IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.168 of 2007 DATE:20.07.2010 Between: Veyyakula Satyanarayana …… Appellant/Accused And: The State of A.P. rep. By its Public Prosecutor …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.168 of 2007 JUDGMENT: The appellant who had certain affair with the victim girl P.W- 2 was convicted by the Special Judge under the S.Cs and S.Ts (P.O.A) Act-cum-Metropolitan Sessions Judge, Visakhapatnam by judgment dated 12.01.2007 in Sessions Case No.10 of 2006 (S.C and S.T) for offence under Section 363 I.P.C and was sentenced to rigorous imprisonment for three years and fine of Rs.1,000/-. The lower Court based its conclusion on evidence of P.Ws 1, 3 and 4. P.W-2/alleged victim did not support the prosecution case. In spite of it, there was no cross-examination of P.W-2 by the Public Prosecutor in the lower Court treating her as hostile to the prosecution. She says that she fell in love with the accused and that on 05.05.2003 she went to her friend’s house at Ongole without informing her parents and that on suspicion of she going away with the accused, her father P.W-1 lodged report with the police. P.W-2 did not state that it was the accused who took her away with him or that she accompanied the accused to Ongole or any other place. 2) It is evidence of P.W-1 that after his daughter wrote 10th class examinations, the accused took her away and that after coming to know about the same, he gave Ex.P-1 report to the police. Thus, P.W-1 was not a witness for the alleged taking away of P.W-2 by the accused. P.W-1 came to know about the said fact and he was not personally aware of the said fact. In cross-examination, P.W-1 deposed that in the first instance he gave report to the police stating that whereabouts of his daughter were not known. Thus, P.W-1 is not competent to say the circumstances under which P.W-2 left his guardianship. P.W-3 is mother of P.W-2. She expressed ignorance about identity of the accused. She did not identify the accused when she was examined in the trial Court during trial. She only stated that she suspected about the accused taking away her daughter. Any amount of suspicion cannot take the place of proof. P.W-4 is elder sister of P.W-2. She says that there was rumour in the village relating to the accused and P.W-2 loving each other and intending to marry. She says that in the year 2003 after P.W-2 wrote her 10th class examination, she and the accused left together to some other place. She was not a resident of Paderu, but was studying at Vizag. Therefore, she is not competent to say as to how P.W-2 left house of P.Ws 1 and 3. In any event P.W-4 did not say that at the instance of the accused, P.W-2 left her parents house or that the accused took P.W-2 away. In the absence of evidence as to the accused taking away of P.W-2 from house of P.Ws 1 and 3, it cannot be said that there is offence of kidnapping from lawful guardianship as defined in Section 361 I.P.C. There is nothing in evidence of P.Ws 1, 3 and 4 that the accused took away P.W-2 who was a minor girl. 3) Funniest part of this case is that the accused who was already married, is now leading marital life with P.W-2 voluntarily. P.W-2 admits she having sexual relationship with the accused and delivering one child through the accused. It is stated by the defence counsel that as on today P.W-2 delivered another child also through the accused. Having regard to all the circumstance of the case, this Court is of the opinion that the prosecution could not make out requirements of Section 361 I.P.C in order to convict the accused for the offence under Section 363 I.P.C. I do not agree with the conclusion of the lower Court, having regard to the above evidence on record. 4) In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the appellant/accused and acquitting him. _______________________________ SAMUDRALA GOVINDARAJULU, J July 20, 2010 KSH