JUDGMENT 1. - The above two appeals are being decided by this judgment as they have been preferred by the accused appellants against the judgment and order dated 4.9.1997 passed by the learned Judge, Special Court (Women Atrocities and Dowry cases), Bhilwara in Sessions Case No. 65/ 1997 by which he convicted and sentenced the accused appellants in the following manner : Name of accused appellants Convicted under Section Sentence awarded 1. Smt. Shamim 366 Indian Penal Code Three years RI and fine of Rs. 1000/-, in default of payment of fine, to further undergo, two months' SI. 368 Indian Penal Code Three years' RI and fine of Rs. 1000/-, in default of payment of fine, to further undergo, two months' SI. 342 Indian Penal Code Six months' SI. 2. Rustam 376 Indian Penal Code Five years' RI and fine of Rs. 2000/-, in default of payment of fine, to further undergo six months" SI. 366 Indian Penal Code Three years' RI and fine of Rs. 1000/-, in default of payment of fine, to further undergo two months SI. 344 Indian Penal Code Six months' RI and fine of Rs. 500/-, in default of payment of fine, to further undergo one months SI. . Razak 376 Indian Penal Code Five years' RI and fine of Rs. 2000/-, in default of payment of fine, to further undergo six months SI. 368 Indian Penal Code Three years RI and fine of Rs. 1000/-, in default of payment of fine, to further undergo two months' SI. 342 Indian Penal Code Six months SI. 4. Gopal 376 Indian Penal Code Five years' RI and fine of Rs. 2000/-, in default of payment of fine, to further undergo six months' SI. 366 Indian Penal Code Three years' RI and fine of Rs. 1000/-, in default of payment of fine, to further undergo two months' SI. 344 Indian Penal Code Six months' RI and fine of Rs. 500/- 5. Salim @ Atta Mohd. 376 Indian Penal Code Five years' RI and fine of Rs. 2000/-, in default of payment of fine, to further undergo six months' SI. The above sentences were ordered to run concurrently. 2. The short facts giving rise to these appeals are as follows :On 24.2.1996, PW 6 Bherulal lodged a written report Ex. 500/- 5. Salim @ Atta Mohd. 376 Indian Penal Code Five years' RI and fine of Rs. 2000/-, in default of payment of fine, to further undergo six months' SI. The above sentences were ordered to run concurrently. 2. The short facts giving rise to these appeals are as follows :On 24.2.1996, PW 6 Bherulal lodged a written report Ex. P/3 before the SHO, City Kotwali Bhilwara stating inter alia that his daughter PW 1 Smt. Kailash, aged about 17 years had disappeared for the last one month and since then he has been searching her, but he could not find her whereabouts, but today he found his daughter PW 1 Smt. Kailash in the Court premises, Bhilwara and saw two men and one woman with his daughter. It is further stated in the report that after seeing him (PW 6 Bherulal), they ran away and his daughter PW 1 Smt. Kailash started weeping and on being enquired where she remained for such period, PW 1 Smt. Kailash told him that accused appellant Rustam (driver) and wife accused appellant Smt. Shamim both after enticing her took from Mandal to Bhilwara and during this period, she was kept in the house of accused appellant Rustam and threat was given to her of dire consequences and accused appellant Rustam kept her in his house for 20 days and during these days, he used to commit rape on her and another accused appellant Smt. Shamim, wife of accused appellant Rustam also used to persuade her to have sexual intercourse with accused appellant Rustam and not only this, both accused appellants Rustam and Smt. Shamim invited another accused appellant Razak and they enticed her to marry with accused appellant Razak, but she refused and on her refusal, they threatened her to kill her and she has further stated that in these circumstances she has been brought to Court premises by all three accused appellants, namely, Rustam, Smt. shamim and Razak. Thereafter, PW 6 Bherulal lodged the above report and since the matter falls within the jurisdiction of Police Station Mandal, therefore, Thana Incharge, City Kotwali Bhilwara referred the matter to the Police Station Mandal, where PW 24 Heera Singh registered the regular FIR Ex. Thereafter, PW 6 Bherulal lodged the above report and since the matter falls within the jurisdiction of Police Station Mandal, therefore, Thana Incharge, City Kotwali Bhilwara referred the matter to the Police Station Mandal, where PW 24 Heera Singh registered the regular FIR Ex. P/8 and started investigation.During investigation, medical examinations of accused appellants Razak, Rustam, Salim and Gopal were got conducted for testing their testimony about potency and medical examination of PW 1 Smt. Kailash for ascertaining her age was also got conducted by PW 16 Dr. Avdhesh Mathur, who has given his reports Ex. P/8 and Ex. P/9, where he has stated that the age of PW 1 Smt. Kailash is 18-19 years. A certificate Ex. P/16 was also obtained from the Government Girls Upper Primary School, Mandal, where the date of birth of one Miss Vimla is said to be 1.7.1979. Thereafter, accused appellants were arrested.After usual investigation, police submitted challan against the accused appellants in the Court of Magistrate and from where, the case was committed to the Court of Session and, thereafter, the case was transferred to Addl. Sessions Judge No. 2, Bhilwara.On 10.7.1996, the learned Additional Sessions