Judgment 1. Vide order dated 5/9-5-1997 Additional Sessions Judge, Gurgaon found both Chand and Ramu-accused guilty of the offences punishable under Sections 363/366 and 376(2)(g) of the Indian Penal Code in case FIR No. 311 dated 3-6-1995 registered under Sections 363/366 and 376 of the Indian Penal Code (Sessions Case No. 42 of 4-11-1995/96) and he accordingly convicted and sentenced them as follows : 376(2)(g), IPC RI for 10 years and fine of 2000/- each. In default of payment of fine, RI for 1-½ yeras. 363, IPC RI for 5 years and fine of Rs. 1000.00 each. In default of payment of fine, RI for 2 months. 366, IPC RI for 7 years and fine of Rs. 2000.00 each. In default of payment of fine, RI for 3 months. 2. The prosecution case in brief is that Smt. Radha widow of Bir Krishan (Balmiki) was residing in house No. Z11/9, Sughash Nagar, Gurgaon. She has four daughters and one son. Her daughter Nitu was the eldest among the children. She was aged 14 years. Her daughter Nitu used to go to the house of S. K. Sharma for sweeping it. Chand-accused was putting up with his family in a house opposite to the house of Radha. About a week prior to 3-6-1995 his brother Manu had come to him from Rai Bareilly and was staying with him. Smt. Radha had seen Manu making gestures/overtures to Nitu several times. Smt. Radha complained to Chand several times regarding this untoward behaviour of Manu towards Nitu, so much so, she requested him to send Manu back to Rai Bareilly. On 3-6-1995 at about 8.00 a.m. Nitu had gone to sweep the house of S. K. Sharma. It was usual for her to return at about 11.00 a.m. or 12.00 (Noon). That day, however, she did not come back. Smt. Radha accordingly went to Dhobi Ghat and asked one Bahadur servant of Dr. S. K. Sharma at his house as to the whereabouts of Nitu. Bahadur told her that Nitu had left after sweeping the house at 10.00 a.m. Till evening Smt. Radha continued searching Nitu here and there. She waited for her but she did not turn up. Manu was also missing from the house of his brother Chand since morning. Smt. Radha reported the matter to the police at 7.00 p.m. on 3-6-1995 vide her statement Ex. She waited for her but she did not turn up. Manu was also missing from the house of his brother Chand since morning. Smt. Radha reported the matter to the police at 7.00 p.m. on 3-6-1995 vide her statement Ex. PW11/A in which she laid her suspicion on Manu of enticing away her daughter Nitu and whisking her with him. On the statement of Smt. Radha Ex.PW11/A case was registered under Sections 363/366/376 of the Indian Penal Code at PS City, Gurgaon. On 4-6-1995, at about 12.30 night SI Bishambar Dyal of Police Station City, Gurgaon met Krishan Lal PW at General Bus Stand, Gurgaon. Krishan Lal is Nitus maternal uncle. He was taken along by SI Bishambar Dyal in search of Nitu. They went to Delhi. At Delhi they searched for her at various places including the Railway Station. At 4.00 p.m. they reached ISBT, Nitu was sitting on a bench at Bus Stand. She called Krishan Lal PW. Chand and Ramu-accused were also sitting beside her. At the sight of Police Party, both the accused slipped away. Nitu was recovered. In this behalf memo Ex. PW11/C was prepared. Her statement was recorded. Statement of her maternal uncle Krishan Lal was also recorded. She was brought to Gurgaon, where she was medico-legally examined by Dr. Vandna Narula, Medical Officer, General Hospital, Gurgaon on 4-6-1995 at 11.30 p.m. On medical examination of Nitu, Dr. Vandna Narula did not find any mark of external injury anywhere over the body or the genitalia. There was cogestion and bleeding points at 5 and 7O Clock position at the introitus, Tenderness ==. Introitus admitted two fingers with difficulty. Hymen appeared torn at lower part. Per vaginal finding- cervis backwards and uterus was anteverted. 3. Dr. Vandna Narula handed over to the police sealed culture bottle with vaginal swab for forensic examination with two seals, sealed packet containing underwear and salwar bearing five seals and sealed envelope bearing five seals containing copy of MLR, forwarding letter and specimen impression of seal. 4. Dr. Sanjay Narula, Medical Officer, General Hospital, Gurgaon PW-5 conducted medical examination of accused Ramu son of Rameshwar on 5-7-1995 at 10.15 a.m. and found that there was nothing to suggest that he was not capable of sexual intercourse. Similarly, he performed medical examination of Chand-accused. He found that there was nothing to suggest that he was not capable of sexual intercourse. Dr. Similarly, he performed medical examination of Chand-accused. He found that there was nothing to suggest that he was not capable of sexual intercourse. Dr. B. B. Aggarwal, Medical Officer, Civil Hospital, Gurgaon PW-4 performed radiological examination on Nitu d/o Bir Krishan. He found her radiological age as between 15 and 15-½ years. 