JUDGMENT 1. - This appeal has been filed from jail by the accused- appellant Beeru @ Birbal Ram, seeking to challenge the conviction and sentence, recorded by the learned Additional Sessions Judge, Srikaranpur, convicting the appellant for the offences under Section 363, 366 and 376 I.P.C. and sentencing him to rigorous imprisonment for 7 years under Section 363 I.P.C., 1 years under Section 366 IPC., and 10 years under Section 376 I.P.C. so a so imposing a fine of Rs 1,000/- under each count, and directing him to undergo six months additional imprisonment in default of payment of fine on each count. The substantive sentences were ordered to run concurrently. 2. Brief facts of the case are, that on 27.7.1999 at 2.00 p.m. verbal to report was lodged at Police Station Keshrisinghpur by Mohan Lal (PW/1), to the effect that in the night of 22.7.99 his daughter Roshni Devi aged 14-15 years was sleeping in Augan, and in the morning she was found missing, whereupon search was made in the vicinity but to no good. It was also mentioned that she was wearing pink colour garments and nylon slipper. It was also mentioned that on 24.7.99 a report was lodged at police station for her search, than he continued to search amongst relatives, but in vain. According to the informant, on further enquiry he has learnt that his daughter Roshni Devi has been enticed away by his neighbour Beeru with intention to marry. it is also mentioned that Beeru was on visiting terms. On this report a case for the offences under Section 363, 366 IPC. was registered and investigation commenced. 3. During investigation, it was on 18.8.1999, that the girl was recovered at police station premises Mandore vide Ex.- P/3, thereafter she was got to medically examined on 19.8.99 vide Ex.P/14. After completing other investigation, including arresting the appellant, the challan was filed for the offences under Section 366, 363 and 376 I.P.C. in the Court of Additional Chief Judicial Magistrate Srikaranpur from where the case was committed to the learned trial court. 4. Learned trial court framed charges against the accused for the aforesaid offences which he denied. During trial the prosecution examined 11 witnesses, and tendered documents in evidence. The appellant in his statement under Section 313 of the Cr.P.C. denied the allegations, and took stand that he has been falsely implicated. 4. Learned trial court framed charges against the accused for the aforesaid offences which he denied. During trial the prosecution examined 11 witnesses, and tendered documents in evidence. The appellant in his statement under Section 313 of the Cr.P.C. denied the allegations, and took stand that he has been falsely implicated. However, no evidence produced in defence. 5. The learned trial court after completing the trial convicted and sentenced the appellant as above. 6. Assailing the impugned judgment, it is contended by the learned Amicus Curiae, that there is a long delay in lodging the first report, there is no legal and reliable evidence on record to prove that the girl Roshni Devi was below 16 years of age, and that even from the medical evidence consisting of Ex. P/14, it is not established that she was ever subjected to any sexual inter-course. Elaborating the arguments, it was contended, that the incident is said to be dated 22.7.99 and the report has been lodged for the first time on 27.7.99, and there is nothing to show, as to whether any report was at all lodged on 24.7.99. It was also submitted that a look at the statement of PW/1, the informant, who is the father of the girl, itself shows that she was above 16 years of age. It was also pointed out that according to PW/1 the first child was borne two years after marriage, while according to PW/3 who is mother, she has improved upon the version, by deposing that first issue was borne after some 10-12 years of marriage. This clearly shows that the parents are trying to project to false version about the age of the girl. According to the learned counsel, if the aspect is considered in conjunction with the fact that despite the girl having been taken for medical examination on 19.8.99, she was not medically examined for age, much less any ossification test was got conducted, which would have been material circumstances to lend assurance to the fact that the girl was below 16 years of age. It is submitted that on the other hand, from the finding recorded in Ex.P/14, especially about the girl having well developed pubic hart, and history of menses, it becomes clear that she was definitely not below 16 years of age. It is submitted that on the other hand, from the finding recorded in Ex.P/14, especially about the girl having well developed pubic hart, and history of menses, it becomes clear that she was definitely not below 16 years of age. In this very sequences learned counsel submitted that a look at Ex.