JUDGMENT R. S. Thakur, J.—This appeal is directed against the order of conviction passed by the learned Additional Sessions Judge, Solan and Sirmour Districts, camp at Solan on December 28, 1984, against the accused/appellant Paramjit Singh (hereinafter called as the accused), under sections 263, 366 and 376 of the Indian Penal Code and sentencing him to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 200 and in default to undergo further simple imprisonment for one month under section 363 of the Indian Penal Code, simple imprisonment for a period of two years and to pay a fine of Rs. 300 and default to undergo simple imprisonment for two months under section 366 of the Indian Penal Code and simple imprisonment for four years and to pay a fine of Rs. 500 and in default to undergo further simple imprisonment for three months under section 376 of the Indian Penal Code. All the sentences, however, were ordered to run concurrently. 2. The prosecution story is that in January, 1983 the prosecutrix Gurmail Kaur at that time aged about 15 years, was living with her parents Shadi Singh, the father, and Surjit Kaur, the mother, in village Jhiran alongwith her three brothers and one sister. On January 11, 19^3 her mother Surjit Kaur went to the house of her husbands sister Rajinder Kaur at Raper as said Rajinder Kaur was reported to be ill on the night of January 11, 1983, the rest of the family including Gurmail Kaur (prosecutrix) slept in the house after taking their meals at Jhiran. In the morning the father of the prosecutrix Shadi Singh was the first to leave the bed and after sometime when he wanted to wake up the prosecutrix so that she could prepare tea for him, he did not find her in her bed. Even after waiting for sometime when said Gurmail Kaur did not return, he started searching for her and while doing so he even went to his father Teja Singh and informed him that Gurmail Kaur was missing. Even after waiting for sometime when said Gurmail Kaur did not return, he started searching for her and while doing so he even went to his father Teja Singh and informed him that Gurmail Kaur was missing. They both then searched for the prosecutrix and even informed the lambardar of the village Shri Nigahia Ram about this and when they did not succeed in tracing out the prosecutrix, said Shadi Singh went to the police station Nalagarh in the morning of January 13, 1983, and lodged a report in this behalf when he also stated before the police that during his search he had found the chappel marks of Gurmail Kaur in the khud by the side of bis house leading towards the fields and the house of Balwant Singh who is the father of the accused Paramjit Singh on the other side of khud Kanhan. 3. The Station House Officer, Nalagarh then after registration of the case under sections 363 and 366 of the Indian Penal Code came to village Jhiran and recovered the prosecutrix from the cow-shed of Balwant Singh, the father of the accused. The Station House Officer, then took into possession the salwar and shirt and shawl and also a writst watch of the prosecutrix which she was putting on at the time of her recovery and also one darri and razai (quilt) from the house of Balwant Singh, the father of the accused as all the clothes contained blood-stains. Thereafter said Gurmail Kaur was taken to the hospital at Nalagarh where she was medically examined and after her medical examination who she was handed over into the custody of her father Shadi Singh. 4 During the course of the investigation the police found that on the right intervening ll/12th January, 1983, the accused had carried the porsecutrix from the house of her father Shadi Singh when she came out of the house to answer natures call sometime after mid-night after the accused gagged the mouth of the prosecutrix so that she may not be able to raise any alarm. After the accused had brought the prosecutrix to his house in the same village (Jhiran) he made her to share his bed and then subjected her to forcible sexual intercourse thrice under threat to her life. After the accused had brought the prosecutrix to his house in the same village (Jhiran) he made her to share his bed and then subjected her to forcible sexual intercourse thrice under threat to her life. Then next morning, that is, January 12, 1983, the accused took the prosecutrix to the cow-shed by the side of his house and hid her there and also threatened her that she would be done to death in case she slipped away from the cow-shed, In the night intervening 12/13th of January, 1983, the accused again brought the prosecutrix from his cow-shed to the room where he was sleeping in his house and again subjected her to forcible sexual intercourse and in the morning of January 13, 19 >3 the accused again made the prosecutrix to hide herself in his cow-shed as on the previous morning, and it was from there that the Station House Officer recovered her on January 13 1983 after the case was registered, in the police station, Nalagarh. According to the prosecution the prosecutrix profusely bled in her private part when she was subjected to sexual intercourse by the accused as a result of which not only her shirt, salwar and the shawl became blood stained but the blood fell even on the darn and the razai which the accused was using as his bedding while subjecting the prosecutrix to sexual intercourse during the two nights. 