Judgment B. R. ARORA, J. ( 1 ) THIS is appeal is directed against the judgment dated 10-6-1994, passed by the Sessions Judge, Jhalawar, by which the learned Sessions Judge convicted the accused- appellant for the offence under Sections 376 and 363 I. P. C. and sentenced him to undergo seven years rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine further to undergo six months rigorous imprisonment for the offence under Section 376 I. P. Co and five years rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine further to under go six months rigorous imprisonment for the offence under Section 363 I. P. C. ( 2 ) ACCUSED-APPELLANT Bherun Lal was tried by the learned Sessions Judge for the offences under Sections 376 and 363 I. P. C. for kidnapping Miss Beena D/o Jagdish a minor girl of about fourteen years, from the house of Jagdish in the intervening night of 28-10-1993 and committing rape upon her. The case of the prosecution is that on 28-10-1993, in the night Miss Beena, who had gone to see the programmes on television in the house of her grand-father, did not return to her fatherts house till 12. 00 in the night and, therefore, her father Jagdish along with her uncles Girish Kumar and Prem Shanker went in search of her in the auto-rickshaw of one Amar Lal. They were searching Beena at various places. In the morning, at about 4. 00 a. m. , when they reached near the water-pond they saw accused Bherun Lal and Miss Beena on a bi-cycle. Miss Beena was sitting on the rear seat of the bi-cycle. On seeing these persons, Beena got down from the bicycle and came towards them while the accused tried to run away but he fell down from the bicycle and received injuries. Accused Bherun Lal was caught hold by these persons and brought to Police Station, Kotwali, Jhalawar, where the report of the incident was lodged. The prosecution, in support of its case, examined eleven witnesses. The accused denied the allegations in his statement under Section 313 Cr. P. C. and produced two witnesses in support of his case. Accused Bherun Lal was caught hold by these persons and brought to Police Station, Kotwali, Jhalawar, where the report of the incident was lodged. The prosecution, in support of its case, examined eleven witnesses. The accused denied the allegations in his statement under Section 313 Cr. P. C. and produced two witnesses in support of his case. The defence taken by the accused was that he was caught by Jagdish and others while he was sleeping in a bus near the bus stand situated adjacent to the house of Jagdish and was given beatings and thereafter, produced before the police. The learned Sessions Judge, after trial, convicted and sentenced the accused for the offences under Sections 363 and 376 I. P. C. , as stated above. It is against the judgment dated 10-6-1994 that the appellant has preferred this appeal. ( 3 ) IT is contended by the learned Counsel for the appellant that the appellant has been falsely implicated in the case and there is not even an iota of evidence to connect him with the crime. According to the learned Counsel for the appellant, there is material discrepancies in the statements of the prosecution witnesses and they have tried to make improvements during the trial from their earlier version given by them during the investigation. It has also been contended that the seals on the articles did not remain intact throughout and the articles, which were received by the State Forensic Science Laboratory, Jaipur were not of the present case and the seals on the articles have been tampered with. The evidence of recovery of these articles does not inspire confidence and, therefore, the report of the State Forensic Science Laboratory does not connect the appellant with the crime. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below. ( 4 ) I have considered the submission made by the learned Counsel for the parties. ( 5 ) THE nature of the evidence, produced by the prosecution, consists of the statement of PW 4 Miss Beena- the prosecutrix who has stated that in the night intervening between 28th and 29th October, 1-993, at about 12. ( 4 ) I have considered the submission made by the learned Counsel for the parties. ( 5 ) THE nature of the evidence, produced by the prosecution, consists of the statement of PW 4 Miss Beena- the prosecutrix who has stated that in the night intervening between 28th and 29th October, 1-993, at about 12. 00 when she was returning from the house of her grand-father after viewing the television and was entering in her fatherts house, she was called by the accused and the accused took her to the water-pond where he committed rape upon her. This evidence is sought to be corroborated by the evidence of PW 1 Jagdish, the father of the prosecutrix, PW 2 Girish Kumar and PW 5 Prem Narain, the uncles of the prosecutrix as well as by the evidence of PW 3 Amar Lal, the driver of the auto-rickshaw, who had gone in search of the prosecutrix in the night and they searched for her throughout the night and at about 4. 