JUDGMENT : Heard learned counsels for the appellants, Mr. Ashok Kr. Jha and Mr. Devesh Krishna as well as Mrs. Niki Sinha, Additional Public Prosecutor appears for the State. 2. Parwatia Devi @ Jhopri Devi and Kishore Oraon have preferred separate appeals against the judgment of conviction dated 5.9.2003 and order of sentence dated 12.9.2003 passed by the Additional Judicial Commissioner, Fast Track Court VII, Ranchi in Sessions Trial No. 569 of 2002 whereby the appellants Parvatia Devi @ Jhopri Devi and Kishore Oraon have been convicted u/s 363 and 366 A of the Indian Penal code and by the same judgment co-accused namely Kiran Orain has been acquitted. The learned trial court has convicted both the appellants for the offence punishable u/s 363 and 366 A of the Indian Penal Code by awarding sentence of RI for 5 years and fine of Rs. 2000/- each and in default to payment of fine to undergo S.I. for 6 months both the sentences are directed to run concurrently. 3. Being aggrieved by the judgment of conviction and order of sentence both the appellants preferred separate appeal. Parwatia Devi @ Jhopri Devi has preferred Criminal Appeal (SJ) No. 3 of 2004 whereas the Kishore Oraon has preferred Criminal Appeal (SJ) No. 1485 of 2003. 4. The prosecution case, as stated in the fardbeyan is based upon the written report submitted by the Bigu Oraon, father of the victim, before the Officer In-charge at Nagri O.P., P.S. Ratu about enticing of his minor daughter. The informant has stated, that his minor daughter Punia Kumari aged about 15 years has been enticed by Parwatia Devi @ Jhopri Devi daughter of Ropan Munda of Jarra Toli eight months ago by saying that she will provide her job. But, since then there is no information about his daughter. The informant has further stated, that he has tried his best to search his daughter but could not get whereabouts of his daughter. Thus he came to the police station for legal action. 5. On the basis of the written report, FIR was registered as Ratu PS Case No. 66/2002 dated 01.06.2002 instituted u/s 363 of Indian Penal Code and after investigation police submitted charge sheet vide charge sheet No. 85/2002 dated 10.07.2002 filed U/S 363,366(A)/34 of Indian Penal Code against three persons namely Parwatia devi @ Jhopari Devi, Kiran Orain and Kishore Oraon. On the basis of the written report, FIR was registered as Ratu PS Case No. 66/2002 dated 01.06.2002 instituted u/s 363 of Indian Penal Code and after investigation police submitted charge sheet vide charge sheet No. 85/2002 dated 10.07.2002 filed U/S 363,366(A)/34 of Indian Penal Code against three persons namely Parwatia devi @ Jhopari Devi, Kiran Orain and Kishore Oraon. Cognizance of the offence has been taken and the case was committed to the Court of Session. Charge has been framed against all three accused namely Parwatia devi @ Jhopari Devi, Kiran Orain and Kishore Oraon u/s 363/34 and 366(A) /34 of the Indian Penal Code on 05.11.2002 by the learned 5th Additional Judicial Commissioner, Ranchi, to which the appellants have pleaded that they are innocent and thus they were put on trial. 6. The prosecution has examined altogether 11 witnesses and also adduced documentary evidence as Ext.1, which is the signature on FIR and Ext. 2 is the formal FIR. After recording the statement of the appellants u/s 313 Cr.P.C. on 16.07.2003, the defence has neither examined any witness nor adduced any documentary evidence. After hearing the counsel for the parties and on the basis of material available on record, the trial court has acquitted the accused Kiran Orain from the charges u/s363 and 366 A of Indian Penal Code and no appeal against the said acquittal has been preferred by the State or by the informant. The trial court by the impugned judgment has convicted the appellants u/s 363 & 366 A of the Indian Penal Code and awarded sentence of RI for 5 years under both the heads separately and imposed fine of Rs. 2000/- and in default of payment of fine to undergo simple imprisonment for six months. 7. Both the appellants have separately preferred appeal arising out of the same impugned judgment and as such this Court is passing a common judgment as the entire evidence is common. 8. Mr. Ashok Kumar Jha, learned counsel appearing for the Parwatia Devi @ Jhopari Devi and Mr. Devesh Krishna, learned counsel appearing for the Kishore Oraon have vehemently argued this case. Learned counsels for the appellants have submitted, that impugned judgment of conviction and order of sentence is bad in law as the impugned judgment is perverse and contrary to the material available on record. 9. Devesh Krishna, learned counsel appearing for the Kishore Oraon have vehemently argued this case. Learned counsels for the appellants have submitted, that impugned judgment of conviction and order of sentence is bad in law as the impugned judgment is perverse and contrary to the material available on record. 9. Learned counsels for the appellants have submitted that P.W.