-P/10, shows that it does not bear the signature or the thumb mark of PW/1 or PW/3. It was also pointed out that when PW/3 had appeared in the witness-box, and Ex.P/10 could be got proved from herself, if she had at all 543 put her thumb mark, and it was not got so proved, precisely because it is got thumb mark of Malki Devi. Highlighting other loose ends of the prosecution case, it was contended that the prosecution wants the court to believe, that the girl herself walked in the police station Mandore on 17.8.99. wherefrom 1 she was recovered by Keshrisingnpur police people on 18.8.99, but then there is absolutely no material on record, even by bare word of mouth of anybody, to the effect. as to how and in what circumstances she happened to come to the police station. Not only, this, there is absolutely nothing on record to show, that any information whatever was sent by Mandore police station. to police station Keshrisinghpur, and thus the whole theory of her recovery from police station Mandore is a myth. It is further contended that even according to the gin. she was travelling from place to place in buses, and going to various houses. wherein she was living for days together, so to much so that the appellant and the gin was sleeping on the roof top. In such circumstances, her silence for all the time, and not making any attempt even to whisper out, about any sexual assault being made on her. speaks volume against the prosecution. In the totality of circumstances, the theory of the girl having been administered threat by the appellant, cannot at all be believed. 7. In such circumstances, her silence for all the time, and not making any attempt even to whisper out, about any sexual assault being made on her. speaks volume against the prosecution. In the totality of circumstances, the theory of the girl having been administered threat by the appellant, cannot at all be believed. 7. On the other hand learned public prosecutor has supported the impugned order and submitted that from Ex.P/6, P/9 and P/10 coupled with the statement of PW/6, PW/1 and PW/3 it is clearly established that the girl was below 16 years of age at the time of incident, and therefore, even if it were to be assumed that she did not raise any hue and cry, or that even if she was a consenting party. that was of no consequence in favour of the appellant. 8. I have considered the submissions and have perused the record. 9. In my view the first and foremost question, requiring to be concentrated upon is, as to whether the girl was below 16 years of age at the time of incident. Having undertaken a scrutiny of the record, rather close scrutiny of the record, I have not been able to come to the conclusion, about the prosecution having been able to prove the girl to be below 16 years of the age at the time of incident. 10. So far as Ex.P/6 is concerned, that is only a certificate issued by the headmistress, and since documents, on the basis of which, it is said to have been given, have been produced on record, Ex.P/6 losses its significance. Then taking up Ex.9 and Ex.10, Ex.9 is only the entry, in this Scholar Register mentioning her date of birth to be 5.10.86, and since the admission form itself has been produced as Ex.10, Ex.9 need not detain me any more. Then coming to Ex.10. this purports to be the original form, filled at the time that the girl was admitted in the school, and purports to be of Roshni Devi D/o Mohan Lal, Resident of Aarayan. Tehsil Karanpur, District Sriganganagar and purports to bear thumb mark of some Malki Devi. Then coming to Ex.10. this purports to be the original form, filled at the time that the girl was admitted in the school, and purports to be of Roshni Devi D/o Mohan Lal, Resident of Aarayan. Tehsil Karanpur, District Sriganganagar and purports to bear thumb mark of some Malki Devi. PW/5 has been examined to prove this document, a look at the statement of PW/5 shows, that all that she has deposed that this is original admission form (Ex.P/10), wherein the date of birth of Roshni Devi is at point 'A to B' and the signatures of the guardian, who comes to seek admission, are obtained on tine reverse side of the form, and the signatures of the head master are at 'C to D'. Suffice it to say, that this part of the statement cannot prove Ex.-10, to be bearing the thumb mark of PW/3, or any guardian of PW/2. in cross-examination she has clearly admitted, that she cannot say as to whose signatures or thumb marks are thereon Ex.P/10, and that it is mentioned that the thumb mark purports to be of Malki Devi, likewise she has also admitted that in Ex.P/6 caste of the candidate is not mentioned. in that view of the matter, simply because according to the school record there is no other student of the name of Roshni Devi D/o Mohan Lal, it cannot be believed that Ex.10 is an admission of date of birth, made by the person competent to make it, so as to be used as the circumstances against the accused appellant, to prove the age or the victim to below 16 years at the time of incident. 11. Thus, on a collective reading of a statement of PW/5, Ex.P/6, P/9 and P/10, it cannot be believed that the age of the girl is proved to below 16 years. Then, coming to the oral evidence, which consists of PW/1, PW/2 and PW/3, PW/1 in cross-examination has clearly deposed, that he was married 24 years ago, and two years after marriage Roshni Devi was born. To Significantly he has mentioned his age to be of 35 years. He has also admitted that he did not get recorded anywhere the factum of the birth of Roshni Devi. To Significantly he has mentioned his age to be of 35 years. He has also admitted that he did not get recorded anywhere the factum of the birth of Roshni Devi. Then coming to the evidence of PW/2, the girl, whose statement were recorded on 31.8.2000, has mentioned the age to be 14 years, though even in the FIR Ex.P/1, recorded on 27.7.99, the girl was reported to be of 14-15 years. Then coming to the evidence of PW/3, she has also deposed the age of the girl to be 14 years, and in cross-examination she has chosen to depose, that she was