JUDGEMENT 1. Being aggrieved by the judgment of conviction for offences under Ss. 363, 366-A, 376 and 506, I.P.C. and sentence of R.I. for three years and fine of Rs. 1000/- under first count; R.I. for five years and fine of Rs. 1500/- under second count R. I. for six years and fine of Rs. 2,000/- under the third count and R. I. for one year and fine of Rs. 500/- under the fourth count, recorded by the 4th Addl. Sessions Judge, Ahmednagar in Sessions Case No. 178 of 1991, the appellant-accused has preferred this appeal inter alia contending that the entire evidence led on behalf of prosecution clearly establishes the consent on the part of the victim Nanda d/o Mohan Darade and that the medical evidence is also to the effect that her age is 16 years or more and in that light of the matter, the learned Trial Judge felled in serious error in recording the contrary conclusion and convicting the appellant-accused for the offences indicated above and that the same should be rectified by allowing this appeal and acquitting the accused of all the charges alleged to have been established against him. 2. The learned advocate for the appellant has taken us through both oral and documentary evidence and has tried to suggest that the entire conduct of the victim Nanda is a conduct of consent and not of compulsion, force or seduction. Regarding the age, he has contended that the medical evidence comprising of ossification test shows that the age of Nanda might be between 14 and 16 years. He has drawn our attention to the observations in Modi's Medical Jurisprudence and Toxicology, 21st Edition, page 40 wherein according to him, the margin of error might be + three years. If that be so, the age could be even 17 years and in view of this, the appellant-accused deserves to be acquitted. 3. The learned A.P.P., on the other hand, has drawn our attention to various provisions of Penal Code, more particularly Secs. 363, 366-A, wherein according to him, the age of the minority is 18 years, she being the female. 3. The learned A.P.P., on the other hand, has drawn our attention to various provisions of Penal Code, more particularly Secs. 363, 366-A, wherein according to him, the age of the minority is 18 years, she being the female. He has, therefore, urged that when the appellant comes forthwith the specific defence that Nanda accompanied him and had sexual intercourse with the appellant, that is not tenable defence that Nanda accompanied him and had sexual intercourse with the appellant, that is not tenable defence and the conviction recorded by the learned Trial Judge should be maintained and should not be tinkered with. 4. In order to appreciate these rival arguments, salient facts canvassed on behalf of the prosecution shall have to be recorded. Complainant Nanda is the sister of Manda, who in turn is the wife of the appellant. The appellant hails from Rahuri whereas Nanda hails from village Pratappur, Taluka Sangamner, District - Ahmednagar. In the year 1991, Nanda was studying in 6th standard vernacular in the school at Ashwi, situated at a distance of about 3 to 4 kms. from Pratappur. She was attending the school by going from Pratappur to Ashwi. According to the prosecution, on 4th March 1991 the accused and his wife Manda visited the above village of Mohan - the father of Manda. It was night time at about 11 p.m. On this visit, Nanda served tea to the appellant, obviously being the brother-in-law of Nanda. 5. The further story of prosecution is that on 5th March 1991 at about 10 a.m., Nanda went to her school at Ashwi. At about 5 p.m. she was returning along with her friend Sitabai Rambhau Andhale along Matangwada Road. At that stage, the appellant accused appeared on a Spark moped. He asked complainant Nanda to accompany him on moped saying that his wife Nanda wanted to go to Rahuri early and the appellant was to accompany her. Nanda was made to sit on moped and in the first instance, the appellant took the victim Nanda towards village Pratappur. He turned towards other side saying that he wanted to have petrol for the moped at Loni. The same was not available at Loni and, therefore, both the appellant and victim proceeded on moped to the petrol pump at Rahuri Sugar Factory. 6. He turned towards other side saying that he wanted to have petrol for the moped at Loni. The same was not available at Loni and, therefore, both the appellant and victim proceeded on moped to the petrol pump at Rahuri Sugar Factory. 6. It is claimed by the prosecution that at that stage, Nanda suspected some foul play on the part of the appellant-accused. She started weeping and the appellant-accused threatened her to keep mum under the show of knife and chain. The appellant and Nanda, in this position, went to Rahuri at the house of the appellant. They reached Rahuri at about 11 p.m. The appellant has two houses one having tin roof and the other having hay roof. The victim and the appellant went to the hut having tin roof and according to the prosecution, the appellant asked Nanda to spread the bed of Godhadi. Naturally Nanda suspected that she was being forced to sexual intercourse. She resisted this overture but this was thwarted by the appellant by the show of knife. 