JUDGMENT : D.K. Trivedi, J. The appellants, who are convicted by the learned Sessions Judge, Sabarkantha at Himatnagar while disposing of Sessions Case No.86/96 on 21.7.97 had preferred this Appeal. Appellants are closely related to each other as found from the record. That accused No.2 is the father of accused No.3 while accused No.1 is the cousin brother of accused No.2. As per the order of conviction, the appellant accused No.1 was convicted for the offence under Section 366 of I.P.C., appellant accused No.2 was convicted for the offence under Section 366 read with Section 368 of I.P.C. while appellant accused No.3 was convicted for the offence under Section 376 of I.P.C. While imposing sentence, the learned trial Judge has awarded sentence of R.I. for 5 years and a fine of Rs.3000/- in default R.I. for 6 months on accused Nos.1 and 2 and awarded sentence of R.I. for 10 years and fine of Rs.5000/- in default R.I. for 1 year on accused No.3. 2. We have heard Mr. Patel for the appellants accused and Mr. K.P. Raval, learned Addl.P.P. for the State. At the beginning of the hearing of the Appeal, Mr. Raval has tendered the statement prepared by the jail authority under the signature of Deputy Superintendent, Ahmedabad Central Prison, showing that appellants - accused Nos.1 and 2, in view of the order of conviction and sentence recorded by the learned trial Judge for the offences under Section 366 and Section 366 read with Section 368 of the I.P.C. respectively, had undergone sentence awarded by the learned trial Judge and also paid fine and they were released from the jail as back as on 4.6.2000 in view of remission earned by the respective accused. So far as the statement furnished by the jail authority in respect of appellant No.3 Kantibhai is concerned, he is still in jail and by earning remission, he has already undergone the sentence of 9 years, 7 months and 27 days. 3. As observed earlier, appellants Nos.1 and 2 are already released as they have already completed sentence even by paying amount of fine. However,to examine the contentions raised before us, Mr. Patel, learned advocate appearing for the appellants, has taken us through the paper book consisting of oral and documentary evidence and the judgment under challenge. It is the contention of Mr. However,to examine the contentions raised before us, Mr. Patel, learned advocate appearing for the appellants, has taken us through the paper book consisting of oral and documentary evidence and the judgment under challenge. It is the contention of Mr. Patel that the learned trial Judge was not right in accepting the prosecution case qua the accused and further that the learned trial Judge has committed error in accepting the prosecution case that Sarla - prosecutrix was below the age of 18 years. In support of his submission, he took us through the evidence of prosecutrix Sarla as well as the medical evidence led by the prosecution and the medical certificate issued by Doctor in respect of the examination of Sarla by the Doctor. It is his contention that as found from the medical evidence, Sarla is more than 18 years of age and further from the medical evidence, nothing is found to indicate that the appellant - accused No.3 Kantibhai has committed rape on Sarla as alleged by the prosecution. He further contended that the investigation of the present case is dishonest and in support, it is his contention that as found from the evidence, Manjula, the real sister of victim Sarla, who has approached the police after ascertaining from her sister Sarla, who was at the relevant time at the house of accused Nos.2 and 3, had disclosed that she was wrongfully confined and detained at the house of accused Nos.2 and 3 and the accused No.3 had committed intercourse against her will and when she approached the Police at Shamlaji Police Station, her complaint was not recorded and she has to go for labour work and further again she approached the police and with the help of police her sister Sarla was relieved from the house of accused Nos.2 and 3 by the police and thereafter the complaint was filed by Sarla on 30.3.96. It is his contention that there is a delay in lodging the F.I.R. and the prosecution has failed to explain such delay, which is fatal to the prosecution. He next submitted that as per the prosecution case, accused No.3 has committed rape on Sarla between 6.3.96 to 29.3.96. It is his contention that there is a delay in lodging the F.I.R. and the prosecution has failed to explain such delay, which is fatal to the prosecution. He next submitted that as per the prosecution case, accused No.3 has committed rape on Sarla between 6.3.96 to 29.3.96. Medical evidence does not support the prosecution case and he vehemently urged that the learned trial Judge has not rightly appreciated the evidence led by the prosecution and the learned trial Judge has while accepting the prosecution case, convicted accused Nos.1 and 2 for the offences punishable under Section 366 and under Section 366 read with Section 368 of the I.P.C. respectively and convicted accused No.3 for the offence punishable under Section 376 of the I.P.C. and the same deserves to be set aside. Mr. Patel has also placed reliance upon judgment of the Apex Court, which we will deal with hereafter. 4. Mr. K.P. Raval, learned Addl. P.P., has supported the judgment under challenge and according to him, in view of the evidence led by the prosecution, the learned trial Judge has rightly accepted the prosecution case by convicting the accused. It is his contention that as found from the evidence, at the earliest opportunity when prosecutrix Sarla was relieved with the help of the police from illegal custody of accused Nos.2 and 3, she had filed complaint before the police disclosing the manner in which the accused had acted when they had gone to the house of accused No.1, from where she was forcibly taken away by accused Nos.2 and 3 and taken to the house of accused No.2 and she was illegally detained and according to Sarla,her age is 15 years and she was not permitted to leave the house of accused Nos.2 and 3. It is the contention of Mr. Raval that accused No.2 facilitated accused No.3, who is his son, to commit intercourse with Sarla from day one when she was taken at their house till she was relieved by the police and accused No.3 had against her will did intercourse. It is the contention of Mr. It is the contention of Mr. Raval that accused No.2 facilitated accused No.3, who is his son, to commit intercourse with Sarla from day one when she was taken at their house till she was relieved by the police and accused No.3 had against her will did intercourse. It is the contention of Mr. Raval that as found from the medical evidence, it corroborates with the evidence of prosecutrix Sarla as according to the medical evidence, Sarla was at the relevant time below the age of 18 years and as Sarla being minor, accused No.3 had committed rape on her and accordingly the conviction of the accused No.3 under Section 376 deserves to be confirmed by dismissing the Appeal. 5. As observed earlier, appellants accused Nos.1 and 2 had already served out the sentence and they were already released from custody. However, to examine the prosecution case, we will consider the prosecution case in respect of the contentions raised before us. As per the complaint filed by Sarla, daughter of Nathabhai Fataji before Police on 30.3.96 she disclosed her age as 15 years and she resides at village Kishangadh, Taluka Bhiloda. The complaint was recorded by P.S.I. Shamlaji Police Station. In her complaint she has stated that she is residing with her mother at Kishangadh as her father had expired before 5 years. She has also given further details about their family members as well as her mother. Her mother Jiviben was first married at village Gadia and she delivered a baby named Hajuben. After the death of her first husband and after leaving Hajuben at Gadia her mother had married at Kishangadh. The people of Gadia had got married Hajuben at village Mota Kantharia with Nanji Savaji Varsat, who is accused No.1. Sarla had three sisters; her elder sister is Manjula and younger sister is Aruna. Aruna is studying in Standard VIII and all the three daughters are unmarried. She has not taken any education. Accused No.1, resident of Mota Kantharia, is her sister's husband and prior to summer she and Manjula had gone at the house of accused No.1 at Mota Kantharia, once or twice and even thereafter accused No.1 used to visit her house. Aruna is studying in Standard VIII and all the three daughters are unmarried. She has not taken any education. Accused No.1, resident of Mota Kantharia, is her sister's husband and prior to summer she and Manjula had gone at the house of accused No.1 at Mota Kantharia, once or twice and even thereafter accused No.1 used to visit her house. While discussing the incident, it is her say that prior to 3 days of Holi festival, accused No.1 came to her residence and asked Manjula that Sarla be sent with him as they wanted to harvest the wheat. At that time, her sister Manjula had informed him that after Holi festival, she will sent Sarla and, thereafter, accused No.1 has left. After the Dhuleti festival was over on the next day there was a fair at Bhiloda known as Ger Mela and at that time her sister Manjula had told Sarla that "you can attend the said Mela and will visit house of accused No.1 for harvesting the wheat". Accordingly she went to Bhiloda and attended the fair known as Ger Mela and in the said Mela, Dashrath, who is the sister's father's son, of Kishangadh, met her and when he inquired, Sarla informed him that she has to visit accused No.1's house at Mota Kantharia and Dashrath had also agreed to accompany him and Sarla and her brother Dashrat went to Mota Kantharia. They stayed at night with accused No.1 and on the next day morning,she along with her brother Dashrat and accused No.1 had gone to the filed of accused, where they have harvested wheat till noon. After finishing the harvesting work, she along with Dashrath proceeded towards Kantharia in the evening and accused No.1 had accompanied them upto the bus stand. At that time accused No.3 Kantibhai, whose house is also on the way, had requested to visit their house and accordingly they have missed the bus and they went back to the house of accused No.1 and they stayed at the house of accused No.1 at night. Accused No.1 had gone out for some time and returned at his house at about 9.0 P.M. They have taken their meals. Sarla, her sister Hajuben and her children had slept in front of the house. Accused No.1 had gone out for some time and returned at his house at about 9.0 P.M. They have taken their meals. Sarla, her sister Hajuben and her children had slept in front of the house. Thereafter, at about 10 P.M. accused No.3 came at the house of accused No.1 along with his father accused No.2 and they inquired about her from accused No.1 that where Sarla is sleeping and accordingly accused No.1 had shown Sarla. Thereafter, accused No.3 Kantibhai has asked Sarla that she has to accompany to his house