1. This is an appeal by accused who was convicted under Section 366-A and 363 of the Indian Penal Code and sentenced to suffer imprisonment of five years on both counts.

2. The facts giving rise to the prosecution are as under - Prosecutrix Ashwani Solanke at the relevant time was living with her father Haribhau. On 31/7/2004 Haribhau had gone out for work while his wife had gone out to bring her son from the school. She found her daughter missing who was alone at home. She thought that she must have gone somewhere and come back home. Since she did not come back, a report was lodged by Haribhau on 1/8/2004. Again on 5/8/2004 he lodged a report informing the police that he has found a chit written by his daughter in the name of one Vishal and from that he gathered that it was accused Dhyneshwar who had kidnapped her. On this report, the police registered the offence. In the meanwhile, appellant/accused and Ashwini came back to Akola and both of them presented themselves before the Police. The Police arrested the appellant. At the relevant time Ashwini . the prosecutrix . was only 15 years old. After completion of the investigation the Police filed a charge-sheet.

3. The Judicial Magistrate (F.C.) committed the case to the court of Sessions. The Court of Sessions framed the charge against the accused under Section 363, 366-A, 376 of Indian Penal Code. The Sessions Judge, upon consideration of the evidence found the accused guilty under Section 366-A and 376 of Indian Penal Code and sentenced him as stated above. Being aggrieved by that conviction and sentence, this appeal has been preferred.

4. I have heard Smt.Smita Deshpande, Advocate for the appellant and Shri A.S.Parihar, Additional Public Prosecutor for the State and have perused the record.

5. The learned Sessions Judge has framed charges under Section 363, 366-A and 376 of Indian Penal Code. It appears from the judgment that the learned Sessions Judge raised only two points for his determination. For each charge there ought to have been a separate point for determination. It also appears that the learned judge observes that since offence under Section 366-A is aggravated form of Section 363, no separate conviction is awarded and no separate sentence is passed. Charge is of kidnapping i.e. under Section 363 of Indian Penal Code. The accused has been held guilty of offence under Section 363 of I.P.Code by the learned Sessions Judge but he did not separately convict and sentence him. The first ingredient that needs to be proved by the prosecution is that the girl was minor i.e. under the age of 18. It is stated by PW 1 Haribhau . the father of the girl- that at the time of incident the age of Ashwini was 15 years. Even PW 2 Ashwini tells that her age to be 15 years. On this point, there is absolutely no cross-examination to either witness. The Certificate from the School (Exh.36) shows that date of birth of Ashwini is 21/1/1990. The incident is dated 31/7/2004. Thus the prosecutrix, in fact, was only 14 years of age. In any case, the evidence clearly shows that she was much less than 18.

6. It is stated by PW 2 Ashwini that on the date of incident, the accused came to her house when both her parents were not at home. She states that accused told her that her father was admitted in hospital. He even told her that her mother was also in the hospital. She goes on to depose that accused asked her to accompany her and she did. She also stated that the accused hired a Auto Rickshaw and by the by-pass road took her to Akot-Fail area. She also states that she questioned the accused as to where she was being taken, the accused gave her threat. She also further has stated that the accused took her to Akot-Fail area and kept her there for two days and later took her to village Dastapur at the house of his maternal uncle. If the crossexamination is seen, it is clear that the accused, in fact, does