7. The prosecution has further claimed that in that night, the appellant-accused committed rape on the complainant twice. The matter did not end at that stage. On 6th March 1991, the complainant and the appellant-accused continued at the same house and then in that night also, the accused committed rape on the complainant. She stayed even on 7th March 1991 at the same place, but on 8th March 1991, at about 2 a.m. she heard shouts from the brother of the appellant-accused by name Karbhari saying that the guests from Pratappur had come. Prosecution has alleged that the appellant-accused opened the door, went outside and started threatening visitors including his father-in-law Mohan and maternal uncle of the victim Rangnath. The threat was accompanied by the show of chain and knife and this, therefore, rather prevailed upon the visitors to depart from that place. These visitors took Nanda along with them and thereafter on 8th March 1991, the complaint was lodged by victim Nanda and the same is to be found at Exh. 17. 8. When Nanda was found missing at the house of Mohan, her father had lodged the complaint about the missing girl on 7-3-1991 and the said complaint is also to be found at Exh. 22. 9. The complaint of Nanda was under Ss. 17. 8. When Nanda was found missing at the house of Mohan, her father had lodged the complaint about the missing girl on 7-3-1991 and the said complaint is also to be found at Exh. 22. 9. The complaint of Nanda was under Ss. 363, 366, 376, 343, 504, 506, I.P.C. and the police machinery set into motion. The Head Constable Damale carried out the part of investigation. He seized the underpant of the complainant and forwarded the same for chemical analysis. He also arrested the accused and the accused was sent for medical examination. Both the victim and the accused were subjected to medical examination. Dr. Khot, during the investigation, carried out the ossification test and issued the certificate that the age of Nanda might be between 14 to 16 years. Head Constable Jadhav, who is a part of investigating machinery, arrested the accused on 14-3-1991 and on 15-3-1991, he seized the underpant of the accused. He also attached the Spark moped. The further part of the investigation is that the appellant, while in police custody, made a discovery statement and took out the Muddemal knife with which, according to the prosecution, he had threatened Nanda not to raise a voice of protest. After the routine investigation, the chargesheet was put up. 10. The learned Sessions Judge, after recording the plea of not guilty by the appellant accused, proceeded to record the evidence of as many as nine witnesses. The important witnesses from amongst them were the victim Nanda at Exh. 16; her father Mohan Ganpat Darade at Exh. 21 and Sitabai Rambhau Andhale at Exh. 31. All these witnesses have been examined with a view to show that the appellant kidnapped Nanda and forced her to sexual intercourse against her will. At this stage it is seen that the appellant has taken a definite stand in the matter. The case of the appellant is that Nanda accompanied him voluntarily; that they went to Rahuri; that Nanda willingly stayed with the appellant throughout; that she had developed a fancy for the appellant and that they had sexual pleasure during the stay of Nanda with the appellant at Rahuri. 11. The next question, which, therefore, crops up for our consideration is whether Nanda is 16 years of age or more. 11. The next question, which, therefore, crops up for our consideration is whether Nanda is 16 years of age or more. If it is found that she is less than 16 years of age, the matter of consent would fall into insignificance. The law does not recognise consent by a female below 16 years when she is subjected to sexual intercourse. But if the appellant succeeds in satisfying us that the age of Nanda was 16 years or even more than 16 years, then the matter of consent assumes importance. 12. Shri Sharma, the learned counsel for the appellant, for that purpose, has taken us through the evidence of Nanda in all details and has tried to urge that the conduct of Nanda while her stay at the house of the appellant clearly indicated consent and readyness. She had several opportunities to raise hue and cry against the so called high handed action of the appellant. The fact that she did not do so should be construed as an apparent consent on the part of Nanda. If, therefore, she is found 16 years of age or even more, the acts of the appellant cannot tantamount any offence under the Penal Code. It was a voluntary act on the part of Nanda to accompany him. There was no enticement, deception or force on the part of the appellant to remove Nanda from the custody of her father. 13. According to the prosecution, the First Information lodged by Nanda coupled with the fact that her friend Sitabai also supports the appellant taking away Nanda on his moped, should be construed as an offence on the part of appellant. The learned Trial Judge, according to him, has extensively discussed this part of evidence and has correctly landed on the conclusion that the appellant is guilty of offences indicated above. 