for which Sarla has denied and her sister Hajuben has also denied that Sarla will not accompany accused No.3. Accordingly Kantibhai and his father had forcibly taken her from the house of accused No.1 and took her at the house of accused No.2. Thereafter, accused No.2- father of accused No.3, had closed the door from outside. Accused No.3 had taken Sarla in a cot and due to this she was afraid and was crying. Thereafter, accused No.3 Kantibhai had forcibly laid down Sarla on a cot, where he removed the Chaniya as well as knicker. Thereafter, accused No.1 removed his cloth and became naked and accused No.3 had committed rape against her will. By doing so, she had a pain on her private part and even the blood was coming out. She was crying. Accordingly, accused No.3 was telling her from the beginning on that night that she is his wife and he is going to keep her and you should not worry. Sarla, in response, told accused No.3 Kantibhai that he is still young and her age is not a marriageable age and she does not want to stay with him and requested that she be taken to her sister's house. At that time Kantibhai told Sarla that it is only accused No.1, who had handed over her to him. Then Sarla cried. Accused and their family members were also keeping watch on her and even when she used to go to answer the call of nature, the family members used to come with her and they did not permit her to remain alone and further she was kept inside the house and accused No.3 Kantibhai every night used to commit rape on her without her consent. When these facts came to knowledge of Manjula, she visited Mota Kantharia to relieve her sister Sarla three times and accused Nos.2 and 3 had not permitted Manjula to see Sarla. It is further the case of Sarla that on one occasion when her sister Manjula came and met her, she disclosed the entire story to her sister Manjula and her sister Manjula came subsequently with the police and she was relieved with the help of police and, thereafter, the complaint was filed against the accused. It is her case that in the complaint, which was given by her before the P.S.I., she has also put her thumb impression. It is to be noted that on the complaint being filed by Sarla before the Police, the investigation of the case had started.During investigation Sarla had shown the place of incident where the offence of rape was committed by accused No.3.The Police had prepared the Panchanama in presence of Panchas. The cloth of victim Sarla, namely, Chaniya and knicker was produced by her in presence of panchas. Thereafter, the Investigating Agency had sent Sarla for medical check up under Police Yadi to Medical Officer, Cottage Hospital, Bhiloda where Sarla was physically examined by Dr. Parmar. Dr. Parmar referred Sarla for further check up to find out the age of victim Sarla by referring Sarla to Civil Hospital, Himatnagar. Sarla was also examined by Gynecologist attached to Civil Hospital, Himatnagar. The Police has also thereafter arrested accused Nos.1 and 2 on 15.4.96 while accused No.3 was arrested on 16.4.96. The cloth produced by accused No.3 was attached in presence of panchas, which were sent for chemical analysis including the cloth of victim Sarla. The Police has recorded statements of witnesses and as the case was found, the police has filed charge-sheet before the trial court and after committal order passed by the learned trial Judge, the accused were placed for trial before the learned Sessions Judge, Himatnagar. 6. As found from the F.I.R. Exh.18 given by Sarla, she disclosed about the act committed by respondents accused and how she was released from the house of accused Nos.2 and 3 by police. Sarla prosecutrix examined by the prosecution as P.W.3 had in term deposed before the court what she has stated in her complaint. 6. As found from the F.I.R. Exh.18 given by Sarla, she disclosed about the act committed by respondents accused and how she was released from the house of accused Nos.2 and 3 by police. Sarla prosecutrix examined by the prosecution as P.W.3 had in term deposed before the court what she has stated in her complaint. She has stated about when she has visited her sister's house, who has married with accused No.1, along with her cousin brother Dashrath. She has deposed that after the work of harvesting wheat was done at the field of accused No.1, all came at the house of accused No.1. They have their lunch and as she was to go to her house at village Kishangadh by bus, she along with Dashrath and accused No.1 proceeded towards the bus stand. At that time, accused No.3 and his father accused No.2 came and offered tea by visiting their house. Accordingly, all the three had gone to the house of accused No.2 for tea because of which they have missed the bus and they came back to the house of accused No.1. She has also deposed that after taking their dinner at night accused No.1 had gone out and he returned back at 9.0 P.M. Kantibhai accused No.3 and accused No.2 had come and awakened her and accused No.3 took away her in his shoulder and after taking her in the house of accused Nos.2 and 3, they have closed the house by keeping lock. Accused No.3 Kantibhai was alone and Kantibhai has committed rape on her. She has also deposed the manner in which rape was committed on her by accused No.3 by removing her cloth as well as removing the cloth of accused No.3 Kantibhai and she has deposed that during this time,she had also bleeding from her private part. She had also narrated the story, which is found from the F.I.R., that accused No.3 had told that from today she is his wife and for that she was brought. She had also narrated the story, which is found from the F.I.R., that accused No.3 had told that from today she is his wife and for that she was brought. She has further deposed that at that time she told Kantibhai that she wants to go to her house by crying and she was telling that she wanted to go with her brother Dashrath, Kantibhai had not permitted her to leave the house and by this way she was kept at the house of accused Nos.2 and 3 for 20 days and she was not permitted to leave the house and every day at night accused No.3 used to commit rape on her. Her sister Manjula came. However, she was not permitted to meet her. Her sister Manjula stayed for one night. When she was to go for answering the natural call by leaving the house, the other females were coming after her. When second time Manjula came, she was permitted to meet her and at that time she had disclosed the story to her and even she was not permitted to go with Manjula. Thereafter, Manjula came with Police and she was relieved and thereafter, she was taken to Shamlaji Police Station where her complaint was recorded. She has put her thumb mark. After reading the said complaint she has deposed that the same is correct. Thereafter, she was taken to Dispensary at Bhiloda where she was examined by Doctor and from there she was taken to Civil Hospital at Himatnagar where X-rays were taken.She has further deposed that her father had expired and her mother is alive. She identified muddamal articles 1 and 2 being Chaniya and Knicker, which were worn by her at the time of offence. She has also deposed that when the police came for inquiry she has shown the place of offence and also she has produced her cloth before the police. Accused No.1 is the brother in law of her, accused No.2 is the father of accused No.3 and accused No.3 has committed rape on her. She identified the accused in the Court. It is further found from her evidence in chief that at the instance of accused No.1, accused No.3 had taken her away. Accused No.1 is the brother in law of her, accused No.2 is the father of accused No.3 and accused No.3 has committed rape on her. She identified the accused in the Court. It is further found from her evidence in chief that at the instance of accused No.1, accused No.3 had taken her away. As found from the evidence in chief, she has narrated the manner in which she has gone to the house of accused No.1 for harvesting of wheat in the filed of accused No. 1 and when they missed the bus, they have to stay at night at the house of accused No.1, where according to her on the night at about 10 0' clock, accused Nos.2 and 3 had visited the house of accused No.1 from where accused No.3 had taken her away at the house of accused No.3 and accused No.3 has committed rape on her against her will. She has also proved the complaint, which was given by her before the Police. In cross-examination she has admitted that prior to the incident, she as well as her family had no relation with Hajuben by visiting their house and even at present they have no relation to visit the house of each other. As found from the cross examination that at the house of accused No.2 and 3, where victim was taken at night, there are other surrounding residential houses and opposite to the house of accused Nos.2 and 3 there is a bus stand. She has no knowledge that whether at their place there was movement of public. Accused No.3 and accused No.2 had their field and at the time of incident, they have gone for harvesting the wheat. She had also admitted that she had gone for harvesting at the field of Kantibhai for about one or two times and she was preparing meals by her own. She denied that after preparing the meals she used to go out to the field to give meals to Kantibhai by visiting his filed. She has also admitted that she used to visit the field alone.She has further explained that the house of accused is also situated in the field and for that reason she used to go alone in the field. She has also admitted that she used to visit the field alone.She has further explained that the house of accused is also situated in the field and for that reason she used to go alone in the field. The family of accused Nos.2 and 3 consist of 2 sisters and 6 brothers as well as their parent and it has happened that when all had gone to their field, she remained alone in the house.In cross-examination she has deposed that when her sister Manjula had visited, at that time she has stayed at the house of sarpanch. She denied that at that time she met her sister Manjula. She has further deposed that when she was sleeping at the house of accused No.1 at that time accused Nos.2 and 3 came with other 10 to 15 persons, but she was not in a position to give the names of those persons, which was a dark night and she has not seen the other persons who came. For filing the complaint before the police, she along with her sister Manjula and her brother Dashrath had gone. She has denied that after filing the complaint, they have gone to the court at Himatnagar or from there they had again gone to the police station. She has no knowledge that when she was at the house of accused Nos.2 and 3 for about 20 days, during that period Manjula was visiting at Himatnagar or at Modasa. First, Manjula had given complaint to the Police and thereafter the Police had come to Kantharia where she was taken and thereafter she had given complaint to the police. She has denied that the complaint is filed against the accused at the