JUDGEMENT - T.K. CHANDRASHEKHARA DAS, J.:---The appellant was charged under sections 363 and 376 of the Indian Penal Code and tried in Sessions Case No. 8/94. By Judgment dated 28th April, 1995, the accused/appellant was found guilty of the offence for which he was charged and he was sentenced to undergo Rigorous Imprisonment for a period of five years and also to pay a fine of Rs. 1,000/- and, in default, to undergo three months of Rigorous Imprisonment under section 363 of the Indian Penal Code and he was sentenced to undergo Rigorous Imprisonment for a period of seven years and also to pay a fine of Rs. 2,000/-, and in default, to undergo three months of Rigorous Imprisonment under section 376 of the Indian Penal Code. The Court has ordered both the sentences to run concurrently. The appellant challenges this judgment in this appeal. 2.According to the prosecution, on 22nd May, 1993, at 3 p.m. one girl by name Ujwala had left her house as usual in order to attend the stitching classes. She did not return home till 8 p.m. on that day. Thereupon, her father Shrikant Salgaonkar and mother Smt. S. Salgaonkar, enquired about her by visiting some of the friends houses, but could not find their daughter anywhere. Two or three days thereafter, they came to know that Ujwala was at a nun's home at Madel, Tivim. According to the prosecution, on 22nd May, 1993, at 3.00 p.m. when Ujwala went to attend stitching classes at Duler, while she was standing there at stitching classes, the accused came on scooter, and had a talk with her and proposed that she should accompany him on scooter so that both of them would have cold drinks. She agreed to it and accordingly, she accompanied him to Mapusa where they had cold drinks. Thereafter, the accused took her to have a drive on scooter to Calangute. When they reached Calangute they moved here and there for sometime. The accused then hired a room at the house of Trinidade Cardozo. According to the prosecution the accused and the girl had signed a note book on 22nd May, 1993, in the house and the accused then took the girl Ujwala inside the house and made her naked and had sexual intercourse with her three times after promising to marry her. According to the prosecution the accused and the girl had signed a note book on 22nd May, 1993, in the house and the accused then took the girl Ujwala inside the house and made her naked and had sexual intercourse with her three times after promising to marry her. The prosecution says that even on the early morning of the next day the accused had sexual intercourse with the girl Ujwala in the same room twice. Thereafter the accused took her to Madel, Tivim, where he dropped her and asked her to wait till he gets some money to go to Sawantwadi where they could get married. Though the girl Ujwala waited for some time till 12 o'clock the accused did not turn up. The girl then became thirsty and went to the nun's house situated on the opposite side of the road and had a glass of water and stayed there. After three or four days the parents of the girl came to know that their daughter is at the nun's place. Accordingly, father of the girl came to the house of the nun, sister Elizabeth and took Ujwala to the Mapusa Police Station, where he lodged his complaint. 3.The prosecution examined altogether nine witnesses. P.W. 1 is the father of Ujwala and P.W. 3 is the prosecutrix's mother. P.W. 4 is the prosecutrix Ujwala. P.W. 2 is the panch witness for attaching the note book Exh. P.W. 2/B. P.W. 6 is the owner of the house. P.W. 8 is the doctor who examined the prosecutrix. P.Ws. 7 and 9 are the Investigating Officers. Examining the evidence of P.Ws. 1 and 3, the statements made by them are those which are told by P.W. 4, the prosecutrix. Therefore, the evidence of P.Ws. 1 and 3 alone cannot be relied upon for establishing the guilt of the accused unless there is some other independent evidence to corroborate. The only other witness who can corroborate this is none other than P.W. 4. P.W. 4 however, was declared hostile. She was thoroughly cross-examined by the prosecution after having been declared hostile. We have scanned through the evidence of P.W. 4 at the instance of the learned Public Prosecutor. Even if the statements before the Police which were made could be treated as evidence, they disclose no offence under sections 363 and 376 of the Indian Penal Code. She was thoroughly cross-examined by the prosecution after having been declared hostile. We have scanned through the evidence of P.W. 4 at the instance of the learned Public Prosecutor. Even if the statements before the Police which were made could be treated as evidence, they disclose no offence under sections 363 and 376 of the Indian Penal Code. The evidence of P.W. 4 which was relied upon by the Court below cannot be treated as evidence. It is true that the statement made by her before the Court that she had gone with the accused at his instance offering her cold drinks and a ride on the motor cycle has been proved in this case. But this portion of the evidence of the prosecutrix however, does not lead us to