14. When we turn to the evidence of Nanda d/o Mohan at Exh. 16, it has been suggested by the learned advocate for the appellant that the entire evidence does not disclose any force on the part of the appellant in removing Nanda from the legal custody of her father. It, therefore, becomes imperative on us to scrutinise the evidence of Nanda in as many details as possible. Turning to the evidence of Nanda, we find that she has been attending the school at Ashwi and studying in 6th standard. It, therefore, becomes imperative on us to scrutinise the evidence of Nanda in as many details as possible. Turning to the evidence of Nanda, we find that she has been attending the school at Ashwi and studying in 6th standard. She has claimed that she failed thrice during her career of studying and that is why she was about 15 years even while taking education in 6th standard. Nanda has deposed that she has been staying with her father, mother, two brothers at Pratappur. Manda is her sister and Manda is married to the appellant before about 1 1/2 years of this incident. The appellant-accused, who indeed is the brother-in-law of Nanda, is resident of Rahuri Station Road. 15. Coming to the specific incident, she has stated that on 4-3-1991, which was Monday, the appellant and Manda came to their house at about 11 p.m. At that time, it being the night hours, all the family members were asleep but since Manda and her husband came, her mother woke her up and she prepared tea for the accused and Manda. All of them retired to bed thereafter. On the next day, she finished her household work and proceeded to school in the morning. In the evening at about 5.30 p.m. she was returning along road passing by Matangwada. Sitabai was accompanying her. At that stage, the appellant came on moped from Pratappur side and asked her to accompany him because both the appellant and Manda wanted to go Rahuri early. Accordingly Nanda took seat on the moped and after crossing some distance on the vehicle, the accused-appellant told Nanda that he want to purchase petrol and, therefore, they proceeded towards Dadh Bk. Village which was towards Loni village side. However, on that petrol pump, the petrol was not available and, therefore further journey was undertaken. They went to Rahuri sugar factory petrol pump. Nanda has stated that instead of turning to the village Pratappur after taking petrol, the appellant drove the moped towards Rahuri side. 16. This rather prompted Nanda to assume that there was some foul play in the mind of appellant. She, therefore, resisted by raising shouts but this was ignored by the appellant by show of knife and chain. The appellant threatened her that in case she raised shouts, she would be murdered. 16. This rather prompted Nanda to assume that there was some foul play in the mind of appellant. She, therefore, resisted by raising shouts but this was ignored by the appellant by show of knife and chain. The appellant threatened her that in case she raised shouts, she would be murdered. Both the appellant and the victim reached the house of the appellant at about 11 p.m. The appellant, according to Nanda, had two houses and both of them retired to the house having tin roof. It may be noticed that this house was locked and it was opened by the appellant. 17. The further story of Nanda is that soon after entering the hut, the appellant asked Nanda to spread the bed of Godhadi. This was almost annoyed Nanda because she was secluded from other family members and she was subjected to a work which indicated something evil in the mind of appellant. When Nanda resisted this act on the part of the appellant, the appellant caught hold to her hands and compelled her to sleep. Nanda has stated that she was subjected to rape twice during that night. 18. On the next day they continued in the same house and Nanda has stated that the mother of the appellant served food both in the morning and in the evening. Throughout the day, she was in the company of the family members of appellant and also the accused. Here it has been rightly suggested by Shri Sharma, the learned advocate for the appellant that the conduct on the part of Nanda was hardly consistent with the allegation of kidnapping her and committing rape by the appellant. 21st March 1994 19. We may examine even the further course of events which have transpired and which have reflection on the conduct of Nanda. She has deposed that even on the next day, both appellant and Nanda went to sleep in the house having the roof of hay. It would be pertinent to note that there are two houses belonging to the appellant; one having the roof of tin and the other having the roof of hay. We have indicated herebefore that in the first night, they slept in the house having tin roof whereas on the other day, they slept in the other house. It would be pertinent to note that there are two houses belonging to the appellant; one having the roof of tin and the other having the roof of hay. We have indicated herebefore that in the first night, they slept in the house having tin roof