JUDGMENT 1. These Criminal Appeals are filed against the judgment and conviction passed in S.C. No. 2 of 2007, dated 26.12.2007 by the learned Sessions Judge, Mahalir Neethimandram, Tirunelveli, Tirunelveli District, convicting the appellants for the offences under Sections 341, 366(A) r/w 34 of IPC and Section 4 of Tamil Nadu Prevention of Harassment of Women Act and sentenced them to undergo one month simple imprisonment for the offence under Section 341 IPC, 5 years rigorous imprisonment with a fine of Rs. 3,000/- each in default to undergo 3 months simple imprisonment for the offence under Section 366(A) r/w 34 of IPC and 2 years rigorous imprisonment with a fine of Rs. 2,000/- each in default to undergo 3 months simple imprisonment for the offence under Section 4 of Tamil Nadu Prevention of Harassment of Women Act. 2. The case of the prosecution in brief is as follows:- PW-2 is stated to be the victim, aged, 17+ years, at the relevant point of time and studying +2 and PW-3 is her sister. On 21.08.2006, at about 8.45 a.m. while PWs. 2 and 3 were proceeding to school, the first accused came in a car bearing Regn. No. TN-22H-0673 and forcibly took PW-2. Thereafter, the second and third accused alighted from the car after some time. PW-3 informed the same to her father PW-1. PW-1 lodged a complaint/Ex.P.1 before the Sankarankovil Police Station. PW-8 Head Constable, attached to Sankarankovil Police Station, on receipt of Ex.P.1, registered a case in Cr. No. 424/2006 under Sections 341 and 366(A) I.P.C. under Ex.P.12. PW-9 Inspector of Police attached to Sankarankovil Police Station took up the case for investigation and proceeded to the place of occurrence and investigated the witnesses and prepared a rough sketch (Ex.P.13) and observation mahazar. In continuation of the investigation, PW-4 uncle of the victim, accompanied PW-9 to identify the accused persons. While PW-9 on regular vehicle check up, found the car along with A-1 in the place called Krishnapuram Vilakku main road. Thereafter, A-1 was arrested and other accused were subsequently arrested. In the mean while, PW-7 doctor examined PW-2 and issued an Age Certificate-Ex.P.11. X-Ray report (M.O.2 series) stated that PW-2 was above 17 years and below 18 years. While PW-9 on regular vehicle check up, found the car along with A-1 in the place called Krishnapuram Vilakku main road. Thereafter, A-1 was arrested and other accused were subsequently arrested. In the mean while, PW-7 doctor examined PW-2 and issued an Age Certificate-Ex.P.11. X-Ray report (M.O.2 series) stated that PW-2 was above 17 years and below 18 years. PW-9, after completing the investigation, filed a final report against all the accused under Sections 341, 366(A) r/w 34 I.P.C. and Section 4 of the Tamil Nadu Prevention of Harassment of Women Act. 3. Before the Trial Court, on the side of the prosecution, PW-1 to PW-9 were examined and Exs.P1 to 13 were marked, besides M.O.1 and M.O.2. On the side of the appellants, no oral and documentary evidence was marked. On questioning under Section 313 Cr.P.C. the accused persons denied charges. Based on the evidences and materials, the trial Court found the accused guilty as stated supra. Aggrieved over the same, the accused have come out with these Criminal Appeals. 4. Heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the respondent. 5. The main contention of learned counsel appearing for the appellants is that the alleged kidnap projected by the prosecution is a motivated one, at the instance of PW-4. The evidence of PW-1 and other witnesses shows that the family of the accused and victim are close relatives and in order to avoid such relation, prosecution has been laid against the accused. 6. The learned counsel appearing for the appellants would further contend that there are contradictions in the evidence of PWs. 2 and 3. PW-2 in her evidence has stated that on the date of occurrence, she and her sister were going to school together. But, PW-3 in her evidence has stated that since PW-2 was studying +2, she used to go to school 1 hour earlier. This itself indicates that she is not an eye witness to the occurrence and PW-2 has voluntarily accompanied the first accused. In fact, that has probablized the defence theory that there was love affair between the victim and first accused. A-2 and A-3 were merely implicated, since they are the friends of A-1. Hence, he prays for acquittal. 7. This itself indicates that she is not an eye witness to the occurrence and PW-2 has voluntarily accompanied the first accused. In fact, that has probablized the defence theory that there was love affair between the victim and first accused. A-2 and A-3 were merely implicated, since they are the friends of A-1. Hence, he prays for acquittal. 7. Whereas, the learned Additional Public Prosecutor appearing for the respondent would submit that PW-2 was forcibly taken away by the accused in a car from the place of occurrence. This version was also corroborated by the evidence of PWs. 1, 3 and 4. The evidence of PW-7-Doctor also proves that PW-2 is below 18 years. Hence, he submitted that the trial court has assessed both the oral and documentary evidence carefully and convicted the accused rightly and hence, prayed for dismissal of the appeals. 8. In the light of the above submissions and the materials perused, it has to be decided whether the prosecution has set the law in motion, on the basis of the complaint/Ex.P.1 given by PW-1 on the same day. 9. It is the evidence of PW-1 that PWs. 2 and 3 are his daughters. When they were going to school in the morning hours, the first accused came in M.O.1 car along with the second and third accused and forcibly kidnapped PW-2 in the car. Therefore, he lodged a complaint. PW-2 in her evidence also supported the version of PW-1. PW-3 also supported the version of PW-1. 