JUDGMENT This appeal, preferred by the appellant u/s 374(2) of The Coe of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 18.01.1993 passed by III Addl. Sessions Judge, Dehradun in S.T. No. 92 of 1990, State Vs. Rajendra Kumar alias Raju & another, whereby the learned III Addl. Sessions Judge has convicted the appellant/accused under Sections 363/376 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). Appellant/accused was sentenced to one year’s rigorous imprisonment u/s 363 IPC. He was further sentenced to seven years’ R.I. u/s 376 IPC. Both the sentences were directed to run concurrently. Co-accused Ashok was acquitted by the trial court for the offences under which he was charged. 2. I have heard learned counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that P.W.7 Ratan Singh lodged an FIR with the averments that his sister Km. Hemlata (P.W.2) had gone on 11.2.1988 at Dehradun to give High School Music Practical Examination. At Dehradun, she stayed with her two friends Km. Manju (P.W.4) and Km. Punita Rawat (P.W.3) at Anarwala. On 16.2.1988, the complainant went to take Km. Hemlata, Km. Manju and Km. Punita Rawat and while coming back to Vikasnagar, Km. Manju sat in the scooter of Kushal Rana, Km. Punita sat with the complainant and Km. Hemlata sat with the appellant/accused Raju in Scooter No. UTL 9403 at about 11:00 A.M. Appellant/accused Raju was already known to Km. Hemlata. The complainant asked his sister Km. Hemlata to sit on his scooter but she did not choose to do so. The complainant was under the impression that his sister Km. Hemlata would meet him in the bus stand however neither she reached there nor she reached at her house. Then the complainant enquired Shyam Sunder Gurung and Ashok Gurung, father and brother of appellant/accused respectively at village Anarwala but he could not get any success. The complainant further stated that he has a suspicion that Km. Hemlata has been kidnapped by the appellant/accused and his father and brother. With the same averments, the FIR was lodged on 18.2.1988 at 2:00 A.M. at P.S. Cantt., Distt. Dehradun by P.W.7 Ratan Singh, i.e. Ex.Ka-6. On the basis of that FIR, H.C. Bharosey Lal Chandola (P.W.6) prepared the Chik FIR, i.e. Ex.Ka-4. Hemlata has been kidnapped by the appellant/accused and his father and brother. With the same averments, the FIR was lodged on 18.2.1988 at 2:00 A.M. at P.S. Cantt., Distt. Dehradun by P.W.7 Ratan Singh, i.e. Ex.Ka-6. On the basis of that FIR, H.C. Bharosey Lal Chandola (P.W.6) prepared the Chik FIR, i.e. Ex.Ka-4. The necessary entry was also made by him in the G.D., the carbon copy of which is Ex.Ka-5. The investigation of this case was entrusted to P.W.9 S.I. R.S. Sirohi. Victim Km. Hemlata was recovered on 26.2.1988 at 9:30 A.M. by the police and the recovery memo Ex.Ka-8 was prepared. After that the victim was medically been examined by P.W.1 Dr. Renu Sahgal on 26.2.1988 at 1:30 P.M. and medical report waas prepared i.e. Ex.Ka-1. Supplementary medical report was also prepared i.e. Ex.Ka-2. The victim was given in the Supurdgi of her uncle Sri Rajeev Lochan and her mother Smt. Sampati Devi and Supurdginama was prepared, i.e. Ex.Ka-11. The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. He also prepared the site plan from where the victim was recovered, i.e. Ex.Ka.12. During the course of investigation, the I.O. recorded the statements of witnesses and after completing the investigation, he filed the charge sheet against the appellant/accused and co-accused Ashok (acquitted by the trial court) u/s 363/376 IPC, i.e. Ex.Ka-14. 4. Learned Additional Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions on 11.09.1990 after giving necessary copies to the accused persons as provided under Section 207 Cr.P.C. 5. The case was transferred to III Addl. Sessions Judge, Dehradun by Sessions Judge for disposal according to law. 6. On 14.2.1991, learned III Addl. Sessions Judge, Dehradun framed the charges against the appellant/accused and also against co-accused Ashok (acquitted by trial court) under Sections 363/376 IPC. The charges were read over and explained to the appellant/accused and also to co-accused, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Dr. Renu