5. Assistant Director (Biology), Forensic Science Laboratory (H), Madhuban, Karnal detected human semen on underwear and salwar of Nitu. Semen could not be detected on swab. After investigation, Chand and Ramu were challaned. 6. Case was committed to the Court of Session by the Chief Judicial Magistrate, Gurgaon vide order dated 21-10-1995. 7. Chand and Ramu-accused were charged under Sections 363/366 and 376 of the Indian Penal Code by Additional Sessions Judge, Gurgaon vide order dated 30-11-1995. Accused pleaded not guilty to the charge and claimed trial. 8. At the conclusion of the trial, Additional Sessions Judge, Gurgaon found the charge under Sections 363/366 and 376 of the Indian Penal Code against both the accused. He accordingly convicted and sentenced them as indicated above. 9. Nitu d/o Bir Krishan (prosecutrix) PW-1 stated that on 3-6-1995, she was coming back to her house from Dhobi Ghat where she worked as a maid servant in the house of S. K. Sharma. When she reached near Darona Acharya SD College, Gurgaon, accused Chand and Ramu met her. Both of them had knife each. They threatened her at the point of knife that she should accompany them and if she would not accompany them, they would do away with her, her mother and brother. She was asked by them to accompany them or else she would be done to death. They took her to Darona Acharya SD College, Gurgaon in a room of the College. It was 10.00/10.30 a.m. They removed her clothes and both of them had sexual intercourse with her. She came to know the names of the accused when they were calling each other by their names. From there she was taken to Bus Stand, Gurgaon on a rickshaw. Both the accused sat on her either side and they threatened her that if she raised any aalarm, she would be killed. She was taken to Delhi. She was kept confined in one room at Delhi. In the morning of the following day, she was again taken to Bus Stand, Delhi. She was made to sit in a bus. Both the accused sat on her either side and they threatened her that if she raised any aalarm, she would be killed. She was taken to Delhi. She was kept confined in one room at Delhi. In the morning of the following day, she was again taken to Bus Stand, Delhi. She was made to sit in a bus. Both the accused were talking to each other that they would take her to Rai Bareilly. Accused were sitting outside the bus when she saw her maternal uncle Kishan Lal at the bus stand. She called her maternal uncle Kishan Lal. Thereafter, both the accused ran away from the spot. There was two police personnels with her maternal uncle. She was brought by them to Gurgaaon and was got medico-legally examined, the same day at Gurgaon. 10. In her cross-examination, she stated the accused had hired rickshaw on the road, which is situated outside the college. There was a number of persons passing-by. She did not raise any alarm because she had been threatened by the accused. In her statement recorded by the police, she did not make mention of any threat either to her life or to the life of her mother or brother in case she refused to accompany them. She stated that when she was being taken by bus from Gurgaon to Delhi, she did not raise any alarm because of fear to her life. They reached Delhi at about 2.00/2.30 p.m. It is strange awhy she did not raise any alarm when she was being taken from Gurgaon to Delhi in a bus. It is strange that she did not raise any alarm when she was being taken in a rickshaw at Gurgaon to Bus Stand. It is strange that she did not raise any alarm when she was sitting at Bus Stand, Delhi with a view to be taken to Rai Bareilly. At ISBT, Delhi hundreds of persons must have been present. She could well raise alarm and attract their attention. She could attract the attention of the police present at ISBT, Delhi and tell them that accused had brought her after kidnapping her from Gurgaon when she was with her widowed mother. At ISBT, Delhi hundreds of persons must have been present. She could well raise alarm and attract their attention. She could attract the attention of the police present at ISBT, Delhi and tell them that accused had brought her after kidnapping her from Gurgaon when she was with her widowed mother. She stated that when they had reached the room in Delhi where she was confined at about 3.00 p.m., she did not raise any alarm although that room was situated in a building and other rooms were lying occupied by some persons residing in them. 11. Her mother Radha PW-2 stated in her cross-examination that Chand accused had started residing with his brother about 7/8 days prior to the occurrence. His brother Manu came to Chand 7/8 days prior to the occurrence i.e. 3-6-1995 and stayed with him. She had seen Manu making gestures/overtures towards Nitu. She had complained about this misbehaviour of Manu to Chand, so much so she had asked Chand to send Manu back to his village. 