10. On a careful scanning of the evidence of PWs. 2 and 3, it makes clear that for PW-2, classes started one hour prior to PW-3 classes. Hence, it is clear that PW-2 should go to school earlier. Though PW-3, in chief-examination, has stated that she and PW-2 went to school at the same time, in her cross-examination, she denied the above version. Therefore, the prosecution theory that while PW-2 was forcibly taken in a car, PW-3 was present is highly doubtful. Further, the evidence of PWs. 2 and 3 clearly indicate that there were more students in the place of occurrence, moving to the school at the relevant point of time. Had the alleged kidnap taken place at the place of occurrence, the students would have definitely made a hue and cry, but none of them raised any alarm. Further, the evidence of PWs. 2 and 3 clearly indicate that there were more students in the place of occurrence, moving to the school at the relevant point of time. Had the alleged kidnap taken place at the place of occurrence, the students would have definitely made a hue and cry, but none of them raised any alarm. Hence, the theory of kidnap is also a doubtful one, since the family of the accused and victim were closely related and since there was love affair between them and it was too objected by the family members particularly by PW-4. 11. Though PW-2 has stated in her evidence that she was forcibly taken in a car at 8.45 a.m. she was secured by PWs. 4 and 9 at 3.45 p.m. on the same day. Her evidence clearly indicates that the car was stopped and juice was purchased, while she was in the car and she has also consumed the juice purchased by the accused. This aspect probablize the defence theory that there was consent on the part of PW-2 for accompanying the accused. If really PW-2 was forcibly kidnapped, it is highly improbable to contend that the accused had parked the vehicle somewhere else and purchased the juice. If such a situation was there, the conduct of PW-2 would have been otherwise. When the car was stopped for purchasing the juice, she would have definitely made an attempt either to escape from the car or to make a cry to attract the attention of the shop keepers. But she remained silent. She has not made any screaming or sought any help. Further, PW-2 in her evidence has stated that she was forcibly taken in the car by all the accused and subsequently, after some time, second and third accused got down immediately. As per the evidence of PW-2, it is clear that the first accused was driving the car and she was travelling in the car. At that time, no drugs were administered to her. When she was lonely travelling, no drugs were administered to her and her hands were not tied, she would not have kept quiet, she would have made some attempts even to open the door to attract the attention of the public in the road side, but she has not made any attempt. When she was lonely travelling, no drugs were administered to her and her hands were not tied, she would not have kept quiet, she would have made some attempts even to open the door to attract the attention of the public in the road side, but she has not made any attempt. This fact clearly probablize that she was a consenting party and she voluntarily accompanied the first accused. Her age at the relevant point of time was 17+ years, but no School Certificate has been produced. In ossification test, it was determined that her age is above 17 and below 18. Therefore, there cannot be any certainty in fixing the age of PW-2. There may be a margin of two years on either side. Therefore, the age relied on by the prosecution has also not been established. 12. Considering the conduct of PW-2 being remained silent, without making hue and cry, when the car was stopped and juice was purchased from the shop and given to her, when A-1 only was driving the car, the defence theory is clearly established. Further the evidence of PW-1 clearly indicates that the first accused is closely related to his family. This fact has been suppressed by the prosecution. Only during the cross-examination, those facts have been unearthed by the accused. Further, there are no materials or evidence available on the side of the prosecution even to infer that PW-2 was kidnapped or removed with an intent that she was forced or seduced to make illicit intercourse. That being the position, the charge under Section 366(A) of I.P.C. cannot be pressed into service. Even to prove the charge under Section 366 I.P.C. there must be evidence to show that she was kidnapped for the purpose of compelling to marry any person against the will or she may be forced or seduced to make illicit intercourse with such a person. But the prosecution side evidence does not satisfy any of the ingredients. Hence, the offence under Section 366(A) I.P.C. has not been attracted. At the most, the evidence of PW-2 is believable only for the offence under Section 363 I.P.C. and hence, the offence under Section 363 I.P.C. alone would be attracted. But already discussed, since PW-2 has voluntarily accompanied the first accused, the love affair projected by the defence is also probablized. 13. At the most, the evidence of PW-2 is believable only for the offence under Section 363 I.P.C. and hence, the offence under Section 363 I.P.C. alone would be attracted. But already discussed, since PW-2 has voluntarily accompanied the first accused, the love affair projected by the defence is also probablized. 13. In view of the above, I am of the view that the accused cannot be convicted for any of the charges. Accordingly, the conviction rendered by the trial court against all the accused is liable to be set aside. 14. In the result, Crl. A. (MD) No. 18 and 59 of 2008 are allowed; the conviction and sentence imposed on the appellants, in S.C. No. 2 of 2007, dated 26.12.2007, by the learned Sessions Judge, Mahalir Neethimandram, Tirunelveli, Tirunelveli District, are set aside and the appellants are acquitted. Fine amount, if any, paid by the appellants shall be refunded to them. The appellants are directed to be released forthwith, unless their custody is required in connection with any other case. Bail bond executed by the appellants and the sureties shall stand terminated.