KINGAONKAR V.R.·, J.: - Challenge in this appeal is to judgment rendered by learned c- Ad hoc Additional Sessions Judge (Mr. A.R. Qureshi), Nanded, in Sessions Case No. 32 of 2004, whereby appellant is convicted for)- offences punishable under sections 366 and 506(2) of the LP. Code and is sentenced to suffer rigorous imprisonment for seven (7) years and to pay fine of Rs. 1000/-, in default to suffer simple imprisonment for three (3) months and to suffer rigorous imprisonment for two (2) years, respectively. 2. Background facts leading to the prosecution are as follows: Complainant Goribi used to cultivate agricultural lands of other owners on profit-sharing basis (batat). Appellant Santosh was employed by her as an agricultural servant. He was removed from service couple of days before the incident. On 3rd October, 2003, complainant Goribi went to the agricultural land, leaving her daughter Shannu alias Shahnaz and her daughter-in-law by name Shaheda at the house. Her daughter Shannu alias Shehnaz was then aged about 17 years. At about 2.30 p.m., her son went to the agricultural land and informed her that said Shannu alias Shehnaz was not at home since about one hour. She, therefore, returned to home. She and her relatives searched for Shannu alias Shehnaz. However, the efforts drew blank. She noticed that the clothes of Shannu alias Shehnaz, a silver chain, gold earrings of 5 grams and amount of Rs. 5000/- was missing. Her inquiry revealed that Shannu alias Shehnaz had gone in company of the appellant in an auto-rickshaw by Gortha road. On next day, she approached the Police Station and lodged a report. 3. The prosecution case is that the appellant abducted said Shannu alias Shehnaz (prosecutrix) from her house under threats. He pointed out knife to her and also threatened that he would commit suicide by consuming poisonous substance if she would not accompany him. She went with him under duress. He took her to Nizamabad via Parbhani. The appellant is said to have abducted the prosecutrix with intent to forcibly marry her or to seduce her to commit sexual intercourse with her. He sold her silver chain and the gold earrings at Nizamabad. They resitfed together for two and half months. He used to work in a hotel as a waiter. She also used to work in the same hotel. He committed sexual intercourse with her during the stay at Nizamabad. He sold her silver chain and the gold earrings at Nizamabad. They resitfed together for two and half months. He used to work in a hotel as a waiter. She also used to work in the same hotel. He committed sexual intercourse with her during the stay at Nizamabad. She became pregnant as a result of the sexual intercourse, which was done by the appellant without her consent. She was under fear of the threats given by the appellant that he would cause her death if she would run away. After two and half months, PW7 Ganesh and relatives of the prosecutrix visited Nizamabad. They rescued her. She was brought back to the village and was produced before the Police Officer of Umri Police Station. She was referred to the Civil Hospital at Nanded for medical examination. The police carried out certain investigation and charge-sheeted the appellant for offences punishable under sections 363, 366, 376 and 506(2) of the I I.P. Code. 4. At the trial, charge (Exh-4) was framed against the appellant. He entered plea of not guilty. He denied truth into the, accusations. He contended that he has been falsely implicated in the case. His defense, is of simple denial. 5. The prosecution examined in all eight t (8) witnesses during the trial. The prosecution also adduced certain documentary evidence, including the Medical Certificate, F.I.R., etc. The learned Ad hoc Additional Sessions Judge held that the prosecution was not minor at the relevant time. He further held that she was not kidnapped from r the lawful guardianship of her parents. He also held that she was not subjected to sexual intercourse against her will, nor was she forced to commit the sexual intercourse at hands of the appellant. He, therefore, acquitted the appellant of the offence pun- fiishable under sections 363 and 376 of the g I.P. Code. The learned Sessions Judge, however, came to the conclusion that the appellant abducted the prosecutrix with intention to induce her to commit sexual intercourse with her or to marry with her. He also held that he committed criminal in-timidation by threatening her with intention to cause alarm to her while she used ok to reside with him at Nizamabad during the 1- relevant period. In keeping with such findings, the learned Sessions Judge rendered - the impugned judgement. 6. Mr. He also held that he committed criminal in-timidation by threatening her with intention to cause alarm to her while she used ok to reside with him at Nizamabad during the 1- relevant period. In keeping with such findings, the learned Sessions Judge rendered - the impugned judgement. 6. Mr. S.S. Deve, learned Advocate, would submit that the appellant is convicted without proper appreciation of the conduct of the prosecutrix. He contended that the If prosecution story is unbelievable. He further contended that the prosecutrix was. - major and eloped with the appellant on her own accord. He argued that the mother of e the prosecutrix later on tutored and influenced '- the version of the prosecutrix. He argued that findings of the trial Court are unsustainable. Hence, he urged to allow the appeal. As against this, Smt. Khekale, learned A.P.P. supports the impugned judgement. 