JUDGMENT 1. The State of Rajasthan has preferred this appeal against the judgment and order dated January 28, 1989 passed by the Additional District and Sessions Judge No. 2, Alwar (Rajasthan) in Sessions Case No. 26/83 by which he acquitted the accused-respondent Gyani Ram of the charges under Sections 363, 366, 376 and 379, Indian Penal Code and accused-respondents Mohar Singh, Ramanand, Om Prakash and Dharmanand of the charges for the offences under Sections 363 and 366, Indian Penal Code.The necessary facts giving rise to this appeal in short are as follows :That on October 25, 1982 a written report (Ex. P/1) was submitted by Johari (PW-3) at police Station Behror which is registered as FIR (Ex. P/2) in which he stated that his niece Sulochana aged 13-14 years was missing from home. Probably, she was kidnapped in the interve- ning night dated 22nd/23rd October, 1982 by Gyani Ram (accused- respondent No. 2) who was living at the flour mill of the Om Prakash (accused-respondent No. 4) with whom she was seen talking a previous day. It was further stated in the FIR (Ex. P. 2) that she was wearing one gold gulsary costing Rs. 2,500/- had been taken away. She was searched up to 25th October but she could not be traced anywhere.On this report, an FIR No. 156/82 (Ex. P. 2) under Section 363/380, Indian Penal Code was registered. The police started search of the girl (Sulochana) and accused and traced the prosecutrix Sulachena with Gyani Ram accused at Moga Mandi (Punjab) on 31st October, 1982 and from where they were arrested and were taken to Police Station Behror. The police recorded the statement of accused-respondent and recovered clothes, photographs and Rs. 8500/- etc. from the house where they were living at Moga Mandi (Punjab). Similarly, the gold ring and pajeb were also recovered on the information furnished by the accused-respondent No. 2 (Gyani Ram) under Section 27 of the Evidence Act. 2. During the investigation, the girl was examined by the police under Section 161, Criminal Procedure Code and was also produced before the Magistrate on November 3, 1982 where she was examined under Section 164, Criminal Procedure Code. She stated that she was seduced on the pretext of mela and threatened to go with accused Gyani Ram and she was forced to sign some documents and to give some statements. She stated that she was seduced on the pretext of mela and threatened to go with accused Gyani Ram and she was forced to sign some documents and to give some statements. She was raped at Narnaul by Gyani Ram and Dharamchand (accused-respondent No. 5). From Narnaul she was taken to Moga Mandi under threats and fear of life by the accused-respondents. 3. After usual investigation the police submitted a challan against the accused Gyani Ram (accused-respondent No. 2), Ramanand (accused- respondent No. 3) and Mohar Singh (accused-respondent No. (1) under Sections 363, 366, 368 and 376, Indian Penal Code. Mohar Singh (accused-respondent No. 1) was found absconding at that time. 4. A separate complaint was also filed by Johari (PW 3) on 18th June, 1983 against Gyani Ram, Mohar Singh, Ramanand, Om Prakash, Dharmchand and Kaushilya alleging that police has neither investigated the full facts nor has taken action against the persons who were also involved in this case. On the basis of this complaint, police further filed a challan against Om Prakash (accused-respondent No. 4) and Dharam- chand (accused-respondent No. 5) alongwith persons already challenged under Sections 363, 366, 368, 380 and 376, Indian Penal Code. Both the cases were committed to the Court of Sessions Judge on November 13, 1983 by the learned Magistrate which was transferred to Additional District and Sessions Judge No. 2, Alwar. 5. Accused respondent No. 1 Mohar Singh has surrendered before the Court during the trial. On December 15, 1983 the learned Additional District and Sessions Judge, No. 2 Alwar has framed the charge against Gyani Ram for the offence under Sections 363, 366, 376 and 379, Indian Penal Code and against Mohar Singh, Ramanand, Om Prakash and Dharamchand under Sections 363 and 366, Indian Penal Code. 6. The charges were read over and explained to the accused- respondents who pleaded not guilty and claimed trial.During trial the prosecution in support of its case examined as many as 15 witnesses and got exhibited some documents.Thereafter the statements of the accused-respondents under Section 313, Criminal Procedure Code were recorded and defence witnesses were also examined. 7. 6. The charges were read over and explained to the accused- respondents who pleaded not guilty and claimed trial.During trial the prosecution in support of its case examined as many as 15 witnesses and got exhibited some documents.Thereafter the statements of the accused-respondents under Section 313, Criminal Procedure Code were recorded and defence witnesses were also examined. 