N. N. SHARMA, J. ( 1 ) THIS appeal is directed against order dated 19. 10. 1978 recorded by Sri V. M Kher, learned IV Additional Sessions Judge, Etah in Sessions Trial No. 102 of 1976. Both the appellants were convicted under Section 366 of Indian Penal Code arid sentenced to rigorous imprisonment for a period of three years each. ( 2 ) KHACHERU appellant was further convicted under Section 376 of Indian Penal Code and sentenced to five years rigorous imprisonment Both the sentences of Khacheru were ordered to run concurrently. ( 3 ) BOTH the appellants are residents of village Lehra, Police Station Soron, district Etah; They are boatsmen. Victim Km. Sneh Lata (P. W. 7), daughter of Komal Singh (P. W. 6) is co-villager of appellants and is Thakur by caste. Komal Singh is a man of status and member of the Municipality. ( 4 ) OCCURRENCE. was alleged to have taken place on 30. 8. 1974 at about 6. 00 P. M. when both these appellants and one Shanti Swarup were alleged to have kidnapped Km. Sneh Lata alias Munni aged about 14 years from Someshwar Ghat, Soron District Etah with intent that she may be forced or seduced to illicit inter-course. They were further charged for having committed rape on her at the house of co-accused Onkar in between 5. 9. 1974 and 10. 9. 1974 in Mohalla Mandi Ramdas, Police Station Kotwali, district Mathura. ( 5 ) FIRST Information Report about the occurrence was lodged at Police Station Soron on 4. 9. 1974 at 10. 40 A. M. by informant; distance of police station from the place of occurrence was about three milest both the appellants were nominated in this report. According to informant, his daughter had gone for purchasing clothes to Soron on that evening when she was kidnapped. Informant learned about it from Brahma Nand (P. W. 8), Satish Chandra (P. W. 5) and Han Shanker (P. W. 3) Case was registered at the police station and Mohd. Aslam Khan (P. W. 12) took up the investigation; he found the victim in Nariniketan, Mathura and gave her in custody of her father of, 14. 9. 1974. Witness Han Shanker Gupta was interrogated on 24. 9. 1974, Satish Chandra Gupta was interrogated on 2. 10. 1974 and Brahma Nand was interrogated on 18. 10. 1974. ( 6 ) KM. Aslam Khan (P. W. 12) took up the investigation; he found the victim in Nariniketan, Mathura and gave her in custody of her father of, 14. 9. 1974. Witness Han Shanker Gupta was interrogated on 24. 9. 1974, Satish Chandra Gupta was interrogated on 2. 10. 1974 and Brahma Nand was interrogated on 18. 10. 1974. ( 6 ) KM. Sneh Lata, who is married now, also made a statement about the complicity of appellants as well as accused Bankey, Shanti Swarup, Bheem Sen Mool Chandra. Hon Lal, Smt. Omwati Onkar and Smt. Premi who have been acquitted by the learned trial Judge. In her statement, she claimed to have been abducted when she had gone on that day to the house of her friend Kusum in Soron in connection with the birth-day of her brother. Her younger sister Asha also accompanied her At about 6. 00 P. M. she went to Someshwar Ghat for a round leaving her younger sister Asha at the house of Oakar. Appellants Khacheru and Nand Ram met her and informed her that her younger brother had suddenly fallen in and her parents had taken him to Kasganj. They also misrepresented that she was called upon by her parents at Kasganj. She believed their statements and accompanied them. As no bus was available at Soron busstan-, so they went to railway station Soron Shanti Swarup co-accused, met them and confirmed the news about illness of her brother and demanded her gold chain to raise some money for the treatment of her brother. However, Sneh Lata did not part with her chain. All the three accused put her in the train at Soron railway station. Khacheru and Nand Ram accompanied her in the train up to Mathura. Shanti Swarup also went with them and when she protested, he threatened her and told her to live with Khacheru and Nand Ram at Mathura. Accused took the girl to the house of accused Bheem brother-in-law of Nand Ram. At the house of Bheem, Mool Chand accused was also living. The girl informed them about the kidnapping but they did not help her. She was kept at the house of Bheem for two or three days. Thereafter, she was taken by appellants to the house of accused Hon Lal, elder brother of Bheem. There also, she was confined by Hon Lal and his wife Smt. Omwati for one day. The girl informed them about the kidnapping but they did not help her. She was kept at the house of Bheem for two or three days. Thereafter, she was taken by appellants to the house