JUDGMENT (Prayer: Criminal Appeal has been filed under Section 374(2) of Cr.P.C., to set aside the conviction and sentence imposed upon the appellant vide judgment dated 18.09.2018 in Spl.S.C.No.34 of 2015 on the file of the Sessions Judge, Magalir Needhi Mandram, (Fast Track Maghila Court), Vellore and acquit the appellant and direct the trial Court to refund the fine amount in the interest of justice.) 1. Four accused were tried before the Mahila Court, Vellore in Spl.S.C.No.34/2015.The first accused Manikandan, who is the appellant herein is the son of 2nd and 4th accused. The 3rd accused is the brother of first accused. The first accused was tried for offence under Sections 363 and 366 of IPC and Section 6 r/w 5(l)(n) of POCSO Act, 2012 alleging that he on 04/08/2014 at about 13.00 hrs, from Govt. Girls Hr. Sec.School, Walaja kidnapped the 15 years old minor daughter of Mr.Karunakaran, who is her lawful guardian and kept her in a house at Nallavoor, Villupuram District from 04/08/2014 to 10/11/2014 for 97 days. He seduced her and forcible had illicit intercourse with her. The accused 2 to 4 alleged to have abetted the crime of kidnapping of minor girl from lawful guardian thereby committing the offence punishable under Sections 363 r/w 109 IPC. 2. The prosecution examined 19 witnesses and marked 14 documents. On the side of the defence no witness, no document marked. 3. The trial Court considering the deposition of the victim girl and medical evidence held the charges under Sections 363, 366 IPC and Section 5(l)(n) of POCSO Act against A-1 proved and sentenced him for the offence under Section 366 IPC to undergo 7 years RI and fine of Rs.1000/- in default, to undergo 1 month RI and for the offence under Section 5(l)(n) r/w 6 of POCSO Act to undergo 10 years RI and fine of Rs.2000/- in default, to undergo 2 months RI. In view of Section 71 of IPC, no separate sentence imposed for offence under Section 363 IPC. 4. Accused 2 to 4 were acquitted, since the victim girl has not incriminated them in the crime. 5. The learned counsel appearing for the appellant/accused submitted that the appellant and the girl were in love. Her father gave a complaint during the month of June-July 2014 to the police alleging eveteasing and attempted to separate them. 4. Accused 2 to 4 were acquitted, since the victim girl has not incriminated them in the crime. 5. The learned counsel appearing for the appellant/accused submitted that the appellant and the girl were in love. Her father gave a complaint during the month of June-July 2014 to the police alleging eveteasing and attempted to separate them. Since they continued the affair, a false complaint on 13/08/2014 was registered alleging his daughter was kidnapped by the accused on 04/08/2014 from her school. No one from her school was examined as witness to substantiate this allegation. The boy, who alleged to have asked the minor girl to come out of the school was not examined. The owner of the house in which the accused alleged to have been with the minor girl did not support the case of the prosecution. The defacto complainant family and the accused family were relatives. The first accused lend Rs.2,15,000/- to PW-1 by pledging his sister's jewel. To avoid repayment of the money, the minor girl was forced by PW-1 to depose against the appellant. Except the motivated evidence of PW-1 (defacto complainant) and PW-2 (minor girl), no other witnesses has corroborated the case of the prosecution. 6. The learned Government Advocate (Crl.Side) submitted that, the deposition of PW-1, clearly explains the reason for delay in filing the First Information Report. Soon after missing of the minor girl, suspecting the accused, PW-1 went to the house of the accused and enquired. They admitted the kidnapping and promised to trace the minor girl and hand over. Hence, he reported to the police orally and waited police taking note of the fact that the complainant and the accused are relatives, did not register First Information Report immediately. Meanwhile, the defacto complainant filed HCP before this Court. The girl was traced along with the appellant in a house at Nallavoor Village on 11/11/2014 and rescued and the appellant was arrested. 