JUDGMENT : Kuldip Chand Sood, J. – 1. The appellant Ram Singh, hereinafter referred to as "the accused", was convicted and sentenced for offences punishable under Sections 363, 366, 376 and 342 of the Indian Penal Code by the learned Sessions Judge, Hamirpur by its judgment dated February 28, 2002. 2. Dis-satisfied with his conviction, the accused has filed this appeal from Jail. 3. Appellant, it may be noticed at the out set, was not represented by a counsel. Therefore, Mr. Alok Ranjan Advocate was appointed as counsel for the accused. 4. Prosecution case was that the accused kidnapped and abducted "B", a minor from the lawful guardianship of her mother on May 14, 2002 from village Salauni in Tehsil Badsar of District Hamirpur with an intention to compel her to marry him. She was taken to Faridkot in Punjab and was wrongfully confined in a room at Sanjay Nagar for 27 days. During this period, she was subjected to sexual assault and rape. 5. From the prosecution evidence, it appears, "B" was living with her mother in village Lafran of District Hamirpur. Her father, a serving soldier in the Indian Army, was posted at Amritsar at the relevant time. The accused was a frequent visitor to the house of the brother of the father. Accused claimed to be "Tantrik" and had treated daughter of her father brother. The accused was well known in the family of "B" including her mother and father. In the after-noon of May 14, 2002, "B" left her house on the pretext of purchasing books but did not return back. Nirjala Devi (PW4) informed her husband on telephone on May 16, 2002 that "B" was missing. Next day, her husband came to his house and tried to trace "B" but could not find her. On May 18, 2002, he lodged a missing report with Police Station, Badsar. Both Nirjala Devi and Dev Raj (PW3) mother and father of "B" suspected that accused might have taken "B" with him as he was also missing from his place. 6. It is the further case of the prosecution that accused took "B" to several places and ultimately they came to Faridkot where accused rented a room at Sanjay Nagar, from one Jagir Singh (PW6). During this period "B" was sexually exploited by the accused. 6. It is the further case of the prosecution that accused took "B" to several places and ultimately they came to Faridkot where accused rented a room at Sanjay Nagar, from one Jagir Singh (PW6). During this period "B" was sexually exploited by the accused. Dev Raj came to know that accused was living with "B" at Sanjay Nagar, Faridkot. Dev Raj along with some persons came to Faridkot, met Jagir Singh and informed him about his information. Jagir Singh took them to the room where accused and "B" were living. Dev Raj identified the accused and his daughter and took them to his village. Police was informed on June 11, 2002 that Dev Raj has brought "B" and the accused from Faridkot. Assistant' Sub Inspector Raj Kumar (PW14) visited village of "B" and found "B" with her father. "B" was medically examined on June 12, 2002. Accused was arrested on June 11, 2002 and medically examined on the same day. Dr. H.R. Kalia who examined "B" did not find any external injury on any part of her body. He, however, referred "B" to a Lady Doctor for examination of her private parts. Dr. Sunita Galodha (PW2) medically examined "B" on June 12, 2002 and found that secondary sex character was fully developed. P/B vaginal orifice admitted two fingers easily. Hymen was torn. No fresh injury was seen. She was of the opinion that "the possibility of sexual intercourse cannot be ruled out". 7. Learned trial Judge by his impugned judgment concluded that "B" was less than sixteen years of age at the time of the incident. She was kidnapped/abducted by the accused from the custody of her lawful guardian and subjected to sexual assault by the accused and accordingly convicted him for the offences detailed above. 8. Heard Mr. Alok Ranjan learned counsel for the appellant and Mr. Ashok Chaudhary, learned Additional Advocate General. I also was taken through the evidence. The submissions of Mr. Alok Ranjan, learned counsel for the accused are: (a) Victim was not subject to sexual intercourse by the appellant/accused. (b) Victim was more than 16 years of age at the relevant time; (c) There is no evidence on record to suggest that the appellant kidnapped or abducted the victim. (d) Sexual activity, if any, was with the consent of the victim; (a) Victim was not subjected to sexual intercourse by the appellant/accused. 