of accused Hon Lal, elder brother of Bheem. There also, she was confined by Hon Lal and his wife Smt. Omwati for one day. They also did not help her in any manner despite her request to send her to her parents. Khacheru went away and Nand Ram took the girl to the house of accused Onkar. Onkar and his wife Smt. Premi confined her in their house. Khacheru returned two or three days after and Bankey also came with him. The girl informed Bankey about misrepresentation and the deceit practiced on her. At the house of Onkar, she was confined for about four or five days. Nand Ram and Khacheru committed sexual intercourse with her without her consent several times. ( 7 ) SHE was recovered from the house of Onkar. Nand Ram was arrested from the house of Onkar by police. Khacheru had already been arrested by the public and the girl was taken to Kotwali, Mathura where she submitted a written report Ext. Ka-7. Her petiticoat was taken into custody by police and sealed vide Ext. Ka-l. She was sent for medical examination to the Female Hospital, thereafter she was kept in Nariniketan at Mathura; her father Kamal Singh reached there and took custody of her daughter from Nariniketan. ( 8 ) THE medical examination of Sneh Lata was conducted by lady Dr. V. Bhatnagar (P. W. 9) on 11. 9. 1974 at 1. 30 P. M. in the Female Hospital, Mathura. Result is as below; Height 143 Cm. Weight-40 Kg. Teeth-14/14 space for the last mollar in Lower jaw present at both ends (teeth ). Hair-Both axillary and pubic present fine in distribution and also in nature black in colour. Breasts- Developing PV-Hymen absent, caruncle present, vagina lax. Smear taken for examination girl says that she was having menses for last three days. 1. Marks; A mole on dorsum of last forearm about 7 cms-above the wrist joint. Girl is called again tomorrow for X-ray of elbow joints. Sd. V. Bhatnagar Medical Superintendent. 11 9. 74. Vide injury report Ext. Ka-8. Smear taken for examination girl says that she was having menses for last three days. 1. Marks; A mole on dorsum of last forearm about 7 cms-above the wrist joint. Girl is called again tomorrow for X-ray of elbow joints. Sd. V. Bhatnagar Medical Superintendent. 11 9. 74. Vide injury report Ext. Ka-8. Her X-ray examination was conducted by Dr Jagdish Lal, Radiologist whose writing was proved by technician E. H. Dutt (P. W. 10) Along with X-ray plate he also filed X-ray report Ext. Ka. 10 which show that all epiphysis had united. X-ray right wrist disclosed that lower radial and ulnar epiphysis had not fused. ( 9 ) DR. V. Bhatnagar opined that the age of Sneh Lata at the time of her medical examination was in between 161/2 and 71/2 years; she was used to sexual intercourse. There were no marks on her private part about the rape within four or five days prior to her medical examination. Vagina was loose indicative of her loose morals. ( 10 ) LEARNED trial judge disbelieved the major portion of prosecution story about the complicity of co-accused; he also disbelieved the prosecution version about the rape committed on her by Nand Ram. He also was not impressed by the story of abduction from Someshwarghat and about the stay of the girl at different places in Mathura. He however, held that Sneh Lata was below 16 years and in any case below 18 years at the time of occurrence; be further found that she was a consenting party throughout but since the consent of her guardian Komal Singh had not been obtained about her being taken away from Soron so the appellants were liable as given above. ( 11 ) I have heared learned Advocates for the parties and carefully perused the record. On the very finding recorded by learned trial judge, there is hardly any case against Khacheru appellant for rape. In order to establish the charge of rape, it bas to be shown by the prosecution that Sneh Lata was below 16 years at the time of rape. In this connection, he relied on the testimony of Kamal Singh (P. W. 6) and the school certificate, Ext. 2 of the girl according to which the date of her birth was 2. 7. 1960. In this connection, he relied on the testimony of Kamal Singh (P. W. 6) and the school certificate, Ext. 2 of the girl according to which the date of her birth was 2. 7. 