JUDGMENT - R.S. MOHITE, J.:---Heard the learned Advocates for the parties. 2. These two appeals seek quashing of judgment and order passed by the Extra Joint District Judge and Additional Sessions Judge, Nagpur, on 19-5-2000 in Sessions Trial No. 48 of 1998. By the impugned judgment and order, the appellant in Criminal Appeal No. 143 of 2000 (original accused No. 1) as well as the appellant in Criminal Appeal No. 212 of 2000 (original accused No. 2) are held guilty for the offence punishable under sections 363 and 366 read with section 34 of the Indian Penal Code. In addition, accused No. 1 is also convicted for an offence under section 366 of the I.P.C. No separate sentence has been awarded under section 363 of the I.P.C. For the offence under section 366 read with section 34 of I.P.C., accused No. 1 Kanhyalal Ganesh Faradiya has been sentenced to suffer 3 years rigorous imprisonment and to pay fine of Rs. 1,000/- in default to suffer three months rigorous imprisonment. For the same offence punishable under section 366 read with section 34 of I.P.C., accused No. 2 has been sentenced to suffer one year's simple imprisonment and to pay fine of Rs. 1,000/- in default to suffer one month's simple imprisonment. For the offence under section 376 of I.P.C., accused No. 1 is sentenced to suffer seven years rigorous imprisonment and to pay fine of Rs. 1,000/- in default to suffer three years rigorous imprisonment. 3. The prosecution case as emerges from the deposition of the prosecutrix P.W. 2 Sarita Parse, is as under: That the prosecutrix, who was a minor girl aged about 14 years and four months at the time of incident, was residing with her parents at Kamptee, District Nagpur. Shanta accused No. 2 was residing near the house of Sarita. Accused No. 1 Kanhyalal used to work as a cook along with accused No. 2 Shanta at the house of Thakur. He used to visit the house of accused No. 2 Shanta. Sarita was going to school and, according to her, she was in VIth standard. She states that accused No. 1 used to come to her school and he used to talk to her and tell her that he will marry her. She states that one day, accused No. 1 met her and told her that they would go to village Amla in Madhya Pradesh. She states that accused No. 1 used to come to her school and he used to talk to her and tell her that he will marry her. She states that one day, accused No. 1 met her and told her that they would go to village Amla in Madhya Pradesh. According to her, on the date of incident, which she does not specify, at 6.00 a.m., she started for school. Accused No. 2 Shanta met her near a chowk and accused No. 2-Shanta took her to the house of friend of accused No. 1. While going to the house of this friend, accused No. 2 Shanta told her that they would go to Amla. At the house of friend of accused No. 1, the said friend, his wife and children were there. She does not remember as to where the house of friend of accused No. 1 Kanhyalal was situated. Accused No. 1 Kanhyalal was present in his friend's house. She claims that she had brought extra clothes and accused No. 2 Shanta changed the clothes. Thereafter, she along with accused No. 1 Kanhyalal and accused No. 2-Shanta went by tempo to Nagpur, where accused No. 1 purchased some clothes and then she, accused Nos. 1 2 got into a train and reached Bodkhi village at 4.00 p.m. on that day. Then all the three went to a room situated at village Bodkhi. That night she and accused No. 2 Shanta slept together whereas accused No. 1 slept with Munna, who was also resident of Kamptee and who was at village Bodkhi. According to her, on the next night she and accused No. 1 Kanhyalal slept in one room and accused No. 2 Shanta slept with Munna in another room. She claims that accused No. 1 Kanhyalal had sexual intercourse with her and continued to have sexual intercourse for one month. 4. The prosecutrix has further stated that accused No. 1 Kanhyalal and Munna used to go to Amla for work in bakery shop of one Sindhi. That one day accused No. 1 Kanhyalal, accused No. 2 Shanta and Munna had gone to Amla to the shop of the Sindhi. On the next day, her father had come there along with one Kishor. Her father gave a message that father of accused No. 2 Shanta had died. That one day accused No. 1 Kanhyalal, accused No. 2 Shanta and Munna had gone to Amla to the shop of the Sindhi. On the next day, her father had come there along with one Kishor. Her father gave a message that father of accused No. 2 Shanta had died. Her father, accused No. 1 Kanhyalal and Kishor went back to Kamptee from Amla. She contended that her father did not meet her during this trip. That on the next day, she claimed that her father, accused No. 1 Kanhyalal and Kishor returned to Amla and her father met her when she was in the house at Kamptee. Then she, accused No. 1 Kanhyalal, her father and Kishor returned to Kamptee. It is her contention that she, accused No. 1, her father, her mother and Kishor went to Police Station and her father lodged a report upon which she was referred to Medical College, Nagpur for examination. She contended that she left home without informing her parents and had gone with the accused. 5. The defence of all the accused was total denial. 6. The police report was filed by the father of the prosecutrix Laxman Parse, who is examined as P.W. 1. The F.I.R. is dated 8-11-1997. According to the F.I.R. lodged by Laxman, father of the prosecutrix, his daughter had gone from the house saying that she is going to school and had not come back. According to her, this has occurred one month prior to the lodging of the F.I.R. He had mentioned in the F.I.R. that accused No. 2 is his own niece and that accused No. 2 had taken his daughter and accused No. 1 Kanhyalal for doing some work at Amla. He stated in the F.I.R. that about 8 days before the lodging of the report, he came to know from the mother of accused No. 2 that his daughter had been taken by accused No. 2 Shanta to Amla. He contended that he along with Kishor went to Amla for search of Sarita-prosecutrix. He learnt from some persons that from last 10 to 15 days, two boys and two girls were working in the bakery of one Sindhi. He claimed to have gone to the bakery and found accused No. 1 Kanhyalal, accused No. 2 Shanta, Munna and Sarita in the bakery itself. He learnt from some persons that from last 10 to 15 days, two boys and two girls were working in the bakery of one Sindhi. He claimed to have gone to the bakery and found accused No. 1 Kanhyalal, accused No. 2 Shanta, Munna and Sarita in the bakery itself. That the Sindhi owner of the bakery called his daughter Sarita and he could meet his daughter. He claimed that at that time, his daughter told him that accused Nos. 1 2 had brought her to Amla by giving her allurement of marriage. They had taken one room on rent and that they were working with the Sindhi person and getting salary. According to him, she told him during this meeting that accused No. 1 had given her allurement of marriage and committed sexual intercourse with her 3-4 times forcibly. He stated in the F.I.R. that since his daughter told him as above, he brought his daughter Sarita and accused No. 1 Kanhyalal back to Kamptee from Amla and lodged report in the Police Station. 