JUDGMENT T.K. Chandrashekhara, J. - The accused in Sessions Case No. 41 of 1989 on the file of District and Sessions Judge, Panaji is the appellant herein. He was charged under Sections 363 and 376 I.P.C. After trial the learned Judge found him guilty and convicted him for both the offences and he was sentenced to one year's R.I. and a fine of Rs. 500/-, in default to undergo 6 months of R.I. under Section 363 I.P.C. and sentenced to 5 years of RI. and a fine of Rs. 3,000/- In default to undergo two years of R.I. under Section 367 I.P.C. It was, also ordered that substantive sentences shall run concurrently. 2. The case of the prosecution is that the accused who hails from Kasargod, Kerala had come to Goa sometime in June, 1988 in connection with film shooting and was staying in a room of one Abdul Rehman, who was a contractor at Bhoma, Panda. The prosecutrix along with her parents and her other three sisters and her brother were residing in a house close-by in the neighbourhood of said Abdul Rehman. The accused tried to entice the prosecutrix Masabi, who was a minor and who was studying in the VIth Standard in New English High School at Kundaim. Masab Bi had to pass by the side of the house of Abdul Rehman, where the accused was staying, for bringing water from the nearby well. It is the case of the prosecution that on 25th June, 1988 the accused went to the school of Masab Bi and told her that she should not go to the school from 27th onwards and also asked her to come to Panda and meet him near Alankar shop on 27th June, 1988. Accordingly prosecutrix went there and accused took her in a car to Karwar where they spent one night in a hotel and he raped her. On the next day accused took her in the same car to his house at Kasargod, Kerala, where she was kept in a room and it was locked. According to the prosecution case the accused committed rape on her in that room on four or five occasions. 3. On the next day accused took her in the same car to his house at Kasargod, Kerala, where she was kept in a room and it was locked. According to the prosecution case the accused committed rape on her in that room on four or five occasions. 3. It was further the case of the prosecution that while Masab Bi was not seen coming back from the school, her father, who was a Head Constable in the Goa Police, and her brother carried out a search for her and a missing report was also lodged at the Ponda Police Station by her brother Shaikh Khwaja. According to the prosecution case one Sandip Borkar told her brother Shaikh Khwaja that he had seen Masab Bi being taken by the accused in a car. Then the aforesaid Abdul Rehman took the relatives of the prosecutrix to Kasargod, Kerala and pointed out the house of the accused. When they went inside the house of the accused, they found Masab Bi there and they brought her to Goa and handed her over to the Panda Police from where she was released in the custody of her father. 4. As usual the accused pleaded not guilty. He denied the allegations. However, in Section 313 statement he stated that he had come to Goa on two occasions and he admitted that he stayed in the room of Abdul Rehman. He stated that on the first occasion he had come in connection with a film shooting and at that time many students were taking autographs from him and amongst whom Masab Bi was also there. It was further his case that when he was in the room of Abdul Rehman, Shaikh Tazak had come to his room and talked to him and also told him that he should get married to Masab Bi, to which the accused replied that he was already married and had children and therefore he refused to get married and left from there. 5. In order to appreciate the evidence in this case, let us first examine the version of the prosecutrix herself, who was examined as PW 6. She says in her examination-in-chief that her house and Abdul Repman's house, where the accused used to stay, is 100 meters away. 5. In order to appreciate the evidence in this case, let us first examine the version of the prosecutrix herself, who was examined as PW 6. She says in her examination-in-chief that her house and Abdul Repman's house, where the accused used to stay, is 100 meters away. She says that the accused had brought a car which was fitted with a T.V. She used to pass by the side of the house where the accused was staying in order to bring water. At that time the accused used to ask her whether she would have tea. On the next day she says that the accused repeated to bell whether she would take tea but she says at that time the accused gave her a bottle of scent. She says that even though she did not want to take that bottle, the accused threatened her that if she did not take the same, he would kill her. She smelt the scent after which she lost consciousness and she did not know what had happened. She says that after she regained consciousness she could not recognize her parents, brothers or sisters. On the next day of giving the scent bottle the accused gave her a make-up box where there were items like lipsticks and other items. She further says that on 25th June about two years ago, the accused came to her school and told her not to go to school from 27th June and the accused told her to come to Ponda and meet him near Alankar shop at Ponda. Accordingly she met him on 27th June, 1988 and from there he took her to Margao in the said car. She says there was another person who was sitting on the back seat. The accused told her to sit on the front seat. From Margao the accused took her to Karwar. At Karwar the accused took her to a hotel. She then says that the accused took her into a room in the hotel. He removed her clothes and had forcible intercourse with her. They stayed in the hotel for one night. They thereafter on the next day went to the accused house at Kerala in the same car and then she says that the accused kept her in a room in the said house and told her not to come out from the room. They stayed in the hotel for one night. They thereafter on the next day went to the accused house at Kerala in the same car and then she says that the accused kept her in a room in the said house and told her not to come out from the room. In the said house the accused's wife and 3 children are there. Thereafter her uncle Shaikh Saffrudin and father came in search of her to the house. Then she says that she was