5. The accused was also placed under arrest by the police and was sot medically examined in the hospital at Nalagarh on the same day and in the opinion of the Medical Officer concerned he was found to be physically fit to perform coitus. The investigation also disclosed that the age of the prosecutrix at the time of the incident was below 16 years and the police, therefore, challaned the accused under sections 363, 366 and 376 of the Indian Penal Code. 6. At the commencement of the trial before the learned Additional Sessions Judge, the charges were framed against the accused in respect of the aforesaid three offences. The accused, however, did not plead guilty to the charges and claimed trial. 7. The prosecution then examined ten witnesses to bring home the offences to the accused. 8. 6. At the commencement of the trial before the learned Additional Sessions Judge, the charges were framed against the accused in respect of the aforesaid three offences. The accused, however, did not plead guilty to the charges and claimed trial. 7. The prosecution then examined ten witnesses to bring home the offences to the accused. 8. The accused did not adduce any evidence in defence and during the course of his examination under section 313 of the Criminal Procedure Code he denied that he played any part in taking the prosecutrix from the house of her father Shadi Singh to his house or subjected her to any sexual intercouse. His case was that even prior to the incidents he was acquainted with the prosecutrix and used to meet her off and on which was resented by her parents and that on January 11, 1983, the prosecutrix of her own accord came to his house at night as she had been given beating by her mother during the day time, and wanted to marry him as even prior to the incident they had both agreed to enter into the matrimonial relations. He also admitted that he had kept her in his cow-shed after she voluntarily came to his house but it was with her own consent and on January 12, 1983 she had slipped away from his cow-shed when tie had gone to attend to his work. 9. The trial Court, on the basis of the evidence on record, came to the conclusion that the prosecution was able to prove beyond all reasonable doubt that the age of the prosecutrix at the time of the incident was below 16 years and the accused took an active part in taking the prosecutrix out of the guardianship of her father Shadi Singh on the night of January 11, 1983 and kept her in the cow-shed under threat to her life and also subjected the prosecutrix to sexual intercourse on the nights intervening 11th and 12th and 13th of January and thus he was guilty of the offences under sections 363, 366 and 376 of the Indian Penal Code and convicted and sentenced him as stated earlier. 10. I have heard the learned Counsel for the parties and also gone through the record of the case carefully. 10. I have heard the learned Counsel for the parties and also gone through the record of the case carefully. The learned Counsel for the accused has contended that since there was not cogent and satisfactory evidence on record the conviction of the accused qua the offences in question was not sustainable. The learned Counsel for the respondent on the other hand controverted this contention. Since the fate of this case hinges mainly upon the evidence on record, it would be but proper to take re-appraisal of this evidence. 11. The prosecutrix (PW 1) while in the witness-box has stated that on the day of incident her mother had gone to Ropar while she was in her parental house at Jhiran. During the night when she came out of the house to answer natures call, the accused met her outside the house and carried her to his house after gagging her mouth with a cloth so that she would not raise any alarm. The accused then made her to sleep in once of the rooms of his house and subjected her to forcible intercourse after holding out a threat that he would kill her in case she raised and alarm. Then the accused subjected her to sexual intercourse her private part started bleeding as a result of which the darri underneath then and the guilt which covered them became blood stained and the accused subjected her to sexual intercourse thrice in succession that night. In the morning he concealed her in his cattle shed and went to his work after threatening her that she would be killed in case she tried to run away from the cattle shed. She thus remained in the cattle shed for the whole day and on the following night the accused again brought her to his bed room and subjected her to sexual intercourse. Next morning she was again put in the cattle shed from where the police recovered her which was brought there by her father in the presence of lamberdar and two other persons. She further stated that the accused during this period also gave her a wrist watch and the police after her recovery from the cattle shed took into possession the clothes she was putting on, namely, a salwar, and a shawl and a shirt as well as the wrist watch. All these clothes, according to her, were blood stained. She further stated that the accused during this period also gave her a wrist watch and the police after her recovery from the cattle shed took into possession the clothes she was putting on, namely, a salwar, and a shawl and a shirt as well as the wrist watch. All these clothes, according to her, were blood stained. Later on the police also got her medically examined and her X-ray photographs were also taken at the instance of the police. 