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Dr. Mukundakam Sharma, J.

1. This appeal arises out of the judgment and order dated 5.8.2003 passed by the learned Single Judge of the High Court of Andhra Pradesh at Hyderabad, convicting the three appellants under the provisions of Section 366A and Section 372 read with Section 511 Indian Penal Code, 1860 (for short `IPC') and requiring each of them to undergo rigorous imprisonment for a period of 10 years and 5 years respectively on each count, which is to run concurrently. By the said order, the order dated 16.12.1996 passed by the learned Additional Assistant Sessions Judge, Guntur in SC No. 25 of 1995, acquitting the three accused was set aside.

7. Being aggrieved by the aforesaid order of acquittal, an appeal was filed in the High Court by the State against all the three accused persons. The learned Single Judge after hearing the appeal on  5.8.2003 passed a judgment and order setting aside the order of acquittal passed by the learned Trial Court, holding that the evidence on record does prove a case against the appellants/accused persons both under Section 366 A and 372 read with Section 511 IPC. On the question of sentence the learned Single Judge held that having regard to the nature of the offence and the fact that a minor girl being dragged forcibly into an auto rickshaw almost in the heart of the Guntur town that too in a broad day light and the purpose for which she was so kidnapped, warrant imposition of maximum sentence prescribed under the aforesaid provisions. Having held thus, all the three accused persons were convicted under Section 366A IPC and were sentenced to undergo rigorous imprisonment for a period of 10 years and also to pay a fine of Rs. 5,000/- each and in default to undergo simple imprisonment for a period of two months and also under Section 372 read with Section 511 IPC and were sentenced to undergo rigorous imprisonment for a period of five years each and also to pay a fine of Rs. 2,500/- each and in default to undergo rigorous imprisonment for a period of 30 days.

Therefore, according to us, the onus on the prosecution to prove the age of the prosecutrix was effectively discharged by the prosecution.

43. In that view of the matter, we are of the concluded opinion that the prosecutrix was a minor on the date of the offence. We are, however, unable to persuade ourselves to believe that the accused persons are guilty of the offence under Section 366A IPC or under Section 372 read with Section 511 IPC. The prosecution has not been able to conclusively prove and establish by cogent evidence that the prosecutrix was kidnapped by accused persons with the intention of having sexual intercourse with them or with any other person. No such reliable or cogent evidence have been laid by the prosecution to  prove the charge. Similarly, there is no reliable and cogent evidence to prove and establish that she was kidnapped by the accused persons with the intention of selling her for prostitution. Therefore, the charge under Section 372 read with Section 511 IPC is also not proved against the accused persons.

58. Therefore, while acquitting all the accused persons from the charge of offence under Section 366A and 372 read with Section 511 IPC, we acquit the appellant Nos. 1 and 2 from all charges. Whereas, we hold that the appellant No. 3 is guilty of the offence under Section 363 IPC and accordingly we proceed to convict him accordingly.

59. Having held thus, we have to pass an order of sentence against the said accused-appellant No. 3. The incident is that of the year 1992 and 15 years have gone by, therefore, interest of justice would be sub-served if appellant No. 3 is sentenced to undergo rigorous imprisonment for a period of three years.