taken to doctor for examination but she does not remember when she was taken in Goa. 6. In the cross-examination she says that she did not know the name of the accused earlier but she admits that she knew his name as Kapadia from the Court for the first time. She did not know for how many days the accused stayed in the house of Abdul Rehman. She also says that there was another person who had come along with the accused to the house of Abdul Rehman and she could identify that person. She did not know the name of that person. She also did not know the place to which that person belonged. When she was returning from the well after bringing water, she had taken the smell of the scent after returning home. She fell unconscious in her house. The scent bottle was given to her by the accused when she went to bring water. Her father and mother knows about the fact of her becoming unconscious. She used to daily take smell of that bottle and the fact of unconsciousness continued till she was brought back from Kerala. She had fallen unconscious in her house. Accused never came to her house and she did not know the accused well. She never wanted to marry the accused. She did not know the wife of the accused and his children. 7. There are two or three important contradictions which have been noted by the Court below: One is that the accused had threatened PW 6 that if she refused to take the make-up box, the accused would kill her. But this fact is not in the police records and she could not give an explanation why the police did not record that portion. But this fact is not in the police records and she could not give an explanation why the police did not record that portion. Similarly she says that she had told the police that when she used to go to take water, the accused used to offer her tea. But Court noted that such fact has not been said, in the police statement and she could not explain the omission. The fact that she had told the police that accused had forcible intercourse with her in the room at Karwar is not there in the statement made at the Police Station and the statement being material, the witness was given an opportunity to explain and the only explanation was that she had told the police. Similarly when she was taken to Margao there was another person in the car. But in the police statement that is not there and when the Court asked her to explain, she says that she had actually told the police. Another important factor is that she stated before the police that they went from Margao to Karwar in a bus and that portion has been marked as 'A to A'. In fact in the Court she says that she went by car. She cannot explain this omission. 8. PW 2 the father of the prosecutrix says that about 7 or 8 days after 26th July, 1988 one Hamzad from those Keralites told him to see if the accused might have taken Masab Bi to Kerala. He then accompanied by his brother-in-law Shaikh Saffrudin went to the house of the accused. They were accompanied by the said Hamzad and 5 to 6 other Keralites. They pointed out the house of the accused and Masab Bi was found in the house. They brought Masab Bi and gave her in the custody of Pond a Police. Police then handed over Masab Bi to him after signing the necessary documents. He admits that at the time of the incident he was working in the Police Department. He also denied the suggestion that because the accused refused to marry Masab Bi he filed a false complaint against the accused. The very material point to be noted in his evidence is that he did not mention the name of Abdul Rehman PW 8, in whose jeep, according to PW 8, they bad gone to Kerala. 9. He also denied the suggestion that because the accused refused to marry Masab Bi he filed a false complaint against the accused. The very material point to be noted in his evidence is that he did not mention the name of Abdul Rehman PW 8, in whose jeep, according to PW 8, they bad gone to Kerala. 9. Here in this case also as is normal in all cases of rape we have the case of the prosecutrix PW 6 and the Doctor who examined her PW 3. On a Crosse examination of the version of PW 6, the whole story told by her cannot be believed. It has come out in evidence by her own statement that there was no compulsion exercised by the accused on her to follow him in the car. The moment be asked her to come to Ponda on 27th she went. It is alleged that the accused told her on 25th June, 1988 that she should not go to the school on 27th June and she should go to Ponda at a particular place. In other words the invitation by the accused was extended to her just before two days of her elopement with the accused. Strangely, she did not disclose this fact to any of her family members even to her sisters or mother which strongly indicates that she was willingly and voluntarily eloping with the accused. The smel1ing of the scent and falling unconscious is all a story which cannot be believed in ordinary course of things. It might be that the accused and the prosecutrix came to be acquainted due to the proximity of their residences and they might have liked each other. Therefore, as charged by the prosecution, there cannot be any kidnapping, which is coming under Section 363 I.P.C. In order to construe an offence under Section 361 I.P.C., there must be enticement of any minor girl. Here there is no act of enticement which has been established against the accused. In fact if the story told by the prosecutrix is correct about smening of scent and falling unconscious with the knowledge of the parents, at any rate, will not constitute enticement. Any prudent parent would naturally caution the girl about dealing with the accused. Here there is no act of enticement which has been established against the accused. In fact if the story told by the prosecutrix is correct about smening of scent and falling unconscious with the knowledge of the parents, at any rate, will not constitute enticement. Any prudent parent would naturally caution the girl about dealing with the accused. In such a situation when the accused cal1ed her from her school and asked her to go to Ponda after two days, she should have naturally in ordinary course of human conduct disclosed the fact to her mother and or her sisters. All these circumstances would go to show that there was no offence disclosed under Section 361 against the accused. 