instance of Manjula and her brother. She has further deposed that at night when the accused had taken her, at that time her sister and brother Dashrath were sleeping. However, they could not speak anything. She has admitted that she has not stated before the police in her complaint that accused No.3 Kantibhai had taken her in his shoulder and she has not stated in complaint that Kantibhai has put the lock at the house. She has stated that the doors were closed from inside. However, they could not speak anything. She has admitted that she has not stated before the police in her complaint that accused No.3 Kantibhai had taken her in his shoulder and she has not stated in complaint that Kantibhai has put the lock at the house. She has stated that the doors were closed from inside. She has also admitted in her complaint that she has not stated that she has disclosed that she wanted to go with Dashrath and they were not permitted her to leave. She denied that today her age is of 20 years. After giving complaint before the police, they had gone to the court at Himatnagar and thereafter they had gone to their house. She had denied that at the instance of Manjula a complaint is fled against accused No.1 and his cousin brother. She has denied the suggestion that it is not true that she had not gone to Bhiloda to attend fair (Ger Mela) and from there Dashrath was met and came with Dashrath at Mota Kantharia. She has also denied that because of the consent given by accused No.1, the accused Nos.2 and 3 had, with force, taken her away, which she has stated falsely. A suggestion is also denied in respect of the part played by accused No.3 in respect of the rape committed by accused No.3 on her. She further deposed that she had not told to any neighbour residing nearby the house of accused No.3 that she was being illegally kept and the accused No.3 had committed rape on her. However, she has admitted that she had told that from Kantharia her uncle are going to come and fetch and from Kantharia, her sister had also came to fetch her. It is further found from the cross-examination that at the time of committing rape she had resisted. She had also denied a suggestion that because accused Nos.2 and 3 are related to accused No.1, she disclosed against accused Nos.2 and 3 and she was visiting house of accused Nos.2 and 3. She has denied that no such incident has occurred and she is deposing falsely against the accused. 7. She had also denied a suggestion that because accused Nos.2 and 3 are related to accused No.1, she disclosed against accused Nos.2 and 3 and she was visiting house of accused Nos.2 and 3. She has denied that no such incident has occurred and she is deposing falsely against the accused. 7. As found from the evidence of prosecutrix Sarla P.W.3 and the complaint filed by her before the police, it shows that after she was released from the clutches of accused Nos.2 and 3 with the help of the police from the village, she along with Police Officers had come back to the Police Station and she disclosed that she had visited the house of accused No.1, who is close relative, being the husband of her step sister at Mota Kantharia. Even earlier accused No.1 had visited Kantharia and requested elder sister Manjula to send prosecutrix P.W.3 Sarla at Mota Kantharia for harvesting work and at that time Manjula - the elder sister of prosecutrix Sarla had informed accused No.1 that after Dhuleti, Sarla will come for harvesting purpose. It is further found from the evidence that after Holi festival, Manjula had asked prosecutrix Sarla P.W.3 to attend the Ger Mela and from there she should straight go to the house of accused No.1 at Mota Kantharia, namely, the house of her sister Hajuben. It is further found from the evidence in the cross examination of Sarla that in term she has admitted that accused No.1 was on visiting term and even prior to the incident also. It is further found from her cross examination that accused Nos.2 and 3 came to the house of accused No.1 at night and from there, they have taken her to their house and accused No.3 had committed intercourse against her will and while committing such intercourse, she has resisted. Prosecutrix Sarla has also deposed that she was alone in their house and she was not permitted to move out from the house. In fact, it is found from the evidence and it is established that Sarla used to visit the field of accused Nos.2 and 3 and further that she had remained alone in the house when all the family members of accused No.2 were away while attending the work in the field. She was also cooking and she used to go to the field of accused Nos.2 and 3. She was also cooking and she used to go to the field of accused Nos.2 and 3. Adjacent to the house of accused Nos.2 and 3 there are surrounding residential houses situated and even in the house of accused No.2 other male and female members are residing. As found from her evidence that she had also a talk with the neighbour wherein she has disclosed that her uncle and other members of the family will come to take her from Kishangadh and more particularly her sister and brother will come from Kantharia to fetch her. 8. On close scrutiny of the evidence of victim Sarla it appears that she had ample opportunity to leave the house of accused Nos.2 and 3, where she was kept for about 20 days and more. Hajuben, her sister, is also residing in the same village. The bus stand is situated opposite the house of accused Nos.2 and 3 where she remained for 20 days. The prosecutrix Sarla - P.W.3 according to her, accused No.3 had committed rape against her will. As found from her evidence, accused Nos.2 and 3 had taken her at night from the house of accused No.1 to their house and she was taken in the room where accused No.3 was alone and at night accused No.3 had removed her cloth and thereafter accused has also removed his cloth and he became naked and the accused has committed rape on her against her will and there was a bleeding from her private part. The family of accused No.2 is consisting of more than 12 persons. The parents were also residing in the same house and according to Sarla intercourse has continued for about 20 days at every night. According to us, there was ample opportunity to Sarla even on the very first night when according to Sarla accused No.3 had committed intercourse against her will,to come out immediately from the said room and she has opportunity to inform this fact to the mother of accused No.3 and also to the mother of accused No.2 or any elderly person. Even on the next day morning Sarla has not disclosed any such act to mother of accused No.2 nor mother of accused No.3 and this aspect is to be considered whether it is a case of rape or it is a case of consented rape. Even on the next day morning Sarla has not disclosed any such act to mother of accused No.2 nor mother of accused No.3 and this aspect is to be considered whether it is a case of rape or it is a case of consented rape. For rape on a minor, her consent would not be relevant and accordingly it is equally necessary for us to consider the prosecution case in respect of the age of prosecutrix Sarla at the relevant time. Dt:10.7.2002 9. Dr. Parmar P.W.1 at the relevant time was working as a medical officer attached to Cottage Hospital at Bhiloda and he deposed that on 30.3.96 under Police Yadi from Shamlaji Police Station, Jethabhai, Police Constable, along with prosecutrix Sarla came at 3.0 P.M. for medical examination. While carrying out the examination and on inquiring with Sarla in respect of the incident, Sarla has stated that she stayed in the house of Kantibhai Hujabhai at Kantharia for 15 days after Dhuleti and Kantibhai accused No.3 had committed intercourse on her. The last intercourse was on her by Kantibhai before 5 days and she is unmarried. She has also disclosed the history that since last 2 years she was having a menses period and the last menses period was before 20 days and her menses period is regular and it remains for 3 to 4 days. The Doctor has not found any injury on her private part and the same is developed. On the cloth there were no stains and the Doctor has also taken samples of blood, saliva swab and pubic hair and the same were handed over to the Police and Sarla was referred to Civil Hospital at Himatnagar for examination by Gynecologist to ascertain her age. Dr. Parmar has also issued Certificate about the examination carried out by him, which is at Exh.11. The Yadi Exh.10 sent by Police addressed to the Medical Officer shows that Sarla was sent for medical check up before the Medical Officer and the said Yadi was received by Medical Officer at 3.0 P.M. As per the history narrated by Sarla before the Doctor, Sarla stayed with Kantibhai at Kantharia for about 15 days after Dhuleti i.e. from 5.3.96. The Medical Certificate Exh.11 also does not show any injury on the private part of Sarla and the breast was also found developing, axillary hair not grown and pubic hair were present. The Medical Certificate Exh.11 also does not show any injury on the private part of Sarla and the breast was also found developing, axillary hair not grown and pubic hair were present. Sarla was referred to Medical Officer for Gynecological examination at Civil Hospital, Himatnagar and also for fixation of her age and Sarla was sent with the Medical Certificate along with Police personnel from Shamlaji Police Station. Dr. Parmar has deposed in cross examination that he is working in the Bhiloda Hospital since last 4 years as Medical Officer. Dr. Parmar has also admitted that if the girl is minor then her hymen would be deep and if the woman is of major age, then her hymen would be on the upper side and easily visible. Doctor has in clear term admitted that while examining Sarla he has not examined her private part and he would not be in a position to give any opinion that there were any injury on her private part. Doctor has also further opined that if a rape is committed on her, then on her hymen there would be a swelling or there may not be even swelling. Doctor has also denied the suggestion that if the rape is committed on a woman, then she may feel difficult in her normal movement. Doctor has also admitted that he does not know that at the time when Sarla was brought by Police Constable Jethabhai, whether any lady constable was present or not. He has also denied that when he has examined Sarla, at that time Police Constable Jethabhai was present. However, in term he has admitted that he has not examined the private part of Sarla. He denied rest of the suggestion about collecting blood as well as pubic hair. 10. As found from the evidence of Dr. Parmar P.W.1, Sarla was brought before him under Police Yadi for medical examination at 3.0 P.M. and Dr. Parmar P.W.1 from Bhiloda Hospital had addressed a referring note in favour of Chief Medical Officer, Civil Hospital, Himatnagar for gynecological examination and for opinion of age fixation of victim Sarla. In the referring note the Doctor has mentioned that X-ray was not taken due to light failure. Referring note addressed by Dr. Parmar