Judgment Raghunath Bhattacharya, J. 1. This appeal is directed against the judgment and order of conviction passed by Sri Bibek Chaudhuri, Additional District and Sessions Judge, Fast Track Court, Kalna, thereby convicting the appellant Niloy Modak for commission of the offence under Section 363 I.P.C. and sentencing him to suffer R.I. for five years and also to pay fine of Rs. 1,000/-I.D. to undergo S.I. for three months. Rest of the accused namely Apurba Biswas and Rebati Modak are acquitted from the charge under Section 363/366 I.P.C. 2. A thumbnail sketch of the prosecution case in brief is that Mampi Shikari a resident of Samudragarh, a teenaged girl lodged a written complaint to the local P.S. stating inter alia that on 21.09.2006 Niloy Modak accused cum covillager induced her and pretended that he used to love her. On 21.09.2006 in the noon Niloy took her to the Red Light area of Kadamtala at Kalna for some immoral purpose. Defacto complainant Mampi Shikari understood his illegal motive and purpose. Local resident and the member of the Durbar Mohila Samanwaya Committee saved her from the hand of Niloy Modak. Niloy Modak fled away. The member of the Durbar Mohila Samanwaya Committee brought her to Kalna P.S. and she lodged the complaint. Hence the prosecution case. The defence case as it appears from the trend of the cross-examination of the prosecution witnesses and answer given by Niloy Modak to his examination under Section 313 Cr.P.C. is that of absolute innocence. 3. On perusal of the C.D. and after hearing both side the learned Court framed charge against Niloy Modak, Rebati Modak and Apurba Biswas under Section 363/366 I.P.C. whereby each of them pleaded not guilty and claimed to be tried. In the instant case from the side of the prosecution as many as ten witnesses were examined whereas no witness was forthcoming from the side of the defence. 4. In order to bring home the charge leveled against the accused person from the side of the prosecution i.e. the State of West Bengal as many as ten witnesses were examined. The defacto complainant cum the victim girl Mampi Shikari was examined as P.W. 1. Joyotsna Sarkar is a resident of Kadamtala was examined as P.W. 2. Lata Dutta, a member of Durbar Mohila Samanwaya Committee was examined as P.W. 3. The defacto complainant cum the victim girl Mampi Shikari was examined as P.W. 1. Joyotsna Sarkar is a resident of Kadamtala was examined as P.W. 2. Lata Dutta, a member of Durbar Mohila Samanwaya Committee was examined as P.W. 3. Uttara Shikari, mother of Mampi Shikari and Arun Shikari the father of Mampi Shikari were examined as P.W. 4 and P.W. 6 respectively whereas one Sandhya Das, another employee of Durbar Mohila Samanwaya Committee was examined as P.W. 5. P.W. 7 Biju Sikari and P.W. 8 Girish Sikari are the near relation of Mampi Sikari as examined as P.W. 7 and P.W. 8 respectively. Dipika Mukherjee, an N.G.O. and resident of Kalna examined as P.W. 9 whereas I.O. of this case Gopinath Chatterjee was posted at Kalna P.S. as S.I. of Police as examined as P.W. 10. On the basis of their oral testimony learned Court after hearing both side convicted the accused Niloy Modak and acquitted Rebati Modak and Apurba Biswas against the charge leveled against them. 5. Mampi Sikari (P.W. 1) contended that on the date of occurrence in the noon time she left the house and go to local B.D.O. office to correct the ration card of his brother. On the way to the B.D.O. office she met with Apurba Biswas and according to Mampi Apurba Biswas told her that Nilay want to meet her. It is a clear admission of Mampi that she had love affairs with Niloy as there is love affair between them Mampi went away with Niloy and Niloy took her to Kalna and reached a place where Mampi found that it was a Red Light area. According to Mampi some local inhabitants of that area asked her about the visit and she told to one Joyotsna (Masi) that she never came to the place and it is unknown to her. Thereafter some lady brought to her to the Kalna P.S. and she lodged a complain to Kalna P.S. It is in the evidence that Niloy Modak, Apurba Biswas and Rebati Modak brought Mampi to Kalna Red Light area on the fateful day and where she was interrogated by the “Masi”. At the relevant point of time all the accused persons fled away. At the relevant point of time all the accused persons fled away. It was further admission of Mampi that on 21.09.2006 she was 17 years old and a student of Class – X. Mampi was crossexamined at length by the learned Lawyer for the defence who conducted the trial in the Court below and during the course of her cross-examination Mampi categorically admitted that prior to the incident she had a love affair with Niloy Modak. Even it was further admission of Mampi in her cross-examination that she and Niloy used to meet at way to her school and also talked in mobile phone. Mampi further contended that on the date of occurrence Niloy suggested her to go to Kalna which was initially refused by Mampi but as per her statement as she was in love with Niloy so she went with her willfully. More or less at the concluding portion of Mampi Sikari’s cross-examination I like to mention that following sentence “My parents informed I.O. that the father of Niloy assured us that he would give marriage of Niloy with me and he told us not to attend medical examination for ossification test.” P.W. 