JUDGMENT 1. - This Criminal Appeal has been filed by the accused appellant against the judgment and order dated 20.7.2001 passed by the Addl. Sessions Judge (Fast Track) Alwar in Sessions Case No. 29/2001 by which he convicted and sentenced the accused appellant in the following manner. Name of accused appellant Convicted under Section Sentence awarded Shorab 363 I.RC. 3 years R.l. and fine of Rs. 500/- in default of payment of fine to further undergo R.l. for 3 months. 366 I.RC. 7 years Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default of payment of fine, to further undergo R.l. for 6 months. 376 I.RC. 7 years Rigorous Imprisonment and to pay a fine of Rs. 1000/-, in default of payment of fine, to further undergo R.l. for 6 months. All the above substantive sentences were ordered to run concurrently. 2. The brief facts giving rise to this appeal are as follows (i) On 8.6.2000, RW. 1 Ramchandra lodged a written report Ex.R 1 at police Station, Ramgarh, District Alwar stating therein that on the intervening night of 6-7.6.2000 at about 2.00 A.M. his daughter Jai Kaur aged 15 years RW. 7 (hereinafter referred to as "the prosecutrix") was sleeping on a coat near to him, but she disappeared and her search was made and he came to know that she had been kidnapped by the accused appellant and he had taken her to some other lonely place. It was further stated in the report that the accused appellant used to come to one Aze Mohammed who was neighbour to him. It was further stated in the report that the prosecutrix RW. 7 Jai Kaur was seen by one Devi Dayal RW. 6 and RW. 4 Laxman on the date when she was kidnapped. (ii) On this report, police registered a case for the offence under Sections 363 and 366 I.PC. and chalked out regular RI.R. Ex. R 2 and started investigation. (iii) During investigation, on 8.6.2000 RW. 7 prosecutrix Jai Kaur was recovered from Govindgarh Mor. The prosecutrix RW. 7 Jai Kaur -was got medically examined for the purpose of ascertaining her age as well as for the purpose whether rape was committed with her or not. and chalked out regular RI.R. Ex. R 2 and started investigation. (iii) During investigation, on 8.6.2000 RW. 7 prosecutrix Jai Kaur was recovered from Govindgarh Mor. The prosecutrix RW. 7 Jai Kaur -was got medically examined for the purpose of ascertaining her age as well as for the purpose whether rape was committed with her or not. Her medical examination report is Ex.R 9 and report of ascertaining her age is Ex.R 10, which shows that she was about 18 years of age on the date of examination i.e. on 9.6.2000. The accused appellant was got arrested on 8.6.2000 through arrest memo Ex.R 12. (iv) After usual investigation, police submitted challan for the offence under Sections 363, 366 and 376 I.RC. against the accused appellant in the Court of Magistrate and thereafter, the case was committed to the court of Session. (v) On 24.7.2000, the learned Addl. Sessions Judge No. 3, Alwar framed charges for the offence under section 363, 366 and 376 I.P.C. against the accused appellant. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed trial. (vi) During trial, 15 witnesses were produced on behalf of the prosecution and some documents were got exhibited. Thereafter the statement of the accused appellant under Section 313 Cr.RC. was recorded. No evidence was produced in defence by the accused appellant. (vii) After conclusion of the trial, the learned Addl. Sessions Judge (Fast Track), Alwar through his judgment and order dated 20.7.2001 convicted and sentenced the accused appellant in the manner as indicated above holding inter-alia (1) That on the date of occurrence, the prosecutrix RW. 7 Jai Kaur was below 16 years of age. (2) That the prosecutrix P.W. 7 Jai Kaur was kidnapped by the accused appellant from the guardianship of her father RW. 1 Ram Chandra against her will. (3) That thereafter, the prosecutrix RW. 7 Jai Kaur was raped by the accused appellant. 3. Aggrieved by the aforesaid judgment and order dated 20.7.2001 passed by the learned Addl. Sessions Judge (Fast Track), Alwar, the accused appellant has preferred this appeal. 4. 1 Ram Chandra against her will. (3) That thereafter, the prosecutrix RW. 7 Jai Kaur was raped by the accused appellant. 3. Aggrieved by the aforesaid judgment and order dated 20.7.2001 passed by the learned Addl. Sessions Judge (Fast Track), Alwar, the accused appellant has preferred this appeal. 