JUDGMENT 1. - This appeal is directed against the judgment passed by the learned Additional Sessions Judge, Sikar dated 28th February, 1977, by which the appellant was convicted for the offence under Sections 366 and 376 IPC and sentenced to four years rigorous imprisonment and a fine of Rs. 500/-, in default to undergo six months rigorous imprisonment on the first count and three years, rigorous imprisonment and a fine of Rs. 200/-, in default to undergo two months rigorous imprisonment on the second count with an order that the substantive sentences shall run concurrently. 2. Briefly stated the facts of the case giving rise to this appeal are as under : On 30th August, 1974 at about 8. P.M; Smt. Chhigni (PW 1) daughter of Kumaram (PW 7) went to the `Bada' adjacent to her houses to make water. The appellant reached there and took her to his field and kept her there for three days. He is said to have committed rape upon her during that period. Kumaram (PW 7), father of Smt. Chhigni made efforts trace-out the girl but in vain. He then approached Rinmal Singh (PW 11), the Pradhan, Panchayat Samiti Piprali and informed him about his daughter missing. He then went to Bus Stand to find out if the girl was there waiting for the bus. When the girl was not found there Rinmal Singh (PW 11), at the instance of Kumaram (PW 7) wrote the report Ex. p. 9 and sent him to the police station. Kumaram (PW 7) went to Dr. S.P. who directed him to go to police station, Ragunathgarh. Baluram S.H.O. (PW 13) registered a case and entrusted the investigation to Head Constable Madanlal (PW 12). Madanlal (PW 12) went to the house of Kumaram (PW 7) and prepared the site plan. He then went to the field of the appellant on 2-9-76. Smt. Chhigni and Sarwar Beg were found there. Sarwar Beg was arrested. Smt Chhigni was entrusted to her father. The site plan and the recovery memo of the girl were prepared. The clothes of Smt. Chhigni which she was wearing at the time were sent for chemical examination. At the instance of the appellant his under wear was recovered from his house. Smt. Chhigni was sent for medical examination. Dr. Smt Chhigni was entrusted to her father. The site plan and the recovery memo of the girl were prepared. The clothes of Smt. Chhigni which she was wearing at the time were sent for chemical examination. At the instance of the appellant his under wear was recovered from his house. Smt. Chhigni was sent for medical examination. Dr. A.H. Mathur (PW 9), Medical Jurist at Government S K, Hospital, Sikar, examined her and prepared the report Ex. p, 11. 3. Upon completion of necessary investigation, charge-sheet against the appellant was filed in the court of Judicial Magistrate, Sikar. The learned Magistrate finding a prima facie case exclusively triable by the court of sessions, committed the appellant to the court of Additional Sessions Judge. Sikar to stand his trial for the aforesaid offences. On being chargesheeted the appellant denied the incidents and claimed to be tried. The prosecution examined 13 witnesses in all to substantiate the case against the appellant. The appellant in his statement under Section 313 Cr. PC denied the allegations levelled against him and stated that he had seen Smt. Chhigni in a Dharamshala and one boy running from there. That, on being questioned as to why she was there, Smt. Chhigni threatened the appellant of involvement in a false case if he would disclose the fact to anybody. Five defence witnesses were examined to substantiate the contention of the appellant and also to establish that on 2nd November, 1981, the date of recovery of the girl, he was attending a meeting of `Yuva Congress' Sikar. The learned Sessions Judge placed reliance on the prosecution evidence and passed the judgment under appeal. 4. The learned counsel for the appellant has assailed the findings of the learned trial Judge on a number of grounds. According to him from the solitary testimony of the prosecutrix, it can not be believed that she was forcibly taken away by the appellant for being ravished. The learned counsel contended that even if there was any sexual intercourse' it must have been with the consent of the prosecutrix, who as the record shows must have crossed the age of 16. The learned counsel contended that even if there was any sexual intercourse' it must have been with the consent of the prosecutrix, who as the record shows must have crossed the age of 16. Another ground taken for attacking the judgment of the learned trial Judge is that the prosecution case about the prosecutrix and the appellant having been found in the field of the appellant stands falsified by the testimony of Sarpanch Paras Ram (PW 10) and Pradhan Rinmal Singh (PW 11) who have deposed that the girl was found at her house and the accused was arrested from his house. 