7. After conclusion of the trial the learned Additional District and Sessions Judge No. 2, Alwar (Rajasthan) vide his judgment and order dated January 28, 1989 acquitted the accused-respondents from the charges framed against them holding inter alia that the prosecution has not been able to prove its case beyond all reasonable doubt. 8. Aggrieved against the judgment and order of the Additional District and Sessions Judge No. 2, Alwar (Rajasthan) dated January 28, 1989, the State of Rajasthan has preferred this appeal. 9. In this appeal it has been submitted by the learned Public Prosecutor that the Additional District and Sessions Judge No. 2, Alwar (Rajasthan) has not considered the statements of the prosecution witnesses properly and should have been believed by the Additional District and Sessions Judge No. 2, Alwar (Rajasthan) and thus, the impugned judgment and order dated January 28, 1989 is erroneous one and should be set aside. 10. The learned Public Prosecutor also contended that the learned trial Court has erred in holding that it was a case of elopement and prosecutrix (Sulochana) was a consenting party. The statement of prosecutrix is very categorical that she was seduced to go with the accused on the pretext of mela through Kaushilya sister of co-accused Dharamchand (accused-respondent No. 5) and immediately after seduction she was threatened with dire consequences with knife. 11. It was further contended by the Public Prosecutor that she was confined in a room and in such fear she was forced to sign some documents at Narnaul. 11. It was further contended by the Public Prosecutor that she was confined in a room and in such fear she was forced to sign some documents at Narnaul. In such circumstances, it cannot be held that prosecutrix was consenting party or that she executed the affidavit with her pre-consent.He has also contended that learned trial Court has not considered the provisions of Section 114-A of Evidence Act.He has also contended that the learned trial judge has acquitted the accused-respondents on January 28, 1989 mainly on the ground that the prosecutrix was not below the age of 18 years on the day of occurrence and that it was a case of simple elopement and not of kidnapping or abduction.Hence, the learned trial Court has committed a gross error in raising presumption from these letters (Ex. D3 to Ex. D6) that the prosecutrix was consenting party and was major at the time of occurrence. 12. On the other hand, the learned counsel for the accused- respondents has submitted (oral arguments as well as written arguments) that the impugned judgment and order passed by the learned Additional District and Sessions Judge No. 2, Alwar (Rajasthan) are based on the correct appreciation of evidence and after giving cogent reasons the learned Additional District and Sessions Judge No. 2, Alwar (Rajasthan) has acquitted the accused-respondents from the charges framed against them and thus, no interference is required with the impugned judgment and order of the Additional District and Sessions Judge No. 2, Alwar (Rajasthan). 13. The learned counsel Mr. V.S. Yadav has submitted that the trial Court made a detailed examination of the entire evidence on record as well as arguments made by both the sides and has decided the case vide its judgment dated January 28, 1989 with complete discussion. 14. He has also contended that the learned trial Court examined the case on various counts. Firstly, there a delay in filing the FIR. 14. He has also contended that the learned trial Court examined the case on various counts. Firstly, there a delay in filing the FIR. The prosecutrix was alleged to have been abducted in the intervening night of 22nd/23rd October, 1982 whereas the FIR was lodged on October 25, 1982 and the explanation given by the complainant side was that initially they were looking for her in the relations, at village Daugda and further due to the fear of blot of their social status, they lodged FIR upto 25.10.1982 but it is relevant to point out here that as per the prosecution case the complainant had come to know about the abduction of the prosecutrix prior to October 25, 1982 but did not choose to lodge the FIR and as such the delay in lodging the FIR is fatal for the prosecution case and further as per the criminal law, the delay in lodging FIR goes to show that false implication, concoction and improvements can always be made in the case which has been done in the instant case and, therefore, the delay in lodging FIR was fatal and the benefit ought to have been given to the accused which has already been given by the learned trial Court. 