JUDGMENT : Anant S. Dave, J. 1. Criminal Appeal No. 1102 of 2011 is preferred by the State of Gujarat/appellant under Section 377 of the Code of Criminal Procedure, 1973 against the judgment and order of sentence passed by the Special Judge, Patan in said Atrocity Case No. 2 of 2011 on 30th June, 2011 for the offence punishable under Section 363, 366 of Indian Penal Code and Section 3(1)(12) and Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The learned trial Judge acquitted the respondent-accused of offence under Section 376 of Indian Penal Code. However, convicted for Section 363 of Indian Penal Code imposed 3 years of rigorous imprisonment and fine of Rs. 500/- and default thereto to undergo 9 months of simple imprisonment. For the offence punishable under Section 366 of Indian Penal Code having recorded the conviction imposed 4 years of rigorous imprisonment fine of Rs. 500 and default thereto 1 year of simple imprisonment. Further for the offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act to which mention is made herein above having recorded the conviction imposed sentence of 6 months of rigorous imprisonment fine of Rs. 500 and default there to 1 month of simple imprisonment. All the sentence to run concurrently and awarded compensation under Section 375(3) of Code of Criminal Procedure, that accused is to pay the fine. 2. Criminal Appeal No. 995 of 2011 is preferred by the convict appellant challenging the conviction and sentence so recorded to which, mention is made in earlier paragraph appeal is under Section 374(2) of Code of Criminal Procedure, 1973. 3. The brief facts of the prosecution case is that the complainant Parsottambhai Maganbhai Parmar, registered his complaint at Kakoshi Police Station, Dist: Patan, stating therein that on 5.11.2010, the accused Thakor Dineshbhai Balvantji knowing that the daughter of complainant was belonging to scheduled castes, in furtherance of his criminal intention by giving false temptation, abducted the daughter of complainant from the lawful custody of her parents without her will and consent, and with an intention to commit sexual intercourse with her, took her to Kalol by inducing her and committed rape on her very often. Thereby, the accused committed offences punishable under Sections 363, 366, 376 of Indian Penal Code and Section 3(1)(12) and 3(2)(5) of Prevention of Atrocities Act. 4. Thereby, the accused committed offences punishable under Sections 363, 366, 376 of Indian Penal Code and Section 3(1)(12) and 3(2)(5) of Prevention of Atrocities Act. 4. On the basis of the said complaint, investigation was initiated and as there was sufficient evidence against the respondent-accused person, charge sheet was filed against him before the learned Judicial Magistrate First Class, Patan. As the offences committed by the accused person was exclusively triable by the Court of Sessions as per the provisions of 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial before the Special Judge, Patan, which has been numbered as Special (Atrocity) Case No. 2/11. Thereafter, charge was framed against him for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code and Section 3(1)(12) and 3(2)(5) of the Indian Penal Code. The accused person pleaded not guilty to the charges and claimed to be tried. The prosecution therefore laid evidence. The prosecution has examined 11 witnesses as well as produced 19 documentary evidences on the record of the case. At the conclusion of the trial, Special Judge, Patan was pleased to convict the accused and imposed punishment. 5. We have heard learned advocates appearing for the convict and learned APP in both these appeals. 6. Mr. Siddarth Dave, learned advocate for the appellant for the convict in Criminal Appeal No. 995 of 2011 under Section 374(2) of Code of Criminal Procedure, 1973 would contend that inspite of examining 11 witnesses and producing 19 documentary evidence, the prosecution was not able to establish its case even though learned trial Judge has convicted the accused-respondent for the offence under Section 363, 366 of Indian Penal Code and acquitting under Section 376 of Indian Penal Code. Learned advocate has taken us to Sections 361, 363 and 366 of Indian Penal Code and submitted that even on the basis of all evidence basic ingredients of Section 361 remained unestablished and conviction and sentence so ordered and recorded under Sections 363 and 366 by learned trial Judge based on conjunctures and surmises and therefore, interference by this Court is solicitated. It is submitted that victim no doubt below the age of 18 years in no uncertain terms deposited that she was not taken away or enticed by accused and she had left her parental home or lawful guardianship on her volition. On the contrary it goes on record that accused had accompanied her at various places at her instance and