Judgment A.N.Jindal, J. 1. This appeal is directed against the judgment dated 17.08.1998, passed by additional Sessions Judge, Ludhiana, convicting the accused under Section 366/376 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for four years and to pay a fine of Rs.500/- each under Section 366 of Indian Penal Code and to undergo rigorous imprisonment for 7 years and to pay a fined of Rs.1,000/- each under Sec.376 of Indian Penal Code. 2. Brief facts as culled out from the record are that on 19.05.1995 at about 11:00 A. M when Nichan Singh ASI of Police Station Dehlon, alongwith other police officials was present in jarhtauli Chowk of village Kila Raipur. Gurdeep Singh complainant (herein referred as complainant) made a statement that her daughter aged about 17 1/2 years was a student of Gobind National College, Narangwal. She used to go to preet Kamal Kaur for tution. On 15.05.1995 at about 7:00 A. M his daughter (herein referred as the prosecutrix) had gone to appear in the examination in the college at Narangwal but did not return. Despite the long search, no clue could be traced. He further disclosed that she had not appeared in the examination on that day. On 19.05.1995, in the morning, Gurjit Singh son of Inder Singh had informed him that the prosecutrix was taken by the accused and his wife, as on 15.05.1995 at about 8:00 A. M, when he was going to the house of his maternal grand father at village Dhamot on scooter and had stopped in Mehma Singhwala Chowk in the area of village Narangwal, then he had seen the accused his wife and their two years old child standing near the three wheeler. In the meantime prosecutrix had also come from the side of the college, the accused and his wife had caught hold of prosecutrix and made her to sit in the three wheeler saying that they would be coming soon. Thereafter, these accused along with prosecutrix went towards Dehlon in that three wheeler. He also followed them on scooter. Thereafter, Gurjit Singh had gone to his maternal grand father, however, it also came to light that prosecutrix had taken Rs.50,000/- with her. Gurdeep Singh further told that her daughter was kidnapped by the accused paramjit Singh and his wife in order to marry her. On the aforesaid statement ex. He also followed them on scooter. Thereafter, Gurjit Singh had gone to his maternal grand father, however, it also came to light that prosecutrix had taken Rs.50,000/- with her. Gurdeep Singh further told that her daughter was kidnapped by the accused paramjit Singh and his wife in order to marry her. On the aforesaid statement ex. PC made by Gurdeep Singh, endorsement Ex. PC/1 was made on the basis of which fir Ex. PC/2 was recorded in the Police Station. Thereafter, the investigating officer Nichan Singh commenced his investigation, went to Mehma Singhwala chowk, prepare the site plan Ex. PR and recorded the statement of witnesses. He went to Gobind National College Narangwal and recovered the bicycle of prosecutrix from the bus stand of the college. . They arrested the accused, got recovered prosecutrix from their possession, got her medically examined and on completion of investigation, the challan was presented in Court. 3. Finding a prima facie case against them. They were charged under sections 363, 366 and 376 of the Indian Penal Code to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined 11 witnesses. Doctor J. K. Sidhu PW-1, had medically examined the prosecutrix on 17.10.1995 and observed that her hymen was torn and healed, vagina admitted two fingers. Uterus was normal in size. Three swabs were taken from vagina and vaginal and were sent for chemical examination. She had also proved the medical legal report Ex. P-A and on receipt of the report Ex. PB of the Chemical examiner PW-1 opined that semen was there on the vaginal swabs. PW-2 Gurdeep Singh is the father of the complainant. He reiterated the entire prosecution version by adding that she went for examination on 15.05.1995 and was recovered on 16.10.1995. Gurjit Singh PW-3, has reiterated that on 19.05.1995, he had informed Gurdeep Singh that he saw Paramjit Singh and Surinder kaur (prosecutrix) with Preet Kamal Kaur in the three wheeler. PW-4 Karamjit singh testified that on 18.10.1995, he was posted as Pharmacist in Mini primary Health Centre Dehlon. On that day Paramjit Singh was brought to him and he had referred him to Civil Hospital, Ludhiana, for medical examination. 4. Pw-5 the prosecutrix while reiterating her statement disclosed that she was studying in Gobind National College Narangwal. PW-4 Karamjit singh testified that on 18.10.1995, he was posted as Pharmacist in Mini primary Health Centre Dehlon. On that day Paramjit Singh was brought to him and he had referred him to Civil Hospital, Ludhiana, for medical examination. 