to Chief Medical Officer Exh.13 was received on 30.3.96 at 6.30 P.M. 11. In the referring note the Doctor has mentioned that X-ray was not taken due to light failure. Referring note addressed by Dr. Parmar to Chief Medical Officer Exh.13 was received on 30.3.96 at 6.30 P.M. 11. It is necessary for us to examine the medical evidence in respect of examination of Sarla by Doctor attached to the Civil Hospital at Himatnagar as well as the medical case papers of Sarla. Dr. Pande P.W.2 was at the relevant time Medical Officer attached to Civil Hospital, Himatnagar. He deposed that on 30.3.96 Sarla was brought by Police Constable Jethabhai, Buckle No.519, with a referring note issued by Medical Officer, Bhiloda for her Gynecological examination as well as to find out the age of Sarla. Dr. Pande has deposed that the referring note Exh.13 was received by him at 6.30 P.M. and a Gynecologist attached to the Civil Hospital had examined Sarla.On examination, it was found that her hymen was torn and there was no fresh mark of injury on hymen and further there was no injury on the private part. Dr. Pande has also deposed about the X-ray of Sarla of right wrist and elbow and X-ray showed that right wrist and elbow were completely joined. Upper end of ulna and radius was completely fused and radiologically her age was found to be below 18 years. He had also signed the medical certificate on 30.3.96.The said Medical Certificate,issued under the signature of Dr.Pande, is at Exh.14. On perusing the Medical Certificate Exh.14, it is found that the Doctor has recorded that Sarla was brought at Civil Hospital on 30.3.96 at 6.30 P.M. by Police Constable Jethabhai, Buckle No.519 and the relatives of Sarla, namely, Manjula with the referring note issued by Medical Officer, Bhiloda with the history of alleged rape. Sarla was referred before Civil Hospital for Gynaecological examination and to ascertain the age of Sarla. The Certificate also shows that hymen was torn and no injury was found and genitalia examination was easily done and as per the Radiological examination, the age of Sarla was found to be below 18 years. In the cross examination Dr. Pande has in term admitted that he does not have a degree of M.D. in Gynaecology as well as he is not holding any degree of Radiology. In the cross examination Dr. Pande has in term admitted that he does not have a degree of M.D. in Gynaecology as well as he is not holding any degree of Radiology. It is further found from his cross examination that when Sarla was examined at Civil Hospital, Himatnagar there were no Gynaecologist and Sarla's medical examination was done in presence of Dr. Vinaben Gor and Dr. Gor has given her opinion in the medical case papers and the medical case papers of Sarla is at Exh.16. Dr. Pande has in term admitted that for ascertaining the age of Sarla, no opinion from Radiologist was called for and for ascertaining the age, opinion of the Radiologist is necessary. A suggestion was put to him that while ascertaining the exact age the must be a marginal difference of 2 to 3 years and according to him such marginal difference can be of 6 months on either side. Dr. Pande has also admitted that when Sarla was brought and examined, there was no injury on her private part, inside or outside and if rape is committed on a lady and if she resists, then it is possible that she may have injury on her private part and there must be injury on other part of the body. 12. As discussed above, as per the evidence of Dr. Parmar and evidence of Dr. Pande and the Certificate issued by Dr. Pande at Exh.14, prosecutrix Sarla was referred by Medical Officer, Bhiloda to Civil Hospital, Himatnagar and the purpose for referring Sarla was to ascertain her age and on examination by Dr.Gor and as found from the medical case papers of Sarla, the age of Sarla was found to be less than 18 years. Even Dr. Pande has in term admitted that for ascertaining the age, the difference can be of six months on either side and in view of the medical Certificate, Sarla was below the age of 18 years. The prosecution has not examined Dr. Gor, who has examined Sarla and who has formed her opinion on examination of Sarla. Dr. Gor was attached to the Civil Hospital at the relevant time. It is also the prosecution case that while giving complaint, Sarla has disclosed her age as 15 years and it is further found that she is illiterate. The prosecution has not examined Dr. Gor, who has examined Sarla and who has formed her opinion on examination of Sarla. Dr. Gor was attached to the Civil Hospital at the relevant time. It is also the prosecution case that while giving complaint, Sarla has disclosed her age as 15 years and it is further found that she is illiterate. It is further found from the evidence that her younger sister is studying in 8th or 9th Standard. The Investigating Agency has not taken any step to find out the exact age of Sarla by recording statement of her mother and it is the case of prosecution that her mother was staying with her and her elder sister Manjula.Even the Investigating Agency has not taken any step to ascertain from the Panchayat Authority when Sarla was born and the prosecution wants to establish the age of Sarla by relying upon the medical certificate Exh.14. On examining the medical case papers of Sarla it is found that history was given by Sarla at the time of her examination by the Medical Officer and she has disclosed that she stayed with Kantibhai at Kantharia for about 15 days after Dhuleti i.e. from 5.3.96 and the last intercourse on her was before 4 to 5 days. Calculating from that date, one can ascertain that the last intercourse on her by accused No.3 was or 25th or 26th March 1996. So the prosecution while leading evidence has mainly relied upon the evidence of prosecutrix Sarla, her elder sister Manjula and the medical certificate Exh.14 in respect of age of Sarla at the relevant time. At first point of time, Sarla has disclosed her age before the Police as 15 years and even before the Medical Officer she has disclosed her age as 15 years and as per the opinion of the Medical Officer as found from the medical case papers of Sarla and the Medical Certificate Exh.14 her age was shown to below 18 years and as admitted by Dr. Pande no opinion from the Radiologist was called for and further that for ascertaining the age, the opinion of the Radiologist is necessary and further the marginal difference can be of six months on either side. 13. Pande no opinion from the Radiologist was called for and further that for ascertaining the age, the opinion of the Radiologist is necessary and further the marginal difference can be of six months on either side. 13. Manjula - P.W.4, who is the elder sister of Sarla, has also given description about the members of the family and Sarla is elder than Aruna and Aruna was studying in 8th Standard and according to Manjula, Aruna is 8 years old. Her sister Hajuben is married to accused No.1. Accused No.1 came at her house and requested that Sarla be deputed for the purpose of harvesting wheat and she told accused No.1 at the relevant time that Sarla will be deputed after Holi festival and in fact Sarla was deputed after Holi festival at the village of accused No.1. As found from her evidence that as Sarla has not returned home, she had made inquiry after 2 to 3 days and she approached accused No.1 at his residence and informed him that Sarla has not returned. At that time accused No.1 told her that Sarla has come there and why she is inquiring about Sarla and at that time accused No.1 told that Sarla was married to accused No.3 and accused No.3 Kanthibhai is the husband of Sarla. Manjula has deposed that on getting information about the marriage of Sarla from accused No.1, she went to the house of accused No.3 Kantibhai where according to Manjula she was not permitted to meet Sarla. According to her when she went to inquire at the house of accused No.3, along with her there were other 4 to 5 lady members. She went at the house of accused No.3 for inquiry about four times. She has further deposed that when she had gone alone for inquiring at the house of accused No.3 at the second time, at that time Sarla was weeping and told her about the story, namely, that she was brought by accused Nos.2 and 3 forcible by lifting her and brought at the house of accused Nos.2 and 3 and further that accused No.3 Kantibhai has committed rape on her by removing her cloth and the accused has also removed his cloth and committed intercourse without her consent. Prosecutrix Sarla has further told that such intercourse has continued for about 20 days and she requested Manjula that she be relieved otherwise she will not take food and she will die. She has further deposed that at that time accused No. 3 Kantibhai had told her that she may also stay as his kept. Otherwise they will kill. P.W.4 Manjula had approached the Police authority at Bhiloda Police station. Her complaint was not taken and she went to Himatnagar for ding labour work and after getting money by doing labour, she had again gone to the Police Station for filing complaint. On complaint of Manjula, the police had accompanied with the police party and had gone to the house of accused No.3 and her sister Sarla was relieved from such illegal custody. Thereafter, Sarla was taken to Shamlaji Police Station where Sarla has filed her complaint. Manjula in her deposition also deposed that her mother Jiviben is still alive and Jiviben is also staying with them. Manjula is an illiterate lady and while describing the age of her sister Aruna, she had disclosed the age of Aruna as 8 years and she is studying in 8th Standard. A girl studying in 8th Standard must be about 14 to 15 years of age. As found from the evidence of P.W. 4 Manjula, that accused No.1 is a close relative, namely, husband of her elder sister Hajuben and that accused No.1 approached earlier before Holi Festival for seeking assistance of Sarla for harvesting purpose and Manjula in term had asked accused No.1 that Sarla will be deputed after Holi festival and in fact after Holi festival Manjula had asked Sarla that after attending the Ger Mela she may straight go to house of accused No.1 at village Kantharia and thereafter, when Sarla has not returned from Kantharia, she did inquire while visiting house of accused No.1 and accused No.1 had in term informed that Sarla is married to accused No.3 and on getting this information, Manjula had made attempt to inquire about Sarla by visiting the house of accused Nos.2 and 3 where accused Nos.2 and 3 had not permitted Manjula to meet Sarla. Manjula has in term admitted that when she visited the house of accused No.2 at the second time, at that time Sarla met her and Sarla has narrated the entire story, even the story of forcible intercourse on her by accused No.3 against her will and accordingly Manjula had approached the police authority at Bhiloda Police Station where her complaint was not recorded and after arranging the fund by doing labour work, she has gone again to the Police and at that time,the Police party had gone to village Kantharia along with Manjula and from there Sarla was relieved and she was taken at the Police Station where Sarla has filed complaint. As observed earlier, when Manjula had visited Mota Kantharia at the house of accused Nos.2 and 3, her sister Sarla has narrated the entire story and disclosed how she was taken by accused Nos.2 and 3 on the night and accused No.3 had committed intercourse against her will and she was not permitted to meet any other person and accordingly Manjula had approached the Police Authority at Bhiloda and according to Manjula, her complaint was not recorded by the Police and after doing labour work she has managed the fund and had approached the Police and the police party had released Sarla from the illegal custody of accused Nos.2 and 3. Manjula has in term admitted that before filing complaint she has visited the court at Himatnagar twice. She has denied the suggestion that she had approached the advocate for advice for filing complaint against the accused. It is further found from her evidence that when she approached the police station at first point of time, she went alone and the police has not recorded her complaint. She has further admitted that when she approached the police, she has not given any complaint in writing. In cross examination Manjula had in term deposed hat Sarla was doing cooking work at the house of accused No.3 Kanthibhai. However, according to Manjula, it is only because of the threat of accused Nos.2 and 3 that Sarla was doing the work of cooking. 