15. He has also contended that the complainant filed a criminal complaint against Om Prakash, Dharamchand and Kaushilya on 28.6.1983 i.e. after about 8 months of the incident and the delay in filing criminal complaint was explained by them stating that they could not know about the filing of the challan and when they came to know that the charge-sheet had not been filed against Om Prakash, Dharamchand and Kaushilya, they filed a criminal complaint whereas it is relevant to point out here that the complainant had engaged a lawyer on November 2, 1982 itself. Thus, the explanation given by the prosecution was rightly rejected by the learned trial Court and the benefit of delay in lodging the criminal complaint goes to the accused as false implication is not ruled out and more so, in the instant case when Om Prakash, Dharamchand and Kaushilya were not named by the prosecutrix ether in the FIR or in the statements recorded under Section 161 of Criminal Procedure Code by the police. 16. 16. He has also contended that in the instant case the case was registered under Sections 363, 366, 368, 376 and 379, Indian Penal Code but for the offence under Section 363 Indian Penal Code the basic requirement is that the prose- cutrix should be less than 18 years of age and then only the offence under Section 363 Indian Penal Code can be made out but in the instant case in the FIR Ex. P/1 the age of the prosecutrix was 13-14 years, in the criminal complaint Ex. P/3 14-15 years. PW-1 Sheo Ram father of prosecutrix stated her age 16-17 years. The PW-3 Johari complainant and uncle of the prosecutrix stated the age 14-15 years. The prosecutrix herself stated her age as 15-16 years. Thus, all the witnesses stated fifferent age in their version and as per her school progress report Ex. P/5 her date of birth was 12.1.1965 according to which on the date of the incident she was of 17 years and 9 months but this was not proved by evidence. Prosecutrix was further examined by doctor at Government Hospital, Awar on November 4, 1982 and on this examination, she was found to be of 19 years. Thus, from the entire evidence it was not proved beyond doubt that the prosecutrix was less than 18 years of age. Hence, the offence under Section 363 Indian Penal Code was not made out. 17. He has also stated that the charge of offence under Section 379 was only framed against the accused Gyani Ram but in the FIR, allegation was made against Gyani Ram and Dharamchand regarding taking out Rs. 2,500/-, one pair of Paijeb but in the statement under Section 164, Criminal Procedure Code she did not state that Gyani Ram had come to her house. Again in the statement recorded under Section 202 of Criminal Procedure Code she did not state anything against Gyani Ram and thus, no allegation was proved against Gyani Ram regarding theft. It is further pointed out that even the recovery of Paijeb, ring, Rs. 8,500/- was not proved by the prosecutrix by its evidence nor the articles were identified. Therefore, offence under Section 379 Indian Penal Code against Gyani Ram was not made out and the learned trial Court has rightly acquitted Gyani Ram for the offence under Section 379 Indian Penal Code for the lack of evidence. 18. 8,500/- was not proved by the prosecutrix by its evidence nor the articles were identified. Therefore, offence under Section 379 Indian Penal Code against Gyani Ram was not made out and the learned trial Court has rightly acquitted Gyani Ram for the offence under Section 379 Indian Penal Code for the lack of evidence. 18. He has also contended that for the offence under Section 366 Indian Penal Code the learned trial Court examined the entire evidence and the evidence led by the prosecution was full of contradictions as well as showed consent of the prosecutrix in going from her village to Narnaul and thereafter to Dadri and then Jeend and finally from Jeend to Moga Mandi. As per the FIR, there were two witnesses Raghuveer (PW-7) and Nanag Ram (PW-2) who was stated to have seen prosecutrix talked to Gyani Ram by both PW-7 Raghuveer and PW-2 Nanag Ram but the version given by these both witnesses does not inspire confidence and PW-2 has admitted that he was related to complainant being real brother and PW-7 Raghuveer also admitted that he was distantly related. PW-7 stated that they had seen prosecutrix talked to Gyani Ram but prosecutrix herself denied having talked to Gyani Ram and, therefore, wrong facts were incorporated in the FIR and criminal complaint was not proved by the statement of prosecutrix. 19. He has also contended that in the criminal complaint two witnesses were introduced namely Shri Ram (PW-12) and Surajbhan (PW-14) but the statements of both PW-12 Shri Ram and PW-14 Surajbhan were rightly not believed by the learned trial Court and he said that after coming back to his village on October 24, 1982, he had informed the complainant that he saw the accused in Narnaul where Dharamchand, Gyani Ram, two more and one lady were sitting in the car and while coming back to his village having known everything about the incident he informed the complainant on October 24, 1982 but such facts were not present in the FIR nor in the statement recorded. PW-12 Surajbhan stated that he saw one car near the well of accused Om Prakash wherein Om Prakash, Gyani, Dharamchand, Kaushilya and Sulochana were seen by him and thereafter he left for his sister's village and came back on 3rd day but on 3rd day also if he had informed the complainant about his having seen the car, the facts in FIR would have been different and, therefore, the testimony is liable to be rejected. He also admitted that there was no light on that night and he could not see properly in the dark. Thus, it was unbelievable that he could see the accused as well as prosecutrix. 