a conclusion that necessary ingredients to constitute the offence of section 363 have been established. The portion of statement of P.W. 4 relied upon by the Court below can be extracted here : "On one day at about 3 p.m. as usual I left my house to go for stitching classes. The accused came near the place where I used to go for stitching classes, as I knew him I started talking with him. On that day my friend did not come alongwith me. The accused came on a scooter. After talking for some time the accused asked me to accompany him to go to Mapusa, and have a cold drink. After having cold drink at Mapusa he proposed to me to have a drive alongwith him on a scooter. Accordingly, I accompanied the accused on a scooter driven by him. The accused took me on his scooter to Calangute. We moved about for sometime in Calangute area. Thereafter the accused took me to the room in a house." These are the facts which could be said to be proved to fasten the accused to the guilt under section 363. The learned Counsel for the appellant has strenuously argued that no ingredients of offence under section 363 have been constituted by the statement of P.W. 4. He submits that there is no removal of P.W. 4 from the legal custody of the parents or guardian by the accused. It is admitted fact that they met on a road. It is also admitted that they were knowing each other. He submits that there is no removal of P.W. 4 from the legal custody of the parents or guardian by the accused. It is admitted fact that they met on a road. It is also admitted that they were knowing each other. It is also admitted that on an invitation for having a cold drink at Mapusa she accompanied him by her own volition without any compulsion. These facts however will not constitute an offence of section 363. In this connection the leaned Counsel for the appellants has drawn our attention to a judgment of the Supreme Court reported in ('S. Varadarajan v. State of Madras')1, reported in A.I.R. 1965 S.C. 942. In that case, the Hon'ble Supreme Court was defining as to what is the meaning of the word "taking" which occurs in section 361 of the Indian Penal Code. The Supreme Court says in that judgment thus :--- "But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's office where they get an agreement to marry registered and there is no suggestion that this was done by force or blandishment or anything like than on the part of the accused but it is clear from the evidence that the instance of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father." In para 9 the Supreme Court says that : "There is a distinction between 'taking' and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of section 361. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of section 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian." The learned Counsel for the appellants also cited a decision of a Single Judge of this Court following the same line of reasoning as laid down by the Supreme Court, as mentioned above, in the decision of ('Lawrence Kannandas v. The State of Maharashtra')2, reported in 1983 Cri. L.J. 1819. Therefore, as we pointed our earlier, the only relevant evidence available in this case regarding the offence of section 361 is that of P.W. 4 as extracted above and this evidence does not disclose any offence under section 361. No other evidence is adduced in this case to establish the guilt of the accused for having committed an offence under section 361. On the other hand, the evidence available in this case reinforces that P.W. 4 left her house voluntarily to marry the accused. P.W. 5 is the nun with whom the prosecutrix stayed after the alleged offence. She says: "She also told me that she is from Karaswado Mapusa. She has sought for my permission to sit in my varandah till 12 o'clock when the boys will come to pick her up. She also told me that she had run away from the house as her father had beaten her." From this it is clear that the findings of the Court below that the appellant is guilty of the offence under section 363 is based on no cogent and reasonable evidence. Therefore, the finding of the Court below is to be set aside and the appellant is entitled to be acquitted as no guilt under section 363 Indian Penal Code is proved. Therefore, the finding of the Court below is to be set aside and the appellant is entitled to be acquitted as no guilt under section 363 Indian Penal Code is proved. 