2 Joyotsna Sarkar was a resident of Kadamtala though she was not remember the date, yet she contended that in the noon time she noticed one young girl was coming with three young men in a rickshaw. P.W. 2 further contended that said young girl demanded some water and on seeing that young girl with the three unknown persons P.W. 2 informed Dipika, Sandhya and Lata as a result Dipika rushed to the place and began to question the said girl. Joyotsna Sarkar (P.W. 2) has failed to identify the accused person on dock and she categorically admitted that it was not possible for her to say whether the accused person standing on the dock were the said three young men who brought the girl to Kalna Red Light area. Finding no other alternative learned State Advocate declared P.W. 2 hostile and she will remain unshaken during the course of the cross-examination. P.W. 3 and P.W. 5 are the employee of the N.G.O. named Durbar Mohila Samanwaya Committee. Finding no other alternative learned State Advocate declared P.W. 2 hostile and she will remain unshaken during the course of the cross-examination. P.W. 3 and P.W. 5 are the employee of the N.G.O. named Durbar Mohila Samanwaya Committee. According to P.W. 3 it is duly corroborated by P.W. 5 Joyotsna Sarkar (P.W. 2) brought a girl to the office of Durbar Mohila Samanwaya Committee and on interrogation the girl contended that she was a student of Class – X and three young men brought her to Kadamtala. According to P.W. 3 as well as P.W. 5 all the three persons fled away. P.W. 3 as well as P.W. 5 have stated to the Court below that they were not in a position to remember the name of the girl and the three accused persons. Though the girl has stated her name and name of the three accused persons to her. The reason cited by them was that they have forgotten their name. P.W. 4 and P.W. 6 happens to be the parents of Mampi (P.W. 1). According to P.W. 4 Mampi left the house for B.D.O. office but she did not return back. In the afternoon she received a phone call from Kalna Red Light area wherefrom she came to know that her daughter is in detain in the office of the B.D.O. of the said area. According to the father of Mampi, Apurba, Rebati and Niloy the three accused persons induced his daughter to go for outing at Kalna thereafter being influenced by their misrepresentations she went to Kalna with them. Mampi’s father stated that the said three persons rented a room in the said Red Light area and on seeing the minor girl local Masis informed Durbar Mohila Samanwaya Committee and they rescued her daughter (P.W. 1). During the course of cross examination it is quite peculiar to note that Mampi’s father Arun (P.W. 6) contended that he cannot recollect whether police interrogated him or not. He was not in a position to say the date of birth of his daughter. It is further stated that when his daughter did not come back to the house within reasonable time he did not conduct any search in the locality which is quite unusual in normal condition. He was not in a position to say the date of birth of his daughter. It is further stated that when his daughter did not come back to the house within reasonable time he did not conduct any search in the locality which is quite unusual in normal condition. Even he admitted that he did not state to police that he became anxious as his daughter did not come back to the house within a reasonable period. The conduct of manner and demaneour of Mampi’s father is quite suspicious and it is more or less clear that Arun (P.W. 6) father of Mampi (P.W. 1) deliberately concealed some facts further more according to the mother (P.W. 4) of Mampi (P.W. 1) Mampi left the house for B.D.O. Office whereas the father of Mampi (P.W. 6) has stated that accused persons persuaded Mampi to go with them on false representations. There was a gulf of difference in the ocular version of Mampi’s mother Uttara Shikari (P.W. 4) and Mampi’s father Arun Shikari. So far Mampi’s departure from the house is concerned. 6. The remaining two P.W.s namely brother of the defacto complainant Mampi and her relation Girish have practically stated nothing which will help the prosecution case. According to the P.W. 7 who used to reside in the house of her parents along with Mampi failed to identify Niloy and so far other witness is concerned, all are practically heresy. P.W. 10 Gopinath is I.O. of this case conducted investigation of this case seized some relevant documents and after completion of investigation submitted charge sheet against Niloy, Apurba and Rebati. I.O. during the investigation of this witnesses seized the copy of the Mampi’s birth certificate under Seizure list and after completion of investigation submitted charge sheet against the accused person. 7. Now only point for consideration is whether the prosecution has been able to bring home the charge leveled against Niloy Modak under Section 363/366 I.P.C. 8. After going through the judgment it appears that learned Trial Court acquitted Apurba and Rebati and convicted Niloy for commission of offence under Section 363 I.P.C. and sentencing him for R.I. for five years and to apy fine of Rs. 1,000/-I.D. to undergo S.I. for three months. 9. After going through the judgment it appears that learned Trial Court acquitted Apurba and Rebati and convicted Niloy for commission of offence under Section 363 I.P.C. and sentencing him for R.I. for five years and to apy fine of Rs. 1,000/-I.D. to undergo S.I. for three months. 