JUDGMENT 1. - This appeal has been filed by the accused against a judgment dated 6.2.99 delivered by the learned Addl. Sessions Judge, Bali (Distt. Pali) whereby the accused was found guilty for the offences under Sections 366 and 376 of the IPC. For the offence under Section 366 of the IPC he has been awarded rigorous imprisonment for five years and a fine of Is. 1,000/-. For the offence under Section 376 IPC, 7 years' rigorous imprisonment and a fine of Rs. 1,000/- has been awarded. For non-payment of fine, additional simple imprisonment for three months has been awarded on both the counts. 2. The FIR Ex.P/5 was lodged on 1.7.95 by PW-10 Kheti, who happens to be the maternal uncle of the prosecutrix Smt. Kaniya (PW-6). According to the FIR some 17-18 days prior to the lodging of the FIR Smt. Kaniya disappeared from village Khimara. Her mother PW-3 Smt. Nenu informed the said Kheti and during search, PW-1 Sher Singh gave the information that he had seen Smt. Kaniya going with the appellant and two other persons. A search was made for Jeevaram who was found absent from his village and it was discovered that Jeevaram had gone to somewhere in Madhya Pradesh. A Panchayat was convened but to no avail. Ultimately they went to village Timayachi in Distt. Dhar (MP) where the appellant and his brother Manaram were traced. However, they refused to return Smt. Kaniya and hence the FIR. A case under Section 366 and 363 of the IPC was registered. 3. According to the prosecution story Smt. Kaniya was recovered on 7.7.95 and her statements (Ex.D/3) Under Section 161 of the Cr.PC. were recorded. She stated that while she was returning from the house of the nurse, after getting treated for some minor injury, near the bus-stand the accused alighted from a bus and forced her to go with him in the bus and thereafter, they went up to Sanderao in the bus. From Sanderao they boarded a jeep which took them to Udaipur and from Udaipur they boarded another bus which took them to Rajgarh, where they reached at about midnight. For the remaining night both of them stayed at the bus-stand. Next morning the accused took her to a bungiow where she was made to thumb-mark various papers. From Sanderao they boarded a jeep which took them to Udaipur and from Udaipur they boarded another bus which took them to Rajgarh, where they reached at about midnight. For the remaining night both of them stayed at the bus-stand. Next morning the accused took her to a bungiow where she was made to thumb-mark various papers. According to her statement, from Rajgarh she was taken to Timayachi in MP where the brother of the accused (Manaram) was living with his family and she was also kept there against her wishes till she was recovered by the police from there. She was medically examined by Dr. Roshan Lal, PW-8, who found no injuries of any nature on her person and there was no evidence of forcible sexual intercourse. The Doctor found that she was aged more than 17 years and could be aged up to 19 years at the time of the examination. Ultimately, challan was filed in the court of the Judicial Magistrate, Sumerpur who committed the same to the said trial court. The accused was charged for the offences under Sections 366 and 376 of the IPC and he pleaded not guilty. Prosecution examined 11 witnesses and none was examined by the accused. The learned court heard the arguments and delivered the judgment on 6.2.99 as indicated above and feeling aggrieved the accused has preferred this appeal. 4. I have heard the learned counsel for the appellant and the learned Public Prosecutor for the State and have gone through the evidence recorded in the case. I find that the appeal deserves to be allowed and the findings recorded by the learned trial court are unsustainable. 5. As pointed out earlier, as per the testimony of Dr. Roshan Lal, Smt. Kaniya was aged between 17 to 19 years. In cross-examination the Doctor has admitted that she could be more than 18 years at the time of the examination. There is no other evidence to establish that Smt. Kaniya was aged less than 18 years at the time of the incident. Her mother Smt. Nenu (PW-3) was the best witness in this respect. However, in her examination-in-chief she has not disclosed the actual age of Smt. Kaniya. She has admitted that there was a Ration Card of the family. There is no other evidence to establish that Smt. Kaniya was aged less than 18 years at the time of the incident. Her mother Smt. Nenu (PW-3) was the best witness in this respect. However, in her examination-in-chief she has not disclosed the actual age of Smt. Kaniya. She has admitted that there was a Ration Card of the family. However, the investigating officer has not cared to produce the same, In cross-examination Smt. Nenu has admitted that she is getting old age pension and her age recorded there is between 55 to 60 years. She has stated that she was married during her childhood, and 12 months after her marriage, her son Chena was