5. The learned Public Prosecutor controverting these arguments submitted that there is nothing to disbelieve the convincing evidence of the prosecutrix supported by the circumstance of her being found in the field along with the accused. According to the learned Public Prosecutor, the learned trial Judge has correctly arrived at a conclusion that even if at the initial stage the girl might have accompanied the boy for the purpose of sexual intercourse, still her statement to the effect that at the time of rape, she tried to raise a cry but was threatened with a knife by the appellant, shows that she was not a consenting party and therefore, the offence under Section 376 I.P.C. was clearly made out. The learned Public Prosecutor also argued that a girl being taken with an intention to commit rape against her will and without her consent clearly proves the ingredients of Section 366 I.P.C. and, therefore, the judgment of the learned trial Judge is fully justified. In cases of sexual offences the age of the prosecutrix is of prime importance. Smt. Chhigni and her parents have stated her age to be 14 years but they could not substantiate their contentions by any document nor could the parents tell the exact date of birth of the girl. The prosecution has examined Murlidhar Sharma (PW 2) the Head Master Government Middle School Kartrathal, District Sikar, to prove the entry in the school register, according to which the date of birth of the girl 15-2-63. Relevant it is to note that entry was not in the hand of the witness nor could he tell as to who was the Head Master at the relevant time and in whose hand writing the entry were. Dr. Relevant it is to note that entry was not in the hand of the witness nor could he tell as to who was the Head Master at the relevant time and in whose hand writing the entry were. Dr. A.N. Mathur (PW 9) has on clinical examination opined that the girl appears to be about 15 years. For exact opinion he advised X-ray and then on the basis of the X-ray report, found her to be of about 16 years of age. The Doctor found the girl to be of good physique and development. It is pertinent to note that Doctor A.N, Mathur has opined that Smt. Chhigni was accustomed to sexual intercourse. There is force in the arguments the learned counsel for the appellant that from this type of evidence it can not be said with certainty that Smt. Chhigni had not crossed the age of 16 at the relevant time. He also stressed that being accustomed to sexual intercourse she was the girl of mature understanding so far as sexual matters were concerned. 6. The learned counsel next argued that the circumstances of the case are not suggestive that rape was committed on Smt. Chhigni by the appellant. 7. According to Smt. Chhigni she was ravished on the ground on the field. She has also stated about her sustain injuries on her buttocks, She has not shown those injuries to the Doctor. The Doctor has stated that there was no injury on any part of her body including breast and genitals. Her vaginal swab and smear was taken and preserved in a sealed bottle and sent for chemical examination. Doctor Mathur on referring the report of the Chemical Examiner Ex. P. 14, has deposed that no opinion can be given on the basis of the Chemical Examiner's report Ex. P. 14 whether Chhigni was ravished or not. The Doctor has not found any symptom of recent intercourse. Smt. Chhigni has stated about there-being marks (Chasle) on the ground where she was ravished but the Investigating Officer has denied the existence of any mark (Chasle) at the place. 8. In cases of rape statement of prosecutrix is to be taken with caution. This is all the more important in a case like the present one where according to the medical opinion, the prosecutrix was accustomed to sexual intercourse. 8. In cases of rape statement of prosecutrix is to be taken with caution. This is all the more important in a case like the present one where according to the medical opinion, the prosecutrix was accustomed to sexual intercourse. It is important to note that Smt. Chhigni had eloped from her house in the night. Statement of Kumarau (PW 8) and Rinmal Singh (PW 11) show that there were impressions of Chapples and Shoes outside the `Bada'. According to Smt. Chhigni the fencing of the Bada was up to the height of him. She has not received any scratch on her body. This shows that no force was used in taking her. The learned trial Judge has also opined that the circumstances indicate that she might have voluntarily accompanied the appellant. The learned trial Judge has considered the absence of the consent of Smt. Chhigni on her bald testimony that she wanted to raise the cry but was threatened by the appellant. The absence of any injury on the person of the prosecutrix and the appellant falsify this contention of the girl. Apart from it, the statement of Rinmal Singh and Parsa Ram, that Smt. Chhigni was recovered from her house and Sarwar Beg was arrested from his house, severely damage the prosecution case about the two being found at the field of the appellant. The learned Public Prosecutor contended that these two witnesses have been declared hostile the prosecution and, therefore, the statement of the prosecutrix and the Head Constable should be believed as far as the recovery point is concerned. Parsa Ram and Rinmal Singh were Sarpanch and Pradhan of the Panchayat Samiti respectively. They are persons of confidence of Kumaram, father of the girl. It is Rinmal Singh who at the instance of Kumaram scribed the First Information Report and, therefore, there is nothing to infer that they were in any way interested in saving the appellant by telling a lie. The argument of the learned Public Prosecutor that these persons have signed Ex. P. 2 the recovery memo and therefore, should be disbelieved regarding their different versions given in the court has force. The argument of the learned Public Prosecutor that these persons have signed Ex. P. 2 the recovery memo and therefore, should be disbelieved regarding their different versions given in the court has force. But at the same time the explanation given by these persons that the memo was not read over to them and that it was prepared at the house of Kumaram cannot be lightly brushed away especially when the place of the arrest of the accused is not mentioned in the Arrest Memo Ex.P.15. 