14. The evidence of Manjula is required to be scrutinised very closely and as found from her evidence, she is the elder sister of victim Sarla. Her mother was also alive and all were residing together at Kishangadh. Manjula is aged 20 years and she is unmarried. 14. The evidence of Manjula is required to be scrutinised very closely and as found from her evidence, she is the elder sister of victim Sarla. Her mother was also alive and all were residing together at Kishangadh. Manjula is aged 20 years and she is unmarried. Her elder step sister was married to accused No.1 at Mota Kantharia and Sarla, her younger sister, was sent at Mota Kantharia at the house of accused No.1 for harvesting wheat after Holi festival. When Sarla has not returned from Mota Kantharia for about 3 days, Manjula went to Mota Kantharia to her sister's house and inquired about Sarla. Accused No.1 had informed her that Sarla had already married to accused No.3 and thereafter Manjula had gone to the house of accused Nos.2 and 3, who are residing in the same village, namely, at Mota Kantharia. When she visited the house of accused Nos.2 and 3, along with her there were four to five ladies. However, accused Nos.2 and 3 had not permitted Sarla to meet them. However, at the second time, when she has gone to inquire about Sarla, Sarla met her and narrated the entire story i.e. the way in which she was taken away by accused Nos.2 and 3 from the house of accused No.1 at night and she was kept at the house of accused Nos.2 and 3 and accused N.3 had committed intercourse without her consent and Sarla requested her to reliever her from accused Nos.2 and 3. Manjula had in term deposed that thereafter she had approached the Police at Bhiloda Police Station and according to Manjula, Police did not take her complaint and she went for labour work and after arranging money she had approached the police and made complaint against accused and the police along with police party had proceeded towards Mota Kantharia and from there Sarla was relieved from illegal custody of accused Nos.2 and 3. It is an admitted fact that accused No.1 is close relative of Manjula as well as Sarla as their step sister was married to accused No.1 and even according to Manjula that accused No.1 had gone to the house of Sarla and requested for services of Sarla for harvesting purpose and Manjula had permitted Sarla to go at the house of accused No.1 at Mota Kantharia after Holi festival for harvesting purpose. It is further found from her evidence that when she had gone to the house of accused No.1 at Mota Kantharia, as Sarla did not return for two to three days, accused No.1 and her sister told her that Sarla had already married to accused No.3 and she is residing with accused No.3 in the village at Mota Kantharia and Manjula had accordingly in company of 5 to 6 female members had gone to the house of accused Nos.2 and 3 to meet Sarla and where the accused had not permitted to meet Sarla and when the second time she visited at the house of accused Nos.2 and 3 and at that time Sarla met her and narrated the whole story about the incident, during which she was taken away by accused No.2 and 3 on the night from the house of accused No.1 and there accused No.3 had committed intercourse without her consent and requested Manjula to take steps to relieve her from the said illegal custody. Manjula has also deposed that accordingly she had approached the police at Bhiloda Police Station to give complaint. However,the police did not take any step and not even taken the complaint and thereafter she had gone for labour work where she has earned money and again went to Shamlaji Police Station and from there the police party had taken her at Mota Kantharia and Sarla was relieved from the illegal custody of accused Nos.2 and 3. The evidence of Manjula - elder sister, requires close scrutiny and it is difficult for us to accept the version given by her that the police has not taken her complaint when she had approached the police at first point of time and after doing labour work and after arranging the fund, she again went to the police and the police party has proceeded towards Mota Kantharia and the police had released Sarla from the illegal detention of accused Nos.2 and 3. We will discuss the evidence of Manjula later on when we will discuss the evidence of Investigating Officer. 15. Dashrath P.W.7 has deposed that Sarla is his cousin sister and he had gone to attend Ger Mela fair at Bhiloda and he met Sarla. Sarla was alone and Sarla told him that she is required to go to her brother in law's house at Mota Kantharia. 15. Dashrath P.W.7 has deposed that Sarla is his cousin sister and he had gone to attend Ger Mela fair at Bhiloda and he met Sarla. Sarla was alone and Sarla told him that she is required to go to her brother in law's house at Mota Kantharia. Dashrath has also accompanied Sarla and both went to Mota Kantharia at the house of accused No.1. He further deposed that he along with Sarla and accused No.1 and other family members had gone to the filed for harvesting wheat and he stayed at the house of accused No.1 and on the next day morning he went to field of the accused No.1 for harvesting wheat. In the noon he returned to the house of accused No.1 as they have to go to Kishangadh. Witness Dashrath, his cousin sister Sarla and accused No.1 had left the house and proceeded towards the bus stand. On the way accused No.3 Kantibhai met them and he offered tea by visiting his house. Dashrath told him that they have to go to Kishangadh and if they take tea, they will miss the bus and he refused the offer of tea made by accused No.3 Kantibhai. It is further found from his evidence that Sarla, accused No.1 and accused No.3 had gone to the house of accused No.3 and the witness had also joined them, where all of them have taken tea and they had missed the bus. As they have missed the bus, accused No.1 told that they have missed the bus and asked them to return to his house and accordingly Sarla, Dashrath and accused No.1 came back at the house of accused No.1 where they have taken their dinner and went for sleep. They have slept at the Ossari in front of the house of accused No.1 and Sarla was also sleeping nearby him. At about 9 P.M. all the accused came and accused No.1 had inquired about Sarla and accordingly the witness Dashrath pointed out that Sarla was sleeping nearby to him. Accused No.1 had removed the bed sheet from Sarla and accused Nos.2 and 3 told Sarla that she has to come to their house. At about 9 P.M. all the accused came and accused No.1 had inquired about Sarla and accordingly the witness Dashrath pointed out that Sarla was sleeping nearby to him. Accused No.1 had removed the bed sheet from Sarla and accused Nos.2 and 3 told Sarla that she has to come to their house. Sarla has declined and the witness Dashrath has also told him why Sarla was required to go for staying at the house of accused Nos.2 and 3 as they have to go on the next day to Kishangadh. They have also threatened the witness to kill him. Hajuben, the wife of accused No.1 had also told that why you are taking Sarla and at that time a quarrel had taken place with Hajuben and her husband accused No.1. At that time by giving threat the accused were showing knife and Sarla was dragged by accused Nos.2 and 3 and she was taken against her desire at the house of accused Nos.2 and 3. It is further found from his evidence that the witness has also gone to the house of accused No.3 and he saw that accused No.3 had applied lock at the door and Sarla was kept inside and Sarla was weeping, which he heard from the back side. Thereafter, he came back to the house of accused No.1 and he could not sleep all through out the night and on the next day morning he proceeded towards Kishangadh and he had gone to the house of accused No.3 and asked Kantibhai to send Sarla with him to Kishangadh. At that time Sarla was also weeping and she was also telling that she wanted to go to Kishangadh. The accused has also threatened to kill him and did not sent Sarla with him to Kishangadh. He was afraid. It is further found from his deposition that after reaching Kishangadh he had informed about the incident to his cousin sister Manjula, namely, the elder sister of victim Sarla. He has also informed Manjula that the marriage of Sarla is already performed with accused No.3 and Sarla is with accused Nos.2 and 3 at their residence. In cross examination he has deposed that he was previously working at Mumbai in the warehouse and at that time Kokila - resident of Mota Kantharia was also working with him. He has also informed Manjula that the marriage of Sarla is already performed with accused No.3 and Sarla is with accused Nos.2 and 3 at their residence. In cross examination he has deposed that he was previously working at Mumbai in the warehouse and at that time Kokila - resident of Mota Kantharia was also working with him. He has also denied the suggestion that at that time Kantibhai was also working in the warehouse at Mumbai. He denied the suggestion that he had a love affair with Kokila and he wanted to marry Kokila. The witness has denied that Kokila is not related to accused. However, Kokila is from Mota Kantharia. It is further found from the cross examination of the witness that brother of Kokila was working as a Supervisor. He has denied the suggestion that his love affair with Kokila came to the knowledge of accused No.3. 