12. In cross-examination, she stated, that she had come out of her house sometime after mid-night when the accused carried her away and she had stated this before the police that she was carried away by the accused after gagging her mouth so that se could not raise any alarm and that the accused had subjected her to sexual intercourse under threat to her life. She admitted that during the day time her mother had given her a Danda blow on her head. She, however, denied that it is because of the beatings given to her by her mother that she voluntarily went to the house of the accused. She admitted that the cattle shed in which she was concealed had walls of sarkanda and had no wooden door at its entrance. 13. Shadi Singh (PW 2) the father of the prosecutrix has stated that the prosecutrix was aged 15 years at the time of the incident and when she was found missing from the house in the absence of her mother who had gone to Ropar, he searched for her and also informed his father Teja Singh, Lamberdar Nigahia Ram and some other persons and when their search did not yield any result he lodged a report in the police station at Nalagarh and the police then recofered the prosecutrix from the cow-shed of Balwant Singh the father of the accused. According to him Gurmail Kaur was born at Kharar and was called Gurmail at the time of her birth. 14. In cross-examination he stated that his father Teja Singh, Lamberdar Nigahia Ram had gone to the house of Balwant Singh, the father of the accused in search of the prosecutrix. 15. The mother of the prosecutrix Surjit Kaur (PW 3) has also deposed that the prosecutrix was known as Gurmail in her childhood who was born at Kharar and she was aged 15 years. 16. 15. The mother of the prosecutrix Surjit Kaur (PW 3) has also deposed that the prosecutrix was known as Gurmail in her childhood who was born at Kharar and she was aged 15 years. 16. In cross-examination she stated that her eldest son was aged 25 years and there was a gap of two years between the birth of each of her six children and the prosecutrix was her third child. 17. Shri Nigahia Ram, Lamberdar (PW 4) of that village has stated that he joined the police at the time when the police was bringing the prosecutrix from the cow-shed of Balwant Singh and she was then handed over to her father. 18. According to the Medical Officer Mrs. Urmil Gupta (PW 5) she examined the prosecutrix at the instance of the police on January 13, 1983, when she found her to be aged about 16 years. Her sex characters and breasts were developed, she had thin hair over axilla and pubic region. She had fourteen teeth in each of her jaws and there was only one injury on her body which was 1.5 cms. X 2 cms. in size on the forehead on left side with crust formation and no other injury on any part of her body including her private part. Her internal examination revealed that her vagina admitted of two fingers easily, her utrus and cervix were normal. There was no bleeding faund anywhere nor any marks of injury on the vulva. Her labia majora and minora were fully developed. Her vaginal smear did not reveal any living or dead sperms and in her opinion the prosecutrix was habitual to sexual intercourse. Then her ossification test revealed that her age was 16 to 17 years. She recorded in the certificate (Ex. PW 5/A) that clothes were not sent for chemical examination as she was not wearing the same clothiers which she were at the time of the incident. 19. Dr. S. K. Bansal (PW 5) has deposed that he examined the accused on January 13, 1983 at the instance of the police when he found that his male genital was well developed, he did not have any injury on any part of his body. There was redness and raw area around the frenulum of the glans. In his opinion the accused was fit to commit sexual inter- I course. 20. There was redness and raw area around the frenulum of the glans. In his opinion the accused was fit to commit sexual inter- I course. 20. Ishawar Singh (PW 7) has stated that the prosecutrix was recovered by the police from the cow-shed of the accused in his presence and her clothes were taken into possession by the police which were blood stained and also one darri and one razai from the house of the accused which too had blood-stains. He has further stated that the police also took into possession one Kachha which the accused was putting on. In cross-examination he stated that village Jhiran consisted of 20 or 22 families and the distance between the houses of Shadi Singh and the accused was about one furlong. He further denied his statement before the police wherein he had stated that in his presence the prosecutrix held stated before the police that the accused age gave her allurement that he would give her clothers and sweets and would marry her. He denied that he was uncle of Shadi Singh. 21. The rest of the witnesses are of formal character and not of any consequence. 