JUDGMENT 1. - This appeal is directed against the judgment passed by the learned Sessions Judge, Partabgrah, dated September 28, 1976 by which appellant Wala was convicted for the offence under section 366 Indian Penal Code and sentenced to 21/2 years rigorous imprisonment and a fine of Rs. 500/-; in default of payment of fine to undergo six months rigorous imprisonment. 2. Succinctly narrated the facts of the case leading to the trial and conviction of the appellant are as under:-In the month of December 1975 Phoolki (PW 8) and Gauri (PW 9) had gone from village-Talia to Savakheda to bring Kamli (PW 10), their sister-in-law. After staying there for three nights they left for Talai on December 12, 1975. When they reached in between Savakheda and the `Charpotha Pathar', appellant Wala forcibly took Phoolki towards the jungal. Gauri (PW 9) and Kamli (PW 10) went back to Savakheda and informed Chunilal (PW 4) and Mangilal (PW 3) about the incident. Despite efforts, Phoolki could not be traced out. Thereafter Chunilal and Mangilal went to village Talai and informed Rama (PW 2), father of Phoolki. On December, 16,1975, Rama lodged report Ex. P.1 at police station Rathanjana. The Station House Officer, Mohanlal (PW 11), went to village Savakheda on December 17, 1975 where Phoolki was produced by Nathu, her uncle. Phoolki was medically examined. According to the Doctor her age was in between sixteen to seventeen years. There being also allegation of Phoolki being ravished by Wala, she was medically examined in that respect and the Doctor opined that there were no symptoms of any rape. 3. After completion of necessary investigation, chargesheet under sections 366 and 376 Indian Penal Code was filed against the appellant Wala in the Court of Judicial Magistrate, Partabgarh. The learned Magistrate finding a primafacie case exclusively triable by the Court of Sessions committed the appellant to the Court of Sessions, Partabgarh. The learned Judge recorded the plea. On the denial of the appellant for the indictment and claiming for trial, prosecution examined eleven witnesses in all. Appellant in his statement under Section 313 of the Code of Criminal Procedure totally denied the allegations levelled, and stated that because of enmity of Chunilal, he had been falsely implicated in the case. No defence evidence was led. 4. The learned Sessions Judge did not believe Mst. Appellant in his statement under Section 313 of the Code of Criminal Procedure totally denied the allegations levelled, and stated that because of enmity of Chunilal, he had been falsely implicated in the case. No defence evidence was led. 4. The learned Sessions Judge did not believe Mst. Phoolki for the allegation of rape against the appellant and acquitted him for that charge. The prosecution evidence regarding the abduction of the girl was however relied and the judgment of conviction under section 366 Indian Penal Code as stated above was passed. 5. The learned counsel for the petitioner has assailed the findings of the learned Sessions Judge on a number of grounds. 6. It has been strenuously contended by him that there is no explanation for the delay of four days in filing the report to the police. Referring to the inconsistencies in the statements of the various prosecution witnesses, the learned counsel for the appellant stressed that it is not evident as to at whose instance the prosecutrix was recovered. It has also been pointed out that the prosecution case is that Mst. Phoolki was recovered on December 17, 1975, while according to the Doctor he examined her on December 15, 1975. According to the learned counsel if it was so, the whole prosecution case falls flat. 7. The learned Public Prosecutor controverting these contentions submitted that there is no reason to disbelieve the cogent, convincing evidence of the three girls regarding the abduction. About the medical examination, the learned Public Prosecutor tried to convince that the medical examination might have been at the instance of the appellant Wala and he coming to know about the age of the girl to be below eighteen years might have thought it proper to release her. About the delay in lodging the first information report, the contention is that Rama (PW 2) and others making efforts at their own level to trace out the girl might not have thought it proper to lodge the report till their efforts failed. 8. So far as the age of the prosecutrix is concerned, there is the medical evidence of Dr. Ganendra Rai (PW 1) that she was between sixteen to seventeen years of age. The same Doctor had taken the x-ray. He has admitted that there may be difference of two years in the age stated on medical examination. 