JUDGMENT :

S. Pujahari, J.

This appeal is directed against the judgment of conviction and order of sentence passed by the learned 1st Addl. Sessions Judge, Cuttack in S.T. No.50 of 1992 convicting the appellant (hereinafter referred to as “the accused”) for commission of offence under Section 366 of the Indian Penal Code, 1860 (for short “the IPC”) and sentencing him to undergo R.I. for a period of 3 years and to pay a fine of Rs.500/-, in default, to undergo R.I. for a further period of two months.

2. Adumbrating the fact as unfolded before the trial court is that on 21.01.1991 the accused, a co-villager (P.W.4) aged about 16 years old had induced the victim girl to leave her lawful guardianship, being swayed by the version of the accused, the victim left her lawful guardianship and eloped with the accused, spent a night with him in a nearby betel vine. They shuttle from one place to other and ultimately they reached Cuttack where they sworn an affidavit showing their status as ‘husband’ and ‘wife’. When the victim was found missing, on the report of her father, investigation taken up, the victim was rescued and restored to her lawful guardianship, police took up investigation of the case touching all aspects and on completion thereof placed charge-sheet against the accused for commission of offence under Sections 363 and 366 of IPC. The learned J.M.F.C.(R), Cuttack committed the case to the Court of Sessions. The Court of the learned First Addl. Sessions Judge, Cuttack, however, framed charge under Section 366 of IPC alone against the accused who abjured his guilt and claimed to be tried. Prosecution, therefore, examined 8 witnesses and exhibited similar number of documents. The accused who had taken the plea of denial and false implication, however, did not choose to adduce any defence in his support.

3. On conclusion of the trial, placing reliance on the evidence adduced by the prosecution, particularly the evidence of the victim girl (P.W.4) and the Investigating Officer (P.W.8), the learned trial court returned the judgment of conviction and order of sentence as stated aforesaid.

4. Assailing the aforesaid judgment of conviction and order of sentence, this criminal appeal has been filed by the accused, inter-alia, on the ground that there was lopsided appreciation of evidence on record as nothing incriminating the fact that the accused had taken the victim girl from her lawful guardianship or induced her to elope with him proved by the prosecution.

5. The learned counsel for the accused submits that since in this case the victim girl had stated that she voluntarily joined the company of the accused and there being nothing on record suggesting the fact that she was induced by the accused to leave her home and no convincing material being there indicating the fact that the victim girl could not have left the company of her lawful guardianship save and except the inducement, conviction under Section 366 of IPC was inept and not legally sustainable. To buttress his stand, the learned counsel places reliance on a decision of this Court in the case of Laxman Mishal vs. The State, (1997) 12 OCR 275, wherein His Lordships have held that “possibility of the victim going away on her own accord with the accused from her lawful guardianship cannot be ruled out.” It is further submitted that there was also no convincing and acceptable evidence that the accused had taken away or induced the victim to leave her parental home and she being in deep love with the accused, the possibility of the victim leaving the lawful guardianship on her own volition cannot be ruled out. Placing reliance on such law laid down in the referred case, it is also submitted that since the ingredients of Section 366 of IPC is conspicuous by its absence in this case, the trial court should not have recorded the judgment of conviction. In such premises, the learned counsel submits to set-aside the impugned judgment of conviction and set the accused at liberty.

6. Per c