Judge No. 2, Bhilwara framed the following charges against the accused appellants : (1) Smt. Shamim under Sections 366-A, 368 and 342, Indian Penal Code. (2) Rustam under Sections 376, 368 and 344, Indian Penal Code. (3) Razak under Sections 376, 368 and 342, Indian Penal Code. (4) Gopal under Sections 376, 366 and 344, Indian Penal Code. (5) Salim under Section 376 Indian Penal Code. The charges were read over the explained to the accused appellants. They denied charges and claimed trial.In support of its case, the prosecution examined as many as 24 witnesses and got exhibited several documents and, thereafter, statement under Section 313, Criminal Procedure Code were recorded, in which they denied all the allegations made against them. They did not lead any evidence in defence.The learned Judge, Special Court (Women Atrocities and Dowry Cases) Bhilwara, after relying on the statements of PW 1 Smt. Kailash, convicted and sentenced the accused appellants through his judgment and order dated 4.9.1997 in the manner as stated above.Aggrieved from the said judgment and order dated 4.9.1997 passed by the learned Judge, the accused appellants have preferred these two appeals.In these appeals, the following contentions have been raised by the learned counsel for the accused appellants : 1. That the learned trial Court has erred in holding the accused appellants guilty of the charges framed against them, inasmuch as, there is no corroboration of the statements of PW 1 Smt. Kailash and furthermore, medical evidence does not support her statement and from medical evidence also, she should be adjudged as above the age of 18 years and thus, no case of rape and abduction is made out against the accused appellants. 2. That PW 1 Smt. Kailash and accused appellant Rustam remained for so many days in one house and moved from one place to another freely and during this period, no complaint was made by PW 1 Smt. Kailash and thus, from this point of view also, no case of rape and abduction is made out against the accused appellants. Hence, it was prayed that accused appellants be acquitted of the charges framed against them. 3. On the other hand, the learned Public Prosecutor supported the impugned judgment and order of the learned trial Judge. 4. I have heard the learned counsel for the accused appellants and perused the record of the case. 5. As per the report Ex. P/3, which was lodged by PW 6 Bherulal, father of the prosecutrix PW 1 Smt. Kailash on 24.2.1996, it is very much clear : 1. That PW 1 Smt. Kailash left the house of her father PW 6 Bherulal atleast one month back. 2. That on the date of lodging the report, the age of PW 1 Smt. Kailash has been mentioned as 17 years. 3. That PW 1 Smt. Kailash was seen by PW 6 Bherulal in the Court premises alongwith three persons, who ran away after seeing PW 6 Bherulal. 4. That thereafter, PW 1 Smt. Kailash told to PW 6 Bherulal that accused appellants Rustam and Smt. Shamim took her after enticing her and gave threat that in case she told to any body, she would face dire consequences and she was kept in the house of accused appellant Rustam for 20 days and during these days, he committed rape on her and accused appellant Smt. Shamim also persuaded her to have sexual intercourse with accused appellant Rustam and both accused appellants Rustam and Smt. Shamim wanted to marry her with accused appellant Razak. 5. That the names of accused appellants Gopal and Salim are not found in the report Ex. P/3. 6. 5. That the names of accused appellants Gopal and Salim are not found in the report Ex. P/3. 6. That there is no allegation in the report Ex. P/3 that accused appellant Razak also committed rape on PW 1 Smt. Kailash. 6. Apart from the above, so far as the medical evidence is concerned, no medical examination report of PW 1 Smt. Kailash with respect to committing rape on her by accused appellants has been produced and what is produced is about her age. PW 16 Dr. Avdhesh Mathur has given the reports Ex. P/8 and Ex. P/9, where he has opined that the radiological age of PW Smt. Kailash is 18-19 years as on 8.3.1996. 7. So far as the school certificate Ex. P/16 is concerned, for that PW 21 Smt. Chanchal has been produced and that certificate Ex. P/16 shows that date of birth of Miss Vimla Vyas as per school record is 1.7.1979. In Ex. P/16 school certificate, the name of Miss Vimla Vyas has been mentioned, but PW 1 Smt. Kailash has clearly stated in her statement that she is also known as Vimla Vyas. Therefore, it is taken that the name which is mentioned in Ex. P/16 is the name of PW 1 Smt. Kailash. From the certificate Ex. P/16, it also appears that on the date of occurrence i.e. in the month of January, 1996, she was above the age of 16 years in all respects. 8. The next point which is to be considered is whether the case of the prosecution that PW 1 Smt. Kailash has been kidnapped by accused appellants except accused appellant Salim and raped by four accused appellants Rustam, Razak, Gopal and Salim has been proved or not and in this respect, the findings of the learned trial Judge are liable to be confirmed or not. 9. To come to clear cut findings, the statement of PW 1 Smt. Kailash is very much material in this case and from her statement, the following facts come out : 1. That she used to work in the house of PW 11 Randhir Singh as home servant where accused appellant Smt. Shamim also used to work in same capacity. 