8. So far as the age of the prosecutrix is concerned, there is the medical evidence of Dr. Ganendra Rai (PW 1) that she was between sixteen to seventeen years of age. The same Doctor had taken the x-ray. He has admitted that there may be difference of two years in the age stated on medical examination. In the next breath the Doctor stated that this girl could not be more than eighteen years. Rama father of the girl has stated the age to be fifteen to sixteen years. Jhamkoo (PW 5), the mother of the girl has stated the age to be about sixteen years. She has further stated that she does not recollect her own age when Mst. Phoolki was born. From the evidence on record, it can be inferred that the age of the girl was on the marginal line of attaining the age of the majority. 9. The pertinent question in this case is whether there is convincing evidence about the girl being forcibly taken away by Wala appellant. Besides Mst. Phoolki, there are two other eye witnesses to the incident. Gauri (PW 9) and Kamli (PW 10) after narrating the facts stated that they returned to village Savakheda and narrated the incident to Chunilal (PW4), prior to Mst.Phoolki returning back Kamli(PW10)has of course stated that her statement was recorded by the police prior to the return of Mst. Phoolki but she admitted that she and Gauri (PW 9) were examined by the police at the same time. Gauri (PW 9) has stated that when the Station House Officer recorded her statement Mst. Phoolki had returned to Savakheda. Kamli is twelve years old and Gauri is thirteen years old. The statement of these two witnesses will have to be considered in the light of other facts and circumstances of the case such as the information to Chunilal brother of Kamli and Rama father of Mst. Phoolki and lodging of the first information report. 10. Chunilal (PW 4) has stated that when Kamli (PW 10) and Gauri (PW 9) went to him Mangilal and Bagdiram were present at the well. Mangu and Rakba were sent to village Talai. Mangilal (PW 3) has stated that when the girls informed him, he called Chunilal (PW 4) from the well. 10. Chunilal (PW 4) has stated that when Kamli (PW 10) and Gauri (PW 9) went to him Mangilal and Bagdiram were present at the well. Mangu and Rakba were sent to village Talai. Mangilal (PW 3) has stated that when the girls informed him, he called Chunilal (PW 4) from the well. Be it as it may, the case is that Mangu and Rakba are said to have gone to inform Rama to village Talai on the same day. According to Jhamkoo (PW 5), on being informed by Bagdiram and Mangilal her husband went to Savakheda and she accompanied. Chunilal (PW 4) has stated that after sending Mangu and Rakba to Talai, he went to police station Rathanjana. According to the witness, Rama reached his house the same day at 10.00 p.m., stayed there for the night and in the next morning he also reached the police station. Jhamkoo (PW 5) has stated that her husband did not go to the police station as that time rather had gone there after Mst. Phoolki had returned. According to Jhamkoo (PW 5) it was Chunilal (PW 4) who had gone to the police station in the night of the occurrence. The version given by Chunilal (PW 4) and Rama (PW 2) shows that on 12th Chunilal had gone to the police station and on 13th morning Rama also went there. There is no information on the record of either of these two days. PW 11 Mohanlal, the Station House Officer has categorically stated that when on December 16, 1975 he returned to the police station, he received information Ex. P. 4 through L.C. Babulal, who in his absence was incharge of the police station. The information is dated December 16, 1975. This clearly shows that prior to December 16, 1975 there was no information with the police regarding the alleged abduction of Mst. Phoolki. There is no explanation about it. According to Rama (PW 2', he had gone with Chunilal, Mangu and Mangga to the police station for lodging the report. Mangilal (PW 3) has stated that he and Rama had not gone to the police station rather Chunilal had accompanied Rama. 11. The next question for consideration is about the return of the girl. According to Rama three or four days after lodging the report, the girl was traceable. Mangilal (PW 3) has stated that he and Rama had not gone to the police station rather Chunilal had accompanied Rama. 11. The next question for consideration is about the return of the girl. According to Rama three or four days after lodging the report, the girl was traceable. According to the witness, it was the police who had recovered the girl and on her return Mst. Phoolki told him that Wala had forcibly taken her away. According to the witness after lodging the report, the Sub-Inspector told him that he may return to his house and see whether the girl was there or not. The witness further stated that he could have the girl four days after lodging the report and that on his returning home Mst. Phoolki was found present at the house. He further stated that he then took the girl to Rathanjana, police station and from there she was taken to the hospital. 