12. It appears that either Chand or his brother was attracting the attention of Nitu and she responded. It is not a case of abduction and kidnapping of Nitu by the accused, it is rather a case of Nitus eloping with the accused. If it were not a case of her willingly eloping with the accused, she could have raised hue and cry when she was being taken in a rickshaw to Bus Stand, Gurgaon. She could have raised hue and cry when she was being taken from Gurgaon to Delhi by bus. She could have raised hue and cry when she was being kept in a room at Delhi when other rooms adjoining to that room were in occupation of the people who were residing there. She could have raised hue and cry at Bus Stand, Delhi when the accused were proposing to take her to Rai Bareilly. 13. The question that arises is what was the age of Nitu (prosecutrix). Her date of birth has not been produced. Prosecution has relied upon the date of her birth as recorded in the school record. Smt. Sudarshan Kumari (Teacher), Bhim Nagar School, Gurgaon PW8 has stated that at the time of admission Smt. Radha submitted admission form for admission of Naina Devi daughter of Bir Krishna to the school. She remained in school till 14-9-1995. Prosecution has relied upon the date of her birth as recorded in the school record. Smt. Sudarshan Kumari (Teacher), Bhim Nagar School, Gurgaon PW8 has stated that at the time of admission Smt. Radha submitted admission form for admission of Naina Devi daughter of Bir Krishna to the school. She remained in school till 14-9-1995. As per the school record, she was recorded as born on 15-11-1979 in the admission form as well as in the school leaving certificate. In her cross-examination, she stated that there was no affidavit or any birth certificate attached to the admission form by Smt. Radha. In the absence of birth certificate, the date of birth as recorded in the school record, cannot be relied upon as conclusive proof of the age as recorded in the school record. 14. Dr. B. B. Aggarwal, Medical Officer, Civil Hospital, Gurgaon stated in his cross-examination that if radiological datas are taken exclusively, then radiological age will vary two years on either side. The age given by Nitu as 14 years before Dr. Vandna Narula cannot be given any weight as the doctor recorded her age as given by her without recording her own opinion after observing her age. It lay upon the prosecution to prove the age of the prosecutrix by positive evidence. 15. it was held in Mahabir V/s. State (1994) 3 Rec Cri R 46 by Delhi High Court that where a prosecutrix aged 16 years goes with the accused, remains with him for 15 days, moves at various places and indulges in sexual intercourse with him, accused cannot be held guilty of rape or abduction. 16. It was held in Mohamad Imteaz Khan alias Sannu V/s. State of Haryana (1994) 2 Rec Cri R 456, where the prosecutrix and her mother stated that the age of the prosecutrix was 14 years, school record showed her age as 12 years, birth record showed her age as 15 years, the ossification test by the Doctor showed her age as 14/15 years and the evidence showed that the prosecutrix was a consenting party, accused should be acquitted. 17. In this case as there is no authentic proof that Nitu was less than 16 years of age, sexual intercourse by the accused with her cannot be said to be a rape. 17. In this case as there is no authentic proof that Nitu was less than 16 years of age, sexual intercourse by the accused with her cannot be said to be a rape. They cannot be said to have abducted her with intent to seduce her to illicit intercourse as there is no authentic proof that she was less than 18 years old on 3-6-1995 when there is no birth certificate produced by the prosecution. 18. For the reasons given above, this appeal is accepted and the conviction and sentence passed upon appellants by the learned Sessions Judge, Gurgaon vide order dated 5/9-5-1997 is set aside and they are acquitted of the charges framed against them. They be released and set at liberty forthwith if not required in any other case. Fine if any paid shall be refunded to them.