00 a. m. she was found in the company of the accused-appellant. This evidence is further sought to be corroborated from the medical evidence of PW 8 Dr. Rajesh Jam, who medically examined the prosecutrix. PW 6 Prem Singh is a Motbir witness, in whose presence the site plan (Ex. P. 6) was prepared. PW 7 Abdul Salim is the shop-keeper, who gave the bicycle on hire to the accused on 28-10-1993 but the accused did not return the bicycle. PW 9 Surendra Kumar was the Head Constable and Malkhana Incharge of Police Station, Kotwali, Jhalawar, with whom the articles were deposited on 3-11-1993 and remained in the same sealed condition in his custody till they were given to PW 11 Latoor Lal, L. C. for taking them for F. S. L. Examination to the State Forensic Science Laboratory, Jaipur. PW 11 Latoor Lal took the articles from the Malkhana and after obtaining a forwarding letter from the office of the Superintendent of Police, Jhalawar, delivered the same at the aforesaid Laboratory. PW 10 Prahlad Singh is the Station House Officer, who conducted the investigation and presented the challan. ( 6 ) PW 4 Miss Beena has stated that she was coming from the house of her grand-father after seeing the TV Programme at about 12. 00 in the night. PW 10 Prahlad Singh is the Station House Officer, who conducted the investigation and presented the challan. ( 6 ) PW 4 Miss Beena has stated that she was coming from the house of her grand-father after seeing the TV Programme at about 12. 00 in the night. When she tried to bolt the doors of her fathers house, the accused called her father. She came out and enquired from the accused what was the matter. The accused caught hold of her hand and forcibly put her on the bicycle. When she tried to cry, she was not permitted to do so and the accused took her near the water-pond situated near Agrasen School and committed rape upon her and after committing the rape, the accused put her clothes on her body and brought her on the bicycle near Agrasen School, where her father and uncles met them. She narrated the whole incident to her father and uncles. The accused tried to run away after seeing her father and uncles but he fell down from the bicycle and thereafter he was caught hold by them and brought to the Police Station. In the cross-examination, she has admitted that near the water-pond she and the accused had a talk for about 1-1/2 hours and thereafter the rape was committed by the accused with her. When she was confronted with her earlier statement regarding not disclosing the facts of her going to see TV programme at the house of her grand-father, calling his father by the accused and forcibly taking away her by the accused on the bicycle, her try to make a cry but putting the hands on her mouth by the accused, her not knowing the accused earlier to the incident, and asked why these facts not been mentioned in her earlier statement, she disclosed that she stated so before the police but why the police did not mention the same, she is unable to explain. In the earlier statement, this witness has stated that the accused was a driver of a mini-bus and was known to her and the accused, earlier to the day of the incident, had a good number of talks with her, she came out of the house on his coughing signal and her parents scolded the accused earlier also for which things and earlier twice she was seduced by him and was kept in the house as a prisoner, she stated that she did not state so. She also denied the fact of writing letters Ex. D. 2 to Ex. D. 7 to the accused. She has also admitted in the cross-examination that she herself came down from the bicycle after seeing her father and the uncles and at that time she was sitting on the rear seat of the bicycle. The prosecutrix aged about 13 to 15 years. She has tried to make improvements from her earlier statement. A close reading of the statement of this witness clearly shows that she was not kidnapped by the accused, rather she herself left the house and went to the accused. Even as per the statement of PW 1 Jagdish, the father of the prosecutrix and PW 2 Girish Kumar and PW 5 Prem Narain, the uncles of the prosecutrix who went in search of the prosecutrix, the girl was found sitting on the rear seat of the bicycle and she and the accused were coming from the side of the wanter-pond. PW 4 Miss Beena has also admitted that she and the accused talked for about 1-1/2 hours. PW 4 Beena was medically examined by PW 8 Dr. Rajesh Jam, who found her hymen intact and no injury was found on the person of Miss Beena and there is a specific finding given by the Doctor that no sexual intercourse has been committed with the prosecutrix Miss Beena. When there was no evidence of commission of rape by the accused upon Miss Beena (PW 4) the learned Sessions Judge was not justified in convicting and sentencing the accused-appellant for committing rape upon Miss Beena. From the evidence of these witnesses, the kidnapping of PW 4 Miss Beena by the accused and the commission of rape upon her by him, do not-stand proved. Miss Beena appears to have gone to the accused at her own accord after