16. From the evidence of P.W.7 Dashrath, as discussed earlier, it is found that from the Ger Mela he along with Sarla - the cousin sister - had gone to Mota Kantharia and they stayed with accused No.1 at Mota Kantharia and P.W.7 Dashrath, his cousin sister and accused No.1 and his family members had gone to work in the field for harvesting purpose. The incident, in which accused Nos.2 and 3 took Sarla from the house of accused No.1, is also seen by P.W.7 Dashrath and Dashrath P.W.7 and the wife of accused No.1 had also objection for sending Sarla at the residence of accused Nos.2 and 3 and there was a quarrel between accused No.1 and his wife. As found from the deposition of P.W.7 Dashrath that on the next day morning when he was to go to Kishangadh, before that he had gone to the house of accused Nos.2 and 3 and requested accused No.3 to send Sarla with him at Kishangadh. However, due to threat administered by accused, he had gone alone at Kishangadh. He narrated the story to his cousin sister Manjula and as found from his deposition, the story indicated was that Sarla was married to accused No.3. However, due to threat administered by accused, he had gone alone at Kishangadh. He narrated the story to his cousin sister Manjula and as found from his deposition, the story indicated was that Sarla was married to accused No.3. Accordingly Manjula, the elder sister of Sarla, knows the fact of not returning Sarla through Dashrath on the very next day and Manjula in her deposition had suggested that it is only when Sarla has not returned back from the house of accused No.1 after 2 to 3 days, she went at Mota Kantharia to inquire about Sarla from accused No.1, wherein accused No.1 had informed the fact that Sarla is married to accused No.3 at Mota Kantharia. In our view, considering this evidence, it is difficult for us to accept the prosecution case that Manjula had for the first time came to know from accused No.1 when she had gone to Mota Kantharia after 2 to 3 days when Sarla has not returned home. In our view, the evidence of P.W.7 Dashrath shows that immediately when he returned back to Kishangadh on the very next day from Mota Kantharia, he had informed the story to his cousin sister Manjula. However, as found from the evidence of Manjula, the prosecution wants to suggest that Manjula came to know for the first time when she visited Mota Kantharia to inquire about Sarla. This creates doubt in our mind. At this juncture we may also observe that the evidence of Manjula is that she came to know from accused No.1 that Sarla had married to accused No.3 and Sarla is at the house of accused Nos.2 and 3. Accused No.2 is the father of accused No.3. Accused No.1 is also related to accused Nos.2 and 3. As deposed by Manjula, she came to know from accused No.1 that Sarla is married to accused No.3 and she is with accused Nos.2 and 3 at their house in the same village at Mota Kantharia and accordingly Manjula with other 5 to 6 female members had visited the house of accused Nos.2 and 3 and inquired about Sarla. However, according to Manjula, the accused did not permit Sarla to meet them and on the next visit when Sarla met, Sarla has disclosed about the story and requested her to relieve her from the custody of accused Nos.2 and 3. However, according to Manjula, the accused did not permit Sarla to meet them and on the next visit when Sarla met, Sarla has disclosed about the story and requested her to relieve her from the custody of accused Nos.2 and 3. So far as the fact that Sarla is with accused Nos.2 and 3 is concerned, the same is known to Manjula earlier when her cousin brother Dashrath P.W.7 has informed her. In spite of that, the prosecution wants to convey through the evidence of Manjula that she came to know only when she had gone at the house of accused No.1 at Mota Kantharia when Sarla has not returned after 2 to 3 days, when Sarla had gone to help accused No.1 for harvesting wheat. It is difficult for us to accept the evidence of Manjula that she had gone to the Police for filing complaint against the accused when Sarla has been illegally detained by accused at the house of accused Nos.2 and 3 and the said complaint was not taken by the Police and it is only after arranging fund by doing labour work, she had approached the police again and, thereafter, with the help of police Sarla was relieved from the illegal custody of accused Nos.2 and 3. As found from the evidence of the Investigating Officer P.W.12 Shambhubhai Ninama it transpires that no complaint of Manjula was recorded and no entry was made in the Station Diary when they have gone to Mota Kantharia to release the sister of Manjula as according to Manjula, accused Nos.2 and 3 had detained her sister illegally against her will. No preliminary Panchanama is also made by P.W.12 Shambhubhai. As found from the evidence of P.W.12 Shambhubhai, who is Investigating Officer,he deposed that on 30.3.96 he was attached to Shamlaji Police Station as P.S.I. Manjulaben of Kishangadh came personally at the police station and disclosed that her younger sister Sarla was kidnapped by Kantibhai and her brother in law resident of Mota Kantharia. As found from the evidence of P.W.12 Shambhubhai, who is Investigating Officer,he deposed that on 30.3.96 he was attached to Shamlaji Police Station as P.S.I. Manjulaben of Kishangadh came personally at the police station and disclosed that her younger sister Sarla was kidnapped by Kantibhai and her brother in law resident of Mota Kantharia. In spite of visit at Mota Kantharia for two to three times, they are not releasing her sister and on getting oral information, he along with his police staff had proceeded on a Government vehicle and gone to Mota Kantharia and they have taken the possession of Sarla from the accused and Sarla has given her complaint at the Police Station, which was written and Sarla has put her thumb impression before him and also he has signed the said complaint. After registering the offence by the P.S.O., he has taken over the investigation. On the very day, he recorded the statement of Manjula and, thereafter, he went to Mota Kantharia. At that place, Sarla has shown the place of offence, namely, the house of accused No.3 in presence of Panchas and he has drawn the Panchanama. Thereafter, they came back to police station. At that time, Sarla has produced her cloth in presence of panchas, which were seized by him under Panchanama. Thereafter, Sarla was sent for medical examination at Cottage Hospital, Bhiloda and thereafter for further examination, she was referred before Civil Hospital at Himatnagar. He collected the medical certificate from the Hospital. Accused Nos.1 and 2 were arrested by him on 15.4.96 while accused No.3 was arrested on 16.4.96. While arresting accused No.3 in presence of panchas, wherein accused has produced his pant and knicker and the said cloths were seized in presence of panchas. He recorded statement of Dashrath on 12.4.96. He sent the cloths, which were seized by him, for examination before the Laboratory along with the letter. He has also received the report of the Chemical Analyser as well as Serologist's report and on the completion of the investigation, he filed charge-sheet against the accused. He has also identified accused, who were in the Court. He sent the cloths, which were seized by him, for examination before the Laboratory along with the letter. He has also received the report of the Chemical Analyser as well as Serologist's report and on the completion of the investigation, he filed charge-sheet against the accused. He has also identified accused, who were in the Court. In cross-examination he has deposed that Manjula had come to the Shamlaji Police Station on 30.3.96 early in the morning at 8 A.M. and Manjula has orally narrated the complaint for which he has not made any note as according to him at that time he has not felt that complaint given by Manjula was of some serious offence, for which he is required to record the complaint of her. He has also stated that it is not necessary that if any person has been detained illegally, for which an application was to be made for search. He had also not obtained search warrant from the Court nor he has informed to his superior officer. When they went to take possession of Sarla, she was alone as the accused had ran away after seeing the police. Along with him at that time 3 or 4 police persons were there and they had to chase the accused. While taking possession of Sarla, they have taken Government Police Vehicle and they have parked the vehicle at a distance and accordingly they could not chase the accused. He had admitted that at the time when Sarla was relieved, he has not recorded the complaint of Sarla. Nor he has drawn any Panchanama about the physical condition of Sarla. It is further found from the cross examination that they went to Mota Kantharia to take possession of Sarla at about 11 to 11.30 hours. He denied the suggestion that they had gone to take possession on the previous night. There is no police station or police Chawki at Mota Kantharia. He has further admitted that when they left from Shamlaji to take possession of Sarla and after taking possession of Sarla they went back to Shamlaji Police Station, in between they have not drawn any Panchanama nor any Rojkam was recorded. There is no police station or police Chawki at Mota Kantharia. He has further admitted that when they left from Shamlaji to take possession of Sarla and after taking possession of Sarla they went back to Shamlaji Police Station, in between they have not drawn any Panchanama nor any Rojkam was recorded. He has admitted that as per the Panchanama there were no signs of blood or semen at the place of scene of offence and further admitted that when the Panchanama was drawn of cloth of Sarla, there is a mention that on seeing the cloth no marks of semen or blood was found as well as even in the Panchanama of cloth produced by accused Kantibhai. In cross examination, he in term admitted that he has not collected any evidence in respect of obtaining the birth certificate of Sarla recorded by Gram Panchayat nor he had recorded any statement to that effect. He is not in a position to remember that who are the police persons accompanied them when they had gone to take possession of Sarla from Mota Kantharia nor he has recorded any statement of such police officer. He has admitted that at the time of taking possession of Sarla, they have not got any lady constable with them and the reason assigned is that at that time Manjula, the sister of Sarla, was with them. He denied the suggestion that Manjula was not accompanying them. He has further admitted that he has not recorded any statement of the neighbour of accused Nos.2 and 3 at Mota Kantharia. He has not recorded the statement of Hajuben. Hajuben is the wife of accused No.1 and sister of Sarla and Manjula. It is further admitted that till filing of the charge-sheet on 11.6.96, he has not kept any note that for how many time he has tried to record the statement of Hajuben. However, he denied that he has not recorded the statement of Hajuben for some purpose. He has further admitted that he has not recorded the statement of uncle's aunt and other relatives of Sarla. He