20. He has also contended that PW-5 Saidi Lal and PW-6 Dhanpat were brothers of the prosecutrix and prosecutrix stated that she had told everything about the incident to them but even then the name of Om Prakash, Dharamchand and Mst. Kaushilya were absent in the statements recorded under Section 161 of Criminal Procedure Code and were for the first time introduced in the criminal complaint. The prosecutrix herself denied having given the statement given by her under Section 161 of Criminal Procedure Code in various parts which goes to show that improvements of false implication was made by the prosecutrix as well as complainant party as there was no overt act on Kaushilya and Dharamchand in the abduc- tion. The prosecutrix had gone to Narnaul on her own free will in the car as she was known to accused Gyani Ram as from the evidence available on record, it was proved beyond doubt that he also visit to their house. 21. He has also contended that the prosecutrix had also written many letters to Gyani Ram which were exhibited before the learned trial Court as Ex. D/3 to Ex D/9 which were written in the hand-writing of the prosecutrix and the same was proved by taking a sample of hand-writing of the prosecutrix by the Court on September 10, 1984. The defence also produced certain photographs Ex-D/13 to D/18 which were taken with the consent of prosecutrix Sulochna with Gyani Ram and lastly Ex. D/19 affidavit and F.x.D/20 agreement were also executed by free will and consent which does not prove the fact that the prosecutrix was induced or enticed by the accused in order to sell, sexually assault or force her to enter into a marriage etc. D/19 affidavit and F.x.D/20 agreement were also executed by free will and consent which does not prove the fact that the prosecutrix was induced or enticed by the accused in order to sell, sexually assault or force her to enter into a marriage etc. The consent of the prosecutrix is also proved by the fact that she had gone on her own free will from village Budhwal to Narnaul is proved by the evidence of PW-13 Hukam Chand who was driver of the car and did not make any pretest and on the way also they were talking happily and laughing also. 22. He has further contended that as per the prosecution evidence, the prosecutrix was stated to be at house of some advocate at Narnaul and subsequently the accused travelled from Courts also she did not raise any alarm if there was duress in the entire act. The prosecutrix also could have raised an alarm even while executing the affidavit as well as agreement before the advocate at Narnaul. 23. He has further contended that the consent is also proved by the evidence of PW-11 Madan Lal who was driver of car by which the accused and the prosecutrix travelled from Narnaul to Dadri. He has stated that the prosecutrix and accused sat in his car from Courts of Narnaul and travelled till Dadri Railway Station and on the way they were going happily and enjoying themselves. Thus, the prosecutrix sat in the car from Courts of Narnaul, she could raise an alarm. It is further pointed out that from Dadri, she travelled to Jeend by bus and from Jeend she travelled by train to Moga Mandi and in this manner there were sufficient opportunities to the prosecutrix to raise alarm but she did not raise alarm and it clearly shows her consent. The version of the prosecutrix is falsified by the statement of PW-11 Madan Lal who said that the accused and prosecutrix travelled from Narnaul to Dadri by his car whereas the prosecutrix said that she travelled by car from Narnaul to Moga Mandi itself. Hence, the ingredients of offence under Section 366 Indian Penal Code is not proved beyond doubt from the entire evidence and it was clearly a case of consent and the prosecutrix had with her own free will gone from her village. 24. Hence, the ingredients of offence under Section 366 Indian Penal Code is not proved beyond doubt from the entire evidence and it was clearly a case of consent and the prosecutrix had with her own free will gone from her village. 24. He has further contended that as per the evidence available on record, the prosecutrix was a major and while being in Moga Mandi with accused Gyani Ram, if at all any intercourse was done by accused Gyani Ram with her the same was done with her consent and offence under Section 376 Indian Penal Code is not made out against the accused Gyani Ram because the medical examination done of the prosecutrix was not proved by the prosecution before the learned trial Court nor any doctor had been examined. It is further pointed out that undergarments as well as salwar suit were sent to Jaipur and in the FSL also there was no semen. 