12. According to Chunilal (PW 4), he had seen the girl Mst. Phoolki three or four days after lodging the report at the police station. The witness stated that Nathu had brought the girl to the police station. According to Jhamkoo (PW 5), three days after lodging the information, the girl returned home and informed that Wala had taken her away forcibly. Bagdi Ram (PW 6), motbir to the recovery memo has stated that Mst. Phoolki was recovered at the house of Chunilal at Savakheda, where her parents had brought her. The statement of Mst. Phoolki is that she returned to her house of her own accord, four days after the incident and told about it to her mother. According to the witness she was then taken by her father to Savakheda, where the Sub-Inspector of Rathanjana was present. In cross-examination, the witness changed the version and stated that when she reached village Talai, her father, mother and uncle were not present there rather all of them were at village Savakheda. According to the witness she remained at village Talai and went to Savakheda next day Nathu uncle of the girl has not been examined by the prosecution. The evidence of various witnesses is contradictory to each other regarding the information to the police and return of the girl and the circumstances in which and the place where from she was recovered. 13. The evidence of various witnesses is contradictory to each other regarding the information to the police and return of the girl and the circumstances in which and the place where from she was recovered. 13. These infirmities in the prosecution case become all the more important in view of the medical examination of the girl prior to the lodging of the first information report. Dr. Ganendra Nath Rai (PW 1) in his statement dated July 28, 1976 at the trial has specifically deposed that it was on December 15, 1975 that at the request of the police, he had examined Mst. Phoolki daughter of Rama for ascertaining her age. The Doctor further stated that on December 15, 1975 he had taken x-ray of the girl. On that day the statement of the Doctor was kept reserved at the request of the Public Prosecutor for producing the x-ray report. The statement of the Doctor was resumed on July 29, 1976. The Doctor on that day stated that Ex. P. 1 the report of the medical examination dated December 15, 1975 was given at personal request. The contention of the learned Public Prosecutor is that Wala might have got Mst. Phoolki examined and not the police Rathanjana, is devoid of force for the reason that the Doctor has specifically stated that it was at the request of the police that he had examined the girl on December 15, 1975. This date has come in the statement of Doctor more than once. The medical report and the x-ray also bear this date. Hence, there cannot be any mistake in mentioning the date. Rama (PW 2), father of the girl has stated that after return of the girl she was taken, to the hospital by his brother and the Sub-Inspector. This being the position, the girl could not have been taken prior to the December 17, 1975 which according to the prosecution is the date of her being recovered at the house of Chunilal by the Police. Mst. Poolki nowhere states about her being examined by the Doctor during the period she remained with Wala. According to her after the Sub-Inspector, examining her, she was taken to the Partabgarh hospital by her father and Nathu and one police constable. 14. Mst. Poolki nowhere states about her being examined by the Doctor during the period she remained with Wala. According to her after the Sub-Inspector, examining her, she was taken to the Partabgarh hospital by her father and Nathu and one police constable. 14. On the basis of this sort of evidence regarding the medical examination on December 15, 1975, the learned counsel for the appellant has built up the argument, that the girl was not taken away at all or even if there was any matter, it was of the elopement of the girl of her own accord and on her return she might have been medically examined by the police and information suiting the investigation was recorded on December 16, 1975. Be it as it may, there is no explanation for not lodging the information for four days i.e. till December 16, 1975. This infirmity coupled with the fact that the two eye witnesses were examined after the return of the girl; Mst. Phoolki of her own accord returning to the house; police recovering her at the house of Chunilal on December 17, 1975 and the medical examination of the girl prior to the filing of the report throws ample doubt on the truthfulness of the prosecution case. 15. In such circumstances, the conviction of the appellant can not be justiciably sustained. 16. Consequently, the appeal is allowed and the conviction and sentence awarded to the appellant Wala are set aside and he is acquitted of the charge. The appellant is on bail. He need not surrender to it. His bail bonds stand discharged.Appeal Allowed. *******