JUDGMENT R.C. Chavan, J.
1. By this appeal, the appellant seeks to challenge his conviction for the offence punishable under Section 366 of the Penal Code and the resultant sentence of rigorous imprisonment for two years and fine of Rs. 500/-, or in default RI for one month more, imposed upon him by the learned 7th Additional Sessions Judge, Nagpur.
2. Facts, which led to the prosecution and conviction of the appellant, are as under:
One Purushottam Kaikade, residing at Ayodhyanagar Nagpur, had a daughter by name Pinki. On 31-5-1992, Purushottam had gone to Kalyan for some official work. On his return to Nagpur on 3-6-1992, he found that his daughter was not at home. He also learnt that the appellant, who was his neighbour, had also not returned to appellant's house. On a report given by him, an offence was registered. The youngsters, who had eloped, were duly restored to their parents. On completion of investigation, the police filed charge-sheet in the Court of Chief Judicial Magistrate, Nagpur.
3. The learned Chief Judicial Magistrate committed the case to the Court of Session, where it came to be assigned to the learned 7th additional Sessions Judge, Nagpur.
4. The learned Additional Sessions Judge charged the appellant of offences punishable under Sections 363 and 366 of the Penal Code, to which the appellant pleaded not guilty and claimed to be tried. In its attempt to bring home the guilt of the accused, the prosecution examined in all seven witnesses. After considering the evidence tendered before him in the light of the arguments advanced, the learned Additional Sessions Judge acquitted the appellant of offence punishable under Section 366 of the Penal Code, but convicted him for the offence punishable under Section 363 of the Penal Code and sentenced him to suffer rigorous imprisonment for two years and a fine of Rs. 500/-, or in default to undergo RI for one month more. Aggrieved thereby the appeal has been filed.
5. I have heard the learned Counsel for the appellant as well as the learned Additional Public Prosecutor for the State. With the help of the learned Counsel, I have gone through the record. It appears from the evidence of PW-4 Chandrakant Javanda, Head Master of the School, where victim Pinki was taking education that her date of birth was 7-1-1977. However, according to PW-6 Dr. Suresh Dhakate, who had conducted radiological examination in respect of victim's age, she was 17+1 years in age. Thus, she could be even 18 years old at the time of offence.
6. The appellant was charged of having kidnapped Pinki on 2-6-1992 at about 2 p.m. from the lawful custody of her guardian father Purushottam. PW-1 Purushottam stated that on 2-6-1992 he had gone to Kalyan for his personal work and returned home on 3-6-1992, when he lodged the report on finding that Pinki had eloped. PW-2 Pinki, however, stated that on 2-6-1992 itself, the police brought her from MIDC area to the Police Station at about 4 or 4.30 p.m. Thus, the so-called elopement is only for two hours. PW-2 Pinki had also stated in her examination-in-chief that she had gone to Shiv temple at Manewada and that the accused took her forcibly by auto-rickshaw from the said temple to the MIDC area, where the accused confined her in one house for 2 to 3 days. Accordingly to PW-1 Pinki, this happened at the point of knife. She admitted having stated before the police that on 30-5-1992 itself, accused Naresh had tied marriage necklace in Shiv temple at Manewada. She contradicted about eight parts of her police statements, which were -duly proved by the Investigating Officer as Exhibits 50 to 57. These parts would clearly show that PW-1 Pinki has admitted to have had a love affair with accused Naresh and had eloped with him. Since PW-2 Pinki's age is shown to be 17 + 1 years according to PW-6 Dr. Suresh Dhakate, there is no question of holding the appellant guilty of kidnapping a minor. Further, on PW-2 Pinki's own account, she was taken by the police on 2-6-1992 itself at about 4 or 4-30 p.m., whereas her father PW-1 Purushottam states that he returned from Kalyan only on 3-6-1992 and then gave report to the police. In view of these contradictory versions of the two witnesses, the learned additional Sessions Judge should not have believed the story that PW-2 Pinki was kidnapped or abducted by the appellant.
7. The other witnesses examined are PW 5 Hansraj Meshram, who had arrested the accused, PW-7 Jyoti Charde, a neighbour, who turned hostile, and PW-8 Laxman Tighare, who conducted investigation. The reports from the Forensic Science Laboratory are totally unhelpful to connect the appellant to PW-2 Pinki's abduction. In any case, it is not the case of PW-2 Pinki that the accused had any sexual relations with her.
8. In view of this, since the evidence is highly discrepant and unreliable, the learned Additional Sessions Judge was in error in convicting the appellant on the basis of such evidence.
9. The appeal is, therefore, allowed. The conviction of the appellant for the offence punishable under Section 366 of the Penal Code is set aside and he is acquitted of the said offence. Fine, if paid, be refunded to the appellant. Bail bonds furnished by the appellant shall stand cancelled.