9. Out of the ten witnesses examined so far as I pointed out earlier the ocular version of Mampi’s brother P.W. 7 and that of her uncle P.W. 8 have practically no value in the eye of law. In this juncture I like to mention that even Mampi’s brother who used to stay with Mampi in a village like Samudragarh failed to identify Niloy Modak. So it is useless to place any reliance upon the ocular version of P.W. 7 and P.W. 8. The essential ingredients in order to bring home the charge leveled against the accused person it must be proved that the accused did (a) forcible compulsion of inducement by deceitful means, (b) object of such compulsion or inducement must be going of a person from any place it should be proved that the accused has either taken away or enticed away the minor, (c) the said minor if male was under 16 years of age or if a female was under 18 years of age on the date of taking enticing and (d) that such taking or enticing has been made out of keeping of a lawful guardian or a defacto guardian lawfully entrusted with the keeping of the minor without the consent of such guardian. 10. So, in order to protect the commission of offence under Section 363 I.P.C. it must be proved that the victim is minor and she was taken away from her lawful guardian. In the instant case Mampi, the defacto complainant had a love affair with Niloy Modak is according to her evidence she went to B.D.O. office for correction of the ration card and on the way to B.D.O. Office she met one Apurba Biswas who asked her to meet Niloy. Mampi further stated that she met Niloy and with whom she went to Kalna about 20 K.M. away (from my personal knowledge) from Samudragarh. Mampi categorically admitted not only during his examination in chief but also in her cross-examination that she has a love affair with Niloy. Mampi further stated that she met Niloy and with whom she went to Kalna about 20 K.M. away (from my personal knowledge) from Samudragarh. Mampi categorically admitted not only during his examination in chief but also in her cross-examination that she has a love affair with Niloy. Even it was in the evidence that Mampi refused to attend the ossification test at the behest of her parents who has stated that they will arrange the marriage of Mampi and Niloy. If we turn our attention to the First Information Report we find that First Information Report was written by Mampi who happens to be a student of Class – X but I have some doubt about the recital of the First Information Report because the same was well drafted and though it was mentioned that there was a love affair in between Mampi and Niloy yet the same was duly covered so that the ingredients of Section 363 may be attracted. 11. After going through the aforesaid discussion let me concentrate my attention on the age of the victim. I.O. (P.W. 10) seized the admit card of P.W. 1 Mampi and as per the admit card she was born on 01.04.1989 i.e. on the date of commission of offence she was 17 years and nearly six months old. If we confined our attention strictly to the dictionary meaning of the words minor then Mampi was minor on the date of commission of the offence. But other ingredients are concerned it is crystal clear that there is no inducement on the part of Niloy to take Mampi from her parents. The conduct of Uttra Shikari (P.W. 4) the mother of the victim and Arun Shikari (P.W. 6) clearly indicates that they have not made any attempt to search for Mampi. Though the girl did not return back home on that very day. Even from the evidence of P.W. 4 coupled with P.W. 6 and ably submitted by P.W. 7 and P.W. 8 they have not lodged any missing diary to the local P.S. Their conduct suggested that and they are more or less sure that Mampi left the home with her lover Niloy. So the ingredients of inducement is missing. Joyotsna Sarkar, P.W. 2 is a pimp or a Masi of a Red Light area of Kalna. So the ingredients of inducement is missing. Joyotsna Sarkar, P.W. 2 is a pimp or a Masi of a Red Light area of Kalna. According to her ocular version she handed over the young girl to Durbar Mohila Samanwaya Committee and at the very juncture that young girl was accompanied by three young men but she has failed to identify those three young men whether those three young men Niloy, Rebati and Apurba or not is not sure from the ocular version of Joyotsna Sarkar. Rest witnesses i.e. P.W. 3, P.W. 5 and P.W. 9 are the member of the Durbar Mohila Samanwaya Committee. P.W. 9 on the date of incident came to the Kadamtala Red Light area at Kalna and she was informed by P.W. 2 Joyotsna Sarkar that the girl of tender age with some boys had come to the shop of P.W. 2 and they are asking for a room. It is curious enough to note that Dipika Mukherjee, P.W. 9 suggested that the pimp i.e. P.W. 2, Masi of the Red Light Area Joyotsna could not identify the accused person. In this type of cases the identification of the accused is must. Without any identification it was quite difficult for the Court to come to a definite conclusion that those young men are Niloy, Rebati and Apurba. They kidnapped Mampi, the young minor girl and took her to the Red Light area. On the contrary as per the ocular version of Mampi she had a love affair with Niloy and left with Niloy with her own accord. So, in this case I do not find any reason to come to the conclusion that the accused person kidnapped Mampi and induced her and did the same without the consent of her lawful guardian. 12. From the Lower Court Records it appears that on 25.09.2006 Niloy was in custody filed two affidavits one shown by defacto complainant Mampi on 25.09.2006 and another by accused Niloy Modak on 16.10.2006 and in the recital of the said affidavit as reflected from the Lower Court Records that the guardian of Mampi and Niloy amicably settled the matter and it was decided that they would arrange marriage in between Niloy and Mampi as a result the defacto complainant is not willing to proceed with the case. But all these happenings took place after the lodging of First Information Report and after completion of investigation even a Misc. Case under Section 125 Cr.P.C. was filed by Mampi against Niloy for alimony. 13. As per the learned Court below Mampi was taken away outing by Niloy and subsequently she was brought to a Red Light area with ill motive. Now my question is who brought Mampi to the Red Light Area because neither Joyotsna Sarkar nor any member of the Durbar Mohila Samanwaya Committee have been able to identify Niloy. So there is a doubt about the presence of Niloy at the relevant time. Moreover, at the time of commission of offence Mampi was nearly 18 years old and in my opinion she almost reached age of majority and understand what is good for her. In this context it is pertinent to mention that accused person filed a certified copy of an application in the Court below stating inter alia that defacto complainant filed an application under Section 125 Cr.P.C. claiming maintenance stating inter alia that she is legally married wife of the accused Niloy Modak and Niloy being her husband refused and/or neglect to maintain her. These are in a nutshell the prosecution relied upon the conviction. It was the observation of the Court below that Niloy deliberately made false statement when he was examined under Section 313 Cr.P.C. It was the observation of the Court below that Niloy deliberately made false statement and even he refused to recognized Mampi. In this context I like to mention that accused has the right not to open his mouth or to say anything. It is not made that the refusal to answers or a false answer is a substitute for evidence that prosecution must produced to prove the guilt to section does not in any way lighten the burden of the prosecution. The utmost that can be said is that by not answering or by answering falsely the accused leads the point against him unexplained and silence must never be allowed to be a substitute for proof by prosecution. If the prosecution evidence is unreliable the silence of the accused or false statement can never be substituted for proof of prosecution. 14. In this case from the aforesaid discussion it is crystal clear that there was love affair in between Niloy and Mampi. If the prosecution evidence is unreliable the silence of the accused or false statement can never be substituted for proof of prosecution. 14. In this case from the aforesaid discussion it is crystal clear that there was love affair in between Niloy and Mampi. Mampi left her house out of her own accord with Niloy. It was the prosecution story that Niloy with his friend took Mampi to the Red Light area and caught red handed but to my otter surprise and disbelieve neither the pimp or Masi of the red Light area or the member of the Durbar Mohila Samanwaya Committee has been able to identify Niloy or other accused person on dock. No endevour were shown by the I.O. of this case to produce the accused for T.I. parade and investigation was done in a very casual manner. Though learned court below convicted Niloy on the basis of the false statement under Section 313 Cr.P.C. are the recital of the affidavit filed in Court but I like to mention that Mampi to that extent was also responsible because she has also filed the same type of affidavit. I failed to understand why learned Court below does not refer the conduct of the lawyer to the Bar Council for misleading the Court. However, it is the Court below to judge the entire situation but the fact remains that Mampi was not kidnapped from her natural guardian. That was crystal clear from the conduct of Mampi’s parents and brother and uncle. There are no inducement on the part of the accused person. It was not proved beyond doubt that Mampi was taken to the Red Light area by the accused person. The witnesses i.e. Masi of the Red Light Area and the members of the Durbar Mohila Samanwaya Committee has miserably failed to identify the accused person on dock and at last but not the least application under Section 125 of Cr.P.C. was filed in the Court below by Mampi claiming herself as a wife of Niloy. In addition to this at the time of commission of offence Mampi was more or less major. 15. In addition to this at the time of commission of offence Mampi was more or less major. 15. Considering each and every aspect I think that it is quite difficult for this court to uphold the judgment passed by learned Court below that there are several lacuna in the prosecution case yet the submission made by the learned State Advocate should be appreciated in such a weak case. 16. Considering the aforesaid discussion the accused are found not guilty to the charge and they are set at liberty at once.