has denied the suggestion that at the instance of Manjula and by collecting wrong evidence, a charge-sheet is filed against the accused. However, he denied that he has not recorded the statement of Hajuben for some purpose. He has further admitted that he has not recorded the statement of uncle's aunt and other relatives of Sarla. He has denied the suggestion that at the instance of Manjula and by collecting wrong evidence, a charge-sheet is filed against the accused. The evidence of Investigating Officer Ninama shows that once he has received the information in respect of the cognisable offence through Manjula, he has not taken any care to reduce the same into writing by making entry in the station Diary and further on the strength of the complaint of Manjula, he is required to proceed for inquiry and to relieve Sarla as according to Manjula, Sarla was kept illegally under detention by the accused. Surely when Manjula has disclosed in respect of the complaint against the accused that accused has kidnapped her sister Sarla and Sarla is illegally detained by accused Nos.2 and 3, surely the offence, which was disclosed by Manjula, was a cognisable offence and once cognisable offence is disclosed, it is the duty of the police to register the offence and even further he is required to make entry in the station diary and to take steps to relieve Sarla by visiting Mota Kantharia, where accused Nos.2 and 3 are staying. This requirement was not done by P.W.12 Ninama - the Investigating Officer. However, even when they have reached the house of accused Nos.2 and 3, where Sarla was alone, as according to the witness accused had run away as they have seen the police and an attempt is made to chase them, no panchanama of the physical condition of Sarla was drawn. Not only that Ninama has not taken proper care to record the statement of Sarla there and then. It is not necessary that after Sarla was released and possession of Sarla was taken from accused Nos.2 and 3, to take Sarla at the Police Station, which is situated at a far away place at a distance of 25 Kms. and thereafter record complaint. The offence disclosed by Sarla on the very day is of serious nature. It is not necessary that after Sarla was released and possession of Sarla was taken from accused Nos.2 and 3, to take Sarla at the Police Station, which is situated at a far away place at a distance of 25 Kms. and thereafter record complaint. The offence disclosed by Sarla on the very day is of serious nature. We may also observe that as found from the evidence of Manjula, P.W.4, Manjula has visited and met her sister Sarla at the house of accused Nos.2 and 3 and as found from her evidence she met Sarla when she had gone second time to inquire about Sarla by visiting the house of accused Nos.2 and 3 and it is further found that at that time her sister Sarla had disclosed the way in which the accused had acted even by committing sexual intercourse. The investigating officer has not recorded the complaint of Manjula, because of which the Investigating Officer was required to proceed for taking possession of Sarla as according to Manjula accused has illegally detained her sister Sarla. In our view, Ninama - the Investigating Officer was supposed to record the complaint of Manjula when she approached the Police. No steps were taken by Ninama for recording the complaint nor any entry is made in the station diary and further Ninama, the Investigating Officer, has not taken any step to record the statement of Sarla immediately when she was found alone at Mota Kantharia at the house of accused Nos.2 and 3 nor any Panchanama of the physical condition of Sarla was drawn. We may further observe that the Investigating Officer has not taken any step to record the statement of the neighbour of accused Nos.2 and 3. As found from the evidence of Sarla there are other houses situated nearby house of accused Nos.2 and 3 and in fact she had a discussion with the neighbour where she disclosed that her uncle and her sister will come to fetch her. Not only that, Ninama- Investigating Officer has also not recorded the statement of Hajuben, who is the sister of Sarla. Sarla has visited her house as her services were required for harvesting the crop. When Sarla gave complaint and while disclosing her age she has disclosed her age as 15 years. Not only that, Ninama- Investigating Officer has also not recorded the statement of Hajuben, who is the sister of Sarla. Sarla has visited her house as her services were required for harvesting the crop. When Sarla gave complaint and while disclosing her age she has disclosed her age as 15 years. The Investigating Officer has under police yadi sent Sarla for medical examination before the medical officer at Bhiloda and thereafter Sarla was referred to Civil Hospital at Hiamtnagar to ascertain the age of Sarla. It is true that the medical certificate indicate that the age of Sarla was below 18 years. As found from the evidence of Ninama - P.W.12, the Investigating Officer, he has not made any attempt to collect the evidence to find out the age of victim by obtaining the birth certificate by visiting the Village Panchayat. Nor he has taken any step to record the statement of others to find out her age. In our view, these are the glaring defects on the part of the Investigating Officer, which he ought to have taken care of in an investigation of a serious nature of offence. No doubt, as found from the complaint given by Sarla, she has disclosed about the offence committed by the accused, which is of serious nature. At the same time, the evidence of Sarla suggest that Sarla was taken by accused Nos.2 and 3 from the house of accused No.1 situated in the same village Mota Kantharia in the manner in which the prosecution suggested and the accused No.3 had while doing intercourse told Sarla that from that day she is his wife. Sarla has stayed at the house of accused Nos.2 and 3 and according to Sarla on every night accused No.3 had used to do intercourse. It is further found from the evidence that Sarla had an access to other neighbour. Even Sarla has stayed alone when all the family members of accused No.2 were away from the house to attend their field. Sarla had also admitted that she had also harvested at the filed of accused No.2. Sarla was also permitted to go for answering call of nature and there are other family members, namely, the mother of accused No.3 and other sisters and the parents of accused No.2. Sarla had also admitted that she had also harvested at the filed of accused No.2. Sarla was also permitted to go for answering call of nature and there are other family members, namely, the mother of accused No.3 and other sisters and the parents of accused No.2. Even as per the medical evidence regarding the age,her age is below 18 years and as per the evidence of Dr. Pande there can be a marginal difference of 6 months on either side. If this evidence is considered and considering the benefit of 6 months on the higher side, the age of Sarla can be fixed at eighteen and half years. We are not satisfied with the reasoning given by the learned trial Judge even after appreciating the oral evidence as well as the medical evidence. The learned trial Judge has while appreciating the evidence stated something which in fact the witness has not stated and even it is not the prosecution case. 17. P.W.11 Hitendrasinh has not supported the prosecution and at the request of the learned P.P., he was treated hostile. According to prosecution, he was the Panch in respect of production of cloth worn by accused No.3, namely, pant and knicker on 16.4.96, for which the Panchanama Exh.39 was drawn between 15.30 to 16 hours. As found from the Panchanama, accused No.3 Kantibhai was present at Shamlaji Police Station and he has shown his willingness to produce the cloth, which were worn by him at the relevant time. Pant and knicker were produced. In the knicker, there were some dry stains of semen etc. As observed earlier, P.W.11 has not supported the prosecution. 18. P.W.6 Manilal has also not supported the prosecution and he was also treated as a hostile witness. He was the Panch in respect of cloth of victim Sarla, which she has produced. Panchanama Exh.24 is drawn at the Shamlaji Police Station. Under this Panchanama Sarla has produced her cloth, namely, Chaniya and one knicker. As found from the Panchanama, there was some stain with yellowish colour in the knicker and the cloth was found stiff. The Panchanama was drawn on 30.3.96 between 16 to 16.30 hours at Shamlaji Police Station. Panchanama Exh.24 is drawn at the Shamlaji Police Station. Under this Panchanama Sarla has produced her cloth, namely, Chaniya and one knicker. As found from the Panchanama, there was some stain with yellowish colour in the knicker and the cloth was found stiff. The Panchanama was drawn on 30.3.96 between 16 to 16.30 hours at Shamlaji Police Station. As found from the evidence of Sarla, after she was released by the police from illegal custody of accused Nos.2 and 3 from Mota Kantharia and without recording any complaint, she was taken to Shamlaji Police Station, where her complaint was recorded on the very day. The complaint Exh.18 shows that the complaint was recorded at 12.15 P.M. and according to the complaint the offence was committed after 3 days from Dhuleti till 29.3.96. The distance from Dehagamada is about 20 Kms. and Mota Kantharia is further 5 Kms. away from the Outpost Police Station of Dehagamada. As found from the evidence, distance from Mota Kantharia to Shamlaji Police Station is nearly about 25 Kms. According to the prosecution, on the complaint given by Manjula, elder sister of Sarla, before Shamlaji Police Station on 30.3.96, the police party, without recording any complaint and without making any entry in the Station Diary and without making any Panchanama, in company of Manjulaben had gone to the house of accused Nos.2 and 3 situated at Mota Kantharia and Mota Kantharia is about 25 Kms. away. As observed earlier, police persons, without recording any complaint of Sarla at Mota Kantharia and without making any Panchanama, had taken Sarla and her sister Manjula back to Shamlaji Police Station and there her complaint was recorded. As per the evidence of P.W.1 Dr. Parmar, who was working as Medical Officer, Bhiloda, Sarla was brought before him by police at 3.0 P.M. and medical certificate was issued by Dr. Parmar, which is at Exh.11. The medical certificate indicate that Sarla was brought under Police Yadi on 30.3.96 at 3 P.M. for medical examination. As observed earlier, both the Panchas of the panchanama of the scene of offence as well as the production of cloth of Sarla had not supported the prosecution. Parmar, which is at Exh.11. The medical certificate indicate that Sarla was brought under Police Yadi on 30.3.96 at 3 P.M. for medical examination. As observed earlier, both the Panchas of the panchanama of the scene of offence as well as the production of cloth of Sarla had not supported the prosecution. It is the case of the prosecution that the scene of offence was shown by Sarla and the scene of offence is the house of accused Nos.2 and 3, which is situated at Mota Kantharia and the scene of offence panchanama was drawn between 14. to 14.30 hours on 30.3.96. According to Dr. Parmar, P.W.1, Sarla was brought before him for medical examination under Police Yadi at 3.0 P.M. and the distance between Shamlaji Police Station and Mota Kantharia is about 25 Kms. and there is Kutcha road upto the house of accused Nos.2 and 3. Sarla was taken to Hospital at Bhiloda. Considering these evidence, it is difficult for us to accept the prosecution case that Sarla has shown the place of incident and it is further found from the record that to cover the distance from Mota Kantharia to reach Bhiloda it took about 2 hours and it is further found from the record that one has to come to Shamlaji first and then Shamlaji to Bhiloda. Sarla has produced the cloth at Shamlaji Police Station under Exh.24 and the said Panchanama was drawn between 16 to 16.30 hours. P.W.5 Kalabhai the panch witness has also not supported the prosecution case in respect of the panchanama drawn on 30.3.96 at the house of accused No.3 Kantibhai. Even when the learned P.P. has cross examined the said witness, he has denied that he was called by the Police at 2 0' clock at the house of accused No.3 Kantibhai on 30.3.96 and he does not know the contents as he has signed on a piece of paper. The Panch Kalabhai has also denied that scene of offence was shown by Sarla. He also did not identify the accused No.3 in the court. 