7. In his substantive evidence, this witness Laxman has given completely different story. He claims that Sarita was taking education in IVth standard when this incident occurred. On the day of incident, he had gone for fishing. When he returned home at 4 or 5 p.m., Sarita was not at home. His wife Sakhu told him that Sarita had not come from school. He searched for Sarita in neighbouring village but she was not traced. He came to know that Sarita had gone to Amla with accused Nos. 1 2 so he went with one Kishor to Amla. At the bakery in Amla, accused No. 1 Kanhyalal was alone in the bakery. He asked Kanhyalal about Sarita and he told him that Sarita was not there and that the prosecutrix Sarita was in the house of one person at Amla. He met Sarita and Sarita told him that she came to Amla along with accused No. 1 Kanhyalal. 8. Sarita was examined by the Doctor on 8-11-2000. The medical evidence for obvious reason of delay does not help the prosecution much save and except to the extent that the hymen of Sarita were found broken. There were no injuries found on her body. The fact that the hymen was broken cannot on its own prove an offence of rape. 9. The medical evidence for obvious reason of delay does not help the prosecution much save and except to the extent that the hymen of Sarita were found broken. There were no injuries found on her body. The fact that the hymen was broken cannot on its own prove an offence of rape. 9. The prosecution case, therefore, rests on the veracity of the evidence of Sarita. From her evidence it is evident that there is no taking or enticement. Sarita had categorically admitted that she and accused No. 1 were in love. She has also admitted that when she went to the house of friend of Kanhyalal along with accused No. 2, she had taken extra clothes with her which indicates that she had left her house at her own accord. Her evidence is at complete variance with her father. His father states that Sarita left a month ago, however, in his cross-examination, he has stated that after two months of leaving house, Sarita returned home. It is obvious that even according to Sarita, she went to Amla by travelling in a public vehicle and subsequently by train. It is also obvious that she, along with accused No. 1, accused No. 2 and Munna, were working in the bakery of Sindhi for a fairly long period of time on salary. Sarita's version about as to what happened when her father came to Amla is complete variance of his father's version. According to Sarita, her father never met her when he first came to Amla. On the contrary, she claims that after her first visit he went back to Kamptee along with accused No. 1. His father has given two versions. In his F.I.R. he has talked about meeting his daughter, accused No. 1, accused No. 2 and Munna, all together in the bakery of Sindhi, where Sarita is said to have informed him about her kidnapping and about accused No. 1 having sexual intercourse with her. In her substantive evidence, he states that he met Kanhyalal alone in the bakery and then later on went to meet his daughter at Amla. His version as to what his daughter informed at Amla is to the effect that Sarita told him that accused No. 1 had intercourse with her 3-4 time forcibly. 10. In her substantive evidence, he states that he met Kanhyalal alone in the bakery and then later on went to meet his daughter at Amla. His version as to what his daughter informed at Amla is to the effect that Sarita told him that accused No. 1 had intercourse with her 3-4 time forcibly. 10. In view of such contrary versions, I find that it is unsafe to believe any of these versions and there is no taking or enticing within the meaning of section 151 of I.P.C. It appears that Sarita was acting of her own free will and it is dangerous to hold that she was taken or enticed from her lawful guardians. In this background, I find it unsafe to rely on uncorroborated testimony of Sarita to hold that she was subjected to sexual intercourse by accused No. 1. 11. It is also significant to know that according to the testimony of Laxman prosecutrix's father, when he went to the Police Station, accused No. 1 accompanied him to the Police Station for lodging a report. This conduct on the part of accused No. 1 is also not compatible with his guilt. Sarita has admitted in her cross-examination that she did not disclose about sexual intercourse by accused No. 1 at Amla though several persons were used to visit her house. There is also important piece of evidence brought out in the cross-examination of Sarita which renders her version unsafe for basing a conviction. Sarita has categorically admitted in her evidence that she is deposing at the instance of his father. I have already taken into account the fact that father's own evidence was contrary to her version as well as to his own F.I.R. The Chemical Analyser's report does not help the prosecution in any manner whatsoever. 12. In the circumstances, I feel that these appeals deserve to be allowed. Hence, both the appeals are accordingly allowed. The impugned judgment and order dated 19-5-2000 passed by the Extra Joint District Judge and Additional Sessions Judge, Nagpur, in Sessions Trial No. 48 of 1998 is quashed and set aside and the appellants acquitted of all charges. The bail bond of the appellant in Criminal Appeal No. 212 of 2000 to stand cancelled. Fine, if any, to be refunded to the appellants. The bail bond of the appellant in Criminal Appeal No. 212 of 2000 to stand cancelled. Fine, if any, to be refunded to the appellants. The appellant in Criminal Appeal No. 143 of 2000 will be released forthwith if he is not required for any other offence. Appeal allowed. -----