25. Lastly it is contended by the learned counsel for the accused- respondents that the offence under Section 376 Indian Penal Code could not be made out by the prosecution evidence and if at all any intercourse was done then the same was with the consent on the basis of photographs, letters written by the prosecutrix, affidavit and agreement executed by her as well as on the basis of the statement of other prosecution witnesses. The accused Gyani Ram was, therefore, rightly acquitted for the offence under Section 376 Indian Penal Code as the offence under Section 376 Indian Penal Code was not proved beyond doubt and thus, in the above stated manner, all the accused-respondents were rightly acquitted for various offences as narrated above and the judgment of the learned trial Court needs to be upheld by this Hon'ble Court on the basis of the evidence available on record as well as judgment rendered by the learned trial Court.The learned counsel has relied upon the following citations : (1) 1995 Cri LJ 3974 (SC), Shyam and another v. State of Maharashtra accordingly : "3. In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant on her own and in that sense there was no 'taking' out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366 Indian Penal Code would thus fail. Accordingly, the appellants deserve acquittal. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances, appears to us established. The charge against the appellants/accused under Section 366 Indian Penal Code would thus fail. Accordingly, the appellants deserve acquittal. The appeal is, therefore, allowed acquitting the appellants." (2) 95 RCC Page 528, Madan Lal v. State of Rajasthan accordingly "(B) Criminal Trial Benefit of doubt Where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt." 26. I have heard learned Public Prosecutor as well as the learned counsel for the accused-respondents and also gone through the record of the case. 27. Having gone through the impugned judgment and order dated January 28, 1989 passed by the learned Additional District and Sessions Judge No. 2, Alwar (Rajasthan), I find that the learned trial Court has given cogent reasons for not finding the case of the prosecution proved against accused-respondents. 28. The Court's attention was drawn on the following judgment of the Hon'ble Supreme Court : 29. Umrao v. State of Haryana and others, (2006) 10 SCC 136 , in which their Lordships of the Supreme Court has observed in para 26 that "it is now well settled that if two views are possible, the appellate Court should not interfere with the judgment of acquittal passed by the Court below". 30. Looking to the evidence just discussed above, it can easily be said that the prosecution has not been able to prove its case beyond all reasonable doubts against the accused-respondents for the offence for which he has been charged and the Additional District and Sessions Judge No. 2, Alwar (Rajasthan) was right in acquitting the accused- respondents. I have no reason to dissent from the finding of acquittal recorded by the Additional District and Sessions Judge No. 2, Alwar (Rajasthan) as they appear to be reasonable and plausible in the facts and circumstances of the case. The Additional District and Sessions Judge No. 2, Alwar (Rajasthan) has given cogent reasons in acquitting the accused-respondents. 31. I have no reason to dissent from the finding of acquittal recorded by the Additional District and Sessions Judge No. 2, Alwar (Rajasthan) as they appear to be reasonable and plausible in the facts and circumstances of the case. The Additional District and Sessions Judge No. 2, Alwar (Rajasthan) has given cogent reasons in acquitting the accused-respondents. 31. It may be stated that in appeal against acquittal though powers of the High Court to reassess the evidence and to reach its own conclusions are as extensive as in an appeal against an order of conviction, yet as a rule of prudence, it should always give proper weight and consideration to the views of the trial Judge as to the credibility of the witnesses; the presumption of innocence in favour of the accused, right of the accused to the benefit of any doubt and thus, High Court should not ordinarily disturb the order of acquittal. Therefore, this Court does not want to interfere with the impugned judgment and order of acquittal passed by the learned Additional District and Sessions Judge No. 2, Alwar (Rajasthan) and this appeal is liable to be dismissed. 31. Accordingly, this appeal filed by the State of Rajasthan fails and the same is hereby dismissed, after confirming the judgment and order of acquittal dated January 28, 1989 passed by the learned Additional District and Sessions Judge No. 2, Alwar (Rajasthan). The accused-respondents are on bail and they need not to surrender. Their bail bonds stand discharged.Appeal dismissed. *******