9. (b) Victim was more than 16 years of age at the relevant time; (c) There is no evidence on record to suggest that the appellant kidnapped or abducted the victim. (d) Sexual activity, if any, was with the consent of the victim; (a) Victim was not subjected to sexual intercourse by the appellant/accused. 9. The contention of learned counsel for the appellant that victim was not subjected to sexual intercourse by the accused is without any foundation in the evidence. Dr. Sunita Galodha (PW2) on the examination of the victim on June 12, 2002 clearly found that the victim was subjected to sexual intercourse as the hymen was torn though fourchette was intact. PN vaginal orifice admitted two fingers easily. Vaginal swab taken on June 12, 2002 was sent to Chemical Examiner who found stains of blood and human semen on the swab. It is to be noticed that it was only on June 10, 2002 when she was recovered by Dev Raj from the room rented by the accused at Faridkot. This evidence in itself shows that "B" was subjected to sexual intercourse during the period she was in the company of the accused. 10. This apart, it is not possible to discard the testimony of the victim (PW5) that she was subjected to sexual intercourse by the accused. The stand of the accused that though he lived with the victim at various places, including Faridkot but did not indulge in any sexual activity is not believable. It is the case of the accused as suggested to victim that both of them stayed together at various places, including Kangra, Chamunda Temple, Vaishno Devi Temple and Faridkot. The accused admittedly is not related to the victim. They had not left the village, without the permission of the parents of the victim, for a religious ceremony. Both of them lived alone for 23 days. 11. The only conclusion from the evidence discussed above is that "B" was subjected to sexual intercourse by the accused. Though it is different matter that such sexual activity took place with the consent of "B" to which I shall come later. (b) Victim was more than 16 years of age at the relevant time: 12. 11. The only conclusion from the evidence discussed above is that "B" was subjected to sexual intercourse by the accused. Though it is different matter that such sexual activity took place with the consent of "B" to which I shall come later. (b) Victim was more than 16 years of age at the relevant time: 12. So far the age of the victim is concerned, learned Sessions Judge on the basis of evidence of Dev Raj, father of the victim, Nirjala Devi (PW4) mother of the victim, matriculation certificate Exhibit PW4/A, the certificate of the Principal, Government Senior Secondary School and entry in the Register of Death and Birth, held that "B" was less than sixteen years of age at the relevant time. 13. Mr. Alok Ranjan would submit that the victim was not radiologically examined to ascertain her age. The entry in the death and birth register is in respect of Asha Devi which is not the name of the victim and, therefore, cannot be relied upon. He further would submit that it is not unusual in the rural areas to record less age of a child at the time of admission in the School. 14. So far the question of age is concerned, it is true that the age of the victim was not radiologically ascertained. The prosecution evidence, however, prove that the victim was born on March 6, 1987. It is the evidence of PW3 Dev Raj that he has two daughters "B" and "M" and also a son "P". "B" is the eldest and was born on March 6, 1987. It is his evidence that on the birth of the victim her name was recorded as Asha in the Panchayat record by her grand father. It is his further evidence that "B" was born at Pathankot but her name was not entered in the municipal records at Pathankot. There is nothing in the cross-examination of this witness which may even suggest that "B" was not born on the date stated by Dev Raj. The only suggestion to the witness is that "B" was born in the year 1985 and she is not the first child which Dev Raj has denied. Nirjala Devi (PW4), mother of the victim, also corroborates her husband and states that "B" was born on March 6, 1987. The only suggestion to the witness is that "B" was born in the year 1985 and she is not the first child which Dev Raj has denied. Nirjala Devi (PW4), mother of the victim, also corroborates her husband and states that "B" was born on March 6, 1987. Her younger daughter was born on February 15, 1992 and son was born on July 6, 1993. There is nothing in the cross-examination of this witness too to suggest that "B" was more than sixteen years of age at the relevant time. Coupled with this is the documentary evidence in terms of the matriculation certificate of "B" (Exhibit PW4/A) which shows, that the victim was born on March 