Judgment 1. Heard rival submissions at length. This criminal appeal is preferred by the appellant-accused challenging the judgment and order of conviction passed on 03.09.1998. 2. The appellant/accused was tried in Sessions Trial No. 163/1997 by the 6th Additional Sessions Judge, Nagpur for the offence punishable under Section 365, 366A and 363 of the Indian Penal Code. He was tried along with two other co-accused. Said two co-accused are acquitted of all the charges and present appellant/accused was convicted for the offence punishable under Section 363 of the I.P.C. and was sentenced to suffer R.I. for one year and to pay a fine of Rs.2000/-in default of payment of fine to suffer further R.I. for two months. 3. Brief facts of the case are as under: The case of prosecution is that prosecutrix victim girl aged about 17 years was studying in college and present appellant/accused was staying in neighbourhood of said girl. Apparently, they had developed some love affair, however, this factum was subsequently denied by said girl while giving her evidence before the court as P.W.2. On 20.08.1996 as usual said victim girl went to her college at about 11-00 a.m. but did not return back by 04-00 p.m. as such her parents started searching for her and revealed that the neighbourhood boy i.e. the present appellant had enticed away their daughter and had taken her away from home. It was also revealed by the parents of the victim girl that cash amount of Rs.8000/-, one gold mangalsutra and ear tops which were kept in the almirah were missing from the house and as such it was presumed by the parents that these articles and cash were taken away by their daughter and she has left the place and went away with the appellant as he had enticed her to leave the lawful guardianship. Accordingly, complaint was lodged in the Police Station and during the course of investigation the whereabouts of the girl were found at Bilaspur. They were taken from Bilaspur from the house of Uncle of the appellant and were brought back to Nagpur to another Uncle of the appellant where the panchnama was drawn and they were put under arrest. Statement of victim girl was recorded and after completion of investigation, chargesheet was filed against the present appellant along with his two other associates-relatives. They were taken from Bilaspur from the house of Uncle of the appellant and were brought back to Nagpur to another Uncle of the appellant where the panchnama was drawn and they were put under arrest. Statement of victim girl was recorded and after completion of investigation, chargesheet was filed against the present appellant along with his two other associates-relatives. All the accused were put to trial, however, only present appellant was convicted as mentioned above. 4. During the trial total seven prosecution witnesses were examined. However, trial court had not placed much reliance on the substantive evidence of P.W.3 in whose presence the appellant and the girl were brought from Bilaspur to Nagpur. P.W.4 is the another witness Priest who performed the marriage of appellant and the victim girl at Bilaspur. However, no much weightage was given to the evidence of this witness also. P.W.6 is also panch witness in whose presence certain photographs were produced by the Uncle of victim girl. However, for reasons mentioned in the judgment again the trial Court did not give much weightage to this witness. P.W.6 and P.W.7 are the Investigating Officers, who after conducting all the investigation and after finding the whereabouts of the appellant and the girl, brought them back to Nagpur and concluded the investigation by recording the statement of witness. The important witnesses are P.W.1, P.W.2 and P.W.5. P.W.1 is the first informant, father of the victim girl, P.W.2 is the victim girl and P.W.5 is a Clerk from the school where the victim girl, was studying. The birth date as appearing in the school record was mentioned as 09.10.1979 and as per said birth date, the age of the girl on 02.08.1996, when she left the house of her parents, was 16 years and 10 months. This fact weighed much with the trial Court and the trial Court had come to the conclusion that the girl was below 18 years and as such was not capable of giving consent. At this juncture it may noted that the trial Court had fallen in an error in accepting the said birth date as truthful in the absence of any other entry in the Birth Register maintained by the Local Municipal Authority. At this juncture it may noted that the trial Court had fallen in an error in accepting the said birth date as truthful in the absence of any other entry in the Birth Register maintained by the Local Municipal Authority. From the said evidence of Clerk, it was brought on record that the birth entry was made as per the date given by the father of the girl without any counter check. Furthermore, another factual position as to not producing the medical report as to the age of the girl by the prosecution was overlooked by the trial Court and much emphasis placed on the record produced by P.W.5. Again, on this aspect, in the considered opinion of this Court, the trial Court has fallen in error in accepting the said birth date and accepting the age of girl below 18 years when medical report is not produced when it was a positive case of the prosecution that the girl was sent for medical examination after she was brought back to Nagpur. In the absence of medical report it was must for the trial Court to view the substantive evidence of P.W.5 with doubt and in that events, benefit of doubt should have been given in favour of the accused, so far as the age of the victim girl is concerned. 