1960. He did not attach much significance to the opinion of lady doctor and X-ray examination according to which the girl was about 18 years and thus found that the offence of rape has been made out. ( 12 ) I have carefully read the statement of Sneh Lata (P. W. 2) as well as her father Komal Singh (P W. 6) who testified that Km. Sneh Lata was about 14 years old at the time of occurrence. Thus, there was obvious attempt to minimise her age which was not less than 161/2 years according to Dr. V. Bhatnagar. (P. W. 9) There is obviously no reason to discard the medical evidence on this point and extend the benefit of doubt to the prosecution. It is against the elementary principle of criminal jurisprudence which entitles the accused to the benefit of every reasonable doubt. Similarly, learned trial judge erred in accepting Ext 2, school certificate of the girl according to which the date of her birth was 2. 7. 1960. This certificate has been issued by the Principal of Sant Tulsidas Municipal Inter College, Soron (Eta h ). It is not in the statement of Komal Singh, her father, that this girl was a student of Sant Tulsidas Municipal Inter College, Soron at the time of Occurrence. This certificate was not duly proved or exihibited in this case. In this connection, I may simply refer to Ram Murti v. State of Haryana where it was observed (A) Penal Code (1860), Section 366 Age of prosecutrix-Evidence Unproved and unexhibited school certificate cannot be relied on Criminal Appeal No. 913 of 1966 (Punj and Haryana), Reversed. (B) Evidence Act (1872), Section 35age proof of-Unproved and unexhibited School Certificate cannot be relied upon Criminal Appeal No. 913 of 1966 (Punj. and Haryana), TI It appears that in that case, also a similar certificate was produced on behalf of Km. Satnam Kaur, a girl student of IX class who alleged herself about 14 years old. There was also the testimony of her father. Such certificate was discarded as not covered by Section35 of Indian Evidence Act, as was wronglyt held by learned trial Judge. Satnam Kaur, a girl student of IX class who alleged herself about 14 years old. There was also the testimony of her father. Such certificate was discarded as not covered by Section35 of Indian Evidence Act, as was wronglyt held by learned trial Judge. ( 13 ) SECONDLY, as regards the charges of abduction as well as rape when the girl had already attained the age of consent and major portion of her statement that Khacheru and Nand Ram met her at Someshwarghat and told her that her brother had fallen seriously ill and she was needed by her parents to take her to Kasganj was disbelieved by learned trial judge who also disbelieved her statement about her stay at different places. Such allegation is not lightly acceptable. There is evidence of lady doctor who proved her medical report Ext. Ka-8 and testified that the girl was used to sexual intercourse before the occurrence. Her hymen etc were indicative of her loose morals and there were no signs of fresh rape. No conviction under Section 376 of Indian Penal Code was possible. In this connection it was further observed in Ram Murti v. State of Haryana (supra) 2. In cases under Sections 366 and 376 age of prosecutrix is always of importance, particularly so where according to medical evidence, she was found to have been used to sexual intercourse and there was old rupture of hymen. Where the accused was acquitted of offence under Section 376, the Court should examine the question of age more closely. In the instant case also, it appears that the major portion of her statement is simply a tissue of lies. She herself alleged that she was ravished by Nand Ram and I Khacheru but conceded that Nand Ram did not commit any rape. Under such circumstances, statement of the girl was lightly discardable. So prosecution evidence about rape, as adduced in this case does not connect Khacheru with the offence of rape and he is entitled to acquittal. ( 14 ) THE next charge is under Section 366 of Indian Penal Code. According to the prosecution allegations the appellants induced Km. Sneh Lata to accompany them under misrepresentation from Someshwarghat on 30. 8. 1974 at about 6. 00 p. m. Learned trial Judge himself gave good reasons to disbelieve the statement of the girl on this point. ( 14 ) THE next charge is under Section 366 of Indian Penal Code. According to the prosecution allegations the appellants induced Km. Sneh Lata to accompany them under misrepresentation from Someshwarghat on 30. 8. 1974 at about 6. 