7. The girl was subjected to medical test to ascertain her virginity and age. The doctor, who examined her has certified that hymen not intact, no external injury, admit 2 fingers freely. She was not pregnant. The minor girl was rescued from the illegal custody of this appellant on 11/11/2014. The minor girl has deposed that she was confined in a house for many days and the accused had intercourse with her 4 or 5 times. She was not pregnant. The minor girl was rescued from the illegal custody of this appellant on 11/11/2014. The minor girl has deposed that she was confined in a house for many days and the accused had intercourse with her 4 or 5 times. Later, she was rescued by police and handed over to her parents. Hence, prayed for dismissal of the appeal. 8. Heard the learned counsel appearing for the appellant and the learned Government Advocate (Crl.Side) appearing for the State. Records perused. 9. The prosecution has examined 19 witnesses. 14 Exhibits marked through them. 10. Ex P-1 is the complaint dated 13/08/2014 given by PW-1 reporting the kidnapping of the minor girl on 04/08/2014 from her school. PW-1 has deposed that he gave oral complaint to the police on the next day suspecting the accused and they enquired the parents of Manikandan. They assured to produce the minor girl and Manikandan within one week but failed to produce his daughter, hence, the case was registered thereafter. Even after registering the complaint, the police failed to trace his daughter, so he filed Habeas Corpus Petition before High Court and thereafter, the police traced his daughter on 11/11/2014. In the cross examination, he has denied the suggestion that he owes Rs.2,15,000/- to the first accused and he forced the first accused to marry some other girl. 11. PW-2, the minor girl has deposed that on 04/08/2014, during lunch break a boy studying 8th Standard informed her that the first accused is calling her. She came out of the school and met the first accused. The first accused offered her a cake to eat. Thereafter, she did not know what happened to her. After 2 or 3 days, she found herself locked in a room. The first accused had sexually exploited her. She was confined in the room for many days, till she was rescued by the police on the complaint of her father. 12. Her previous statement to the Judicial Magistrate under Section 164(5) Cr.P.C is marked as Ex.P-10. In the cross examination, she admits that she was with the first accused from 04/08/2014 to 10/11/2014 at Nallavoor Village. They were living in a rented house. During that period, the first accused took her to a doctor at Thindivanam. 12. Her previous statement to the Judicial Magistrate under Section 164(5) Cr.P.C is marked as Ex.P-10. In the cross examination, she admits that she was with the first accused from 04/08/2014 to 10/11/2014 at Nallavoor Village. They were living in a rented house. During that period, the first accused took her to a doctor at Thindivanam. She did not had any money or jewel with her and the first accused did not spend her money during their stay together at Nallavoor. 13. In the cross examination, she has mentioned the 8th standard boy name is Surya studying in Valluvambakkam School which is about 8 kms from her school. After taking the cake offered by the first accused, she became unconscious and she left her bag in the class room and went along with the first accused in her school uniform. When she regained conscious, she found her bag in the room and she was wearing different dress and not her school uniform. She saw Surya in that room. He was with them in that room for 1 or 2 days after she regained conscious. She admits that her family and the accused family were not in terms. During the 97 days at Nallavoor with the first accused, she some times used to cook and interact with the family members of the house owner, who were living in a portion of the house. She also admits that she has written several love letters to the first accused but say those letters were obtained under threat by the first accused. 14. All the above facts, which were disclosed by PW-2 in the cross examination were never said to the police or to the Magistrate earlier. For the first time, these incidences are stated by the minor girl. PW-2 further admit in the cross examination that to the police during enquiry she has stated that she and the first accused loved each other and were intimate for nearly one year. Since her parents opposed their love, they both decided to elope and as decided on 04/08/2014 first accused brought alternate dress for her and from the school she left with the first accused and went to Villupuram in a bus and stayed in the house of one Manju. Lived as husband and wife for 3 months. 15. PW-3 is the mother of the minor girl. Lived as husband and wife for 3 months. 