whereas on the other day, they slept in the other house. It is also strange to note that in this night, the remaining members of the family slept in the other house having the tin roof. Against she goes to say that she was awakened at about 7 a.m. on the next day and the same was Thursday. She continued to remain in the house of accused all along the day. 20. These facts are eloquent of an important fact that all along Nanda was staying with the appellant for more than 48 hours. She had every occasion to disassociate herself from the appellant and convey her grievance to remaining members of the family. She has not done so. On the other hand, she willingly continued in the same house. When she was questioned on the point of relations, she has tried to improve by stating that all other members of the family of the accused threatened her. This is a stand she has taken during the course of evidence when there was no foundation at all in her complaint at Exh. 17. It would be, therefore, obvious that Nanda has improved her version from stage to stage in order to extricate herself from the situation to which she was committed. Her conduct consistently revealed that she willingly stayed with the appellant-accused and that too in the presence of the parents of the appellant as also the sisters and brothers of the appellant. 21. In her cross-examination, she has stated that while going to answer the call of the nature, she was accompanied by the sister of the appellant. There also, she did not make any grievance or did not unboosom herself to the sister of the appellant on the question of she being deceived into this plight. In her cross-examination, she has conceded that although she encountered the parents of the appellant, she did not shout for help. On the other hand, she carried out her usual chores during the two days following the day of the alleged kidnapping. 22. In her cross-examination, she has conceded that although she encountered the parents of the appellant, she did not shout for help. On the other hand, she carried out her usual chores during the two days following the day of the alleged kidnapping. 22. We may reiterate that in her attempt to implicate other members of the family, she exposed herself to be a wholly unreliable witness. Her conduct all along has been the conduct based on the consent. Consent can be proved either by express consent or by implied consent. The conduct to which we have referred above would really show that there was complete consent on the part of Nanda to be in the company of the appellant in order to satisfy her sexual lust. If that be so, the question of either kidnapping her or abduction would not arise. 23. The next point on which the learned advocate for the appellant has harped is the question of the age. On that count, the learned A.P.P. has drawn our attention to the age certificate produced by (PW 9) Shankar Vithoba Hinge. He claims to be the Head Master of Zilla Parishad Primary School, Pratappur since 1968. He admitted Nanda on 15-6-1981 and issued a certificate at Exh. 40, as Nanda left the school in 1987. On the question of age, according to him, the entry in the register shows that the birth date of Nanda was 1-10-1975. Obviously, therefore, if that date is taken into consideration, on the date of the incident, Nanda was certainly less then 16 years. But according to Hinge, this date is based on the slip given by the guardian of Nanda. This date is, therefore, not fortified by any certificate of birth by the Gram Panchayat. 24. It would be obviously strange that according to Hinge, the child could not be admitted to the school unless the child has completed six years of age. If that be so, it would be evident that Nanda would not be admitted on 15-6-1981. On the other hand, her admission to the school itself shows that the date indicated in the slip was not taken as a basis of her age. It was an approximate age which was being considered and despite this, she was admitted in the school. On the other hand, her admission to the school itself shows that the date indicated in the slip was not taken as a basis of her age. It was an approximate age which was being considered and despite this, she was admitted in the school. Hinge has admitted that at present the practice is to admit the student on the basis of the birth extract supplied by the Gram Panchayat. We are unable to fathom ourselves as to what was the situation in 1981. It could be judicially noticed that the Gram Panchayats have been in existence for the last several years and in the ordinary course of nature, such a certificate would have been available to the guardian of Nanda. We are, therefore, inclined to observe that the age shown in certificate Exh. 40 cannot be treated as exclusive to establish the age of Nanda as being less than 16 years on the date of her admission to the school. 