Sehgal, who medically examined the victim; P.W.2 Km. Hemlata, victim of the case; P.W.3 Km. Punita Rawat; P.W.4 Km. The charges were read over and explained to the appellant/accused and also to co-accused, who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Dr. Renu Sehgal, who medically examined the victim; P.W.2 Km. Hemlata, victim of the case; P.W.3 Km. Punita Rawat; P.W.4 Km. Manju; P.W.5 Smt. Padma, Principal H.S.B.M. Jain Girls College, Vikasnagar; P.W.6 H.C. Bharosey Lal Chandola, who prepared Chik FIR and made entry in the G.D.; P.W.7, Ratan Singh, complainant and brother of victim; P.W.8 Rajeev Lochan, uncle of the victim and in whose custody the victim was given and P.W.9 S.I. R.S. Sirohi, I.O. of the case. 8. Thereafter, the statements of the appellant/accused and that of co-accused Ashok Kumar (acquitted by trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. However, they did not produce any oral or documentary evidence in defence. 9. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned III Addl. Sessions Judge, Dehradun vide judgment and order dated 18.01.1993 has convicted and sentenced the appellant/accused as mentioned above. Feeling aggrieved by the aforesaid judgment and order, the present appeal has been preferred. 10. Before further discussion, it is pertinent to mention that victim Km. Hemlata was medically been examined on 26.02.1988 at 1:30 P.M. by P.W.1 Dr. Renu Sehgal and her medical report was also prepared i.e. Ex.Ka.1. The medical officer on the person of victim found as under :- “Axillary/Pubic hairs developed, breast developed. Internal Examination – Hymen torn, old tears present. Vagina admits two fingers easily. Advised – Vaginal smear sent for histopathological examination. X-ray wrist and elbow joint. Supplementary report will be given after above findings. After the receipt of x-ray report, Dr. Renu Sehgal prepared supplementary report of victim on 7.3.1988, i.e. Ex.Ka-2, which is as below :- X-ray report- All the Epiphysis and elbow wrist joints are fused with their respective shafts. All the carpal bones are present. Vaginal smear is negative for sperms Conclusion – 1. No definite opinion about rape can be given. 2. Age is above 18 years. 11. To prove the aforesaid medical reports, the prosecution has examined P.W.1 Dr. All the carpal bones are present. Vaginal smear is negative for sperms Conclusion – 1. No definite opinion about rape can be given. 2. Age is above 18 years. 11. To prove the aforesaid medical reports, the prosecution has examined P.W.1 Dr. Renu Sehgal who has stated that on 26.2.1988, she was posted as Medical Officer at Doon Hospital, Dehradun. She proved the medical report Ex.Ka-1 prepared by her. On 7.3.1988, she prepared the supplementary report, i.e. Ex.Ka-2. She has stated in her evidence that no definite opinion about the rape can be given. The age of victim Km. Hemlata was above 18 years. In her cross-examination, she stated that all the Epiphysis were fused, hence on the basis of this, the age of the girl is more than 18 years. She further stated that the girl is used to sexual intercourse. 12. Further to prove its case the prosecution has examined P.W.2 Km. Hemlata, victim of the case, who has stated that in February, 1988 she was studying in Class X at Sri Hoshiyar Singh Jain Balika Inter College, Vikasnagar and she had come at Guru Ram Rai Balika Inter College, Dehradun to give High School Music Practical Examination. She had come along with other girls and her Music Teacher Kusum Nagar. The music practical examination was to be held on 11.2.1988 and on that day, the exam was finished at 1:00 P.M. She took permission from her teacher Kusum Nagar to go at her uncle’s residence at Khurbura Mohalla. Km. Manju Gosain had taken permission to go at her sister’s residence and Km. Punita had taken permission to go at her aunt’s house from their teacher. All the three girls along with teacher and other girls then went at Vikasnagar Bus Stand from where she along with Km. Manju and Km. Punita went to Khurbura Mohalla by Tempo. Since she could not find the house of her uncle, hence they went in the house of sister of Km. Manju Gosain at Anarwala and stayed there. On 12.2.1988, all three of