4. In this appeal, the following submissions have been raised by the learned counsel appearing for the accused appellant - (1) That from every point of view, the age of the prosecutrix was above 16 years and the findings of the learned trial Judge that she was below 16 years of age on the date of occurrence are erroneous one and they should be set-aside. (2) That it was a case of consent and, therefore, no offence was committed by the accused appellant. Hence, it was prayed that this appeal be allowed and the impugned judgment and order passed by the learned Addl. Sessions Judge (Fast Track), Alwar be set aside and the accused appellant be acquitted of all the charges framed against him. 5. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge (Fast Track), Alwar. 6. I have heard learned counsel appearing for the accused appellant and the learned Public Prosecutor and perused the record of the case. 7. In this case, before proceeding further, at the very outset, the age of the prosecutrix RW. 7 Jai Kaur is to be determined. 8. In the present case, no school certificate or birth certificate of the prosecutrix RW. 7 Jai Kaur has been produced. 9. In the report Ex.R 1 which was lodged by RW. 1 Ramchandra, father of the prosecutrix, the age of the prosecutrix RW. 7 Jai Kaur was mentioned as 15 years. 10. P.W. 1 Ramchandra, who is the father of the prosecutrix, stated in his statement recorded in Court that his elder son is about 26-27 years old and thereafter, the prosecutrix RW. 7 Jai Kaur was 3rd in number, meaning thereby he has not stated correct date of birth of the prosecutrix RW. 7 Jai Kaur. 11. Similar is the statement of P.W. 2 Ram Pyari, who is the mother of the prosecutrix. 12. P.W. 15 Dr. Rajkumar has stated in his statement recorded in Court that after seeing the X-Rays of elbow, wrist and Pelvis of RW. 7 Jai Kaur. 11. Similar is the statement of P.W. 2 Ram Pyari, who is the mother of the prosecutrix. 12. P.W. 15 Dr. Rajkumar has stated in his statement recorded in Court that after seeing the X-Rays of elbow, wrist and Pelvis of RW. 7 Jai Kaur, he opined in Ex.R 10 that the age of the prosecutrix RW. 7 Jai Kaur was about 18 years. He has proved the report Ex.R 10, 13. Thus, from the medical point of view, the age of the prosecutrix PW. 7 Jai Kaur was about 18 years. 14. As already stated above, in this case, no school certificate or birth certificate of the prosecutrix P.W. 7 Jai Kaur was produced and in absence of that, the medical evidence should prevail and though there is a margin of error of two years on either side, all the same, the age of the prosecutrix RW. 7 Jai Kaur should be assessed as above 16 years. 15. Therefore, it is held that on the date of occurrence, the prosecutrix RW. 7 Jai Kaur was above 16 years of age and the findings of the learned trial Judge that the prosecutrix RW. 7 Jai Kaur was below 16 years of age are liable to be set-aside. 16. The next point that arises for consideration is whether the findings of conviction for the offence under sections 363, 366 and 376 I.RC. recorded by the learned trial Judge are liable to be confirmed or not. 17. From the contents of the report Ex.R 1, which was lodged on 8.6.2000 by RW. 1 Ram Chandra, it appears that the prosecutrix RW. 7 Jai Kaur was taken away by the accused appellant in night when she was sleeping. 18. From the statement of RW. 1 Ram Chandra, who is the father of the prosecutrix, it appears that the accused appellant used to come to the house of Ashu and the house of Ashu was just near to the house of RW. 1 Ram Chandra. This witness has further stated that the name of the accused appellant was disclosed as per the saying of the police. 19. The fact that the accused appellant used to come to the house of Ashu and the house of Ashu was near to the house of RW. 1 Ramchandra is further proved by the statement of RW. 2 Rampyari, who is mother of the prosecutrix. 19. The fact that the accused appellant used to come to the house of Ashu and the house of Ashu was near to the house of RW. 1 Ramchandra is further proved by the statement of RW. 2 Rampyari, who is mother of the prosecutrix. 