7. Before I proceed to scrutinize the prosecution evidence, it may be mentioned that when the prosecutrix was examined by PW4 Dr. Sainath on 23-12-2003, she was pregnant. The pregnancy was of twelve 1 (12) weeks and one (1) day. This fact reveals that she had sexual relationship with the appellant since atleast about more than three and half months before. In other words, she and the appellant had indulged in sexual escapades much before they eloped together or for that matter before she was abducted on 3-10-2003. This aspect is completely overlooked by the learned Sessions Judge. The radiological examination revealed that she was 18 years old or above 18 years. The Medical Certificate (Exh-16) purports to show that no injury was found on her person. There was no iota of evidence to infer that she was subjected to forcible sexual intercourse. The Medical Officer noticed that the prosecutrix was fully grown up. Her secondary sexual characters were well developed. The prosecutrix was not a naive child. She had attained young age. She was matured enough to take her own decisions. For, she had attained age of discretion. 8. The fact that the prosecutrix and the appellant resided together for about two and half months, is explicit from the record. They were residing at Nizamabad under ' common roof. The complainant and other witnesses have no personal knowledge, whatsoever, as to how the prosecutrix' eloped with the appellant in the noon of 3rd October, 2003. 8. The fact that the prosecutrix and the appellant resided together for about two and half months, is explicit from the record. They were residing at Nizamabad under ' common roof. The complainant and other witnesses have no personal knowledge, whatsoever, as to how the prosecutrix' eloped with the appellant in the noon of 3rd October, 2003. One cannot be oblivious of the fact that appellant was working as agricultural servant of the complainant. In the course of his such employment, it is more ~ probable, he might have developed intimacy with the prosecutrix. The version of PWI Shannu alias Shehnaz (prosecutrix) reveals that about a couple of days prior, the appellant was removed from the service by her mother. Her evidence purports to show that the appellant used to reside in a house situated in the backside of the house of her parents. Her version reveals that the appellant visited her house on the day of incident while her sister-in-law was offering prayers (namaz). He scribed her name on his left forehand with the help of a knife and told her that he loved her. He insisted her to accompany him. She states that he was holding two knives in one hand and a bottle of poisonous substance in another hand. Her cross-examination shows that there is clear error in her report lodged with the Police Station regarding yielding of knives by the appellant. She did not know whether the bottle held by him contained any poison. It appears that exaggerated account is stated by her in regard to the so called threat given by the appellant at the relevant time. She attempted to dramatise the incident. Her period of pregnency shows that since much prior, she willingly indulged in sexual intercourse with the appellant. It is more probable, therefore, that together they decided to elope and hence she left home of her parents. 9. The version of the prosecutrix purports to show that she accompanied the appellant due to fear that he may commit suicide or would cause serious harm to her person. Assuming that it was so at the initial stage, yet it is difficult to believe that she continuously laboured under the fear of same degree. Her version reveals that they together went by Gortha road and awaited for some time for arrival of a jeep vehicle. Thereafter, they went to Mudkhed in a jeep vehicle. Assuming that it was so at the initial stage, yet it is difficult to believe that she continuously laboured under the fear of same degree. Her version reveals that they together went by Gortha road and awaited for some time for arrival of a jeep vehicle. Thereafter, they went to Mudkhed in a jeep vehicle. She states that her ornaments were removed by the appellant at Mudkhed by use of force. They together went to Secunderabad by train. He sold her silver chain and gold earrings at a shop of a goldsmith. Her evidence purports to show that from Secunderabad, they returned to Nizamabad by train. Both of them resided together in a rented room for about two months and fourteen days. She admits that the appellant was working as a hotel waiter whereas she was working as a sweeper in the same hotel at Nizamabad. Her cross-examination reveals that she was educated unto 6th standard in Marathi medium. She was conversant with reading and writing of Marathi script. She did not write any letter to her parents. She did not make any attempt to run away from the rented premises. She admits, unequivocally, that there were 10 to 12 persons travelling in jeep vehicle from Umri to Mudkhed. She admits further that, they together went to Parbhani from Mudkhed on the same day and awaited at Railway Station for about half an hour for arrival of train scheduled to Secunderabad. She further admits that while they were staying at Nizamabad, in a rented room, she never disclosed to the landlord or any neigh-bour about the alleged abduction. Her cross-examination also shows that she did not make any attempt to disclose about the incident to the Railway Police or co-passengers during the journey. She admits that the appellant managed to get joint photograph with her at Nizamabad. She adds that it was without her consent. 