she was not forcibly taken, unduly influenced or coerced in any manner. It is submitted that the victim was above 16 years of age who stayed and travelled together with convict well supported with evidence in this regard, for which, no conviction and sentence could have been recorded and ordered. Learned advocate for the applicant has taken us to the testimonies of victim P.W. 5 and her cross examination coupled with other testimonies of police personnel P.W.'s. 8, 10, 11 and also by P.W. 1 who happened to be doctor of Civil Hospital, Mehsana. It is submitted that throughout only evidence that appears on record is in favour of the accused of not committing any crime. It is submitted that appeal be accordingly allowed by quashing and setting aside conviction and sentence recorded by learned trial Judge for different offence under Indian Penal Code and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 7. Mr. Rutvik Oza, learned APP while opposing the above appeal for quashing and setting aside the conviction and sentence so recorded and ordered and also arguing criminal appeal for enhancement under Section 377 contended that though ample material existed, learned trial Judge has failed to appreciate the gravity of offence and lesser sentence is imposed. Learned APP has taken us to provisions of Sections 363, 366 which provide punishment of kidnapping and abducts any woman and compel her for marriage etc. and submitted that victim being a minor aged around 16.2. years was not in a position to understand the consequence of her act and accused being a married man aged around 24 years and hailing from upper caste was not in a position to domain the minor victim admittedly belonging to 'chamar' community and, therefore, prosecution has established its case based on evidence so produced. It is submitted that materials come on record to show that victim had not left her parental home unilaterally but she was influenced and induced by respondent and, therefore, learned Judge has rightly convicted the accused. It is submitted that materials come on record to show that victim had not left her parental home unilaterally but she was influenced and induced by respondent and, therefore, learned Judge has rightly convicted the accused. At the same time, sentence is not adequate and need to be enhanced. According to learned APP findings recorded by learned trial Judge in paras 32 and 33 about manner in which accused, a married man aged 24 years dominated the victim with whom he stayed for number of days and thus, influenced her and committed crime and, therefore appeal preferred by the State for enhancement under Section 377 deserves to be allowed as prayed for and appeal filed by the convict under Section 374(2) of Code of Criminal Procedure, 1973 for setting aside conviction deserves to be rejected. 8. Having heard learned advocate for the convict in both these appeals and learned APP, perusal of the record of the case and judgment of conviction and sentence under challenge, there is no dispute about acquittal of accused under Section 376 of Indian Penal Code and both these appeals are confined thus an arena of conviction and sentence ordered under Sections 363, 366 of Indian Penal Code and Section 3(1)(12) and Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 9. A perusal of complaint, no doubt reveal that victim was taken away or even enticed by accused but investigation carried out pursuant to registration of complaint including statements recorded of witnesses, doctors who had examined the victim medical certificates issued by medical officer of community health centre, Kakoshi Exh. 24, medical certificate issued by General Hospital, Mehsana at Exh. 14 and testimonies of P.W. 1 Dr. Ramesh Shah at Exh. 13, Dr. Vishnu P.W. 3 Exh. 21 ruled out any ingredient of Sections375 and 376 of Indian Penal Code and acquittal of accused for the above offence, no second view is possible and accused is rightly acquitted. Upon examination of Sections 361, 363, 366 of Indian Penal Code and Section 3(1)(xii) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the Sections reads as under: "361. Upon examination of Sections 361, 363, 366 of Indian Penal Code and Section 3(1)(xii) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the Sections reads as under: "361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.-The words "lawful guardian" in this section include any person lawfully entrusted with the care of custody of such minor or other person. Exception.-This section does not extend to the act of any person who is good faith believes himself to be the father of an illegitimate child, or who is good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. 363. Punishment for kidnapping. - Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.-Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Punishments for offences of atrocities. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Punishments for offences of atrocities. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed; (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;" 10. The law about interpretation of Section 361 is no more res-integra inasmuch as the Apex Court in the case of S. Varadaraj v. State of Madras [ AIR 1965 SC 942 ] as deliberated and word "taking" out of lawful guardianship so found in Section 361 of Indian Penal Code was interpreted and in paras 9 and 10 held as under: "9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can 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. 10. 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. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"." 11. That was also a case of a minor girl at her volition accused had accompanied her and got the agreement of marriage registered with the office of Sub Registrar and victim in the said case also admitted that she had informed the accused to join her and both of them had gone to a place where the accused was waiting in the car to accompanying her. In this case, the victim in her chief and cross examination unequivocally stated that neither she was taken nor enticed by accused and at her instance accused had accompanied her and they travelled and stayed together. During the period of co-habitation, no undue pressure was exerted even no inducement or any kind of threat etc. on the part of accused that coupled with the above other witnesses and documentary evidence, no where lead case of the prosecution for recording conviction and ordering sentence of convict under Section 363and/or 366 of Indian Penal Code. During the period of co-habitation, no undue pressure was exerted even no inducement or any kind of threat etc. on the part of accused that coupled with the above other witnesses and documentary evidence, no where lead case of the prosecution for recording conviction and ordering sentence of convict under Section 363and/or 366 of Indian Penal Code. Had learned Judge addressed himself to basic ingredients of Section 361 patient prescribed thereby and Section 366 of Indian Penal Code head-note it would have been clear that there was no promise to marry the victim or to commit any further illegal things etc. with victim. It remains undisputed that accused belong to caste other than scheduled caste while victim belong to scheduled caste but that fact itself is not sufficient to bring home the charge about dominant position of accused in juxtaposition to Section 3 which provide for punishment for atrocities and for the present case Section 3sub-section (2)(5) and Section 3 sub-section (1)(XII) the above section if closely read and findings of learned trial Judge at the end of analysis and appreciation of evidence nowhere connect accused with offence even under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 12. We are in agreement with the decision relied on by learned advocate for the defence reported in the case of Ramdas and Ors. v. State of Maharashtra [ (2007) 2 SCC 170 ] and in absence of adducing any evidence to prove commission of any offence under Section 3(2)(1) mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract even provisions of the Act and the conviction recorded deserves to be quashed and set aside. 13. Thus, in a case where the accused is rightly acquitted of Section 376 of Indian Penal Code, we find that prosecution has failed to bring home charge even under Sections 363,366 of Indian Penal code and also under Section 3(1)(12) and Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, warranting interference in Criminal Appeal No. 995 of 2011 filed by the convict under Section 374(2) of the Code of Criminal Procedure, 1973 and accordingly, the judgment and order dated 30.6.2011 passed by learned Special Atrocity Judge, Patan in Special Atrocity Case No. 2 of 2011 is therefore quashed and set aside. Criminal Appeal No. 995 of 2011 is allowed to the extent as above, that the appellant-convict is acquitted of the charges levelled against him under Sections 363 and 366 of Indian Penal Code and under Sections 3(1)(12) and 3(2)(5)of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The appellant-convict shall be set at liberty forthwith if not required in connection with any other offence. 14. Criminal Appeal No. 1102 of 2011 filed by the State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973 against the order of sentence passed by the Special Judge, Patan in Special (Atrocity) Case No. 2/2011 on 30.06.2011 for the offences punishable under Sections 363, 366 of Indian Penal Code and Section 3(1)(12) and 3(2)(5)of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, for enhancement is dismissed. 15. Bail bond, if any, shall stand cancelled. 16. R & P to be sent back to the trial Court forthwith.