22. It may well be to recall, at this stage, the age old axioms which run like a golden thread through our criminal jurisprudence. They are that the accused is presumed to be innocent unless proved quality, the quality of proof must be beyond any reasonable doubt, the Court must be morally certain of the guilt of the accused before recording conviction of the accused and in case any doubt remains lurking in the mind of the Court in this behalf, the benefit thereof must go to the accused. In the second place the burden to prove the guilt of the accused beyond all doubt rests on the prosecution and it never shifts. 23. The basic idea behind these principles is that the liberty of an individual is a most valuable and fundamental right which inheres in him and it should never be jeopardised unless the court, after bringing its judicial experience and acumen to bear upon the facts placed before it, comes to an inescapable conclusion that the guilt against the accused before him has been proved beyond all reasonable doubt. No doubt in the present times there has been certain amount of relaxation and latitude in the manner of proof qua certain type of offence like sexual offence against females or cruelty to them in the matrimonial home etc. but all the same the foregoing principles stand unabridged and unscathed like beacon light for judicial courts. 24. Now looking on the facts of the case in hand in the light of the above foregoing principles, I feel that the conviction of the accused is not sustainable. In fact this Court is constrained observe that the trial Court has not cared to use his judicial acumen and experience while appreciating the evidence on record. It is clear that in order hold a person guilty of an offence under section 363 of the Indian Penal Code it must be proved that the accused played an active part in taking away a female out of the keeping of her guardian without the consent of the guardian either prior to, or at the time of her taking away out of such guardianship by either directly using force or threat against the female or injecting into her mind some irresistible allurements or temptations which may impel her to leave or forsake the custody of her guardian. 25. In the instant case the first question that arises for determination is whether at the time of incident the age of the prosecutrix was below 18 years ? Now as per her ossification test the skeletal age of the prosecutrix according to the Radiologist was 16 to 17 years. Obviously in such tests the margin of error on either side varies from l£ years to 2 years and in a case of this nature again this benefit of margin of error has to go to the accused and thus her age could be 18 years or above at the time of the offence. 26. Then the mother of the prosecutrix Smt. Surjit Kaur while in the witness-box has stated that the prosecutrix was younger to her two sons and elder to her three issues, two sons and one daughter. 26. Then the mother of the prosecutrix Smt. Surjit Kaur while in the witness-box has stated that the prosecutrix was younger to her two sons and elder to her three issues, two sons and one daughter. According to her, her eldest son was aged about 25 years at the time of the deposition and there was a gap of two years in the birth of each of her six issues and if that is taken into consideration, in that case also, the age of the prosecutrix comes to above eighteen years. Further even on the basis of the general development of the body of the prosecutrix like her secondary sex characters, the Medical Officer has opined that the prosecutrix appeared to be of the age of 16 years, it may also be observed that in the case of the radiological I tests, heredity, diet and climate etc. play an important role in the fusion of j epiphysis. It is normally accepted that the fusion epiphsis takes peace early in the case of rich diet and hot climate and usually delayed in the case of poor diet and cold climate. In the instant case the prosecutrix admittedly belongs to a peasantry class of Harijan community and it can be safely presumed that at least rich diet was not available to her. The learned lower Court has, however, brushed aside this evidence and has solely relied upon the entry said to be made in the birth register maintained by the Municipal Committee Kharar in the State of Punjab (Ex. PW 10-B) for the determination of the prosecutrix wherein her date of birth has been recorded as August 13, 1967. 27. This, however, in my opinion, was not proper. The determination of age on the basis of ossification test is considered in law to be proper I evidence and is being relied upon by the courts in India when proved in a proper manner. This High Court itself in Khyali Ram v. State of Himachal Pradesh, 1978 SLC 39, has held :— "It is abundantly clear that a scientific test above age as a result of epiphysis of the bones is more trustworthy." 