4. Pw-5 the prosecutrix while reiterating her statement disclosed that she was studying in Gobind National College Narangwal. Preet Kamal Kaur accused also joined as part time lecturer in the College at Karamsar Rarewala. She used to go for tution with her in the evening. Sometimes the accused Paramjit Singh used to tutor her. On 5/6.6.1995 she went to the house of the accused for tution, at that time, Paramjit Singh was alone in the house who raped her forcibly and threatened her that in case she disclosed the incident to any person she would be killed. When, she disclosed about the incident to Preet kamal Kaur, She remonstrated Paramjit Singh at this the latter even threatened to eliminate her in case she stood in his way. He further threatened to take her away forcibly in case she discontinued tution. On that account he continued raping her on 8.5.1995 and 13.5.1995 when she went for tution. He wanted to marry her and displayed this intention before her father and also threatened him that in case she did not agree he would marry her forcibly. The prosecutrix further testified that on 15.5.1995, after parking her bicycle at the cycle stand of the college, when she was going to attend the class, the accused Preet Kamal Kaur met her and brought her to Bus Stand Narangwal where paramjit Singh alongwith two years old son was present. The accused persons then brought her forcibly to Ludhiana in the said three wheeler, thereafter, she was taken to Delhi, Agra then to Goa. Paramjit Singh committed rape upon her at Agra. They also stayed at Goa for about three months in a rented room where she was raped by the accused in the presence of Preet Kamal Kaur. From goa, she was brought to Kulu and then to Manikaran Gurdwara Sahib where she was kept for 10/15 days. Thereafter, she was brought to Ludhiana on 16.10.1995. 5. Pw-6 Satish Kumar draftsman, proved the site plan Ex. P1, PW-7 dr. U. S. Sood, medically examined Paramjit Singh and opined that there was nothing to suggest that the accused was unfit to perform sexual intercourse. 6. Thereafter, she was brought to Ludhiana on 16.10.1995. 5. Pw-6 Satish Kumar draftsman, proved the site plan Ex. P1, PW-7 dr. U. S. Sood, medically examined Paramjit Singh and opined that there was nothing to suggest that the accused was unfit to perform sexual intercourse. 6. Pw-8 Mukhtiar Singh, Principal of Gobind National College, narangwal, testified that prosecuteix did not appear in the examination on 15.05.1995 and her bicycle was found parked in the cycle stand of the college. 7. Pw-9 Jagjit Singh, the Secretary of Punjab School Education Board, mohali, testified from the record that the date of birth of the prosecutrix was 4.09.1977. PW-10 Swinder Singh si and PW-11 Nichan Singh ASI are the investigating officers of the case. 8. In their statements under Sec.313 of the Code of Criminal procedure, the accused denied all the incriminating circumstances, appearing against them and further explained that Paramjit Singh, Preet Kamal Kaur and their co-accused Puran Singh had a dispute with the grand father of the prosecutrix. Civil litigation is pending. Grand father of the prosecutrix had sold a plot to someone else which he had earlier agreed to sell to them. Puran singh was also having enmity with Manmohan Singh Sarpanch at whose instance this case was planted. They denied if prosecutrix was kidnapped and raped by him with the aid of Preet Kamal Kaur. They also denied if he wanted to marry the prosecutrix. Puran Singh accused also took the similar plea. In defence, the accused examined four witnesses. Hardial Singh DW-1, Ahlmad of the Court of shri J. S. Klar, testified from the record that Civil suit No.36 dated 3.2.98 titled as Kewal Krishan Vs. Gurdial Singh was pending in the Court. Kewal krishan alias Kamaljit Singh had filed suit for possession and injunction against Gurdial Singh and Jagdev Singh on the basis of the agreement dated 2.4.95 allegedly executed by Gurdial Singh in favour of Kewal Krishan for sale of plot and that the Court had directed the parties to maintain status-quo regarding the alienation of the said plot. Bhajan Singh DW-2, had confirmed about the dispute of Puran Singh accused with Gurdial Singh, regarding the plot and that Gurdip Singh complainant is the son of Gurdial Singh. He also disclosed that Puran Singh had moved an application against Manmohan Singh Sarpanch. Enquiries in connection with those applications were still pending. Bhajan Singh DW-2, had confirmed about the dispute of Puran Singh accused with Gurdial Singh, regarding the plot and that Gurdip Singh complainant is the son of Gurdial Singh. He also disclosed that Puran Singh had moved an application against Manmohan Singh Sarpanch. Enquiries in connection with those applications were still pending. Ashwani Kumar DW-3, is the senior clerk of the office of District Development and Panchayat Officer, Ludhiana. He proved the complaint moved by Puran Singh against Manmohan Singh Sarpanch of the village. He further disclosed that during inquiry Manmohan Singh was found to have mis-appropriated Panchayat funds to the tune of Rs.63,193/-. 