6, 1987. The School Certificate "Exhibit PW 12/A" certifies that the date of birth of "B", student of Government Senior Secondary School Maharal District Hamirpur is recorded as March 6, 1987 in the School records. Purshotam Sharma (PW12) is Senior Assistant in Senior Secondary School Maharal. It is his evidence that date of birth of "B" according to the school record is March 6, 1987 and that he issued the certificate on behalf of the Principal (Ex. PW 12/A) on the basis of the record. He signed the certificate as there were vacations in the School and the Principal was not available. It is his further evidence that this certificate was issued in accordance with the entries in the admission with withdrawal register. The original register was produced. The other evidence regarding the age of "B" is the entries in the death and birth register maintained in the office of the Chief Medical Officer, Hamirpur. Naresh Sharma, (PW13) Senior Statistical Assistant in the Office of Chief Medical Officer Hamirpur stated that as per the original entry in the death and birth register pertaining to Gram Panchayat Jamali, the date of birth of Asha Devi, the victim, is recorded as March 6, 1987. This entry was recorded on March 8, 1987. 15. The contention of the learned counsel for the appellant that the birth entry pertains to Asha Devi, another daughter of Dev Raj and not Babita is misplaced. Both Dev Raj and mother of the victim categorically state that at the time of birth, "B" was given the name "Asha Devi" by her grand father who registered this name with the Gram Panchayat. Both Dev Raj and mother of the victim categorically state that at the time of birth, "B" was given the name "Asha Devi" by her grand father who registered this name with the Gram Panchayat. It is not unusual that a name given at the time of birth is subsequently changed. The fact that victim was born on March 6, 1987 is also proved by the matriculation certificate where her date of birth is recorded as March 6, 1987 which in no event, could have been manipulated after the date of the incident. Otherwise also there is presumption that the date of birth in the matriculation certificate is truly recorded, more so, when there is nothing on the record to doubt the entry in the matriculation certificate. 16. On consideration of entire evidence, I am of the view that the victim was more than fifteen years and less than sixteen years of age even on the day when she was recovered from Faridkot in the company of the accused. (c) No evidence to suggest that the appellant kidnapped Or abducted the victim. 17. The evidence on record does not suggest that "B" was kidnapped or abducted by the accused. Careful reading of evidence show that "B" left her parental house voluntarily, of own volition, without any inducement, promise or threat and joined the accused at Bus Stand at Salauni and thereafter both of them travelled together, stayed at several places and ultimately, settled down at Faridkot where the accused hired a room as noticed above. Of the own admission of "B" (PW5), she left her house to purchase books and took rupees 400-500/- from her mother for that purpose. Instead of buying books, she came to Salauni and eloped with the accused. The story put forward by "B" is that she boarded the bus at Jamli and decided to go to her grand mother in village near Salauni. She met the accused at the Bus Stand. Accused offered her a bottle of Coca-Cola. She refused. However, on the insistence of the accused, she took Coca-Cola and became unconscious. In her own words: "I boarded in the bus at Jamli. Firstly I decided to visit my maternal grand mother in village Kulehra near Saloni and thereafter I will go back to my house. I alighted from the bus at Saloni Bus Stop. She refused. However, on the insistence of the accused, she took Coca-Cola and became unconscious. In her own words: "I boarded in the bus at Jamli. Firstly I decided to visit my maternal grand mother in village Kulehra near Saloni and thereafter I will go back to my house. I alighted from the bus at Saloni Bus Stop. Accused Ram Singh present in the court had met me. He was known to me because of was residing in the house of my uncle. He had come to the house of my uncle as my cousin sister was ill and under the treatment of accused, who proclaimed himself to be a 'Tantrik'. I as well as the children of my uncle used to call the accused as 'Nanu'. At Saloni bus stand when he met me, he offered the coca-cola to me. I refused to have the Coca-cola, the accused offered. He however insisted to have the same at the pretext that he was offering the same to me being 'Nanu'. Thus fell to his pray and drunk the Coca-cola. Thereafter, I became unconscious and not aware of as to where I was. I gain senses when I was at Faridkot". 