28. I am further of the opinion that this sole reliance upon this document alone for the determination of the age was also misplaced for a number of other reasons. I am further of the opinion that this sole reliance upon this document alone for the determination of the age was also misplaced for a number of other reasons. In the first place the prosecution did not even care to call for the original register of births to vouchs are for confirm whether the date of birth of the prosecutrix given therein is beyond all suspicion and tallies with the date of birth as given in the certificate Ex. PW 10-B. No doubt, as has been held by the trial Court on the basis of the authority of the Supreme Court, the certificate of this type with regard to the birth entry is per se admissible in evidence under section 35 of the Indian Evidence Act. However, despite this, I strongly feel that in cases of this nature the necessity of calling the original register with regard to the relevant birth entry can hardly he over-emphasized, It is clear that the fate of the person facing trial in the court hangs in the balance on the determination of age of the prosecutrix in such cases. The various provisions in the Criminal Procedure Code the evidence Act, with regard to investigations, searches and arrests provide procedural safeguards to vouchsafe the under-hand dealings on the part of the officials executing them. In other words, they are statutorily considered as suspects. Instances are not lacking when the investigating agencies out of their enthusiasm to strengthen the case against the accused have resorted to dubious means, in these circumstances when a document of this nature comes before the Court during the course of the trial a duty is cast upon it to ensure that the facts disclosed by it are beyond all suspicion and one of the means to do so in my opinion, is to call for the original record for inspection before the document is relied upon. 29. Obviously in the document her name has been given as Gurmaile and according to the parents of the prosecutrix she was known by that name during her childhood. It is however, doubtful whether it was so. 29. Obviously in the document her name has been given as Gurmaile and according to the parents of the prosecutrix she was known by that name during her childhood. It is however, doubtful whether it was so. As per this document the prosecutrix was born on August 13, 1967 and the very next day this birth date was registered in the register of births maintained by the Municipal Committee Kharar and it is rather unusual that over-night the prosecutrix would have been given the name as Gurmil as usually the newly born child is not given the name within such a short interval. Then her father has been described as Shadi Ram and not Shadi Singh though, no doubt, his fathers name has been given as Teja Singh which according to Shadi Singh is the name of this father. But the name of the mother has not been given at all and her parental address has been given as not of village Jhiran, Tehsil Nalagarh H. P. but Ward No. 11 Kharar. It is also not known as to who was informant in this case. It may be noted that as per the entry in this document, the same was obtained by Shadi Singh on January 17, 1983 on payment of Rs. 4 as copying charges, but this Shadi Singh was silent with regard thereto while in the witness-box and it was proved only by the Station House Officer, Sh. Het Ram (PW 10) while in the witness box when he claimed that the same was procured by him during investigation which is contrary to the facts revealed on the body of this document. It is also pertinent to note that according to Surjit Kaur the mother, the prosecutrix was born during winter season. Admittedly this Surjit Kaur appears to be an illiterate rural lady and is not expected to remember the date, month or year of the birth of the prosecutrix, yet, it can be safely presumed that the atleast rendered the season in which the prosecutrix was born and she has categorically stated that she gave birth to Gumilo when it was winter. This birth certificate Ex. PW 10/B, however, reveals that the newly born Gurmilo was born on August 13, 1967 and admittedly the month of August is a far cry from the winter. 30. This birth certificate Ex. PW 10/B, however, reveals that the newly born Gurmilo was born on August 13, 1967 and admittedly the month of August is a far cry from the winter. 30. Assuming that the age of the prosecutrix was below 18 years at the time of the incident I feel that the prosecution has miserabley failed to prove that the accused played any part in the removal of the prosecutrix out of the keeping of her father Shadi Singh. No doubt the prosecutrix while in the witness-box has deposed that at the time of the incident, that is, some time after mid night when she came to answer natures call out of her house, the accused met her, gagged her mouth with a cloth so that she could not raise any alarm and carried her to his house and subjected her to forcible intercourse under threat to her life, as many as three times in succession and thereafter she was kept by the accused in his cattle shed for a period of on day and one night under threat. This, however, appears to be a tissue of lies. In the first place, admittedly it was month of January when the winter season is at its peak and it is highly improbable that the accused would have kept on waiting for the prosecutrix out side her house in "the hope that the prosecutrix might, by chance, come out to answer natures call when he would carry her to his house unless there was a preconcert, intrigue or previous arrangement between the two. The evidence to this effect, however, is conspicuous by its absence on the record. Then it has been recorded by the lower court that the prosecutrix has made no such statement before the police during investigation under section 161, Cr. P. C. that she was gagged by the accused and carried to his house which is a very important and major commission amounting to contradiction. It is also clear that the accused did not take the prosecutrix to any other place but had kept her concealed in his