born. Further, she states that after 2-3 years Smt. Kaniya was born. She has admitted that Chena on 11.8.97 was aged between 24-25 years. In this way Smt. Kaniya could not be less than 18 years at the relevant time. Smt. Kaniya, in her cross-examination, has admitted that she is a voter and used to vote in Village Khimara. She has also admitted that her brother Chena is aged between 24-25 years and she is younger to him by about 2 years. Needless to say that there is no evidence to suggest that she was less than 18 years old at the time of the alleged incident. On the contrary, there is evidence to suggest that she was more than 18 years old. 6. It is, thus, to be seen as to whether she was taken against her will and was subjected to sexual intercourse without her consent. I find no circumstance to suggest that she was taken against her will. According to PW-1 Sher Singh he saw Kaniya, going with the accused. He has further stated that both were on a bicycle and Kaniya was sitting behind Jeevaram. Needless to say that when Smt. Kaniya was sitting behind the accused on the bicycle, she had every opportunity to jump from the bicycle or raise hue and cry. Sher Singh does not say that she did any of the things. She did not raise any cry when Sher Singh was near her. Smt. Kaniya has changed the entire version. She does not say that she ever boarded the bicycle. This goes to show that she has given a different story just to suit her convenience. Sher Singh does not say that she did any of the things. She did not raise any cry when Sher Singh was near her. Smt. Kaniya has changed the entire version. She does not say that she ever boarded the bicycle. This goes to show that she has given a different story just to suit her convenience. The testimony of Sher Singh in this respect is more reliable because there is a mention in the FIR itself to the effect that she was seen going with the accused by PW-1 Sher Singh. She has given a story that she was made to travel in the bus. Needless to say that her version is not at all believable. The bus was full with the passengers and she has admitted that she did not make any hue and cry nor she tried to jump from the bus. Her contention that the 'accused was yielding a knife is not acceptable. She travelled, according to her, first by bus, then by a jeep and then again by bus. During this period she had enough opportunity to put up resistance but nothing of the sort was done by her. Th6 Investigating Officer Himmat Singh has deposed that it was not possible to threaten a woman when she is travelling in a bus which is full of other passengers. The witness was confronted with a sworn affidavit Ex.D/4 which was executed by Smt. Kaniya. In Ex.D/4 she has given her age as 22 years and has stated that she had gone with the accused out of her own volition. PW-7 Himmat Singh has stated that he thought it proper not to investigate the circumstance in which Ex.D/4 was executed. Needless to say that it was incumbent upon him to investigate from the concerned Notary Public and find out as to whether she was a willing party to Ex-D/4 or Ex.D/4 was printed on a blank paper which was previously thumbmarked by the executant. 7. Smt. Kaniya admittedly remained in village Timayachi for more than three weeks. She has stated that she used to cook food there. When she was recovered, the accused was not present as he was away in some other village. In this way even when the accused was not present she did not raise any hue and cry nor attempted to return back. She has stated that she used to cook food there. When she was recovered, the accused was not present as he was away in some other village. In this way even when the accused was not present she did not raise any hue and cry nor attempted to return back. She has admitted that in Village Timayachi she did not complain about her alleged or deal to anybody. In this connection, the testimony of PW-10 Kheti is revealing. This witness has admitted that prior to the lodging of the FIR he alongwith others had gone to village Timayachi. He has further admitted that Smt. Kaniya was present there and she refused to return with them, as a result of which he has forced to lodge the FIR. He has admitted that subsequently she was brought from Timayachi forcibly by the police. He has admitted that though Jeevaram was not in Timayachi but Smt. Kaniya was living there. According to the witness she used to cook food, looked after the household work and was grazing the cattle regularly. 8. In these circumstances, it cannot be said that Smt. Kaniya was taken forcibly or was subjected to rape by the accused. The medical evidence does not suggest that there was any evidence of forcible intercourse with her. 9. In the result, this appeal is allowed. The judgment dated 6.2.99 is set aside. The appellant is acquitted of both the charges. Amount of fine if deposited by the accused shall be returned to him.Appeal Allowed - Conviction set Aside. *******