2. That accused appellant Rustam used to come in the house of PW 11 Randhir Singh to meet her wife Smt. Shamim. 3. That she used to work in the house of PW 11 Randhir Singh as home servant where accused appellant Smt. Shamim also used to work in same capacity. 2. That accused appellant Rustam used to come in the house of PW 11 Randhir Singh to meet her wife Smt. Shamim. 3. That on 1.1.1996, both accused appellants Smt. Shamim and Rustam came to her house and told her that Sudha Madam (wife of PW 11 Randhir Singh) called her and, thereafter, she accompanied both these accused appellants. 4. That thereafter, both accused appellants Smt. Shamim and Rustam took her to their house and closed her in the room and threatened her that in case she told to anybody, she would face dire consequences. 5. That both accused appellants Smt. Shamim and Rustam asked her to change the clothes which were worn by her at that time and asked her to put on Salwar- Kurta. 6. That thereafter, she was raped by accused appellant Rustam and in that act, accused appellant Smt. Shamim also helped him. 7. That thereafter, both accused appellants Smt. Shamim and Rustam quarrelled on some matters and the landlord of that house Laxman Singh asked them to vacate his house. 8. That thereafter, they went to Gulmandi and stayed in the house of uncle of accused appellant Rustam where accused appellant Rustam committed rape on her. 9. That she did not resist there as she was given threat earlier. 10. That thereafter, they took her to Dhondholai, where they stayed in the house of sister of accused appellant Rustam for 15 days and during these days, accused appellant Rustam used to have sexual intercourse with her. 11. That thereafter, they came again to Gulmandi, where they stayed for five days. 12. That at Gulmandi, accused appellant Rustam sent accused appellant Salim, who also committed rape on her and on the next day, accused appellant Gopal committed rape on her. Thereafter, accused appellant Razak also committed rape on her. 13. That the made a complaint to accused appellant Rustam that Razak has committed rape on her. Upon this, accused appellant Rustam told her that her marriage will be arranged with accused appellant Razak. There- after, they took her to Bhilwara Court from where they ran away after seeing her father PW 6 Bherulal. 14. That she is also known as Vimla. Upon this, accused appellant Rustam told her that her marriage will be arranged with accused appellant Razak. There- after, they took her to Bhilwara Court from where they ran away after seeing her father PW 6 Bherulal. 14. That she is also known as Vimla. From her cross-examination, the following facts have come out : 1. That accused appellant Rustam used to come daily to the house of PW 11 Randhir Singh. 2. That it is wrong to say that she also used to go to the house of accused appellant Shamim. But, she admitted that on one time she also went there. 3. That it is correct to say that after 1st January, 1996, she herself came to Bhilwara and, thereafter, alleged incidents took place. 4. That all incidents took place between the period from 1st January to 25th January, 1996. 5. That it is correct to say that she has left her husband. 6. That she told to the police that no incident except alleged in the report Ex. P/3 has taken place. 7. That it is correct that in the report Ex. P/3, the names of accused appellant Gopal and Salim, who have committed rape on her, have not been mentioned, but it was stated to the police. 8. That it is also correct to say that in the Court premises stamps were typed and, thereafter, she put her signatures on them. 9. That she told to Laxman Singh about committing rape on her by accused appellant Rustam, but that fact is not found in Ex. D/1, police statement. 10. That it is also correct to say that she did not make any complaint to the brother of the accused appellant Razak about commit- ting rape on her by accused appellant Rustam. 11. That since she has been threatened, therefore, she did not tell to anybody that accused appellant Rustam committed rape on her. 12. That it is correct to say that accused appellant Razak came and told that we will marry in the Court. 13. That it is also correct to say that accused appellant Razak brought her to the Court premises, but against her will. 14. That it is correct to say that we all came to the Court after sitting in Tempo. 15. That it is correct to say that since there was only one bed, therefore, she slept with accused appellant Salim together. 14. That it is correct to say that we all came to the Court after sitting in Tempo. 15. That it is correct to say that since there was only one bed, therefore, she slept with accused appellant Salim together. 10. PW 6 Bherulal is that witness, who lodged the report the Ex. P/3 and he is the father of PW 1 Smt. Kailash. He has admitted in his cross-examination : 1.That her daughter PW 1 Smt. Kailash was missing for more than one month and during that period he did not make any report. 2. That report Ex. P/3 is in his own hand-writing and there is no mention in the report Ex. P/3 that accused appellants Razak and Gopal have committed rape with PW 1 Smt. Kailash. 3. That in the Court premises he found PW 1 Smt. Kailash standing happily and stamps of Court marriage were in her hands. 