them went at the workshop of brother in law of Km. Manju where in the canteen, Ashok (co-accused acquitted by trial court) met them who was known to Km. Manju. On that day, they came back at the sister’s house of Km. Manju. On 13.2.1988 they were going at the aunt’s house of Km. On 12.2.1988, all three of them went at the workshop of brother in law of Km. Manju where in the canteen, Ashok (co-accused acquitted by trial court) met them who was known to Km. Manju. On that day, they came back at the sister’s house of Km. Manju. On 13.2.1988 they were going at the aunt’s house of Km. Punita where on the way Ashok and one another person met them. Ashok asked Km. Manju to go for a walk. When she refused Km. Manju for the same then Km. Manju asked Ashok to go for walk on the next day. On that day, they stayed at the aunt’s house of Km. Punita. On 14.2.1988, they came at Vikram stand. There Ashok and one another boy Kushal met them. Ashok asked them to go for a walk but she refused for the same. However, Km. Manju and Km. Punita insisted her to go for walk. Then she also agreed to go on the persuasion of her friends. On the same day i.e. on 14.2.1988 they went to Rishikesh and in the evening, they came back and they went in the sister’s house of Km. Manju at Anarwala. On 15.2.1988, they went to Deer Park along with sister of Km. Manju and they came back in the evening in the house of sister of Km. Manju. On 16.2.1988, Ratan (brother of Km. Manju) had come in the house of his sister Veena at Anarwala and asked her to go back to Vikasnagar because the practical examination was due. Then she along with Manju came at Anarwala Bus Stand on foot. In the bus stand, Raju (appellant/accused), Kushal and Ashok (acquitted by trial court) met them. Km. Punita came at the bus stand along with Ratan on his scooter. In the bus stand, appellant/accused Raju was having a scooter and Kushal was having a motorcycle. Then Km. Punita sat on the scooter of Ratan and Km. Manju sat in the motorcycle of Kushal. Km. Manju insisted her to sit on the scooter of appellant/accused Raju. Then she sat on the scooter of appellant/accused Raju and started moving towards bus stand of Vikasnagar. Thereafter appellant/accused Raju had taken her to a room in a lonely place where he committed rape with her. She stayed in that room along with appellant/accused for two days. Km. Manju insisted her to sit on the scooter of appellant/accused Raju. Then she sat on the scooter of appellant/accused Raju and started moving towards bus stand of Vikasnagar. Thereafter appellant/accused Raju had taken her to a room in a lonely place where he committed rape with her. She stayed in that room along with appellant/accused for two days. After that appellant/accused took her in a Maruti Van to Delhi where he kept her in a hotel for two days and there also he committed rape with her. Then on 24.2.1988 appellant/accused Raju took her back at Dehradun and when appellant/accused was taking her to some another place, then police caught hold her, however the appellant/accused could manage to run away. She further stated that after two days of reaching Dehradun from Delhi, she was caught hold by the police and she was also medically been examined. In cross-examination in para 28 she stated that she sat on the scooter at about 10-11 A.M. in the day and what time she reached in the room along with appellant/accused Raju, she could not remember. She further stated that she could not say how much time she walked along with appellant/accused Raju on a scooter. She further stated that on the way to the canteen from the room, shops and houses were situated. She further stated that on the way towards canteen there is a military area where the military police is deployed. In para 32 she stated that she stayed in Delhi for 5-6 days. In para 33 she stated that from Delhi to Dehradun she came along with appellant/accused Raju in a bus and from Delhi Hotel to Bus Stand, she came on a Vikram and the Vikram took about half an hour from Hotel to Bus Stand. She further stated that in the bus in which she travelled from Delhi to Dehradun along with appellant/accused Raju, number of persons were traveling. 