The absence of clear evidence regarding the victim's age and the lack of corroborative evidence for abduction led to the conclusion that the conviction under Section 366(A) was not warranted.

JUDGMENT :

The appellant who is the sole accused in S.C.No.10 of 2009 on the file of the learned Sessions Judge, Mahila Fast Track Court, Kanyakumari District, has filed this appeal challenging the conviction and sentence imposed on him for the offence under Section 366(A) of IPC, vide impugned Judgement dated 21.11.2016.

2. Prosecution Case:-

According to the prosecution, at the time of occurrence, the victim girl was a minor, and her age was about 17 years. On 02.02.2008 at about 08.00 am., when the victim, namely, Brinda, daughter of the complainant/P.W.1, went to study at a private computer center at Karangat, the accused took a bus bound for Nagercoil from the bus stop next to Beyankazi Bridge at 10.00 am. On that day the accused brought the victim to Nagercoil and from there they went to Chennai and stayed. Thereafter, on 18.02.2008, the accused surrendered at Iranial Police station along with the victim girl. Therefore, the Inspector of Police, Iranial Police Station, filed a charge sheet against him for the offence under Section 366 A of IPC. Thereafter, the case in Crime No.119 of 2008 was registered for the offences under Section 366(A) of IPC. The investigating officer conducted the investigation, arrested the accused, collected the materials, and filed the final report before the learned Judge, Fast Track Mahila Court, Nagercoil, Kanyakumari District. The same was taken on file in Special S.C.No.10 of 2009.

2.1.After taking cognizance, the learned trial Judge framed the charges against the appellant for the offence under Sections 366(A) of IPC. On the basis of charges, the learned trial Judge questioned the appellant and the appellant pleaded not guilty and hence, the trial was conducted and the prosecution adduced the evidence of P.W.1 to P.W.9 and marked the documents under Ex.P1 to Ex.P.12.

2.2. The learned trial Judge, considered the same, examined the appellant under Section 313 Cr.P.C., by putting the incriminating materials available against him and he denied the same and hence, the case was posted for examination for the defence witness. On the side of defence, no witness was examined and no document was marked.

2.3. The learned trial Judge after considering the oral and documentary evidence, convicted the accused under Section 366(A) of IPC, by the impugned order dated 21.11.2016 and sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 15,000/- (Rupees Fifteen Thousand only) with one year rigorous imprisonment in case of default for the offence under Section 366(A) of IPC. Aggrieved over the same, the appellant filed this appeal on the grounds stated in the memorandum of grounds of appeal.

3. The learned counsel for the appellant submitted that the learned trial Judge had committed error by proceeding on the basis that the evidence let in by P.W.2 is believable, since she is the victim. In this regard, the learned trial Judge ought to have seen in the self contradictory statements of the victim with regard to the manner of abduction, place of abduction, etc. Further, the age of P.W.2 was not brought out clearly by the prosecution throughout the case; there was no mention of the victim's date of birth. P.W.1 and P.W.3 simply stated that the age of P.W.2 was 17. Even in P.W.2's statement recorded under Section 161(3) of Cr.P.C., it is stated that she was aged about 18 years. Further, P.W.8 categorically deposed that they had obtained a certificate showing the “Date of Birth” of P.W.2 from the Headmistress of the school, where P.W.2 studied. But the prosecution has not produced any certificate as a document. The certificates, like the mark sheet of SSLC and Transfer Certificate of P.W.2 were obtained by P.W.7 and P.W.8, the investigation officers, from the said Headmistress. They also were not marked. Therefore, there was no documentary evidence to prove the age of P.W.2, except Ex.P12, a doctor's certificate showing the age of P.W.2. He would further submit that P.W.1, in her complaint,