-1 Sadho Oraon, son of the informant is not an eye witness to the occurrence. This witness has only said, that his sister was taken by the Parwatia Devi @ Jhopari Devi without permission but he could not disclose the date, when his sister was taken away nor he has said that, where his sister Punia has been taken for providing job. 10. Charwa Oraon another son of the informant has examined as P.W.-2. This witness has stated that his sister has been taken away by Parwatia Devi @ Jhopari Devi without permission. This witness during cross examination at para-11 has stated that Gauri and Sumari had disclosed that Punia was missing on the way from Lamdih railway station. 11. Birsi Orain has been examined as P.W.-3. This witness during her cross-examination has stated that her statement was not recorded by the police nor she know, who has taken Punia. 12. Suko Orain, mother of the victim and wife of the informant has been examined as P.W.-4. This witness during her examination-in-Chief has stated that her daughter aged about 15-16 years has been taken away by Parwatia Devi @ Jhopari Devi. She has further stated in Para-4 of her examination-in-chief, that when Sumari and Gauri returned from the Assam then she could get information that her daughter has been taken away. In para-5 she said that Sumari and Gauri went to Assam for working in the brick kiln and they said that Punia has taken away by Parwatia Devi @ Jhopari Devi. During cross examination at para-9, this witness (P.W. 4) has stated, that Parwatia Devi@ Jhopari Devi had enticed three persons namely Gauri, Sumari and Punia. She was informed by Gauri and Sumari about missing of her daughter Punia. In Para 14 of her cross examination, she has stated that Gauri and Sumari told her about missing of her daughter. In para 16 and 18 of the cross-examination, she has stated that Gauri and Sumari had disclosed that Punia was sold at the station. She was informed by Gauri and Sumari about missing of her daughter Punia. In Para 14 of her cross examination, she has stated that Gauri and Sumari told her about missing of her daughter. In para 16 and 18 of the cross-examination, she has stated that Gauri and Sumari had disclosed that Punia was sold at the station. She has further stated, in para -19 of cross-examination that Gauri and Sumari had disclosed that her daughter Punia along with Gauri & Sumari went to Lamdih Station where, Punia met with a boy, who provide her food and also taken her for picture as he became very friendly with Punia and she went with said boy. 13. M. Saran, ASI of Nagari Police Station, investigation officer of this case has been examined as P.W. 5. This witness has proved the fardbeyan as Ext, 1 and formal FIR as ext. 2. This witness (P.W.5) has arrested the accused persons. Initial FIR was lodged u/s 363 of the Indian Penal Code but subsequently 366 A of the Indian Penal Code has been added. Charge-sheet submitted u/s 363 and 366 A/ 34 of the Indian Penal Code. This witness had categorically stated in paragraph 8 of his cross-examination, that Gauri Mundain and Somari Mundain, after their returning from Assam disclosed about the entire occurrence stating, that Punia Orain was brought to Nawatoli and the two accused persons were there in the house of Sardarni Kiran Orain and Parwatia devi @ Jhopari Devi brought Punia to Nawatoli. Kishore Oraon and other labours reached to the house of the Kirain Orain and from there Kishore Oraon and others went to Hatia Railway Station along with Punia. Kiran Orain also went to Hatia Railway Station. Jhopari Devi @ Parwatia Devi has returned Nawatoli itself. This witness has further stated, that informant has stated before him, that Kishore Oraon along with Punia, Gauri Mundain and 5-6 persons went for Assam, Koylanagar and on reaching Namdih Railway Station they stopped there. In the said journey one unknown person aged about 25 to 26 years was there, who became friendly with the labours and claimed that he is also going to Koylanagar, Assam. He provided them food and showed them picture and also provided them liquor. In the said journey one unknown person aged about 25 to 26 years was there, who became friendly with the labours and claimed that he is also going to Koylanagar, Assam. He provided them food and showed them picture and also provided them liquor. This witness has further stated, that unknown person demanded money from the labours for buying ticket and the said unknown person along with Punia went to purchase railway ticket along with an old man. From there Punia and the unknown person went missing. Other labourers disclosed that Punia went with that unknown persons. This witness has also stated in para 12 of his cross-examination that Etwa Munda (who has been examined in this case as P.W. 6) has said that mother of Punia brought her with food and cloth and she was going as per her sweet will to work at brick kiln. This witness has stated in para 13 of cross-examination, that a number of labours are going to work in brick kiln every year. This witness has categorically stated in para 15 of his cross-examination, that he has not collected the certificate with respect of the age of the Punia. 