00 p. m. Learned trial Judge himself gave good reasons to disbelieve the statement of the girl on this point. It was never mentioned in the first information report lodged by her father that she accompanied her own sister Asha also and had gone to participate in the birthday ceremony of her friend Kusums brother in Soron. Her conduct in going with accused from Someshwarghat without caring for her own sister Asha who was left alone at the house of Kusum does not appeal to reason. In cross-examination she was confronted with as many as 21 letters Exts. 1 to 21 Each letter disclosed that she was infatuated by her passion. She had intimacy with and wanted to run away with hi m even after poisoning her father. When she had denied the writing of these letters which she could have turned the tables on her and would have shown that she herself wanted to run away with Khacheru learned counsel for the accused applied on 268. 1977 to get her writing examined by an expert under Section 45 illustration (c) of Indian Evidence Act. No. order at all was passed on this application by learned trial judge. There is no mention at all about the said application in the impugned judgment also which has seriously prejudiced the appellants. Had these letters been read in evidence, this could have easily disclosed that she was so much infatuated by her passion that she wanted to run away with Khacheru. Where a minor girl on the verge of attaining majority, infatuated by passion leaves her house to meet her paramour the latter cannot be said to have taken the girl out of the keeping of her lawful guardian and is not guilty under Section 266 of Indian Penal Code vide 1979 Chand Cri C 83 at 86 Delhi. In that case there was no evidence of inducement and girl herself abandoned guardianship of her father and so it was held as in 1972 Raj L W 428 that Section 366 of Indian Penal Code did not come into play. In that case there was no evidence of inducement and girl herself abandoned guardianship of her father and so it was held as in 1972 Raj L W 428 that Section 366 of Indian Penal Code did not come into play. ( 15 ) IN the instant case as regards the evidence of abduction, it is merely flimsy. The informant claimed to have learned the information from Brahmanand Bhardwaj (P. W. 1) that he, Han Shanker (P. W. 3) and Satish Chandra (P. W. 5, had seen both tile appellants going with Km. Sneh Lata on that evening at bus stand Soron. Sri Brahmanand Bhardwaj (P. W. 8) who is a man of status, testified that he neither knew the girl nor the appellants nor he had seen them going together on 30. 8. 1974 at the bus-station Soron. ( 16 ) SIMILARLY, there is the statement of Satish Chandra (P. W. 5) who testified that he had seen appellants and Sneh Lata going together on 30. 8. 1974 at about 7. 00 P. M. at the bus-station, Soron. Sri Brahmanand Bhardwaj and Han Shanker Gupta were also standing there. However, he conceded that he did not even know Nand Ram and Khacheru by names at that time. Nand Ram and Khacheru were not picked up by him in any test identification parade to add cogency to his statement on this point. ( 17 ) P. W. 3 Han Shanker testified about this fact claiming to have seen all the three going together but in cross-examination faltered and stated that Sneh Lata was a student of Kanya Junior High School, Soron in VII or VIII Class. According to the prosecution case, she was a student of Class IX. He is a resident of village Soron. He had hardly any opportunity to have known the girl or the appellants nor accosted them. He alleged that he knew Khacheru and Nand Ram and they were confectioners in village Lehra. In the teeth of the statements of the aforesaid witnesses-Satish Chandra and Brahmanand Bhardwaj, it is not possible to rely on his testimony specially when he was interrogated on this point after inordmate delay by investigator Mohd. Aslam Khan (P. W. 12) He was interrogated on 24. 9. 1974. In the teeth of the statements of the aforesaid witnesses-Satish Chandra and Brahmanand Bhardwaj, it is not possible to rely on his testimony specially when he was interrogated on this point after inordmate delay by investigator Mohd. Aslam Khan (P. W. 12) He was interrogated on 24. 9. 1974. In order to add cogency to his statement, his statement should have been recorded much earlier and not after so many days after the recovery of the girl. This again reflects on the credibility on this testimony. In Balakrushna Swain v. The State of Orissa, interrogation was done by investigator after 15 days or so. There was no justifying reason for delay in recording the statement of material eye witness and so it was observed: Unjustified and unexplained long delay on part of investigating officer in recording statement of material eye witness during investigation of murder case will render evidence of such witness unreliable. I respectfully follow this observation which is equally applicable in this case also. ( 18 ) ON the point of recovery also, there is none to corroborate the statement of Constable Ratan Singh (P. W. 11) who testified that in 11. 