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2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 12.08.2008 and thereafter by fast track court on 01.11.2010.

3. The charge against the accused was framed u/s 363/366/376 IPC on 02.04.2009 by Sh. SK Sarvaria, Ld. ASJ to which the accused pleaded not guilty and claimed trial.

4. The prosecution in all has examined as many as 14 witnesses.

24. Considering the evidence available on file, the most important evidence to be looked into is of age of the prosecutrix at the time of her alleged kidnapping because her age plays a decisive role in relation to the charge framed in this case u/s 363/366/376 IPC. Sec.363 IPC contemplates Punishment for kidnapping. Sec.366 IPC contemplates - kidnapping, abducting or inducing woman to compel her for marriage etc. Ingredients of offence ­ In relation to the charge u/s 366 IPC apart from the fact that girl was below 18 years of age, two ingredients further must be established (i) that she was kidnapped or abducted from the custody of her lawful guardian, and (ii) that she was kidnapped, or State Vs.Santosh @ Ashutosh abducted with the intention of compelling her to marry any person against her will or in order that she may be forced or seduced to illicit sexual intercourse. It was further necessary to find that they abducted the woman for any of the purposes mentioned in section 366 IPC. The purpose of abduction must be proved u/s 366 IPC. When the charge u/s 366 IPC is for kidnapping a minor girl to seduce her to sexual intercourse, the age of the prosecutrix is a very important factor. The girl being minor, the offence u/s 366 IPC is committed when she was seduced for the purpose of illicit intercourse. As far as section 376 IPC there should be material to establish that either the alleged marriage or intercourse has taken place without the consent of the girl, if she is above the age of 18 years or 16 years as the case may be. When it is not proved that prosecutrix was below 18 years of age then no offence of taking her away from the lawful guardianship of her guardian is established. However, the age of girl is 15 years and charge against the accused that he kidnapped the girl for the purpose that she would be seduced to sexual intercourse has to be proved. As far as section 376 IPC is concerned this section has now two sub sections, namely sub section (1) and sub section (2) and for the offence of rape committed by the accused as specified in sub section (1) is different from that provided under sub section (2) of section 376 IPC. Therefore, there is an essential difference between the offences under sub section (1) and those under sub section (1) of section 376 IPC. In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence.

In case law MANU/DE/1199/2003 , CRLA 58/2002 titled as Rakesh Vs. State it is stated in head note :­ 'IPC 1860 - Sec. 363, 384, 506, 120B - Kidnapping, abducting or inducing woman to compel her marriage - Extortion - Prosecutrix consenting party - When reliable evidence in proof of date of birth is not forth coming, the accused will be entitled to benefit of doubt - Accused could not have been held guilty of offence u/s 363/366/506 IPC because as already observed, her conduct shows that she went with the appellant, got married and photographed with him of her own free will - Prosecution failed to bring State Vs.Santosh @ Ashutosh home the charges against the appellants beyond reasonable doubt - Appeal allowed'.

31. From perusal of the statement of the prosecutrix and letter mark A it is clear that the prosecutrix was moving freely with the accused Santosh @ Ashutosh everywhere. Though she states in deposition before the court that she forcibly taken to Noida however, there was no persistent threat and despite number of opportunities, she neither raised any alarm nor objected nor made an attempt to move out of the custody of Santosh. Even she did not tell anyone on way to Patna that she is being taken there contrary to her will. She did not disclosed as to what threat was given by accused. This fact brought out clearly fortify that there was no threat from the accused and prosecutrix had gone and stayed with State Vs.Santosh @ Ashutosh accused of her own wish. The conduct of prosecutrix moving freely shows consent which fact has been established from her statement made u/s 164 Cr.PC as well as letter written by her to accused. Reliance placed on S Varadarajan Vs. State of Madras, AIR 1965 Supreme Court 942 (V52 C 150). At this stage it would be appropriate to reproduce the observations of Hon'ble Supreme Court in case of Shayam & Ors. Vs. State of Maharashtra, 1995 Cri.L.J. 3974:­ In her statement in court, the prosecutrix has put blame on appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so called 'taking', it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/ accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by 'taking' her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but, still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the Appellant on her own and in that sense that there was no 'taking' out of the guardianship of her mother. The culpability of neither Shyam, A1 nor that of Suresh, A2 in these circumstances, appears to us established. The charge against the appellant/accused u/s 366 IPC would thus fail. State Vs.Santosh @ Ashutosh Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants.'