cow-shed and admittedly even the walls of that cow-shed were of some grass known as sarkanda and its entrance had no wooden door to keep it locked from outside or bolted from inside. It is also clear that the accused did not take the prosecutrix to any other place but had kept her concealed in his cow-shed and admittedly even the walls of that cow-shed were of some grass known as sarkanda and its entrance had no wooden door to keep it locked from outside or bolted from inside. The accused, admittedly, during the day time used to go out of his house for work while the prosecutrix remained in that cowshed and if she was not a willing party to remain in that cow-shed concealed from her parents, she could easily make good her escape. Her only explanation is that she did not so as she was under threat to her life by the accused in case of her slipping away from there, but, this explanation does not appeal to any reasonable mind. Even if there was any such threat from the accused at the time when he concealed her in the cow-shed, which under the circumstances of the case is highly improvable, that threat was meaning less when the accused admittedly used to go away from his house to attend to his other work and shed could easily slip out of the cow-shed and to her parental house. All this behaviour on the part of the prosecutrix, however, in my opinion, can be consistent only with the theory that she had voluntarily left her parental house and went to the house of the accused in the dead of night with the idea to have matrimonial alliance with the accused. Indeed, the circumstances on record are also pointer to this direction. Admittedly prior to the time she left her parental house she had been given beating by her mother during the day time and even the Medical officer had found that there was an injury on her forehead at the time of her medical examination. The houses of parents of the prosecutrix and of the father of the accused namely, Balwant Singh are near to each other in the same village with only a nalla know as Kanhan Khud intervening in between and in these circumstances it is not probable that she should have left in anger her parents house to live permanently in the house of the accused. It is also clear that despite the fact that, as is the story of the prosecutrix, the accused subjected the prosecutrix to forcible intercourse thrice in succession immediately after she came to his house and even under threat to her life when lot of blood even came out of her private part, she did not think it proper to run away from the cow-shed when she had ample opportunity to do so. 31. The Supreme Court in S. Varadarajan v. State of Madras, AIR 1965 SC 942, has ruled: "....................But when the girl (who though a minor has attained the age of discreation and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of other own accord, and the accused takes her to various places ultimately to the Sub-Registrars Office where they get an agreement to marry registered, and there is no suggestion that this was one by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardianship, that is, the father. The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of a accompanying him wherever he went is of course implicit. Under these circumstances no inference can be drawn that the accused is quilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her fathers house or even of telling her not to accompany him. * * * * Where the minor leaves her fathers protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. * * * * Where the minor leaves her fathers protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. * * * * It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the fathers protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardians house or a house where her guardinan had kept her, joined the accused and the accused helped her in her design not to return to her guardians house by taking her alongwith him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to taking." 32. In the instant case, as already observed, the prosecution has failed to prove that the accused played any active part in taking the pro-secutrix out of the keeping her lawful guardian Shadi Singh as the sole testimony of the prosecutrix on this score is not at all reliable on the facts and in the circumstances of this case which rather clearly indicate that the prosecutrix had voluntarily gone to the house of the accused to enter into matrimonial relations with him the house of the accused being quite near to that of her father Shadi Singh in the same village. The accused then unlike the case cited supra did not take the prosecutrix to any other place but only asked to hide herself in his cow-shed which had open entrance which is of no consequence since the law did not cast any duty upon him to take the prosecutrix back to her parental house and she kept bidding in the cow-shed despite the facilities to slip away as she did not want to return to the guardianship of her father. I have observed that at the relevant time the prosecutrix had attained the age of discretion to know as to what she was doing. 