14. Etwa Munda has been examined as P.W.6. This witness has stated that one year ago girls of his village were going to work at brick kiln, such as Gauri, Punia and Sumari. Punia was going to brick kiln to earn her livelihood and her mother, younger sister-in-law and brother provided her food for the way and brought her half of the way. This witness during his examination-in-chief, has stated that eldest son of the informant asked about the Punia from his mother, then his mother, said that she went to work to brick kiln, upon which her son Charwa Oraon assaulted her and asked the mother that why she has allowed Punia to work at brick kiln. During his cross-examination this witness (P.W.6) has stated that police had inquired from him and he disclosed, that from Namdih Railway Station Punia has fled away with unknown person, as she went out of her own sweet will. She also went earlier to work at brick kiln. 15. Charia Orain has been examined as P.W.7. She is co-villager and she also went earlier to work in brick kiln. During her cross-examination, she has stated that police has not inquired from her. She also went earlier to work at brick kiln. 15. Charia Orain has been examined as P.W.7. She is co-villager and she also went earlier to work in brick kiln. During her cross-examination, she has stated that police has not inquired from her. She went to work at brick kiln after two months, along with Jhopari Devi @ Parwatia Devi. Then Gauri disclosed her that Punia has fled away. This witness has further stated, that co-villager went to work for brick kiln every year. This witness has further stated that she has no idea with whom Punia has fled away. 16. Bigua Oraon has been examined in this case as P.W. 8. This witness during his examination-in-chief stated that about 1 ½ years ago his daughter has been taken by Jhopari Devi @ Parwatia Devi for working in Assam. This witness has stated, in para 7 of his cross-examination, that he got information about the occurrence from Gauri and Sumari, who went along with Punia. This witness during his cross-examination, has admitted that Punia along with Gauri and Sumari went to work in brick kiln at Assam. This witness has further stated that after eight months, when Gauri and Sumari returned from Assam, he could know that Punia went with unknown person. This witness in para 9, of his cross-examination has stated that he has no knowledge that when Punia left the house. 17. Gauri has been examined as P.W. 9. This witness has stated that Punia and Sumari went along with her to earn their livelihood at Assam. They went to Hatia from Jarra Toli to take train and reached Lamdih railway station, where they had food and ticket and they went to watch picture with unknown person, who provided sweets to the labours. Money for Punia has been given by the said unknown person. Punia along with the said unknown person went to buy ticket. Punia asked for money to buy ticket but they (labours) did not have money. From their Punia went along with the said unknown person and at that time the accused persons were also with them. During her cross-examination at para 4, this witness has stated that Punia went to earn her livelihood with her own sweet will. 18. Sudhi Munda has been examined as P.W.10. This witness has stated that Gauri, Sumari and Punia went to work at brick kiln. During her cross-examination at para 4, this witness has stated that Punia went to earn her livelihood with her own sweet will. 18. Sudhi Munda has been examined as P.W.10. This witness has stated that Gauri, Sumari and Punia went to work at brick kiln. When Gauri returned from brick kiln she disclosed that Punia went missing. 19. Sawani Mundain has been examined as P.W.11. This witness has stated that Punia went to earn livelihood and by that time she was working at brick kiln at chini bagan, when they reached Assam, then she got information that Punia fled away with some unknown person at Lamdih railway station. 20. After closure of the prosecution evidence the statement of the accused persons have been recorded u/s 313 of Cr.P.C. on 16.07.2003. 21. Learned counsels for the appellants have submitted that evidence of P.W.6 Gauri Devi is the only source of information along with Sumari Devi (who has not been examined), as informant has himself admitted in para 6, 7 and 9 of his cross examination, that Gauri P.W.9, and Sumari (who has not been examined in this case) returned after 8 months from brick kiln in Assam and they disclosed that Punia has fled away with one unknown person and as such the evidence of P.W. 8 Bigua Oraon, informant of the case, is based upon the disclosure made by Gauri, P.W. 9, and Sumeri, (who has not been examined in this case). Learned counsels for the appellants have submitted, that Gauri has not stated anything, which could bring the appellants under the ambit of section 363 or 366 A of the Indian Penal Code. 21. Learned counsels for the appellants placed section 361, 363 and 366 A of the Indian Penal Code which are reproduced hereunder:- Section 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 or custody of such minor or other person. Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception —This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. Section 363 : Punishment for kidnapping.- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a terms which may extend to seven years, and shall also be liable to fine. Classification of offence – The offence under this section is cognizable, bailable, non-compoundable and triable by Magistrate of the first class. Section 363-A. Kidnapping or maiming a minor for purposes of begging.— (1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine. (3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging. (3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging. (4) In this section,— (a) ‘begging’ means— (i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise; (ii) entering on any private premises for the purpose of soliciting or receiving alms; (iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal; (iv) using a minor as an exhibit for the purpose of soliciting or receiving alms; (b) ‘minor’ means— (i) in the case of a male, a person under sixteen years of age; and (ii) in the case of a female, a person under eighteen years of age.] Section 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]. 366 A : Procuration of minor girl.—Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.] 366 B : Importation of girl from foreign country.—Whoever imports into [India] from any country outside India [or from the State of Jammu and Kashmir] any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person, [***] shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.] 22. Learned counsels for the appellants in view of the statement made by P.W. 6 Etwa Munda that mother of Punia Devi had provided food and also went to half of the way, shows that Punia was going with her mother’s consent to work in brick kiln and earn livelihood in Assam. Therefore, no case u/s 366 A of the Indian Penal Code is made out as the ingredients for constituting an offence u/s 366 A of the Indian Penal Code is missing. Learned counsels for the appellants have further submitted, that if the evidence of P.Ws. 6, 7 and 9 read con-jointly, then the material, brought on record, and the evidence suggest that Punia being a major girl, went along with her friend Guari and Sumari to earn her livelihood in Assam. Nowhere these witnesses P.Ws.6, 7 and 9 have alleged that they were enticed or taken away by Pawatia Devi @ Jhopari Devi and as such it is a case where three girls of a village, went to earn their livelihood and in the way one of the girls went along with a boy and the learned trial without scrutinizing the evidence of P.Ws. 6, 7 and 9, wrongly convicted the appellants u/s 363 and 366 of the Indian penal code. 23. 6, 7 and 9, wrongly convicted the appellants u/s 363 and 366 of the Indian penal code. 23. Learned counsels for the appellants further submitted, that the impugned judgment of conviction and order of sentence is perverse as the trial court while passing the impugned judgment has recorded same evidence from P.W. 1 to P.W. 11 and as such the impugned judgment is bad in eye of law as well as it is fit to be set aside the same. 24. Mrs. Nikki Sinha, learned Additional Public Prosecutor vehemently argued in support of the impugned judgment. Learned Additional Public Prosecutor submits that the impugned judgment for conviction and order of sentence is based on the evidence of the witnesses which are brought on record, but she fairly submits, that P.Ws. 6, 7 and 9 have not been declared hostile by the prosecution. Additional Public Prosecutor has failed to explain from the record that the evidence of P.W. 8, the informant of the case is not an eye witness to the occurrence, rather he got information from Gauri, P.W. 9, and Sumari, (who has not been examined in this case), when they returned after 8 months from Assam. Gauri has informed the informant that Punia went missing and nothing has been on record in support of the fact that Parwatia Devi @ Jhopari Devi has enticed the Gauri, Sumari and Punia, the victim. From the evidence, it appears that no person has seen Gauri, Sumari and Punia leaving their house with Parwatia Devi @ Jhopari Devi. 25. After hearing counsels for the appellants Mr. Ashok Kr. Jha and Mr. Devesh Krishna and learned Additional Public Prosecutor Mrs. Nikki Sinha and from the perusal of the record, this Court is of the opinion that P.W. 8, who is the informant of this case is a hearsay witness and the First Information Report has been filed after delay of 8 months, when Gauri and Sumari returned from Assam, where they went along with Punia (the victim), to earn their livelihood, and they