married 25 years ago, and the first child was Roshni Devi, who was born after 10-12 years of marriage. Suffice it to say, that firstly if this version is to be believed, the girl comes to the even less than 14 years as on the date of her statement, then if the statement of PW/1 and PW/3 are read together, it is clear that they were married at the most 24 years ago. In such circumstances when according to P.W. 1 the first child was borne after 2 years of marriage, while according to PW/3 the first child was borne after 10-12 years of marriage, it cannot be said with certainty, that from the evidence of these witnesses, it is established that the girl is above 16 years of age. Then taking up Ex.14, which is medical certificate about her examination for rape, but then reading of this report does show, that therein her age has been mentioned as 14 years, with the caption "as stated by her", then her menses history has been mentioned to be 28/4 i.e. four days in the cycle of 28 days, and it has also been noticed, that she had all well developed pubic hair. In my view, these two findings, though not conclusively, but do sufficiently indicate, that the girl cannot be said to definitely below 16 years of age. In this sequence, the omission on the part of the investigation, to get her medically examined, to ascertain her age and getting conducted her ossification test, also creates serious doubt in the mind of the court, about the reliability of the theory of the girl being below 16 years of age. 12. In this sequence, the omission on the part of the investigation, to get her medically examined, to ascertain her age and getting conducted her ossification test, also creates serious doubt in the mind of the court, about the reliability of the theory of the girl being below 16 years of age. 12. Thus is my view, the finding of the learned trial court as recorded in pare 32, about age of the girl being around 13 years, cannot be sustained, and is required to be set-aside. 13. Then a bare reading of the statement of the girl, does make it clear, that though the story has been propounded by parents, that in the night she was sleeping, and in the morning she was missing, while according to the girl, the appellant was on visiting terms, so much so that his mother used to address PW/1, as brother, she has also admitted that, earlier accused used to bring sweets for her, and also used to offer to take her out for excursion to Sriganganagar Likewise on the date of incident also the appellant is said to have offered to take her to Sriganganagar for excursion, then she has purported to depose that she declined, whereupon she was threatened with the knife, and frightened, she accompanied him. Then they walked to Keshrisinghpur, where from they boarded the bus for Sriganganagar where her statement is said to have been recorded about they having married. Then she was taken to Nebara, at the house of the appellant's aunt, where they lived for 10-15 days, at this place they used to sleep on the roof top, and there, it is deposed, that the appellant used to have inter-course forcibly. Then she was taken to village Nakha, to the appellant's cousin, where they lived for 7-8 days, then she was taken to the appellant's brother's house, where again they lived for 3-4 days, thereafter the appellant went to Jodhpur for doing manual labour, wherefrom she escaped away to police station. and narrated whole story to the police. On the next day her father came to the police station Mandore, wherefrom she was taken away. 14. Suffice it to say, that in the cross-examination she has clearly admitted, that during the entire movement of her, she never disclosed to anything to anybody, and has purported to take shelter under the threat. and narrated whole story to the police. On the next day her father came to the police station Mandore, wherefrom she was taken away. 14. Suffice it to say, that in the cross-examination she has clearly admitted, that during the entire movement of her, she never disclosed to anything to anybody, and has purported to take shelter under the threat. But in view of the long journey, and living at the house of various relatives of the appellant, it cannot be said that she continued to be under any threat. There is one more minor circumstance, favouring the accused viz. that in the first report, the informant has mentioned that while sleeping, his is daughter was wearing pink colour garments. Normally in rural area, the girls of this age are noticed to be wearing this colour only when they are out for some adventure. 15. Thus, even from the close reading of the statement, it cannot be believed, that she was abducted away, in the manner she wants this court to believe, rather it appears that the appellant and the girl were on visiting terms since long, and on the fateful day, both of them eloped, which might not have been linked by the parents, and after they lived together for around a month, the girl was taken away and resulted into this prosecution. But then from this sequence of events, in my view, it cannot be said that the prosecution has been able to prove any of the offences of 363, 366 and 376 the IPC. against the appellant. 16. The net result is that conviction cannot be sustained. The appeal is allowed. The impugned order is set aside. The appellant is acquitted of all the charges. The accused-appellant is in jail, he be released forthwith if not required in other case.Appeal Allowed - Conviction Set Aside. *******