9. Yet another factor throwing doubt on the truthfulness of the prosecution case is that in the First Information Report Kumaram has suspected Sarwar Beg, Jhabra and Banwari as the persons taking away his daughter. Attention of the witness was drawn to this part and he disowned that version and stated that he had only stated about Jhabra and Banwari being friends of Sarwar Beg. Be it as it may, this shows that Kumaram was having a doubt in his mind about the conduct of the girl. I am strengthened this opinion by the fact that Kumaram has searched the girl at the Bus stand, which according to the learned counsel for the appellant has shows that he was apprehending the girl going in a bus to some place. The contention of the learned Public prosecutor is that Smt. Chhigni has stated that some days prior to the incident,Sarwar Beg had asked her to accompany him to Bombay and she refused to go. The learned Public prosecutor also referred to that part of the statement of Kumram that 15 days prior to the occurrence Chhigni had complained to him about Sarwar Beg trying to outrage her modesty in the Bazzar and he (witness) had gone to the house of Sarwar beg to reprimand & Sarwar beg thereupon threw the challenge that he would abscond with his daughter. He admitted that he had told this fact to the Grand Father of Sarwar Beg only and to none else. He also submitted that he had neither told the fact to the Pradhan nor made a report to the effect to the police. Smt.Chhigni nowhere states about making any complaint to her father about Sarwar Beg asking her to go to Bombay nor does she speak of the appellant trying to outrage her modesty and her telling that fact to her father. Smt.Chhigni nowhere states about making any complaint to her father about Sarwar Beg asking her to go to Bombay nor does she speak of the appellant trying to outrage her modesty and her telling that fact to her father. If this story would have been correct, then there was no reason for the father of the girl not to go first of all to the house of Sarwar Beg to trace-out the girl and ask the pradhan also to find out if the girl was at the house of Sarwar Beg. Khumram has stated that he had not gone to the house of Sarwar beg to trace out the girl. He had stated that he had gone to the field of Sarwar beg but that too only with police. In the natural course of events if a person has any suspicion about any body taking away his daughter, he would try to find out at the house or field of that person. 10. All these circumstances show that the prosecution has not come with the true story. The statements of Rinmalsingh (P.W.ll) and Parsa Ram (P.W. 10) about the recovery of the girl from house and the arrest of the appellant from his house & not from the field throw doubt on the prosecution case about the recovery of the girl from the field, the only circumstance which the prosecution could bring forth to support of the solitary testimony of the prosecutrix. 11. The prosecution case about the accused being arrested from the field also stands falsified from the fact of the recovery of the under-wear of the accused from his house. Smt. Chhigni has stated that since the time of her being taken to the field till the arrival of the police and the arrest of the accused from, that place, the accused had remained there through-out, where as the statement of the Head Constable is that the accused furnished information to him that the underwear he was wearing during that period was concealed by him at his house & he was prepared to get it recovered.According to the Head Constable in pursuance of that information the accused took him to his house and at his instance his father gave the underwear which was sent for chemical examination. If the accused was there in the field throughout the period where was the occussion for him to place his underwear in the house.Another infirmity in this prosecution case throwing doubt on its truthfulness is the failure of the prosecution to examine the occupants of neighbouring fields. The prosecution case coming forth from the statement of Smt. Chhigni is that Sugan Khan was bringing `Ladoos' and other things for her and the accused which she had eaten. Sugan Khan has not been examined by the prosecution for the reasons best known to it. He has been examined as Defence witness as D.W.5 but not a single question has been asked to him by the Public prosecutor about his going to the field and taking things for the accused and the prosecutrix. All these circumstances together throw considerable doubt of the truthfulness of the prosecution case, and I am, therefore, inclined to hold that prosecution could not bring home the guilt against the appellant beyond all shadow of reasonable doubt. The conviction of the appellant is therefore not justified. 12. Consequently, the appeal is allowed & the conviction & sentences awarded to the appellant are set aside and he is acquitted of the charges levelled against him.He is already on bail & need not surrender to it. His bail bonds stand discharged.Appeal allowed. *******