In cases of conflicting evidence, the benefit should go to the accused.

R. K. DASH, J.

( 1 ) THIS revision at the instance of the informant is against the judgement of the learned Additional Sessions Judge, Rourkela, passed in Criminal Appeal No. 9 of 1993 whereby he set aside the order of conviction and sentence recorded against the accused, opposite party No. 1 herein, under S. 366, IPC.

( 2 ) THE prosecution case unfurled during trial is that Kumudamanjari Pati, PW 2 aged about 16 years was a student in Ispat College, Rourkela. On 19-5-91 at about 9. 30 a. m. she left home informing her mother that she was going to her friend's house to attend a birth day feast. But when she did not return till late night, her father, the informant, lodged a missing report at Sector-7 Police Station and searched for her here and there. At last coming to know that the accused had kidnapped her with intent to compel her to marry him, he lodged F. I. R. Ext. 1 to the police. On receipt of the said report, Investigating Officer, PW 7 registered a case and proceeded with the investigation, in course of which he recovered Kumudamanjari from the house of the accused and deposited with her father. He also seized the identity card, school leaving certificate of Kumudamanjari and the Admission Register of Ispat College, Rourkela, and on completion of investigation, placed charge-sheet against the accused under S. 366, IPC.

( 3 ) THE accused denied the indictment. His plea was that both he and Kumudamanjari were in love which culminated in their marriage and coming to know of this, Kumudamanjari's parents decided to give her in marriage elsewhere. This ultimately led Kumudamanjari to force him to leave Rourkela. The Further plea of the accused was that by the time of the alleged incident Kumudamanjari had become major.

( 4 ) IN order to bring home the charge to the accused, prosecution examined seven witnesses and the accused in support of his defence plea examined four and the learned trial Court on a scrutiny of the evidence held the accused guilty of the offence under S. 366, IPC and consequently convicted and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for one month.

( 5 ) ON appeal the learned Additional Sessions Judge reappraised the evidence and came to hold that Kumudamanjari had become major by the time of the incident and having so held, he acquitted the accused and it is against that order of acquittal that the informant has preferred the present revision.

( 6 ) LEARNED counsel for the informant-petitioner challenging the correctness of the findings recorded by the appellate Court strenuously contended that the learned Additional Sessions Judge ought to have relied upon the ocular testimony of PW 1 as also the school leaving certificate (Ext. 10) and accepted the finding of the trial Court that at the time of the incident Kumudamanjari was minor. He further submitted that the evidence of two doctors, PWs 3 and 4, according to whom the girl had become major being opinion evidence as envisaged in S. 45, Evidence Act, over much importance should not have been given to it. The learned counsel for the accused, on the other hand, supporting the appellate Court's finding, urged that the learned Additional Sessions Judge on proper appreciation of the evidence, has arrived at a right conclusion acquitting the accused of the charge and this Court sitting in revision should be slow to disturb the same.

( 7 ) THE essential ingredients of the offence of 'kidnapping' defined in S. 361, IPC are : (1) Taking or enticing away minor or a person of unsound mind; (2) Such minor must be under sixteen years of age, if a male or under eighteen years of age is a female; (3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind, and (4) Such taking or enticing must be without the consent of such guardian. Keeping in view the prosecution case and the defence plea, the main