18. To believe this part of her testimony is to be believe incredible. She would have us believe that on May 14, 2002, she took coca-cola offered by the accused. She would also have us believe that she became unconscious, regained consciousness only in the room rented by the accused from Jagir Singh (PW6). It is not possible to believe that "B" having taken coca-cola, assuming it contained some substance which made here unconscious, regained consciousness after 20 days. This part of her testimony on the face of it is false. Jagir Singh (PW6) is categorical that it was on June 4, 2002 that accused accompanied by "B" came to his clinic and rented one room set at rupees 500/-. If "B" had accompanied the accused when room was taken on rent by him, surely she could not have been unconscious. This apart, there is evidence on record which shows that "B" in the company of accused visited several places before reaching Faridkot. It is the evidence of "B" that when she alighted from the bus from Salauni, there were several people standing there. There were also shops. This apart, there is evidence on record which shows that "B" in the company of accused visited several places before reaching Faridkot. It is the evidence of "B" that when she alighted from the bus from Salauni, there were several people standing there. There were also shops. If she had become unconscious, then it was not possible for the accused to board the bus along with "B" in unconscious state without inviting attention of the people at the Bus Stand and passengers in the bus. Duni Chand (DW1) is Incharge of Sarai at Brijeshwari Devi Temple, Kangra. It is his evidence that on May 15, 2002, accused accompanied by a female stayed in the Sarai entry regarding which was made at page-71 of the register copy of which is Exhibit DWI/A. The original register was produced in the Court. Entry No. 145 pertains to the accused which clearly shows that accused was accompanied by a female and both of them stayed in room No. 4 on May 15, 2004. This entry is unquestionable. Mahesh Kumar (DW3) was owner of Saraswati Hotel located at Idgah Colony at Agra. It is his evidence that Ram Singh and Babita Kumari resident of village Lafran, village of "B" stayed in room No. 207 in the hotel on May, 20, 2002. Photo copy of the relevant entry is Exhibit DW3/A. The relevant entry shows that this is also signed by "B", the victim. It is not the case of the prosecution that this register is not signed by "B". There is no suggestion to this effect to the witness. It may be noticed that original register was produced in the Court. On earlier occasions also, "B" had accompanied the accused. It is the evidence of Nirjala Devi (PW4) mother of "B" that her daughter accompanied accused to Vaishno Deviji in J&K in a jeep though she clarifies that she sent her daughter, because of persistent request of the accused who returned after three days. The evidence discussed above clearly suggests that "B" was not unconscious as she would make out. The evidence on record unambiguously suggests that she voluntarily, of her own volition, without any inducement or promise left her house and accompanied the accused to various places. If she was unconscious all these days, it would not have been possible for the accused to take her to various places. The evidence on record unambiguously suggests that she voluntarily, of her own volition, without any inducement or promise left her house and accompanied the accused to various places. If she was unconscious all these days, it would not have been possible for the accused to take her to various places. She would have been noticed at Kangra and other places where they stayed and question would have been asked and raised. There is no corroborative evidence to accept the, incredible version of "B" that she became unconscious on May 14, 2002 and regained consciousness on June 9, 2002. This version appears to have been made up to ward off inconvenient questions and to avoid any explanation regarding her place of abode during these days. On the face of it, the version is after thought. It is the evidence of Harpreet Singh (PW7) who works on STD booth at Faridkot that a girl namely "B" made a STD call to her parental house but in cross-examination, this witness admits that girl was followed by accused Ram Singh. If "B" was under any restraint from the accused, both of them would not have been together at the STD booth. This also lend assurance to the version of the accused that he had been informing the mother of "B" on telephone about their where abouts. 