20. PW. 3 Dhanno, who is Bhabi of prosecutrix, has started that RW. 7 Jai Kaur was never kidnapped by the accused appellant and she has further stated that the name of the accused appellant was told to her by her father-in-law. 21. RW. 4 Laxman, whose name is found in the report Ex.R 1, does not support the statement of RW. 1 Ramchandra and also does not support the contents of the report Ex.R 1. He has further admitted in his statement recorded in Court that he was told by the police that accused appellant had taken away the prosecutrix RW. 7 Jai Kaur. 22. Similar is the statement of RW. 6 Devi Dayal. 23. Before examining the statement of prosecutrix RW. 7 Jai Kaur, who is the chief witness in this case, it is necessary to see her medical examination report Ex.R 9 and the statement of P.W. 15 Dr. Rajkumar. 24. From the medical examination report Ex.R 9 of the prosecutrix P.W. 7 Jai Kaur, it appears that no injury was found on any part of her body. 25. RW. 15 Dr. Rajkumar in his statement recorded in Court has stated that on 9.6.2000 he was medical Jurist in the General Hospital and on that day, he conducted the medical examination of the prosecutrix P.W. 7 Jai Kaur and during examination, he did not find any injury on any part of her body. He has proved the report Ex.R 9. 26. It may be stated here that in rape cases, the main evidence is that of prosecutrix herself. It is also well settled that there is no rule of law that the evidence of prosecutrix cannot be believed without corroboration and each case depends upon its own facts. 27. Prosecutrix Jai Kaur, PW. He has proved the report Ex.R 9. 26. It may be stated here that in rape cases, the main evidence is that of prosecutrix herself. It is also well settled that there is no rule of law that the evidence of prosecutrix cannot be believed without corroboration and each case depends upon its own facts. 27. Prosecutrix Jai Kaur, PW. 7 in her examination in chief has stated that on the dated of the occurrence she sleeping in the chowk, and, thereafter the accused appellant and three more persons came there and after showing knife she was asked to sit on the motor cycle and thereafter she sat on the motor cycle and she was taken on the border of Nao Gaon by the accused appellant. She has further stated that from the border of Nao Gaon she was taken by the accused appellant to Pahad and where she was asked to put off her clothes and she put off her clothes. Thereafter the accused appeliant committed rape with her. She has further stated that accused appellant had sex with her for 2 or 3 hours continuously. She has further stated that from Pahad she was taken by accused appellant to a place known as Thekadar Ka Bas and from this place she was recovered by the police. 28. In cross-examination she has admitted the following facts- (1) That since her mouth was closed by accused appellant, she did not make any hue and cry. (2) That it is correct to say that the place where she was sleeping, her mother Rampyari RW. 2 and Bhabhi Dhanno, PW. 3 were also sleeping but on different cots. (3) That the accused appellant used to come to the house of Ashu. (4) That before reaching to the place known as Thekadar Ka Bas, the accused appellant took her to a well where he took a bath but she did not take any bath. (5) That it is also correct to say that in Thekadar Ka Bas, they reached in the evening and in the early morning of the next day the police came. (6) That it is also correct to say that in Thekadar Ka Bas where they stayed, the accused appellant was in the company of some male persons while she was in the company of females. (6) That it is also correct to say that in Thekadar Ka Bas where they stayed, the accused appellant was in the company of some male persons while she was in the company of females. (7) That it is also correct to say that they passed through the market of village Nao Gaon. (8) That at the time when the accused appellant committed rape with her she resisted his act and in that struggle she also sustained injuries. 29. Thus, from the statement of prosecutrix Jai Kaur RW. 7 it clearly appears that when the police came she was in Thakadar Ka Bas along with the accused appellant. In these circumstances, the case of the prosecution that she was got recovered at Govina Garh Mod becomes doubtful. 