33. Now we come to the evidence with regard to the blood stains on a number of clothes. According to the prosecution when the prosecutrix was recovered from the cow-shed on January 13, 1983 not only the clothes, that is shirt, salwar and shawl, she was putting on, were stained with blood but even the Darri and the razai on the bed where she was subjected to intercourse, had these stains of blood. I am, however, of the opinion that this story of blood stains is nothing but a sheer manipulation on the part of the Investigating Officer. Admittedly, immediately after this recovery of the prosecutrix from the cow-shed, she was medically examined by a lady doctor in the hospital at Nalagarh and according to her report there were no injuries whatsoever either on her body or on her private part except the injury on her forehead which according to her the prosecutrix was caused with a Danda blow by her mother on January 11, 1983. The Medical Officer who examined her was of the opinion that the prosecutrix was used to sexual intercourse and her vagina easily admitted of two fingers. It is apparent that the blood would have come out of the private part of the prosecutrix only in case there was injury to her hymen or any other part of her vagina. There was, however, no such injury as the prosecutrix was used to copulation. In view of this categorical medical evidence, the theory of the prosecution that a lot of blood came out of the private part of the prosecutrix which stained not only her clothes but also the bedding is completely exploded. This obviously throws a grave doubt on the integrity and bona fides of the investigating agency in the case. In view of this categorical medical evidence, the theory of the prosecution that a lot of blood came out of the private part of the prosecutrix which stained not only her clothes but also the bedding is completely exploded. This obviously throws a grave doubt on the integrity and bona fides of the investigating agency in the case. 34. There is another factor which impels me to deduce that this theory of blood stain was a manipulation by the police. The record shows that immediately after the recovery of the prosecutrix she was made to take off her clothes she was putting on and were taken into possession by the police while she was made to put on new clothes, when being taken for medical examination and it was in these circumstances that the Medical Officer concerned was constrained to remark that no clothes of the prosecutrix were taken into possession to be sent to the Chemical Examiner at the time of her medical examination as they were not the clothes she was putting on at the time of incident. Question arises as to why the Investigating Officer did not take the prosecutrix in the same clothes when she was recovered from cow-shed of the accused for medical examination so that these clothes could be taken in the presence of the medical officer which would have given authenticity and support to the version of the prosecution that the clothes had become blood stained as a result of sexual intercourse by the accused with the prosecutrix. Indecent hurry on the part of the Investigating Officer in this behalf, however, lends a support to doubt with regard to the veracity of this theory of bleeding of the private part of the prosecutrix as a result of sexual intercourse with her by the accused especially when the observation of the Medical Officer squarely contradicts the same. 35. Now once it is held that the preponderance of probabilities is that the prosecutrix had voluntarily gone to the house of the accused to contact matrimonial aliance with him without the accused playing any overt or covert role therein, no offence under section 363 of the Indian Penal Code can be said to have been proved against the accused and once this Court reaches this conclusion the offence under section 366 automatically falls to the ground. 36. 36. As regards the offence under section 376 of the Indian Penal Code. I have no doubt in my mind that when the prosecutrix remained at the house of the accused for two nights, the accused did have sexual intercourse with her The question is whether despite this the offence under section 376 of the Indian Penal Code is proved. The answer to this poser must be m the negative. In the first place, as I have already held it has not been proved by the prosecution that at the time of this incident the age of the prosecutrix was below 16 years. In fact the evidence is that she was above 16 years of age at that time. Then there is also no doubt that on the facts and in the circumstances of the case the prosecutrix was a willing party to this carnal intercourse between her and the accused any by no stretch of imagination can it be said that this sexual intercourse between her and the accused was under circumstances to which any of the five situations or ingredients set out under section 375 of the Indian Penal Code are attracted and as such he is not guilty of the offence of rape either. 37. In view of the above discussion, the appeal is accepted the conviction and sentence passed against the accused under sections 363 3?6 and 376 of the Indian Penal Code is set aside and the accused is acquitted on all counts. The fine if realised be refunded to him forthwith It the accused is in imprisonment he is liable to be set at liberty at once if not required in any other criminal case and in case he is on bail he need not surrender to his bail and the bail-bonds are discharged. The case property shall be dealt with in a manner as directed by the trial Court. Appeal allowed. -