19. Section 361 of the Indian Penal Code defines kidnapping. One of the essential ingredients of kidnapping is taking or enticing away a minor from the lawful guardian. In the present case, enticing is not involved. The prosecution is obliged to show, to prove taking, that accused took some positive steps, either by persuasion or otherwise to cause the girl to leave home. There is no evidence to show that accused took any active part in the "B" leaving her house. In the present case, "B" at the relevant time was slightly less than 16 years of age. She had the capacity to know what she was doing. She voluntarily joined the accused. Therefore, accused cannot be said to have taken away "B" from the keeping of her lawful guardian (See: State of Haryana v. Raja Ram, AIR 1973 S.C. 819 and State of Haryana v. Raja Ram 1965 S.C. 942). No kidnapping, it is settled law, is involved when the girl leaves her house voluntarily and voluntarily goes with the accused as in the present case. 20. No kidnapping, it is settled law, is involved when the girl leaves her house voluntarily and voluntarily goes with the accused as in the present case. 20. The Apex Court, in Shyam and another v. State of Maharashtra, 1995 CRI. L.J. 3974, observed that where prosecutrix appears to be a willing party to go with the accused of her own, culpability of accused cannot be said to have been established. It was observed that the statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 Indian Penal Code the Supreme Court in Thakorlal D. Vadgama v. State of Gujarat AIR 1973 (2) Supreme Court Cases 413 observed: "......where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what, she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian". 21. In view of the evidence discussed above, kidnapping of "B" is not proved. Similarly, no offence under Section 366 of the Indian Penal Code is made out. There is no evidence at all to suggest that "B" was compelled, or the accused had intended to compel her to marry him against her will or was forced or seduced to illicit intercourse. There is not a word, not a whisper on this aspect in the evidence of "B". Learned trial Judge fell in error in holding that "B" was kidnapped and abducted by the accused. (d) Sexual activity if any took place with the consent of "B" 22. 1 have already observed that "B" left in the company of accused voluntarily of her own volition without any inducement, promise or threat, went from place to place. Learned trial Judge fell in error in holding that "B" was kidnapped and abducted by the accused. (d) Sexual activity if any took place with the consent of "B" 22. 1 have already observed that "B" left in the company of accused voluntarily of her own volition without any inducement, promise or threat, went from place to place. She did not complain to any person including to the Incharge of the Sarai and the hotel where they stayed or even to Jagir Singh from whom room was rented by the accused in the presence of "B" that she has forcibly been taken from her house and that she is being subjected to sexual intercourse. She, according to the prosecution case, was alone when she rang up her house to inform her mother that she was in the keeping of the accused. Even at that time, she did not complain or whispered either to the incharge of the STD booth or any other person including neighbours that she was being illegally confined and subjected to sexual intercourse. The conduct of the accused and the evidence on record leads to only one conclusion that the sexual activity between the accused and "B" was with her consent. No other point was urged. 23. To conclude, the prosecution has failed to establish the offences punishable under Sections 363, 366 and 342 of the Penal Code. However, so far the offence of rape is concerned, it is established in view of the age of the victim which was less than sixteen years at the relevant time. 24. In result, the appeal is partly allowed. The conviction of the accused under Section 376 of the Indian Penal Code is maintained. The conviction of the accused for offences punishable under Sections 363, 366 and 342 of the Indian Penal Code is set aside. He stands acquitted of these charges. Fine payable for these offences if deposited shall be refunded back 'to the accused. No compensation, out of the remaining fine, if paid, shall be payable to "B". 25. An authenticated copy of this judgment shall be supplied to the accused through the Superintendent of Jail where he is lodged immediately.