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Heard the learned counsel for the appellants and the learned High Court Government Pleader appearing for the State.

2. The factual matrix of the case is that when P.W.5 victim girl went to attend the nature call, she was kidnapped by these accused persons and the victim girl was aged about 17 years 10 months at the time of kidnap and these petitioners knowing fully well that she is a minor, subjected her for sexual act and committed the offence. The further allegation is that with an intention of illegally committing the sexual intercourse on her, grabbed her mouth and kidnapped her from the lawful custody and thus committed the offence punishable under Sections 366 and 366A of IPC and also charge was framed for the offence punishable under Section 376 of IPC. The accused did not plead guilty and hence the prosecution examined P.W.1 to P.W.20 in order to substantiate their case and also got marked the documents at Exs.P.1 to 34 and no M.Os. are marked. The Trial Court after recording the evidence, recorded the statement of the accused persons and thereafter accused have not led any defence evidence. Having heard the respective learned counsel, the Trial Court convicted the accused for the offences punishable under Sections 366 and 366A of IPC and acquitted the accused for the offence punishable under Section 376 of IPC on the ground that there is no evidence and the victim girl herself not supported the case for invoking Section 376 of IPC. Hence, the present appeal is filed before this Court.

3. The main grounds urged in the appeal is that the Trial Court committed an error in relying upon the evidence of P.W.5 victim girl. P.W.6, P.W.7 and P.W.17 are mother, brother and sister, respectively of P.W.5 and those witnesses are family members and their evidence does not inspire the confidence of the Court to invoke the offence under Sections 366 and 366A of IPC.

4. The learned counsel for the petitioners would vehemently contend that the very judgment of conviction is not sustainable in the eye of law. The victim being minor was procured for the purpose of seducing for sexual intercourse with other persons i.e., ingredients in respect of Section 366A of IPC and in the case on hand, the victim says that she was not subjected to sexual act. When such being the facts, the Trial Court ought not to have invoked Section 366A of IPC and also the ingredients of Section 363 of IPC has not been complied and hence Section 366 of IPC cannot be invoked. Though the prosecution claims that P.W.11 and P.W.13 are the eye witnesses, they have not supported the case of the prosecution. P.W.17 is the sister of P.W.5, who is a hearsay witness and P.W.8 and P.W.12 being panch witnesses, have not supported the case of the prosecution. The prosecution mainly relies upon the evidence of P.Ws.5, 6, 7 and 17. The learned counsel brought to the notice of this Court the evidence of P.Ws.5, 6, 7 and 17 and the learned counsel submits that the evidence of these witnesses does not attract the ingredients of Section 366 and 366A of IPC to convict the accused persons.

14. Having taken note of the evidence of P.W.5, the same does not inspire the confidence of the Court that these accused persons have committed the offence under Sections 366 and 366A of IPC. It is her clear evidence that she was not subjected to any sexual act and having taken note of the evidence of P.W.5 and P.W.6, who is the mother she says that accused persons took her and she accompanied the accused persons and no incriminating evidence, except the hearsay evidence of P.Ws.6, 7 and 17 and the Trial Court has committed an error in coming to the conclusion that the accused persons have committed the offence. While convicting the accused for the offence, the prosecution has to prove the case beyond reasonable doubt and the Trial Court failed to take note of the evidence of P.W.5 and committed an error in considering the evidence of P.Ws.6, 7 and 17 and also P.W.11. No doubt, P.W.5 is aged about 17 years 10 months, but that itself is not enough to convict the accused for the offence under Sections 366 and 366A of IPC.

15. P.W.7, brother of the victim girl says that they heard screaming sound and when they went to the said spot, they did not find her and the same is nothing but an improvement and almost all the witnesses have turned hostile. P.W.5 also turned hostile to the little extent with regard to the sexual act is concerned and the Trial Court failed to appreciate the evidence available on record whether it inspires the confidence of the Court or not. The other witnesses speak only with regard to searching of P.W.5 and only hearsay evidence that she accompanied with accused No.1. Inspite of the witnesses have turned hostile, the Trial Court comes to the conclusion that she was aged about 17 years 10 months and she was taken from lawful custody and there are no material that she was taken from lawful custody with due consent of the parents and guardians of the minor and hence convicted the accused for the offence punishable under Sections 366 and 366A of IPC. The Court fails to consider the evidence of P.W.5 and also not discussed anything about the answers elicited from the mouth of P.W.5 in the cross-examination whether it fulfils the ingredients of Sections 366 and 366A of IPC and committed an error in convicting the accused persons. Hence, I am of the opinion that the Trial Court has committed an error in convicting the accused persons mainly relying upon the evidence of P.W.5, which does not inspire the confidence of the Court and the allegations made against the accused is not proved and also the evidence of other witnesses does not corroborate with the evidence of P.W.5. It is clear that when her marriage was fixed with Mallikarjuna, it appears that the victim girl herself went along with the petitioners and benefit of doubt goes in favour of the petitioners. Hence, it is a fit case to reverse the findings of the Trial Court and set aside the order of conviction and sentence.