10. The charge against the accused under Section 376 I.P.C. is very vague, which reads as follows: "Secondly, on or abovementioned date and time and place and after kidnapping said Masabi, who was a minor, you had sexual intercourse with her with or without her consent and thereby you committed an offence of rape punishable under Section 376 of I.P.C. and within the cognizance of this Court." This charge does not disclose where the offence was committed. The prosecutrix says that the offence was committed at Karwar and thereafter at Kasargod, Kerala. By framing charge the accused was not told at what time and what place the offence was alleged to have been committed. The framing of a charge against the accused is very important in a criminal trial because the prosecution is supposed to establish that charge and the accused has to set up his defence. If such charge is established as such, the accused cannot be liable for punishment as it is vague and as it does not stipulate the time and place of commission of offence. The alleged offence had taken place on 27th June, 1988 but the accused was allegedly brought from Kerala on 8th July, 1988. It is interesting to note that the father of the prosecutrix was a Head Constable under the Goa Police. The girl was alleged to have been missing from 27th June, 1988. The alleged offence had taken place on 27th June, 1988 but the accused was allegedly brought from Kerala on 8th July, 1988. It is interesting to note that the father of the prosecutrix was a Head Constable under the Goa Police. The girl was alleged to have been missing from 27th June, 1988. The cross-examination of PW 9, who was the Investigating Officer says that the complaint of Shaikh Khwaja, son of Shaikh Tazak, was made only on 29th June, 1988 at 12.00 noon it is a very strange circumstance that in making the complaint such delay was committed particularly when the prosecutrix father was a serving Head Constable in the Goa Police. PW 9 A.S.I. of Ponda Police Station in cross-examination states that PW 6 had stated to him that the accused had taken her in his car right from Bhoma to Kerala. Apart from the vagueness of the charge, going by the statement of PW 6, she was raped first at Karwar and then 3 or 4 times at the house of the accused at Kerala. It is quite strange for a person to commit rape on another girl while his wife and children are staying with him in the same house. In answer to this question the lower Court says that there is no explanation given by the accused as to why PW 6 was taken to his house. This absence of explanation by the accused has led the Court below to come to the conclusion that the accused has committed rape on the prosecutrix. The lower Court has heavily relied on the medical evidence in this case. Except for the interesting version of the father, uncle and brother (PWs 2, 4 and 5) that the accused kept PW6 in his house at Kerala, there is no other evidence that PW 6 was kept in his custody. In the absence of any independent evidence the episode of these relatives of going to Kerala and taking custody of the prosecutrix, according to me, cannot be believed as true. As I pointed out earlier the prosecutrix's father was a Head Constable. The accused is staying in another State where the place is quite unknown to them. In the absence of any independent evidence the episode of these relatives of going to Kerala and taking custody of the prosecutrix, according to me, cannot be believed as true. As I pointed out earlier the prosecutrix's father was a Head Constable. The accused is staying in another State where the place is quite unknown to them. The minimum thing that could be expected in such circumstances is that those persons who went to Kerala, who did not know the address of the accused and who did not know the house where the accused was staying, should have approached the Police of that locality first and with the help of the Police they could have got into the house of the accused and would have got custody of the prosecutrix, in which case there would be a satisfactory evidence of having found the girl in the custody of the accused. This is absenting this case. Therefore, the very keeping of the girl and committing rape on her in the presence of his wife and children for the moment cannot be believed. Then the non-explanation on the part of the accused for having kept the girl in his custody cannot be a ground for assuming that he has committed rape on the girl. The lower Court very strangely has come to the conclusion that from the medical evidence as well as the evidence of PW 6 that there was sexual intercourse and in the absence of explanation by the accused for such custody will render an extenuating circumstance to establish the guilt of the accused. This approach of the lower Court however cannot be appreciated. 11. Another strong circumstance is that which is admitted by PW 6 that another person was also in the car. The prosecution has not attempted to trace out the whereabouts of that person and it is every possibility that person may be responsible for the alleged offence. In which case merely because there is a medical evidence of having committed rape on a woman, when there is a doubtful circumstance that the accused or any other person might have committed the offence, will always benefit the accused. A suspicion of having committed an offence is definitely not a substitute for the evidence. The conduct of the prosecution in this case is not at all sat is factory as commented by the Court below. A suspicion of having committed an offence is definitely not a substitute for the evidence. The conduct of the prosecution in this case is not at all sat is factory as commented by the Court below. There are several infirmities even in sending the samples to the Chemical Analysers of the clothes attached as has been noted by the lower Court. Material available in this case are not sufficient to establish the guilt of the accused. Story set up by the prosecution simply cannot be believed for the reasons herein before set out by me. In the light of the above discussion I do not find any compelling circumstances to fasten the accused with offences alleged to have been committed by him on the prosecutrix. 12. In the result I allow the appeal and set side the judgment of the Court below. The accused stands acquitted. Appeal allowed.