10. The testimony of PW3 Goribi reveals that she lodged F.I.R. (Exh-14) on the next day of the incident when the prosecutrix and the appellant did not return to the village. The recitals of the F.LR, purport to show that the clothes of daily use, silver chain, gold earrings of 5 grams and an amount of Rs. 5000/- were taken away by the prosecutrix. It is obvious that the prosecutrix collected her regular clothes, the silver chain and also took away amount of Rs. The recitals of the F.LR, purport to show that the clothes of daily use, silver chain, gold earrings of 5 grams and an amount of Rs. 5000/- were taken away by the prosecutrix. It is obvious that the prosecutrix collected her regular clothes, the silver chain and also took away amount of Rs. 5000/- while leaving house of her parents. Thus, the prosecutrix had made preparation to leave house of her parents along with the belongings, articles, including her clothes required for daily use. There is absolutely no medical evidence to show that the appellant had scribed her name by means of any sharp edged instrument on his forearm. The prosecutrix asserted that appellant had received the bleeding injuries on the forearm. No blood was found in her house. Nobody confirms that the appellant had received any bleeding injury at the relevant time. 11. The prosecution examined PW7 Ganesh in support of its case. His version has no direct bearing on the incident. He had gone to Nizamabad in the search of the prosecutrix and the appellant, along with one Rafiq and another. They searched the house where the prosecutrix and the appellant were reportedly residing together. I His version purports to show that on seeing them, the appellant fled away. He further states that the prosecutrix also ran away behind the appellant. This conduct of, the prosecutrix shows that though her relatives and PW Ganesh had gone to help her, I yet she was unwilling to accompany them. She did not probably wish to return to house of her parents. The learned Sessions Judge, recorded the statement of PW Ganesh in regard to the answers given by the prosecutrix and disclosure macle by her after she was caught. In fact, such recording of evidence reveals that the learned Sessions Judge was inattentive to the relevant provisions of the Evidence Act. The hearsay evidence is inadmissible and irrelevant. Therefore, what the prosecutrix narrated to PW Ganesh is hardly of any evidentiary value. His version reveals that the appellant is a member of Scheduled Caste. The r appellant is of Matarlg caste. It is suggested 1 to the witnesses that due to the different religions, complainant Goribi was averse to - the consortium of the appellant and the prosecutrix. There appears ring of truth in f the said suggestions of the defence. 12. His version reveals that the appellant is a member of Scheduled Caste. The r appellant is of Matarlg caste. It is suggested 1 to the witnesses that due to the different religions, complainant Goribi was averse to - the consortium of the appellant and the prosecutrix. There appears ring of truth in f the said suggestions of the defence. 12. It is not necessary to elaborately discuss the remaining evidence adduced by the prosecution. The conduct of the prosecutrix reveals that her testimony is not free from doubt. She attempted to exaggerate the fact situation and attempted to show that she went with the appellant due to fear. The prosecutrix, as stated earlier, was a t grown-up young woman. She made no at- tempt to seek help of anyone after the ini1tial so called spell of fear was over. She could - have requested the fellow passengers for help while travelling in the jeep vehicle from village Umri to Mudkhed and while travelling from Mudkhed to Parbhani in a train. She did not put up any struggle. In (Shyam and another Vs. State of Maharashtra )1, 1995 DGLS 163 : A.I.R. 1995 S.C. 2169, the Apex Court held that the conduct of the prosecutrix is relevant and when there was absence of 'taking', there is hardly any case of abduction. Considering the conduct of the accused therein, the Apex Court held that offence of alleged abduction was not 1 proved at all. Similarly, in (Jinish Lal Shah f Vs. State of Biharf, 2002 DGLS 1039: 2003(1) S.C.C. 605 : A.I.R. 2003 S.C. 2081, conduct of the prosecutrix was taken into account. The Apex Court observed: "....This evidence though subsequently resiled by PW6 indicates that PWI had planned her departure from the house in advance and had willingly gone away with the appellant which also indicates that there was no threat or inducement either in regard to her leaving the house or in regard to accompanying the appellant. In such situation in the absence of any other material to show to the contrary it will be difficult to accept the prosecution case that either there was a forcible marriage or rape as contended by the prosecution to find the appellant guilty under section 366 or 376, LP.C...." In the given case too, the prosecutrix had collected her clothes and belongings before departure from house of her parents. Her such conduct was indicative of her intention to willingly accompany the accused. Similar is the fact situation in the present case. The prosecutrix made preparation before she went with the appellant. In fact, there is no substratum to hold that she was abducted by the appellant and unwillingly accompanied him at the relevant time. The 1 fact that she allowed sexual intercourse with her by the appellant at Nizamabad, is also eloquent. She became pregnant and yet all the relationship was without murmur. It is highly improbable that she meekly surrendered to his sexual advances throughout ~ the relevant period. 13. For the reasons aforesaid, I am of the opinion that the charges for offence under sections 366 and 506(2) of the I.P. Code are not proved. The appellant is erroneously convicted and sentenced by the trial Court. The impugned judgement is, therefore, unsustainable. Hence, the appeal is allowed. The impugned judgment is set aside. The order of conviction and sentence rendered by the trial Court is set aside and the appellant is directed to be released forthwith if not required in any other matter'. Appeal allowed.