9. Ultimately, the trial ended in conviction. 10. Counsel for the appellant has vehemently contended that though the prosecutrix was allegedly kidnapped on 15.05.1995 yet the complainant remained silent for four days and lodged the FIR, on 19.05.1995, as such the said delay remains unexplained. 11. On scrutiny of the evidence, it transpires that the complainant knew about the intention of the accused from the very beginning, but he remained silent for four days. On 15.05.1995, prosecutrix was to appear in the examination in Gobind National College, Narangwal, as such she had left the house on 15.05.1995, but she did not appear in the examination, her cycle was found parked in the college which was later on recovered at the instance of the principal of the college. Thereafter, she accompanied by Preet Kamal Kaur, joined the accused at the bus stand where the alleged kidnapping is stated to have taken place. The presence of the bicycle at the cycle stand and her non appearance in the examination go a long way to prove that she after parking the bicycle and leaving the examination, went to the accused with her own consent. The prosecutrix has stated that she was raped earlier also before joining in the company of the accused on 15.05.1995. The act of non disclosure of act of rape to her family members also proves her consent. 12. The age of the prosecutrix in this case is also a deciding factor. Her date of birth as per PW-9 Jagjit Singh, Secretary, Punjab School Education board, Mohali was 4.09.1977. The incident took place on 15.05.1995. This positively shows that she was more than 16 years old at the time of occurrence. She remained in the company of the accused for more than five months. Her date of birth as per PW-9 Jagjit Singh, Secretary, Punjab School Education board, Mohali was 4.09.1977. The incident took place on 15.05.1995. This positively shows that she was more than 16 years old at the time of occurrence. She remained in the company of the accused for more than five months. She did not try to intimate her parents about her kidnapping. 13. The story that Gurjeet Singh informed her father also appears to be concocted one. Had he seen the accused manhandling prosecutrix, then he would not have wasted any time in informing the complainant. His silence on this aspect goes a long way to prove that he is introduced witness and was not actually present at the time of occurrence. No evidence has been led in order to establish that she was forcibly taken in the three wheeler rather it stands established that she had come to the three wheeler on her own in which she was taken. The driver of three wheeler was not examined. 14. The story with regard to aspiration of the accused for his marriage with the prosecutrix also appears to be false as admittedly, the accused was already married and having two year old child, therefore, he would not marry the prosecutrix and is most probable that wife of the accused would not allow the accused to do such act rather an absurd story has been set that the accused raped the prosecutrix in the presence of her wife and she wanted that the accused should marry her. According to the prosecution, she was taken to delhi, Agra and then to Goa. They stayed for three months at Goa in rented premises and from Goa she was brought to Kulu and then to Manikaran Gurdwara sahib where she was kept for 10 to 15 days. Thereafter, she was taken to ludhiana, on 16.10.1995. Surprisingly, during her stay at different places and while coming in contact with the people who met her during the journey, she did not raise any hue and cry before them or informed, inmates of the premises where she stayed. She did not inform the passengers of the vehicles about her focible custody. As such necessary inference would be drawn that she was a consenting party. 15. Puran Singh has already been acquitted, in the case. She did not inform the passengers of the vehicles about her focible custody. As such necessary inference would be drawn that she was a consenting party. 15. Puran Singh has already been acquitted, in the case. For the aforesaid reasons and circumstances prevailing over the case, the conviction recorded against the accused seems to be ill founded. The trial court has not taken stock of the aforesaid material evidence while taking the view against the accused, as such the interference in the impugned judgment is called for. 16. Resultantly, this appeal is accepted, the impugned judgment is set aside and the appellants are acquitted of the charges framed against them and they are directed to be set at liberty. The fine, if deposited, may be refunded.