JUDGMENT Jasbir Singh, J. - By fling this appeal, appellant has laid challenge to the judgment and order dated 8.4.1991 vide which he was convicted for commission of offence under Section 376 Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/-. In default of payment of fine he was to further undergo RI for one year. 2. Appellant along with Kirna, Chhindi, Pinta and Krishana, was put to face trial for commission of offences under Sections 361, 365, 366, 366-A, 368, 376, 504, 506/34 Indian Penal Code. It was story of the complainant i.e. Sant Ram, father of the prosecutrix that on 9.11.1988 at about 5.00 P.M., Krishana, Kirna and Chhindi, came to his house and asked his wife to send Indu Bala, minor daughter of the complainant to Bazar for shopping in the presence of Om Parkash and Rajesh Kumar. Complainant waited for his daughter but she failed to return. When he enquired from the accused named above, he was told that his daughter has gone to some friends house. Search at various places/houses failed. Accordingly, an application was made to the police but to of no avail. 3. It was further stated that above named accused had confined Indu Bala in the house of Chhindi, where Naresh Kumar, appellant/accused forcibly committed rape upon her in collusion with other accused named in the complaint. It was further stated that all the accused in connivance with Naresh Kumar had taken minor daughter of the complainant out of custody of the lawful guardian without consent. It was further stated that she was kidnapped and confined wrongly for about two months with an intention to compel her to marry with appellant/accused. She was kept at Phagwara at village Parala and also at Amritsar in houses of relatives of the appellant. During this period she was raped by the appellant on many occasions. Indu Bala was recovered by the police from Phagwara along with appellant/accused on 14.1.1999 (14.1.1991 ?). Prosecutrix was got medically examined from civil hospital, Kapurthala. Police took all the accused in custody, however, subsequently, they were released, no FIR was registered. Under these circumstances, he was compelled to file a complaint. 4. Complainant led evidence to support his case. Indu Bala was recovered by the police from Phagwara along with appellant/accused on 14.1.1999 (14.1.1991 ?). Prosecutrix was got medically examined from civil hospital, Kapurthala. Police took all the accused in custody, however, subsequently, they were released, no FIR was registered. Under these circumstances, he was compelled to file a complaint. 4. Complainant led evidence to support his case. Trial Court on perusing preliminary evidence summoned all the accused named in the complaint for commission of offences as found mentioned in para 1 of this judgment. Trial Magistrate, vide order dated 6.6.1990, committed Naresh Kumar, appellant, Chhindi, Pinto, Kirna and Krishana to the Court of Sessions Judge, Kapurthala to face trial. Accused were charge-sheeted to which they pleaded not guilty and claimed trial. 6. To support its case, prosecution examined as many as 4 witnesses and also brought on record documentary evidence. On completion of prosecution evidence, statements of the accused were recorded under Section 313 Criminal Procedure Code wherein they denied all the accusations appearing against them in prosecution evidence and they claimed false implication. Specific defence was taken by the appellant that Indu Bala, who is more than 20 years of age, had come to Jalandhar of her own. It was further stated that he was not to be blamed, complaint had wrongly been filed against him and other accused. He also produced Harjit Singh as a defence witness. 7. Trial Court, on appraisal of evidence, as led by both the parties, acquitted Krishana, kirna, Chhindi, Pinta, however, appellant was convicted and sentenced for commissioner of an offence under Section 376 Indian Penal Code only. Hence, this appeal. 8. Counsel for the appellant has vehemently contended that as per evidence on record, it was a case of consent. Prosecutrix had left with the appellant of her own without any compulsion. They had went from one place to another and she raised no objection at any time. He further, by referring to document, Ex. P/3, submitted that a false story had been concocted by the complainant to rope him, all family members and relatives of the appellant in this case. By referring to earlier statements recorded of the prosecurtix and the complainant, he argued that they had made major improvements and are also discrepant with each other, as such, their statements are not worthy of any credence and require to be discarded. By referring to earlier statements recorded of the prosecurtix and the complainant, he argued that they had made major improvements and are also discrepant with each other, as such, their statements are not worthy of any credence and require to be discarded. He further stated that the prosecutrix had gone of her own free will with the appellant, as such, no case is made out to convict the appellant even for violation of Section 363 Indian Penal Code. He prayed that appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charges levelled against him. 9. Mr. G.S. Gill, A.A.G., Punjab, appearing for the respondent has vehemently opposed the arguments raised by counsel for the appellant. He, by referring to documents on record, has vehemently contended that guilt of the appellant/accused was proved on record. Prosecutrix was a minor, as such, her consent was immaterial. He further stated that since the prosecutrix was under threat, she failed to make any noise when she was being kept in confinement and was being shifted from one place to another. He prayed that appeal, having no substance be dismissed. 10. After hearing arguments and on appraisal of record, this Court feels that trial Court has erred in convicting the appellant for commission of offence under Section 376 Indian Penal Code. It is proved on record and also held by the trial Court that age of the prosecutrix was more than 17 years. Even then appellant was convicted by opining that since she was a minor, her consent was immaterial. It was further found, as a matter of fact, that she had gone to the appellant of her own. However, by giving following finding, he was convicted :- "No doubt in this case it is evident that Indu Bala went to Naresh Kumar at her own accord and stayed at Amritsar, Phagwara and Parala. But in this case the age of Indu Bala is 17 years which means that she is minor. Sant Ram PW-1 stated that Indu Bala is his daughter and her age is 17 years. Indu Bala PW-2 also stated that her age is 18-1/2 years now. That means that she was minor on 19.11.1988. Then there is a document Ex. But in this case the age of Indu Bala is 17 years which means that she is minor. Sant Ram PW-1 stated that Indu Bala is his daughter and her age is 17 years. Indu Bala PW-2 also stated that her age is 18-1/2 years now. That means that she was minor on 19.11.1988. Then there is a document Ex. PD which is a copy of the date of birth which shows that one daughter was born to Sant Ram on 27.8.1971 which means that on 18.11.1988 Indu Bala was minor. When Naresh Kumar committed rape with the minor so her consent is immaterial and that does not absolve him from the offence." 