5. It is observed that the trial Court had discussed the evidence of P.W.2 and had accepted the said evidence as to she left the house of her parents at the instance of the appellant as he had given threats to her of dire consequences i.e. of killing her father if she did not accompany him. In the considered opinion of this court again the learned trial Court had fallen in error in accepting such statement of the victim girl. It appears that the trial Court has lost sight of the fact that as the girl traveled from Nagpur to Bilaspur with appellant-accused and during her stay for about five days with accused and his relative had ample opportunity to resist the accused. Thus it is falsified that she was forcibly taken by the appellant against her wish. Moreover, the conduct on the part of the victim girl as to taking the cash and ornaments from her own house that also on alleged threats given by the appellant could have been viewed by the trial Court with much caution. Thus it is falsified that she was forcibly taken by the appellant against her wish. Moreover, the conduct on the part of the victim girl as to taking the cash and ornaments from her own house that also on alleged threats given by the appellant could have been viewed by the trial Court with much caution. However, her evidence has been accepted in toto and as such on this aspect also the trial Court has committed an error. On the contrary, in para 25 of the impugned judgment and order, the trial Court has observed that the evidence of seizure of cash of Rs.1000/-, one gold mangalsutra, one chain and ear tops vide exhibit-34 is corroboration to the evidence of victim girl P.W.2 and thereby holding that there is evidence to the effect that appellant/accused enticed girl and forced her to leave custody of her father and further hold that the evidence is strong enough for holding that the accused had committed offence of kidnapping which is punishable under Section 363 of I.P.C. 6. On the above aspect the trial Court has lost sight of the fact that the alleged threat given by the appellant/accused to the girl as to killing her father in case she did not accompany the accused, is in fact a material contradiction. In spite of such factual position the trial Court has given much weight to the evidence of the victim girl that she obeyed the instruction of appellant because of said outstanding threat given to her. Considering the substantive evidence of prosecution witnesses and even the evidence of P.W.4 and P.W.6 i.e. priest who had performed the marriage and the panch in whose presence photographs were seized, there is no doubt in the mind of this Court that it was, in fact, a case of love affair between the victim girl and present appellant/accused. However, for the reasons that at the time of giving of evidence before the trial Court said victim girl staying happily with her husband elsewhere, she had came out with a case that she left the house of her parents under the threat and inducement given by the appellant. However, for the reasons that at the time of giving of evidence before the trial Court said victim girl staying happily with her husband elsewhere, she had came out with a case that she left the house of her parents under the threat and inducement given by the appellant. This part of evidence of victim girl should have been properly appreciated by the trial Court and in that context it must be said that the trial Court had erred in coming to the conclusion that it was the appellant who enticed away the minor girl. Emphasis is placed on ascertaining of the age of the victim girl in the present matter that has not been established by the prosecution and in that event the evidence of P.W.5 the Clerk cannot be considered as proof as to the minor age of the said victim girl as on 20.08.1996. 7. Considering the above it must be said that the trial Court had fallen in an error in accepting the case of prosecution as against accused no.1/appellant and convicting him for the offence punishable under Section 363 of I.P.C. and hence the present appeal may succeed. Appeal is allowed. Impugned judgment and order dated 03.09.1998 in Sessions Trial No.163/1997 is quashed and set aside. The appellant is acquitted for the offence punishable under Section 363 of I.P.C. The fine amount shall be reimbursed to him. As per the order of this Bench appellant – Hemraj s/o Sampatrao Bhoyar was taken in custody on non-bailable warrant, since the appeal is allowed, he shall be released forthwith.