19. The Panch Kalabhai has also denied that scene of offence was shown by Sarla. He also did not identify the accused No.3 in the court. 19. As discussed herein above, we may observe that P.W.12 Shambhubhai, Investigating Officer, has not taken any step to record the statement of the neighbour of accused Nos.2 and 3 and as found from the evidence of Sarla near the house of accused Nos.2 and 3 there are other houses situated and further Sarla has in term deposed that she had a talk with the neighbour and she has disclosed that her uncle and her sister will come to take her. We may also observe that the Investigating Officer has also not recorded the statement of Hajuben, who is the sister of Sarla and Manjula and it is the prosecution case that Sarla had gone at Mota Kantharia for harvesting purpose. Hajuben is the wife of accused No.1. The Investigating Agency has also not tried to collect the evidence by recording the statement of the mother of Sarla,namely, Jiviben as Jiviben was also residing together with Manjula at Kishangadh and no further investigation was carried out to find out the age of Sarla by recording statement from the Village Panchayat or from any other Agency as it is found from the evidence that Sarla has disclosed her age in the complaint as 15 years. As observed earlier, the elder sister of Sarla was studying in 8th or 9th Standard and once she is studying in a School, while getting admission it is necessary that one is required to disclose the age. Even at the earliest stage after complaint was recorded, Sarla was sent for medical examination at Bhiloda and when Sarla was referred by Medical Officer at Bhiloda to Civil Hospital at Himatnagar, the purpose was to ascertain the age of Sarla and as per the certificate issued by Civil Hospital, Himatnagar, Sarla's age was shown to be below 18 years. Investigating Officer has not made any attempt to collect the age of victim by obtaining the birth certificate by visiting Village Panchayat of the village where she was born. Nor any other statement was recorded nor statement of mother was recorded to find out the age of Sarla. 20. Investigating Officer has not made any attempt to collect the age of victim by obtaining the birth certificate by visiting Village Panchayat of the village where she was born. Nor any other statement was recorded nor statement of mother was recorded to find out the age of Sarla. 20. As observed earlier, as per the evidence of prosecutrix Sarla, accused No.3 had, while committing intercourse on the night when she was taken from the house of accused No.3, disclosed that "from today she is his wife". As found from the evidence of Sarla, the accused has removed her cloth and thereafter the accused No.3 had removed his cloth and act of intercourse was done. However, according to Sarla that was against her will. It is the prosecution case that Sarla was kept at the house of accused No.3 from the day when she was taken from the house of accused No.1 till she was relieved by the police and according to Sarla, the accused No.3 had committed intercourse against her will on every night. As found from the evidence of Sarla, Sarla has access to meet their neighbours and further she had a talk with the neighbour and Sarla has conveyed that her sister and uncle will come to take her to Kishangadh. There are elder members in the family of accused No.3 and there are female members in the house of accused Nos.2 and 3. Sarla has not disclosed about the act of accused No.3 to the mother of accused No.3 or the other female members and as found from the evidence of prosecution witness Sarla, the accused No.1 had told Manjula that Sarla was married to accused No.3. Dashrath also in term earlier in point of time has informed Manjula that Sarla was married to accused No.3. Accused No.1 is not a stranger as accused No.1 is closely related to Manjula and Sarla as Hajuben, the sister of Manjula and Sarla, had married to accused No.1. As found from the evidence of Sarla that Sarla has in fact worked in the field of accused Nos.2 and 3 and further that she had also remained alone in the house of accused Nos.2 and 3 when all the family members of accused Nos.2 and 3 are away from the house. 21. As found from the evidence of Sarla that Sarla has in fact worked in the field of accused Nos.2 and 3 and further that she had also remained alone in the house of accused Nos.2 and 3 when all the family members of accused Nos.2 and 3 are away from the house. 21. Medical evidence regarding age shows that Sarla was below the age of 18 years and as per the evidence of Dr. Pande while considering the age, there can be a marginal difference of 6 months on either side. According to the evidence of Dr. Pande, if there is a marginal difference of 6 months on either side, Sarla can be of 18 years and 6 months. According to us, the reasoning adopted by the learned trial Judge is not proper by treating the age of Sarla to be below 18 years. 22. The Serological Report Exh.42 does not indicate any blood nor any semen in the knicker. In the cloth nothing was found like blood or semen. Article 'D' is the knicker of accused No.3 Kantibhai wherein the blood was found. However, no semen was found. This evidence is not going to help the prosecution nor the defence in view of the fact that the cloths were produced by accused and victim Sarla on 30.3.96 and 16.4.96 respectively. The prosecution has not led any evidence to establish that when these cloths were produced, whether any other cloth were provided to victim Sarla or to accused No.3 and Police has not made any Panchanama regarding arrest of the accused. 23. While considering the decision of the Apex court in the matter of Kuldeep K. Mahato v. State of Bihar, (1998) 6 SCC 420 , it is necessary for us to refer to observations made by the Supreme court in Paragraph 11, which reads as under:- "Then coming to the conviction of the appellant under Section 376 IPC, although both the courts below have held after accepting the evidence of the prosecutrix as being truthful that the appellant had forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of the neighbours from the said village. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of the neighbours from the said village. The medical evidence of Dr Maya Shankar Thakur, PW 5 also indicates that there were no injuries on the person of the prosecutrix including her private parts. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so,the conviction of the appellant under Section 376 IPC cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result that her movements were restricted.This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant." 24. Applying the ratio of the said case and in light of the evidence of Sarla and in light of the medical evidence and coupled with the evidence of investigating agency, we are of the view that the order of conviction of the accused on all counts deserves to be set aside. In our view, the evidence of victim Sarla that accused No.3 has, against her will, forcibly committed intercourse on every night till the previous night of her release does not inspire confidence. 25. As found from the medical evidence regarding the age of victim Sarla, the opinion of the Doctor shows that her age was to be below 18 years and Dr. Pande had in term admitted that there will be a marginal difference of 6 months on either side. The Investigating Agency has not recorded the statement of the mother of Sarla nor collected any material to find out the birth date of victim Sarla from village Panchayat etc. In view of the medical opinion and as admitted by Dr. Pande the difference on either side can be of 6 months. Even as per the medical evidence, no injury was found on Sarla on her private part and there was no resistance by her. In view of the medical opinion and as admitted by Dr. Pande the difference on either side can be of 6 months. Even as per the medical evidence, no injury was found on Sarla on her private part and there was no resistance by her. Nor she has made any attempt to leave the house of accused Nos.2 and 3 as her sister was residing in the same village and further she has not disclosed anything in respect of the alleged act by accused No.3 to the family members in the house and when she had an occasion to talk to the neighbour, she has stated that her sister and her uncle will come to take her to Kishangadh. As per the medical opinion, there can be difference of 6 months on either side and accordingly the age of Sarla can be considered even more than 18 years, namely, 18 years and 6 months and the accused is certainly entitled for such benefit in this background. In our view, the learned trial Judge was not right in convicting the accused for the offences alleged against them and the reasoning applied by the learned trial Judge is not proper and, in our view, the prosecution has failed to prove that any of the accused has committed any offence for which they were tried. 26. Accordingly Appeal is allowed and the order of conviction and sentence recorded by the learned Sessions Judge, Sabarkantha at Himatnagar on 21.7.1997 in Sessions Case No.86/96 is set aside. Accused Nos.1 and 2 have already undergone the sentence and both the accused were already released from jail custody on 4.6.2000. As appellant accused No.3 Kantibhai Punjabhai Varsat is undergoing sentence, he is ordered to be released forthwith, if not required in any other case. Fine paid by accused Nos.1 and 2 is ordered to be refunded to them and if accused No.3 has paid the fine, the same is also ordered to be refunded to him.