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4. The case of the prosecution is that PW.4 - Nagaraj, the father of the victim filed a missing complaint before the respondent - Police as per Ex.P.2 alleging that his minor daughter, aged about 14 years, as usual went to the special class on 08.10.2009 in the morning, but did not return and has been found missing and not able to trace her from the said day. Hence, he filed a complaint on 14.10.2009 suspecting that the accused might have abducted his daughter. Based upon his complaint, the Police registered a case in Crime No.283/2009 for the offence punishable under Section 366A of IPC. During investigation, the Police traced the victim - PW.9 and the accused on 23.10.2009 and subjected both of them to medical examination. Thereafter, the accused was produced before the Magistrate and he was remanded to judicial custody. After recording the statement of the victim, it was revealed that the accused forcibly abducted the victim by gagging her mouth and took her to the house of PW.1 at Vijayanagar, Bengaluru and by the next day, he took her to B.R.Hills by tying her hands and gagging her mouth married her in the Temple and later brought her back to the house of PW.1 and committed forcible intercourse with her. Based on the statement of the victim girl and after collecting the material, the Investigating Officer concluded the investigation and filed the charge sheet against the accused for the offences punishable under Sections 366A and 376 of IPC. After committal of the case by the Magistrate, the Trial Court framed the charges against the accused for the offences punishable under Sections 366A and 376 of IPC. The accused pleaded not guilty and claimed to be tried.

11. Per contra, Sri S.R.Rajendra Reddy, learned counsel for the accused contended that first of all, the judgment of the Trial Court is not sustainable in law in respect of convicting the accused for the offence under Section 366A of IPC. Absolutely there are no ingredients to attract the provisions of Section 366A of IPC. A mere reading of the provisions of Section 366A of IPC makes it clear that whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person, but here in this case, there is no another person other than the accused in order to attract the ingredients of Section 366A of IPC. Therefore, the judgment of conviction under Section 366A is not sustainable and even there are no ingredients made out to attract Section 366 of IPC. Once charges under Section 366A of IPC is not proved, the question of convicting the accused under Section 366 of IPC does not arise without ingredients. Hence, prayed for acquitting the accused for the offence punishable under Section 366A of IPC.

16. Now coming to the arguments addressed by the learned Additional State Public Prosecutor in respect of framing of charges under Section 366A of IPC whether the ingredients are made out by the prosecution, it is worth to mention the provisions of Section 366A of IPC, which is as under:

"366A. Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."

21. On a careful perusal of the evidence, once the prosecution failed to prove the ingredients of Section 366A of IPC, unless there is injustice caused to the party, the Court cannot set aside the sentence and remit the matter back for framing of charges. No doubt, the learned Additional State Public Prosecutor was right in contending that the sentence cannot be reversed only on the basis of error or omission in framing of charges as per the provisions of Section 464 of Cr.P.C., but in view of the judgment of the Hon'ble Supreme Court in the case of Sat Prakash (supra), the arguments raised by the learned State Public Prosecutor cannot be acceptable to hold that the accused is guilty for the offence under Section 366 of IPC, in view of failure to prove the charges against the accused. That apart, a bare reading of Section 366 of IPC defines that there should be an intention or compulsion by the accused against the will of a woman whereas in Section 366A of IPC, the word 'will' is not mentioned, but shown as 'minor'. Normally, the consent is immaterial when the prosecutrix is a minor below the age of 18 years. However, looking to the entire circumstance of the case, the evidence of the prosecutrix is not reliable in order to accept that she was abducted, in view of the inconsistency in the evidence made by her before the Court and staying with the accused for almost 15 days without any agitation and in view of the opinion of PW.6 in Ex.P.6 that she was unfit for intercourse. Based upon the evidence on record, the Trial Court acquitted the accused for the offence under Section 376 of IPC, however, committed an error in accepting the evidence of the prosecution by convicting the accused for the offence under Section 366A of IPC when there is no ingredient made out by the prosecution. Considering the evidence on record, we are of the opinion that the Trial Court though right in acquitting the accused under Section 376 of IPC, but committed error in convicting the accused under Section 366A of IPC. Therefore, we are of opinion that the prosecution failed to prove the charges against the accused for the offence punishable under Section 366A or 376 of IPC beyond all reasonable doubt. Therefore, the accused is entitled for acquittal of both the charges leveled against him before the Trial Court. Accordingly, we proceed to pass the following order: