JUDGMENT 1. - This revision petition has been filed against the judgment dated 25.9.2011 whereby, the accused-respondents Nos. 1 to 3 were acquitted of the charges under Sections 366, 376/511, 120-B and 384 I.P.C. 2. An F.I.R. was registered with the SHO, P.S., Sumangarh that on 19.3.2003, Kamla, sister of respondent No. 1 Ashok Kumar came to the house of prosecutrix Manoj and asked her to come with her in market but she refused. At about 1.30 PM, the mother of respondent No. 1 Ashok call prosecutrix Manoj that she should go to the market with Kamla. At that point of time, present accused-respondents Nos. 1 to 3 came there and Kamla asked Manoj to go with them and stated that she will reach in a short- while. Instead of going to market, all the three accused persons took Manoj to Jaipur and Ashok threatened her to kill. She was compelled to sign four blank papers. Thereafter, Manoj was taken to Shimla and Manali. They also went to Gauhati. 3. After registration of the F.I.R., prosecutrix Manoj was recovered at Delhi Railway Station and after investigation, charge-sheet was filed against the present accused -respondent Nos. 1 to 3. Charges were framed against them for the offences under Sections 366, 376/511, 120-B and 384 I.P.C. The prosecution examined as many as 16 witnesses. Statements of the accused -respondents were recorded under Section 313 Cr.P.C. and in defence four witnesses were produced. After trial, the accused -respondents . have been acquitted of the offence. Hence, this revision petition. 4. Heard learned counsel for the petitioner and the leaned Public Prosecutor. 5. The main contention of the present petitioner is that the sole ground of acquittal is that Manoj could not be produced before the trial Court as she was dead. This is not in dispute that Manoj was not produced in the trial Court but the learned counsel for the petitioner has submitted that there are ample evidence against the accused -respondents to prove their criminal act and he mainly relied upon the statements of PW-4, PW-5 and PW-15 along with Ex.P-6, recovery memo. 6. PW-4 Jagdish Bohra is the Investigating Officer and he could not say anything about the act of abduction or alleged attempt to rape. 6. PW-4 Jagdish Bohra is the Investigating Officer and he could not say anything about the act of abduction or alleged attempt to rape. He has recovered prosecutrix Manoj from the custody of accused Ashok but this fact has never been objected by any of the respondents and hence looking at the statement of Jagdish Bohra, it gives no assistance to the prosecution, rather he has specifically stated in cross- examination that when the statement of Manoj was recorded under Section 164 Cr.P.C., she was in the custody of her father and after 6-7 days, her statements were recorded. He has also specifically stated that during investigation, this fact had come on record that Ashok and Manoj Kumari had solemnized marriage in Arya Samaj. 7. PW-5, Chhotu Ram is the father of prosecutrix Manoj. He was not at home when Manoj left the house for going to the market. In cross- examination, he has stated that Manoj was handed over to him. He denied the factum of marriage but nothing has been stated by this witness regarding abduction or alleged attempt to rape. He has stated that Deepa Ram has stated him that he saw Manoj and Ashok at Jaipur. He has also endorsed the recovery of Manoj by Ex.P-6. 8. The only witness which remains is PW-15, Om Prakash, who is the motbir witness of recovery memo Ex.P-6. He has stated that Manoj was recovered by the police and at the same time, accused Ashok was also arrested. In Ex.P-6, statements of witnesses have been incorporated but PW-15 Om Prakash specifically stated that no statement under Section 161 Cr.P.C. was recorded and hence anything written in Ex.P-6 is hit by Section 162 Cr.P.C. 9. Learned counsel for the petitioner has submitted that the statements recorded by the Investigating Officer are not hit by Section 162 Cr.P.C. and he has placed reliance on the judgment delivered in Rameshwar Dayal and Ors. Learned counsel for the petitioner has submitted that the statements recorded by the Investigating Officer are not hit by Section 162 Cr.P.C. and he has placed reliance on the judgment delivered in Rameshwar Dayal and Ors. v. State of U.P., AIR 1978 SC 1558 , where statements recorded under Section 174 Cr.P.C. inquest report has been held direct or contemporary evidence but here, Ex.P-6 could not be said to be a part of inquest report and anything, which has been incorporated in the Ex.P-6 could be used only subject to Section 162 Cr.P.C. and according to the PW-15, Om Prakash, his statement had not been recorded under Section 161 Cr.P.C. Hence, statement of PW-15 Om Prakash could not be looked into against the accused -respondents. 10. Other witnesses had not corroborated the story of abduction and attempt to rape. Learned counsel for the petitioner has also placed reliance on the judgment delivered in State of Karnataka v. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 wherein it has been held that because a victim is dead and consequently could not be examined, can never be a ground to acquit an accused if there is evidence otherwise available proving the criminal act of the accused concerned. There is no dispute about this legal proposition but in the case in hand, there is no evidence otherwise available to prove the guilt of the accused- respondents. 11. Learned counsel for the petitioner has also placed reliance upon the judgment delivered in Balram Prasad Agarwal v. State of Bihar & Ors., AIR 1997 SC 1830 and Criminal Appeal No. 1252/2011, Krishan Kumar Malik v. State of Haryana, decided on 4.7.2011 , wherein the law regarding res gestae and presumption under Section 114 of the Evidence Act has been incorporated. But, in the present case, there is no evidence of res gestne or to give rise to any presumption. PW-5 Chhotu Ram has stated nothing about the incident. He has not stated that on recovery, prosecutrix Manoj has stated anything to him and principle of res gestne pre-supposes that the hearsay evidence must be almost contemporary with the act and there could not be an interval, which would allow fabrication. In other words, the statement, which has to be admitted as forming part of res gestne must have been contemporary with the act immediate thereafter. In other words, the statement, which has to be admitted as forming part of res gestne must have been contemporary with the act immediate thereafter. Here, in the present case, no such contemporary act or statement has been recorded by the Investigating Officer. 12. Per contra, the respondents had put a defence that on 19.3.2003, Ashok and Manoj solemnized marriage at Arya Samaj, Neendar and certificate of Arya Samaj has been produced in defence as Ex.D-6 and photographs of prosecutrix and respondent No. 1 as Ex.D-7 to Ex.D-15. 13. DW-1 Bhagwan Sahai, who is Dy. Director in Arya Samaj, Neendar has specifically stated that Ashok and Manoj solemnized marriage at Arya Samaj, Neendar and proceeding register were also produced as Ex.D-28, which carries the authority of Section 35 of the Evidence Act. 14. Learned counsel for the petitioner has submitted that marriage should be specifically proved and he placed reliance on the decision in Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153 , where mere admission by the accused regarding second marriage has not been found enough but here, in the present case, accused- respondent has specifically stated that he and Manoj solemnized marriage and this fact has also been proved by the documentary evidence Ex.D-6 and Ex.D-28. Learned counsel for the petitioner has submitted that the marriage was not by will and it has been contracted by force and Manoj has specifically stated that her signatures were taken by force on some of the papers but these all arguments are futile as DW-1 Bhagwan Sahai has specifically stated that girl has presented age certificate before him. The age certificate has been produced as Ex.D-29. If the girl was not a consenting party and she has not left house at her own will, she would not have taken Ex.D-29 with her. This only fact gores to the root of the prosecution and clearly shows that Manoj was a consenting party from the initiation of the happening and she went with Ashok with her will with the intention of marrying with Ashok and that is why she had taken Ex.D-29 with her. 15. Hence, looking at the above, there is no reliable evidence regarding abduction of Manoj or forcible removal her from the custody of father and that there is no iota of evidence regarding attempt of rape. 15. Hence, looking at the above, there is no reliable evidence regarding abduction of Manoj or forcible removal her from the custody of father and that there is no iota of evidence regarding attempt of rape. Per contra, the accused- respondents have proved that Manoj has contracted marriage with Ashok Kumar with her will and hence the conclusion arrived at by the trial Court is well founded and deserves no interference.The revision petition is, therefore, dismissed.Revision Petition dismissed. *******