30. The statement of Jai Kaur, RW. 7 that she was forcibly kidnapped from the house of her father RW. 1 Ram Chandra during night cannot at all be believed for the simple reason that it appears to be unnatural that other persons who were sleeping there would not know any thing about this fact. Had she had been forcibly kidnapped then the other members of the family sleeping there would have come to know about this fact at the very moment. Therefore, it appears that she went with the accused appellant at her own accord. The fact that she left the house on the motor cycle with the accused appellant also goes to show that she was a consenting party with the accused appellant since the very beginning. The fact that during the way she did not make any hue and cry nor narrated the incident to any body, also goes to show that it was with her tacit consent. The fact that she had sex with the accused appellant after putting off her clothes for about 2-3 hours further goes to show that it was a case of consent otherwise such a long period could not have been taken. Had she been forcefully rapped, the prosecutrix Jai Kaur P.W. 7 would have sustained some sort of the injuries. The fact that there was no injury on the person of the prosecutrix RW. 7 Jai Kaur goes to show that she was a consenting party and thus, the medical evidence in this case negatived the allegation of rape in the sense if the prosecutrix Jai Kaur RW. The fact that there was no injury on the person of the prosecutrix RW. 7 Jai Kaur goes to show that she was a consenting party and thus, the medical evidence in this case negatived the allegation of rape in the sense if the prosecutrix Jai Kaur RW. 7 would have been unwilling to yield to sexual intercourse, she would have sustained injuries on her person. Hence, in the present case, absence of injuries gives rise to inference that she was a consenting party to coitus. 31. The offence of abduction is committed when an 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 consent of that person and in the case of female the age as is mentioned under section 361 I.RC. is of 18 years. 32. In the present case, the age of prosecutrix Jai Kaur PW. 7 has been determined above 16 years and margin of error of two years on either side could also benefit the accused appellant. Therefore, it, cannot be said that the prosecutrix Jai Kaur RW. 7 was kidnapped or abducted by the accused appellant. 33. Similarly, finding of conviction for offence under Section 376 I RC. recorded by the learned trial judge cannot be sustained as she was a consenting party to the act done with her. 34. Thus, the statement of Jai Kaur, RW. 7 which did not get corroboration from the medical evidence as well as from the other evidence, cannot be accepted. In other words, the statement of the prosecutrix RW. 7 Jai Kaur does not inspire confidence and conviction cannot be maintained on her statement. Hence, the findings of conviction for the said offences are liable to be set aside and the appeal of the appellant is to be allowed and the accused appellant is entitled to acquittal of all the charges. 35. Before parting with this judgment, it will be stated here that the learned Public Prosecutor has placed reliance on a case reported in 2002 (1) Cr.L.J. (SC) 3046, Mohan v. State of M.P. and argued that the fact that the prosecutrix did not sustain any injury would not lead to a conclusion that she was consenting party. 35. Before parting with this judgment, it will be stated here that the learned Public Prosecutor has placed reliance on a case reported in 2002 (1) Cr.L.J. (SC) 3046, Mohan v. State of M.P. and argued that the fact that the prosecutrix did not sustain any injury would not lead to a conclusion that she was consenting party. No doubt absence of injury by itself is not sufficient to hold that the prosecutrix was a consenting party but in the present case, the various reasons mentioned here in above clearly reflect that she was a consenting party to the act alleged to have been done with her. Thus, in the facts and circumstances of the present case I am of the view that the ruling cited by the learned Public Prosecutor would not be helpful for the prosecution. 36. Accordingly, this appeal of the accused appellant is allowed and the judgment of conviction and order of sentence dated 20.7.2001 passed by the learned Addl. Sessions Judge (Fast Track), Alwar in Sessions Case No. 29/2001 are quashed and the accused appellant is acquitted of the charges under Sections 363, 366 and 376 I.RC. 37. Since the accused appellant is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******