11. This Court feels that the opinion arrived at is not correct. Section 375 Indian Penal Code reads as under:- "375. Rape. - A man is said to commit "rape", who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :- First ......... Secondly ......... Thirdly ...... Fourthly ....... Fifthly...... Sixthly. - With or without her consent, when she his under sixteen years of age." 12. Admittedly, in this case, prosecutrix was more than 16 years of age as per finding of the trial Court, she had gone to the appellant of her own. It is also apparent from the record that she had remained with the appellant for about more than two months. During this period, she was shifted from Kapurthala to Phagwara, village Parala and to Amritsar and back to Phagwara. It is positive case of the prosecutrix that she was kept in the houses of the relatives of the appellant, where many other persons were available. During this entire process, she made no attempt at any time to raise hue and cry with a view to save herself. In her statement, by making improvements, upon her earlier statement, she had tried to say that she was shifted from one place to another place during night and under threat. This version is very difficult to digest. It is case of the complainant that immediately when her daughter disappeared, he had made a complaint to the police. Ex. PB shows that name of none of the alleged accused finds mention therein. Complaint was filed more than two months after the alleged date of occurrence. This version is very difficult to digest. It is case of the complainant that immediately when her daughter disappeared, he had made a complaint to the police. Ex. PB shows that name of none of the alleged accused finds mention therein. Complaint was filed more than two months after the alleged date of occurrence. This clearly shows that during this period, a false story was concocted and complaint was filed against the appellant, his family members and relatives. 13. Under similar circumstances, their Lordships of the Supreme Court in Kuldeep K. Mahato v. State of Bihar, 1998(3) RCR(Crl.) 799 (SC) opined as under :- "11. Then coming to the conviction of the appellant under Section 376 Indian Penal Code, although both the Courts below have held after accepting the evidence of prosecutrix being truthful that the appellant has 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 neighbours from the said village. The medical evidence of Dr. Maya Shankar Thakur (PW5) also indicates that there were no injuries on the person of the prosecutrix including her private part. 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 Indian Penal Code 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 her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant." 14. A Division Bench of this Court in Amarjit v. State of Haryana, 2003(1) RCR(Crl.) 168 (P&H), in similar situation held as under :- "the prosecutrix had remained with the accused in that case for about 17 days and had not raised any hue and cry and no injury and no sign of violence was found on her body, it was held that she was a consenting party." 15. In the case in hand also, same is the situation. First complaint made by the complainant to the police Ex. In the case in hand also, same is the situation. First complaint made by the complainant to the police Ex. PB reads as under :- "It is stated that I am an employee of Punjab State Electricity Board, Kapurthala. My daughter Indu Bala went to bazar on 19th November, 1988 and had not returned at home. My wife became mad due to this grief and she is admitted in the Civil Hospital, at Jalandhar. In the end it is requested that my daughter Indu Bala be searched out and should be handed over to me. Indu Bala is a illiterate and minor girl and cannot think of her good and bad. Her date of birth certificate is attached along with the application. It is, therefore, requested that, to up-keep our good name and respect and my daughter Indu Bala be searched out at the earliest and should be handed over to me. I shall be thankful to you." 16. It is clear from the contents of complaint, referred to above, that name of the appellant and others did not figure as accused. Appellant and the prosecutrix had gone to various places, stayed with relatives of the appellant but prosecutrix made no attempt to rescue her. As per PW-4, Dr Brinder Gill at the time of medical examination of prosecutrix, no mark of injury on private part or any other part of the body was found. Under these circumstances, it can safely be said that it was a case of consent. 17. Admittedly, age of the prosecutrix was more than 17 years, as such, conviction and sentence of the appellant for commission of offence under Section 376 Indian Penal Code was not justified. Furthermore, on the basis of evidence, it is not even possible to convict the appellant for commission of an offence under Section 366 Indian Penal Code. It has come on record that the prosecutrix had gone to the appellant/accused of her own, as such, it was a case of elopement and not a case of abduction/kidnapping, as alleged by the complainant/the prosecutrix. To support his contention, counsel for the appellant has relied upon a judgment of this Court titled as Tara Devi v. State of Haryana, 2002(1) RCR(Crl.) 148 (P&H). In the case, referred to above, prosecutrix had gone with the accused therein to various places and failed to raise any hue and cry to save herself. To support his contention, counsel for the appellant has relied upon a judgment of this Court titled as Tara Devi v. State of Haryana, 2002(1) RCR(Crl.) 148 (P&H). In the case, referred to above, prosecutrix had gone with the accused therein to various places and failed to raise any hue and cry to save herself. She had responded to the attempts of the accused in that case. This Court, after looking into evidence found that the lady concerned had illicit relations with the accused therein. In the present case also, situation is the same, as such, it is not possible to convict the appellant/accused for any minor offences. He had also undergone about nine months of imprisonment after conviction. In view of finding given above, this appeal is allowed, judgment and order under challenge are set aside and appellant is acquitted of the charges framed against him. Appeal allowed.