G. S. N. TRIPATHI, J. ( 1 ) THE Addl. Sessions Judge, Chamoli (Garhwal) vide his judgement and order dated 27-8-1979 passed in S. T. No. 4 of 1976, convicted the accused Bhajan Lal under Section 363, I. P. C. and sentenced him to undergo three years R. I. He convicted Lungari Das also under Section 363, I. P. C. and sentenced him to imprisonment till the rising of the Court and to a fine of Rs. 1000. 00. In default of payment of fine one years R. I. was provided. ( 2 ) THE prosecution case started on the basis of a criptic FIR lodged by Smt. Gulabi Devi (not examined) at the Police Station, Karanprayag. Chamoli (Garhwal) on 17-3-75 (Ex. ka-4) that her daughter Km. Mena/veena Devi had been kidnapped by the accused, Bhajan Lal and his father Lunari Das on 14-3-1975. Her father is lying ill and brother is not present in the house. ( 3 ) ON the basis of the report the investigation started and the girl was recovered on 20-3-1975. She was medically examined. The doctor opined that she was 17-19 years of age. After completing the Investigation charge-sheet was prepared. ( 4 ) THE prosecution examined Smt. Meena Devi (P. W. 1 ). She has narrated that the accused Bhajan Lal used to reside in a nearby locality. While going to market. he used to induce her and proposed his marriage with her. On 14-3-1975 the accused Bhajan Lal asked her to come near the Mor. She went chore and thereafter she went with the accused Bhajan Lal and his father in a bus. There she resided for nearly 11/2 months. The accused Bhajan Lal used to commit rape upon her. She was medically examined. The accused Lungari Das, the father of Bhajan Lal used to keep a watch on her while she was in their custody. ( 5 ) KUNDI Mistri (P. W. 3) has said that he saw the girl going with both the accused and he communicated it later on to her father Rajoo Mistri (P. W. 5 ). Rajoo Mistri has said that the daughter was minor and the accused had abducted her although he was not an eye-witness of the occurrence. Other witness is formal in nature. ( 6 ) DR. Vijai Ballabha Dimari (P. W. 2) has supported her injury report. Rajoo Mistri has said that the daughter was minor and the accused had abducted her although he was not an eye-witness of the occurrence. Other witness is formal in nature. ( 6 ) DR. Vijai Ballabha Dimari (P. W. 2) has supported her injury report. ( 7 ) JAGDISH Prasad (PW 4) Constable. has put the entries in G. P. and Chik. ( 8 ) SRI Gita Ram Sharma (PW 6) is the Investigating Officer. He recorded the statement of Jagdish Prasad. The accused in their statements under Section 313, Cr. P. C. have denied the allegations made against them. Bhajan Lal has said additionally that Rajoo Mistri, father of the girl had agreed to marry this lady with him and further he had taken money from him but the accused was transferred and thereafter Mr. Mistri refused to marry his daughter and also refused to return the money. ( 9 ) AFTER appraisal of the entire evidence and the circumstances on record, the learned Addl. Sessions Judge concluded that the charge against the accused under Section 363, I. P. C. is proved. As such he convicted and sentenced them as noted above. Accused Bhajan Lal was acquitted on a charge under Section 366, I. P. C. ( 10 ) FEELING aggrieved both the appellants filed this appeal. I have heard the learned counsel for the appellants. I find that there is no force in this appeal and it deserves to be allowed. ( 11 ) THE first thing for consideration is the age of the lady, on the date of occurrence. For that lady doctor has given her report, in which she opined that the girl could be 17-10 years on the date of her medical examination, and the development of the girl was not adequate. It was not conclusively proved that the girl was below eighteen years of age. ( 12 ) THE statement of Rajoo, father of the girl on the point of her age is not conclusive. He has no recollection about the date of her birth. She was admitted in some school but the school certificate had not been filed. Thereafter she has seen light of the day. Hence best possible evidence, it appears has been withheld. So I find that the prosecution has failed to prove that the girl was below eighteen years of age on the date of occurrence. She was admitted in some school but the school certificate had not been filed. Thereafter she has seen light of the day. Hence best possible evidence, it appears has been withheld. So I find that the prosecution has failed to prove that the girl was below eighteen years of age on the date of occurrence. ( 13 ) AS per medical report her vigina admits two fingers and was easily laxed. Her uterus was normal. Vaginal smear does not show any sperms. So it appears that the girl was used to sexual intercourse. It is difficult to rely on the solitary evidence of a woman of such a loose character allegedly a virgin. ( 14 ) SHE gave on application to the duty Cell in charge Chamoli on 1-4-75 that she had been repeatedly raped by several persons at the behest of her step mother and in the knowledge of her father. In fact they want to use her as a prostitute and live on her earnings. Further she said that she had voluntarily gone with the accused Bhajan Lal. He has not kidnapped her. Her statement is very convincing. She could not explain it away. ( 15 ) APART from it according to the girl, she herselfwent to the Mor at the appointed date and place and from there she went in the company of the accused. It means that she was not kidnapped. She did not complain to anybody in the bus that she was being taken forcibly or fraudulently. She resided at the house of the accused for more than 45 days. She admitted in para 17 that even earlier she had been kidnapped by the accused and raped. It appears that this girl is not telling the whole truth. In the very same para 17 she admits that in the Nari Niketan where she was kept, she gave the name of Bhajan Lal as her husband. So her statement calling Bhajan Lal as her husband was a voluntary statement. Moreover, since she had been raped earlier or sexually used, she need not go at themorat the asking of accused. She was fully knowing the pros and cons. She knew that the accused would use her sexually and he will not keep her as an ornament or a showpiece. So I find that the girl went with the accused voluntarily. She was major and could go anywhere. She was fully knowing the pros and cons. She knew that the accused would use her sexually and he will not keep her as an ornament or a showpiece. So I find that the girl went with the accused voluntarily. She was major and could go anywhere. Hence she was not fraudulently taken by the accused Bhajan Lal. ( 16 ) KUNDI Mistri (PW 3) admits in para 7 that Rajoo, father of the girl is his relation. He says that he saw the girl going with the accused in the same bus wherein he was also travelling but in para 8 he says that he did not ask Meena Devi as to why she was going with the accused. He simply said the father of the girl that he had seen the girl going with the accused but strangely enough when the first information report was lodged three days after this incident, the name of this witness was not mentioned in the F. I. R. so it appears that this witness did not see the girl going with the accused. So I reject the statement of this witness accordingly. Moreover, other evidence is of no material value in this case. ( 17 ) THE learned Addl. Sessions Judge has not properly scanned the evidence and circumstances on the record. Therefore he has gone wrong. The result is that the judgement and order passed by the learned Addl. Sessions Judge deserve to be set aside. ( 18 ) IN the result. the appeal is allowed. The judgement and order passed by the learned Sessions Judge is set aside. The accused are acquitted. They are on bail. They need not surrender. Their bail bonds and surety bonds are discharged. Appeal allowed.