4.The other offence which has been charged against the appellant, as we stated earlier is under section 376 Indian Penal Code. As we already commented, the evidence of P.W. 4 did not throw any light either directly or indirectly for the accused having committed offence under section 376 on the prosecutrix. In statement under section 313, the question Nos. 7 and 8 have been framed by the Court below. Question No. 7 runs as follows : "Q. 7:It is in evidence that after having slept over the cot you caught hold of the said Ujwala by saying that you would marry her and she need not be afraid and at that time you had sexual intercourse with her thrice. Do you wish to say anything?" Question No. 8 runs as follows :--- "Q. 8:It is in evidence that on 23-5-1993 you had sexual intercourse with Ujwala P.W. 4 on two occasions before you left the room of Trinidade. Do you wish to say anything?" These are the two questions which were put to the accused for having established the evidence sic offence under section 376. When we examine the evidence of the prosecutrix it is evident that the Court below has committed a miscarriage of justice in as much as that the prosecutrix has not stated in her evidence anything as framed in these questions. As we have pointed out earlier, the prosecutrix had been declared hostile. The questions were apparently framed by the Court below on the basis of statement of P.W. 4 while she was being confronted with the statements made by her to the police. What is in evidence in this case going by the statements of P.W. 4 is as follows :--- "After having kept me inside the room the accused went out stating that he would come back. Within 15 minutes the accused returned back with a cold drink. After having the cold drink given to me by the accused, I became giddy. Thereafter I fell down on the cot. Thereafter I do not know what had happened as I lost my sense. When I came to my senses during the night time I realised that I had no clothes on my body. After having the cold drink given to me by the accused, I became giddy. Thereafter I fell down on the cot. Thereafter I do not know what had happened as I lost my sense. When I came to my senses during the night time I realised that I had no clothes on my body. I was naked. Then I asked the accused as to what he had done. The accused asked me not to get worried and that he would marry me. I do not know what the accused had done to me. The accused further told me that he committed a mistake. He also promised to marry me. The accused further told me that next day morning we would go to Sawantwadi and get married there. And the next day morning we left that house at Calangute." This is the only evidence available from the records for having stated by P.W. 4 before the Court. We fails to infer any offence under section 376 having been disclosed in the statement of P.W. 4. The learned Public Prosecutor has argued that this evidence of P.W. 4 and the medical evidence will undoubtedly establish the guilt of the accused for having committed offence under section 376. We cannot agree with the argument of the learned Public Prosecutor. As we pointed out earlier, she did not say whether the accused has committed a rape on her. She says that she did not know anything what had happened to her. 5.The learned Public Prosecutor's further submission that from the other part of the evidence it can be said that the offence has been established, cannot be also accepted because all other statements of P.W. 4 on record before the police are brought out in evidence as having not been stated before the police. In this connection the learned Counsel for the appellant has brought to our notice a decision of the Division Bench of the Delhi High Court in the case of ('Satish Kumar v. State')3, reported in 1995 (IV) Crimes p. 305. How far the statement before the police as stated before the Court is reliable evidence is discussed in para 20 of the judgment. The question which ought to have been put to the witness while being cross-examined by the prosecution should have elicited facts and not statements made to the police. How far the statement before the police as stated before the Court is reliable evidence is discussed in para 20 of the judgment. The question which ought to have been put to the witness while being cross-examined by the prosecution should have elicited facts and not statements made to the police. So this part of the testimony of the witness has to be completely ignored from consideration as to what she had stated to the police. As we stated earlier, in the present case, the other part of the evidence of P.W. 4 is the elicitation of the statement made to the police and not evidence before the Court. It cannot be said this evidence contains statements to the police which will amount to evidence based on which a conviction could be sustained. Therefore when we go through the evidence of P.W. 4 there is no material to come to a safe conclusion that the accused has committed an offence under section 376. Of course a conviction may be sustained on the evidence of the prosecutrix coupled with the medical evidence, but here the evidence of P.W. 4 cannot be relied upon for reasons pointed out by us in the aforesaid paragraphs. On a final analysis of the evidence of P.W. 4 and other witnesses in this case, we cannot say that the prosecution has proved the guilt of the accused beyond reasonable doubt. Therefore, the conviction and sentence awarded by the Court below under section 376 has to be set aside. 6.In the result, the appeal is allowed, the conviction and sentence awarded by the Court below against the appellant is set aside and the appellant stands acquitted. Bail bond executed, if any, by the appellant is cancelled and surety is discharged. Appeal allowed.