25. We may repeat that had she been below six years of age, she could not have been admitted in school on 15-6-1981. The learned advocate for the appellant in this behalf has drawn our attention to the evidence of Dr. Khot at Exh. 24. According to Dr. Khot, the age of Nanda, on the date of her examination, might be between 14 to 16 years. We may indicate that menarche was noticed since 15th June 1990. Now according to Modi's Medical Jurisprudence and Toxicology (21st Edition), it is observed that the error in case of age based on ossification test may be + 3 years. In this case, we find that even Dr. Khot has stated that the age of Nanda could be 16 years. Adding one year to the same, it can be safely held that the age of Nanda could be even 17 years. The appellant is, therefore, entitled to advantage of this marginal error based on the ossification test. Now under S. 375(6), it is laid down by way of inference that if a person is having a sexual intercourse with a female with her consent when she is not under 16 years of age, the sexual intercourse shall not tantamount to rape punishable under S. 376, I.P.C. 26. Now under S. 375(6), it is laid down by way of inference that if a person is having a sexual intercourse with a female with her consent when she is not under 16 years of age, the sexual intercourse shall not tantamount to rape punishable under S. 376, I.P.C. 26. The next question on which Shri Sharma, the learned advocate for the appellant has relied is the information of missing girl lodged by the father of Nanda at Exh. 22 (PW 3) Mohan Ganpat Darade - the father of Nanda - has stated that Nanda did not return from the school on 4-3-1991 in the evening hours. He gathered from her friend Sitabai that Nanda had left with the appellant-accused. Now when he perused the complaint Exh. 22, we find that this is the complaint which clearly shows that both the appellant and Nanda had eloped together. This is not a case where Nanda was kidnapped by the appellant-accused. Now this act on the part of Nanda of having consented to accompany the appellant would by no means account to kidnapping. Ratanlal and Dhirajlal in the book "Law of Crimes", 23rd Edition at page 1346 has observed in the following words :- "A minor may not be competent to give her consent to her taking but a minor is certainly competent to leave the protection of her guardian of his or her own accord. Therefore, it is immaterial whether the girl alleged to be kidnapped was a minor or not in so far as her leaving the house of her own accord is concerned. If a minor girl leaves her home without any persuasion or inducement held out by the accused so that she has got fairly away from home and then goes to him, his not restoring her to her home is no infringement of the law. To sustain a conviction, the prosecution has to prove that the accused had some active part in the minor leaving her guardian's house. The offence under S. 363 is not a continuing one and it really consists in the initial act of taking her from the keeping of her lawful guardian." The above facts clearly show that Nanda accompanied the appellant right from her village to Rahuri voluntarily. The offence under S. 363 is not a continuing one and it really consists in the initial act of taking her from the keeping of her lawful guardian." The above facts clearly show that Nanda accompanied the appellant right from her village to Rahuri voluntarily. She stayed with the appellant for more than two to three days and all these circumstances would, therefore, clearly show that the offence under S. 363 or even 366-A is not revealed against appellant-accused. 27. As these are the basic points which go to the root of the matter, we feel that discussion on other evidence regarding the discovery of knife etc. would be totally out of context. The circumstances clearly indicate that Nanda, when found herself in a very amazing situation of staying with appellant accused for more than two days, could not retrieve her position except by embellishing the story contained in her complaint at Exh. 17. Being a female, she could be escaped herself from stigma violation of her character and sex without having recourse to the complaint at Exh. 17. The facts therein are clearly pre-designed and have been worked out only to saddle the appellant in this crime. The real truth is that Nanda is the consenting party. She was rather enamoured of the appellant. She followed him right from her village to Rahuri. Not only that she stayed with the appellant in the very presence of his parents and brothers and sisters for more than 2 days and in that light, whatever attempt has been made by prosecution to implicate the appellant accused, appears to be not true. The Panch witnesses who claims to have witnessed the discovery of knife becomes unimportant in this edifice of events. 28. The above reasoning therefore, clearly reveals that there was consent on the part of Nanda; that Nanda could be 16 years or more and in that view of the matter, we are inclined to confer benefit of doubt on the appellant. Accordingly, the following order. 29. The appeal is allowed. The judgement of conviction and sentence for offences under Ss. 363, 366(A), 376, I.P.C. is hereby set aside. The appellant is acquitted of all the charges levelled against him. The appellant, if in jail, shall be set forth with at liberty unless required in any other crime. Appeal allowed.