13. P.W.3 is Km. Punita Rawat who has not supported the prosecution case and was declared hostile. 14. P.W.4 is Km. Manju who has also not supported the prosecution case and was declared hostile. 15. P.W.5 is Smt. Padma Goyal, who is a formal witness of the case and has proved the certificate of date of birth of victim Km. Hemlata. 16. Punita Rawat who has not supported the prosecution case and was declared hostile. 14. P.W.4 is Km. Manju who has also not supported the prosecution case and was declared hostile. 15. P.W.5 is Smt. Padma Goyal, who is a formal witness of the case and has proved the certificate of date of birth of victim Km. Hemlata. 16. P.W.6 is H.C. Bharosey Lal Chandola who has stated tht on the basis of report submitted by Ratan Singh Gosain on 18.2.1988, he prepared the Chik FIR, i.e. Ex.Ka-4. The necessary entry was also made by him in the G.D., the copy of which is Ex.Ka-5. 17. P.W.7 is Ratan Singh, who is the complainant and brother of the victim, has also not supported the prosecution case and was declared hostile. 18. P.W.8 is Rajeev Lochan who has stated that the victim Km. Hemlata is his niece. On 16.2.1988 Ratan Singh came to his house and informed him that Km. Hemlata had gone for giving the examination along with two other girls. The other two girls came back to Vikasnagar but Km. Hemlata did not come back. Then he along with Ratan Singh had gone in the house of Veena at Anarwala but the victim was not found there. Then he went back to Vikasnagar but there also the victim was not there. Afterwards on the dictation of Ratan Singh, he wrote the report i.e. Ex.Ka-6. After that Ratan Singh signed on that report and he also signed as a scriber of this report. Then they have gone to the police station and lodged the report in the night of 18.2.1988 at about 1:30 to 2:00 A.M. 19. P.W.9 is S.I. R.S. Sirohi, I.O. of the case, who has stated that on 18.2.1988 he was posted as S.I. at P.S. Cantt., Dehradun. The investigation of this case was entrusted to him. During the course of investigation he inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-7. On 26.2.1988 at 9:30 A.M., the victim was recovered from Ballupur Chauraha, Dehradun and the appellant/accused ran away from there. Fard in this respect was prepared, i.e. Ex.Ka-8. When he came back in the police station along with the victim, the entry was also made in the G.D., the copy of which is Ex.Ka-10. The victim was also medically been examined by the medical officer. Fard in this respect was prepared, i.e. Ex.Ka-8. When he came back in the police station along with the victim, the entry was also made in the G.D., the copy of which is Ex.Ka-10. The victim was also medically been examined by the medical officer. Statement of victim u/s 164 Cr.P.C. was also recorded. After that the victim was given in the Supurdgi of her mother Smt. Sampati Devi and uncle. Supurdginama was also prepared i.e. Ex.Ka-11. He also prepared the site plan of the place of recovery of the victim, i.e. Ex.Ka-12. After completing the investigation he filed the charge sheet, i.e. Ex.Ka-14. 20. Thereafter, the statements of the appellant/accused and that of co-accused Ashok Kumar (acquitted by trial court) were recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to each of them in question form, who denied the allegations made against each of them. However, they did not produce any oral or documentary evidence in defence. 21. Sri Lokendra Dobhal, learned counsel for the appellant/accused argued that the prosecution has failed to prove its case against the appellant/accused u/s 363/376 IPC beyond reasonable doubt. He further argued that the victim was major on the date of incident and he had gone with the appellant/accused as per her own wish. I find substance in the arguments advanced by counsel for the appellant/accused for the following reasons :- A. That as per the medical supplementary report Ex.Ka-2, the age of the victim is above 18 years and no definite opinion about the rape has been given. P.W.1 Dr. Renu Sehgal has also deposed that the victim was habitual to sexual intercourse and from the above said facts, it is established that the victim was major on the date of incident as she was more than 18 years of age. Even the Vaginal Smear Report is