9. 1974 at 10. 0,) A. M. he was a member of party in the flying squad when he found Prem Das alias Khacheru in custody of Heera Lal who provided a clue about the place where the girl was confined, they went to the house of Onkar Singh, the door was found open. Onkar Singh was not there. only Munni Devi was inside the house found weeping. ( 19 ) HEERA Lal has not been examined to corroborate his statement; he was not all alone at the time of this recovery but other members of the squad were also there who did not come forward to testify in this case about the place of recovery. When the doors of the house were open and inmates were absent, there was none to have confined Km. Sneh Lata against her will; she could have easily raised hue and cry No recovery memo was prepared by him. Investigator did not prepare any site plan about the places of kidnaping or of the place of recovery. When the doors of the house were open and inmates were absent, there was none to have confined Km. Sneh Lata against her will; she could have easily raised hue and cry No recovery memo was prepared by him. Investigator did not prepare any site plan about the places of kidnaping or of the place of recovery. All these circumstances go to point out that such story given by a girl of loose morals actuated to safeguard her marital relations with her husband now who made such discrepant inconsistent statements against so many persons and included in so many falsehoods as pointed out by learned trial judge cannot carry any conviction. ( 20 ) IN Ram Veer v. State of U. P. where a minor girl was left by her father in his own field and there was no reliable evidence that accused had taken her from her fathers field, it was held that no kidnapping of the girl from the lawful guardianship was made out. It was further observed that Km. Ram Suta was carrying on illicit intimacy from before the date of occurrence. Under such circumstances it was said that no charge under Section 263 of Indian Penal Code was sustainable. ( 21 ) IN the instant case also medical evidence shows that two inferences are possible in this case. As regards the age of the girl, she can be more than 16 or mote than 18 years and also as the Xray examination and other features of the girl including the absence of hymen were indicative of the age of the girl being even more than 18 years Under such circumstances, in Ramesh alias Kukke v. State, it was oberved:where from the facts and circumstances, it is quite clear that the father has been trying to minimise the age of his daughter for the purpose of the case and according to [he facts elicited from his cross examination it is quite clear that the girl was very likely between 18 and 19 years of age at the relevant time and the medical report prepared by lady Doctor shows that epephysise round the elbow joints had united with their shafts, that her breasts were developing and hairs were present both in axillary and pubic regions. Hymen was absent and she was accustomed to sexual intercourse even then the Lady Doctor opined that the age of the girl was 16 and 17 years at the time of medical examination and in her deposition before the- court she stated that age of the girl was definitely below 17 years at the time of her examination, held that if two inferences are possible about the age of the girl viz; that she was more than 18 years of age and the other that she might be a little below 18 years, the benefit of doubt would go to the accused. ( 22 ) WHEN the prosecution case and evidence are tested on the anvil of probabilities, it does not hold water. Prosecution failed to explain as to why Sneh Lata went all the way long from village Lebra to Soron with her ornaments. The explanation offered by appellant Khacheru that she was madly in love with him and so left roof of her father at her instance and he did not practice any inducement or deception on her seems quite probable. ( 23 ) IN the result, the appeal is allowed. ( 24 ) CONVICTION and sentences of appellant Khacheru alias Prem Das under Section 366/ 376 of Indian Penal Code are set aside and he is acquitted of the said charges. ( 25 ) NAND Ram appellant is found not guilty of the charge under Section 366 of Indian Penal Code. His conviction and sentence are set aside and be is acquitted of the said charge. ( 26 ) BOTH the appellants are on bail. They need not surrender to bail bonds which are discharged. Appeal allowed .