15. PW-3 is the mother of the minor girl. PW-4 is the elder sister of the minor girl. They have deposed about missing of the minor girl on 04/08/2014 corroborating the evidence of PW-1. PW-5 is the witness to observation mahazar marked as Ex P-2. 16. PW-6 is the doctor who examined the minor girl and given the medical certificate Ex P-3. Indicating that the minor girl is not a virgin. Not pregnant. Vagina admits two fingers freely and accustom to sex. In the cross examination PW-6 has stated that the minor girl told her that she had been in sexual relationship with a known male for nearly one year. However the minor girl in her cross examination had denied saying so to the doctor. 17. PW-8, Selvi schoolmate of the minor girl PW-2. According to the prosecution PW-8 and the minor girl , on 04/08/2014 at about 13.00 pm while coming out from the school together for lunch, the first accused kidnapped the minor girl. PW-8 informed the same to PW-9 Vinayagam and others. However, both PW-8 and PW-9 did not support the prosecution case and both were declared as hostile witnesses. 18. PW-11, Kanagaramamoorthy, a resident of Nallavoor village, whom according to the prosecution let out a portion of his house in which the accused and the minor girl alleged to have stayed between 04/08/2014 to 11/11/2014, turned hostile. He denied the suggestion that he let out a portion of his house to the accused and the minor girl to stay and they lived as husband and wife. 19. The contradictions and embellishments found in the statements of the minor girl does not inspire confidence of the Court that she is telling the truth and even partly reliable. Different version to each one of them:- the doctor, to the Judicial Magistrate who recorded her statement under section 164(5) of Cr.P.C; then her deposition in chief in the Court and the disclosures of new facts in her cross examination. Different version to each one of them:- the doctor, to the Judicial Magistrate who recorded her statement under section 164(5) of Cr.P.C; then her deposition in chief in the Court and the disclosures of new facts in her cross examination. The story of eating the cake offered by the first accused and becoming unconscious, regaining conscious after few days, introduction of the character by name Suriya and his stay with them in the room for initial few days, her stay with the first accused for nearly 97 days till the police took them into custody on 11/11/2014 and running household chores along with the appellant/accused for all these days, visiting the doctor at Thindivanam for check up, all put together indicates there was no force or threat exercised by the appellant/accused on minor girl to stay with him. 20. Above all, the alleged stay at Nallavoor itself not proved by the prosecution, since PW-11 has turned hostile. In the statement recorded by the Judicial Magistrate, PW-2 has stated that the accused took her to some place and kept her in confinement in a room and had intercourse with her forcibly. Whereas in the chief and cross examination she has improvised her version with new details disclosed for the first time, but more of concoction. The theory of forcible kidnap of the minor girl from the school itself not proved by the prosecution, since PW-8 and PW-9 who are supposed to speak about the kidnap turned hostile. 21. For the reasons stated above, this Court is of the view that the facts of the case as unravelled through the prosecution witnesses does not prove the fundamental facts of kidnapping and sexual offence on the minor girl to draw statutory presumptions under Section 29 of the POCSO Act. The missing link in the chain of events projected by the prosecution is sufficient to rebut the presumption and to disbelieve the evidence of the minor girl, who has exposed her capability of improvising and embellishing the facts. The distortion of facts and falsehood in the prosecution case with the truth is mixed so well that it is made difficult to remove the chaff from the grain. 22. In the result, this Criminal Appeal is allowed. The judgment of conviction and sentence imposed on the appellant by the trial Court in Spl.S.C.No.34 of 2015, dated 18/09/2018 is set aside. 22. In the result, this Criminal Appeal is allowed. The judgment of conviction and sentence imposed on the appellant by the trial Court in Spl.S.C.No.34 of 2015, dated 18/09/2018 is set aside. The appellant/accused may be set at liberty if his detention is not required in any other case. Consequently, connected Miscellaneous Petition is closed.