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The appellants are the accused 1 to 4 in S.C.No.109 of 2004, dated 08.04.2005, on the file of the learned Assistant Sessions Judge, Dharapuram, Erode. The first appellant/first accused stands convicted for the offences under Sections 363, 366A and 376(1) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 363 IPC; to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 366A IPC; and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 376 (1) IPC. The appellants 2 to 4/accused 2 to 4 have been convicted for the offences under Sections 366A and 363 IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 366A IPC and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 363 IPC. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellants are before this Court with this appeal.

9. Now coming to the charge under Section 363 IPC, I am unable to understand as to how the Court can frame simultaneously two charges under Sections 366 and 363 IPC, relating to one and the same occurrence. It is noticeable that these two charges have not been framed as alternative charges. Any how, since, I am holding that the conviction under Section 366A is illegal, I may now proceed to analyse as to, whether the charge under Section 363 IPC has been proved by the prosecution beyond reasonable doubt.

13. Now, the next question is, whether the said act of the first accused in taking her, even with consent, to various places amounts to an offence under Section 363 IPC.

14. In this regard, the age of the victim girl plays a vital role. It is the burden of the prosecution to prove that P.W.2 was a minor at the time of occurrence. The learned counsel for the appellants would straightaway rely on the evidence of P.W.10-Dr.Mangayarkarasi and Ex.P.9 to show that at the time of occurrence, she was aged 19 years. But, in my considered opinion, no weightage could be given to the evidence of P.W.10 in this regard. P.W.10 has given the opinion that P.W.2 was aged about 19 years from out of the physical appearance of P.W.2 and it is not based on any medical examination. Such opinion based on mere physical appearance cannot either go to conclusively prove the age of the victim or atleast to guide the Court to arrive at the correct age of the victim girl. Therefore, I have no hesitation to reject the evidence of P.W.10 and Ex.P.9.

20. When, I am holding that P.W.2 was still a minor at the time of occurrence, the next question would be as to, whether the offence under Section 363 IPC would be made out.

21. For this, the learned counsel appearing for the appellants would rely on the judgment of the Hon'ble Supreme Court rendered in S.Varadarajan vs. State of Madras, reported in AIR 1965 Supreme Court 942, wherein, the Hon'ble Supreme Court has held that if a girl, who is in the border of attaining majority and capable of knowing the full import of what she is doing and went on her own accord, the same cannot make out any offence under Section 363 IPC. Applying the said principles to the facts of the present case, if we analyse the evidence of P.W.2, it goes without saying, as I have already concluded, that P.W.2 willingly went along with the first accused to various places and therefore, no offence under Section 363 IPC would be attracted against the first accused . As a corollary, appellants 2 to 4 are also entitled for acquittal. Thus, I hold that the appellants 1 to 4 are entitled for acquittal from the conviction and sentence imposed against them under Section 363 IPC.