informed the informant that Punia fled away with unknown person and none has seen that Parwatia Devi @ Jhopari Devi has taken his minor daughter. This Court is also of the opinion that the prosecution has also not brought anything on record to substantiate that victim Punia was the minor at the time of the alleged occurrence and the Investigating Officer, P.W. 5- M. Saran has admitted during his cross-examination, at para 15 that he has not collected any certificate to substantiate the age of the victim girl. Furthermore, the evidence of P.W. 6 Etwa Munda, who has not been declared hostile by the prosecution, is sufficient to defy the prosecution case, as in his examination-in-chief, this witness has categorically stated that the girls of his village namely Gauri, Sumari and Punia went to work and earn their livelihood in brick kiln in Assam. The mother, sister-in-law and brother of Punia have provided her food (Roti) and also went along with her half of the way. This witness has further stated that eldest son of the informant asked about Punia, then mother disclosed that she went to earn her livelihood, upon which her son, assaulted her by fist. This shows that Punia went with the consent of her mother, this is the reason that she was provided food and accompanied by her mother, younger sister-in-law and brother half of the way. This is the reason that mother of Punia was assaulted by her elder son. This Court is of the view that no offence u/s 363 of the Indian Penal Code is made out as the section 361 of the Indian Penal Code says that offence can only be constituted if a minor is taken without permission or consent of her guardian. This case is based upon the evidence recorded by the prosecution, that the girl Punia has gone with consent of her mother, younger sister-in-law and brother. This Court also examined the ingredients of section 366 A of the Indian Penal Code and finds that no ingredients is present to constitute the offence against these appellants. As per the P.Ws. 6, 7 and 9 namely Etwa Munda, Charia Orain and Gauri respectively disclosed that Punia, while returning from Assam after earning livelihood, had developed a relationship with an unknown person aged about 25-26 years, who shows her picture and provided food at Lamdih station and as such no offence u/s 366 of IPC is also made out. 26. 6, 7 and 9 namely Etwa Munda, Charia Orain and Gauri respectively disclosed that Punia, while returning from Assam after earning livelihood, had developed a relationship with an unknown person aged about 25-26 years, who shows her picture and provided food at Lamdih station and as such no offence u/s 366 of IPC is also made out. 26. With cumulative effect of the of the above facts, this Court is of the opinion that the appellants should be given benefit of doubt as the material available on record and the evidence of P.W. 6, 7 and 9 namely Etwa Munda, Charia Orain and Gauri respectively does not have supported the prosecution case and they have not been declared hostile by the prosecution. Nothing has been brought on record to show the proof of age of Punia, minor daughter of the informant. This Court does not believe that Punia, the daughter of Suko Urain, P.W. 4 and Bigua Oraon, P.W. 8, the informant, was a minor girl. The Investigating Officer has also admitted that he has not collected any certificate to ascertain the age of Punia. The information was given only by hearsay witnesses on the basis of the information got by Gauri P.W. 9 and Sumari ( who has not been examined in this case), after their returning from Assam after eight months. Evidence of P.W. 4, Suko Urain is also not acceptable to this Court in view of the evidence placed by P.W. 6 Etwa Munda, who has stated that it was the mother, younger sister-in-law and brother who provided food to Punia and also went along with her half of the way. The prosecution has miserably failed to establish any connection of Parwatia Devi @ Jhopari Devi and Kishore Oraon in kidnapping of minor girl by enticing her and no offence can be made out under Sections 363 and 366 A of the Indian Penal Code. 27. Considering all these above facts, benefit of doubt is granted to the appellants by setting aside the impugned judgment of conviction dated 5.9.2003 and order of sentence dated 12.9.2003 passed by the learned Additional Judicial commissioner, Fast Track Court No. VII Ranchi in Sessions Trial No. 569 of 2002. 28. Accordingly, the appellants are acquitted of the charges giving benefit of doubt. The impugned judgment of conviction and order of sentence is hereby set-aside. 28. Accordingly, the appellants are acquitted of the charges giving benefit of doubt. The impugned judgment of conviction and order of sentence is hereby set-aside. The appellants who are on bail are discharged from the liability of their bail bonds. 29. Both the Criminal Appeals are accordingly allowed. 30. Let the Lower Court Record along with the copy of this judgment be sent to the court concerned.