went towards the municipal lake. Her evidence that accused gave her threats, I am not inclined to believe. She is a person who has been offended by her mother. She has, therefore, left her house. In the circumstances, she would be one to be looking for assistance and shelter. She was knowing the accused since prior to the incident. In the circumstances, she must have herself asked the accused to take her alongwith them and offer her shelter. If, as is clear from her letters (Exhibits 11 and 12), she had offerred love to accused No. 1. It does not stand to reason in the set of circumstances, then prevailing, that accused No. 1 was required to extend threat to force the prosecutrix to accompany him. If at all, it must have been she who must have persuaded accused No. 1 and prevailed upon him to take her alongwith him and to give her shelter. It is to be noted that, according to the version of the prosecutrix, the accused asked her to see them near the municipal lake. The accused thereafter, left. The prosecurix, thereafter, went near the municipal lake. It is apparent that this she did voluntarily. After the accused had left the place she was a free bird and could have gone back to her house. This she has not done but has voluntarily proceeded at the lake. The accused, thereafter, took her to the house of P.W. 6 Shivaram. Evidence of P.W. 6 Shivaram shows that his house consists of only one room and he stays with his wife and six children in that one room. It is in this house that the prosecutrix had stayed for two days. On the first day accused No. 1 did not stay in that house. On the next day accused No. 1 is also supposed to have stayed there but he slept in a different place than the place where the prosecutrix had slept. It is not even remotely suggested that the accused took even a slightest advantage over the prosecutrix. On the first day accused No. 1 did not stay in that house. On the next day accused No. 1 is also supposed to have stayed there but he slept in a different place than the place where the prosecutrix had slept. It is not even remotely suggested that the accused took even a slightest advantage over the prosecutrix. By the early hours of the 5th of April, 1986 she was traced with the assistance of accused No. 2, P.W. 5 Anil and P.W. 7 Head Constable Krishnaji Parab. She was thereafter restored to her parents. In the circumstances, I am not inclined to hold that the prosecution has failed to prove beyond reasonable doubt that the accused had given threats to the prosecutrix and that forced her to join them to the house of Shivaram. I am conscious that the prosecutrix is below the age of 18. The aforesaid finding is not even challenged before me. However, I find that the prosecutrix is a mature person. She was offended by her mother. She got angry and left the house. She went to a neighbour but she was not found. She then went to her girl friend she was also not found. She then met the accused. It is to be remembered at this juncture that the prosecutrix had already expressed her love towards accused No. 1. In the circumstances, the possibility of the prosecutrix having voluntarily left the custody of her parents and, thereafter, persuaded the accused to give her shelter cannot reasonably be ruled out. 10. The present case has to be viewed also in the background of a complaint lodged by accused No. 1 against the police. Accused No. 1 has lodged a complaint against Head Constable Dhangar, who is none-else but the father of Haresh with whom the prosecutrix was in love, which love by the time of her writing the letter (Exhibits 11 and 12) had dithered away. On the day of the incident in question, accused No. 1 was busy prosecuting that complaint. His evidence and that of his witness D.W. 1 Govind Tilve was recorded on that day. According to the version of D.W. 1 Govind Tilve, accused No. 1 was in Court in his company from 11.00 a.m. till about 5.30 p.m. This part of his evidence does not appear to have been challenged in the cross-examination. His evidence and that of his witness D.W. 1 Govind Tilve was recorded on that day. According to the version of D.W. 1 Govind Tilve, accused No. 1 was in Court in his company from 11.00 a.m. till about 5.30 p.m. This part of his evidence does not appear to have been challenged in the cross-examination. The fact that their evidence was recorded on. the 3rd of April, 1986 is amply supported by the certified copies of their evidence which appear at Exhibits 28 and 29. In view 'of the above evidence, the defence of the accused that he was not present at the time of the incident cannot be characterised as improbable. 11. In view of the above reasons, in my view, the prosecution has failed to bring home the guilt against the accused beyond reasonable doubt Accused No. 1, in the circumstances, is entitled to an order of acquittal. 12. In the result, the appeal succeeds. The judgment and order dated the 6th of March, 1987 passed by the 5th Additional Sessions Judge, Thane in Sessions Case No. 277 of 1986, in so far as it convicts the appellant-original accused No. 1 under Section 363 and 366 of the Indian Penal Code and sentences him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 100/ in default to suffer simple imprisonment for three months, is quashed and set aside and the appellant-original accused No. 1, 'is acquitted. Fine if paid shall be refunded. Bail bonds of the appellant/original accused No. 1 shall stand cancelled. Appeal allowed.