negative for sperms and for this reason, the medical officer has stated that no definite opinion about rape can be given. B. The complainant P.W.7 Ratan Singh, brother of the victim and P.W.3 Km. Punita Rawat and P.W.4 Km. Manju, who are said to be the eyewitnesses of the case, have not supported the prosecution case and were declared hostile. C. From the statement of P.W.2 Km. B. The complainant P.W.7 Ratan Singh, brother of the victim and P.W.3 Km. Punita Rawat and P.W.4 Km. Manju, who are said to be the eyewitnesses of the case, have not supported the prosecution case and were declared hostile. C. From the statement of P.W.2 Km. Hemlata, she herself has stated that on 11.2.1988 she had gone from Vikasnagar to Dehradun for giving the practical music examination and she went along with P.W.3 Km. Punita Rawat and P.W.4 Km. Manju. On 14.2.1988, she along those two girls and boys Ashok (acquitted by trial court) and Kushal had gone to Rishikesh and in the evening they came back. Thereafter, on 16.2.1988, she sat on the scooter of appellant/accused Raju and stayed with the appellant/accused in a room. She stayed in that room along with appellant/accused for two days. After that appellant/accused took her in a Maruti Van to Delhi where he kept her in a hotel for six days. After that she came back from Delhi to Dehradun by bus along with appellant/accused Raju and also stayed for two days in some village. Thereafter, she was recovered by the police at Ballupur Chowk, Dehradun by the police. Later on the appellant/accused was also sent to jail. The victim Km. Hemlata had gone from Dehradun to a room where she stayed along with appellant/accused for two days. From that room she went along with appellant/accused to Delhi in a Maruti Van and even there also she stayed with him for six days in a hotel. Further, from Delhi Hotel to Bus Stand, she came on a Vikram and the Vikram took about half an hour from Hotel to bus Stand. Thereafter, in the bus in which she travelled from Delhi to Dehradun along with appellant/accused Raju, number of persons were travelling. In this way, the victim Km. Hemlata has traveled about 500 kilometers on Maruti Van, Bus and Vikram along with appellant/accused and passed through number of places of thickly populated area and even she also stayed in a hotel where number of people were staying in other rooms, however she did not complain to anyone about the behavior of the appellant/accused. This conduct of the victim shows that she was a consented party and she had gone with the appellant/accused with her own consent and whatever the incident had happened, that was happened with the consent of both the parties. This conduct of the victim shows that she was a consented party and she had gone with the appellant/accused with her own consent and whatever the incident had happened, that was happened with the consent of both the parties. Even as per the medical report, she was major on the date of incident as she was above 18 years of age. Therefore, the evidence of P.W.2 Km. Hemlata that the appellant/accused committed rape with her against her wish forcibly does not inspire confidence and the statement of the victim up to this extent on the basis of the aforesaid discussed evidence is not reliable and natural. 22. For the reasons as recorded above, the appellant/accused is entitled to be acquitted by giving benefit of doubt. Therefore, in view of the foregoing facts and circumstances of the case, the conviction and sentence as awarded by the trial court against the appellant/accused is not correct and justified and I do not concur the view taken by the trial court in convicting and sentencing the appellant/accused as discussed above. 23. In view of the above-said discussion, the appeal preferred by appellant/accused is allowed. The judgment and order dated 18.01.1993 passed by III Addl. Sessions Judge, Dehradun in S.T. No. 92/1990, State Vs. Rajendra Kumar @ Raju & another, is hereby set aside. The conviction and sentence as awarded against the appellant/accused, as discussed above, is also hereby set aside. Appellant/accused is on bail. He needs not surrender unless required in any other case. His bail bonds are cancelled and sureties are discharged.