11. From the statement of PW 11 Randhir Singh, it appears that PW 1 Smt. Kailash used to work in his house and she told to his wife that she could not come because her father was ill and, thereafter, she did not come. 12. In my humble opinion, if the above evidence is examined in right perspective, no case of rape is made out against any of the four accused appellants. From the statement of PW 1 Smt. Kailash, it is very much clear that accused appellant Rustam was known to her and she has remained in the company of that accused Rustam not for one or two days, but for many days and she has also moved from one place to another (from Mandal to Bhilwara, Bhilwara to Gulmandi, Gulmandi to Dhondholai and Dhondholai to Gulmandi again etc.). Thus, evidence of Smt. Kailash which reflects that she was a consenting party from the very beginning upto the place from where she was seen by her father PW 6 Bherulal i.e. from where she was seen by her father PW 6 Bherulal found her happily in the Court premises and she was having stamp papers in her hands also goes to show that she was a consenting party for all the acts and activities done on the date of occurrence and she has left her husband also goes to show that she was not an innocent girl or virgin girl and, therefore, the possibility that she would have been enticed under threat or promise cannot be accepted. The fact that her father has not lodged any report and father was not at all serious about her missing and the possibility of the fact that her father PW 6 Bherulal knows about her character, cannot be ruled out. 13. There is no medical evidence in this case either to prove or suggest that PW 1 Smt. Kailash received any sort of injuries and thus, this fact also goes to show that she is a consenting party and whatever she has stated only on account of instinct of self- preservation. 14. So far as the age of PW 1 Smt. Kailash is concerned, with no exception, she is above 16 years of age and her father has also written her age as 17 years in the report Ex. P/3. She was of bordering age of near about 18-19 years as opined by PW 16 Dr. Avdhesh Mathur. 15. The conclusive evidence of the girl's age may be the birth certificate and the same is not produced in the present case and reliance has been placed on medical evidence as well as on school certificate. 16. So far as the certified copies from school registers are concerned, they may be treated as evidence, but they must also be supported by affidavit of the father and in this case, affidavit of the father of the prosecutrix PW 1 Smt. Kailash has not been produced. 17. In Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, AIR 1982 Supreme Court 1297 , it has been held that margin of error in age ascertained by the radiological examination is of two years on either side. 18. 17. In Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, AIR 1982 Supreme Court 1297 , it has been held that margin of error in age ascertained by the radiological examination is of two years on either side. 18. Thus keeping all aspects in mind, in the present case, no definite opinion can be given about the age of PW 1 Smt. Kailash, but she has herself stated her age as 19 years at the time of examination, her father has also stated her age as 17 years in the report Ex. P/3; from school certificate Ex. P/16 it appears that she is above the age of 16 years; and in radiological examination, her age has been determined as 18-19 years, therefore, it can be held that her age at the time of occurrence was near about 18 years as held by the learned trial Judge also. 19. The offence of abduction is committed when accused by any deceitful means or by force compels any person to go from one place to another or takes any person away from any place without the consent of that person and in case of female, the age as mentioned in Section 361 Indian Penal Code is of 18 years. Since in the present case, the age of the prosecutrix PW 1-Smt. Kailash has been determined near about 18 years on the date of occurrence and as already stated above, she was a consenting party, therefore, it cannot be said that she was abducted by the accused appellants Rustam and Smt. Shamim. 20. Since PW 1 Smt. Kailash was a married woman and she has remained in the company of the accused appellants for so many days without making any complaint to anybody and has further gone to marry with accused appellant Razak in the Court, therefore, it cannot be said that she was forced or seduced to illicit intercourse with any of the accused and whatever has been done, it has taken place with her consent. 21. 21. For the reasons stated above the statement of PW 1 Smt. Kailash that she has been abducted against her will and raped by four accused appellants cannot be believed and thus, the findings of the learned trial Judge that she was abducted and thereafter raped by four accused appellants cannot be maintained and are liable to be set aside and the accused appellants are entitled to be acquitted of all the charges framed against them.In the result, both the appeals are allowed and the impugned judgment and order dated 4.9.1997 passed by the learned Judge, Special Court (Women Atrocities and Dowry Case), Bhilwara are set aside and the accused appellants of both appeals are acquitted of the charges framed against them. Since the accused appellants Razak. Salim @ Atta Mohd. @ Jadugar, Smt. Shamim, Rustam and Gopal are in jail, they be released forthwith, if not required in any other case.Appeal allowed. *******