JUDGMENT 1. - This appeal has been filed by the accused-Balwant Singh and Sukh Chain Singh who are brothers against a judgment dated 13.11.1987 by the learned Additional Sessions Judge No. 2, Hanumangarh, whereby, both have been found guilty for the offence punishable u/s. 366 of the IPC and have been awarded rigorous imprisonment for five years and a fine of Rs. 500/- each. For non-payment of fine, additional rigorous imprisonment for three months has been awarded to both. 2. The appellants and their father Gurdev Singh were tried in the said Trial Court for the offences punishable u/ss. 363, 366 & 376 of the IPC. 3. The accused-Gurdev Singh was acquitted of all the three charges. The appellants were acquitted for the offences punishable u/ss. 363 & 376 of the IPC. However, both were found guilty for the offence punishable u/s. 366 of the IPC. 4. The short point required for determination is as to whether in the light of acquittal for the offences punishable u/ss. 363 & 376 of the IPC whether the finding of guilt could be returned by the learned Trial Court in the light of prosecution evidence recorded in the case. 5. Regarding the age of the prosecutrix, PW-5 Dr. Gangaram has stated that she was aged about 15 years. In cross-examination, he admitted that there was a margin of error upto 3 years and hence, she could be aged 18 years at the relevant time. PW-3 K.N. Markanday has given the age between 15-17 years. Be that as it may, the learned Trial Court has acquitted the accused-persons of the charge for the offence punishable u/s. 363 of the IPC, which goes to show that the prosecutrix was not proved to be below 18 years of age. 6. In these circumstances, the accused-persons could be convicted if there was evidence to establish that Smt. Jasbeer Kaur was taken away against her will. In this connection, it was pertinent to note that regarding the offence punishable u/s. 376 of the IPC, the learned Trial Court has acquitted the accused-persons on the ground that there was consent on her part for the sexual intercourse. In these circumstances, it is difficult to believe that the accused- persons were guilty for the offence punishable u/s. 366 of the IPC. 7. In these circumstances, it is difficult to believe that the accused- persons were guilty for the offence punishable u/s. 366 of the IPC. 7. From the deposition of PW-1 Jasbeer Kaur, it is evident that she travelled with the accused-persons to different stations by rail and nowhere she raised any alarm nor she tried to return back to her parental house. This circumstance alone is sufficient to show that she has not been taken away against her wishes. 8. According to the prosecution story disclosed in the FIR, Smt. Jasbeer Kaur in the evening of 31.1.1985 at 8.00 p.m. was going to the house of a relation with her two sisters Resham and Simranjeet. In the mid-way she got separated in order to answer the call of nature and there, the accused-Balwant Singh came and forcibly took her away at pistol point. It is further mentioned in the FIR that Banta Singh was an eye-witness of the abduction. 9. Strangely enough, the two sisters Resham and Simranjeet were not examined during the trial. Their names do not find place in the calendar of witnesses. Banta Singh was cited as a witness but the prosecution decided to not to examine him. These three persons alone could teel as to whether the prosecutrix went to her own volition or was taken away forcibly. Keeping these three witnesses away from the Court, is fatal for the prosecution in this respect. The said Banta Singh has been examined as DW-1 and he has specifically stated that the prosecutrix was going with the accused of her own volition. 10. In the circumstances narrated above, it is more than clear that no offence punishable u/s.366 of the IPC can be brought home against the appellants. 11. Consequently, the appeal is allowed. The judgment under appeal is set aside. Both the appellants are acquitted for the offence punishable u/s. 366 of the IPC.Appeal allowed. *******