leaving her parents house. From the evidence of these witnesses, the kidnapping of PW 4 Miss Beena by the accused and the commission of rape upon her by him, do not-stand proved. Miss Beena appears to have gone to the accused at her own accord after leaving her parents house. When she left the house, PW 1 Jagdish, PW 2 Girish Kumar and PW 5 Prem Narain went on an auto of Amar Lal in search of the prosecutrix. Neither any inducement nor any force has been used by the accused in taking the prosecutrix with him. The prosecutrix was not taken away by the accused from the lawful guardianship of her father. Neither the ingredients of Section 376 nor of 363 I. P. C. are proved against the accused-appellant. The learned Sessions Judge was also not justified in passing strictures against PW 8 Dr. Rajesh Jam and the same are expunged. PW 8 Dr. Rajesh Jam was the Medical Jurist, who conducted medical examination of PW 4 Miss Beena on the request of the police and gave his report. The Courts are expected to be careful while passing strictures against a person who is not present before the Court. ( 7 ) THERE is another infirmity in the prosecution case. The recoveries of the swab and the clothes, which were said to be positive for human semen, also, do not inspire confidence and as such the F. S. L. report dated 29-4-1994 cannot be read against the accused. PW 10 Prahlad Singh, S. H. O. , who conducted the investigation, recovered the clothes of PW 4 Miss Beena vide, Ex. PA and the clothes to the accused vide Ex. P. S on 28-10-1993, sealed the same but he has nowhere stated that after 28-10-1993, the seals on these articles remained intact and moreover when these articles were sealed by him and were taken in his possession on 28-10-1993, he should have deposited the same in the Malkhana immediately but the same have been deposited on 3-11-1993 and during the aforesaid period he kept the articles with him. The seals on these articles remained intact during the period from 28-10-1993 to 3-11-1993, has not been proved by the prosecution. The specimen seal was lying with the Station House Officer himself. The seals on these articles remained intact during the period from 28-10-1993 to 3-11-1993, has not been proved by the prosecution. The specimen seal was lying with the Station House Officer himself. No independent witness to the recoveries were called at the time of recoveries and the articles were seized and sealed in the presence of Girish Kumar, the uncle of the prosecutrix and Amar Lal, the Auto Driver. Even the swab was taken by the Doctor on 28-10-1993 but the same was not deposited by the Investigating Officer in the Malkhana on 3-11-1993, as stated by PW 9 Surendra Kumar, the Malkhana Incharge. PW 9 Surendra Kumar has stated that the gave these articles to PW 11 Lattor Lal on 27-11-1993 for taking them for F. S. L. examination who deposited these articles in the Laboratory vide Ex. P 16 PW 11 Latoor Lal Constable, who took the articles for F. S. L. examination to Jaipur, has stated that he took the articles for F. S. L. examination from the Malkhana on 24-11-1993 and deposited the same in the Laboratory at Jaipur on 25-11-1993 vide Ex. P-16. Ex. P. 16 the receipt of the F. S. L. Jaipur, discloses that the articles sent through Latoor Lal, which were sent by the S. P. Officer vide Letter No. 12991 dated 22-11-1993, were received. According to PW 9 Surendra Kumar, the articles were sent on 27-11-1993, while PW 11, Latoor Lal stated that the articles were taken by him on 24-11-1993 and the F. S. L. report shows the date of forwarding letter as 22-11-1993. Keeping of the sealed articles with the Investigating Officer for five days and not disclosing that the seals on these articles remained intact throughout during the period when these articles remained with him and the discrepancies in the date of sending the articles, raise a suspicion reading the sealing of these articles. These recoveries, therefore, do not inspire confidence and, therefore, the F. S. L. report, which has not been proved by the prosecution, is of no help to it. The prosecution has therefore, failed to prove the case against the accused-appellant beyond reasonable manner of doubt. ( 8 ) IN the result, the appeal filed by the appellant is allowed. These recoveries, therefore, do not inspire confidence and, therefore, the F. S. L. report, which has not been proved by the prosecution, is of no help to it. The prosecution has therefore, failed to prove the case against the accused-appellant beyond reasonable manner of doubt. ( 8 ) IN the result, the appeal filed by the appellant is allowed. The judgment dated 10-6-1994, passed by the learned Sessions Judge, Jhalawar, convicting and sentencing the accused-appellant for the offences under Sections 376 and 363 I. P. C. is set aside and the accused-appellant is acquitted of all the charges levelled against him. He is in jail and be released forthwith if he is not required in any other case. The strictures passed by the Trial Court against PW 8 Dr. Rajesh Jam are expunged. Appeal allowed.