JUDGMENT 1. - Both these appeals challenge the Impugned judgment dated 29.05.2007 passed by the Additional Sessions Judge (Fast Track) No.3, Udaipur, Camp Salumber whereby the learned Judge has convicted the appellant, Gajendra, ('A-1', in short) for offence under Sections 363, 366, 373 and 120-B Indian Penal Code and has convicted Sohan Lal ('A-2', In short) for the offence under Sections 363, 366 and 120B Indian Penal Code. Their sentences were directed to run as under: Gajendra (A-1) Offence under Section 363 Indian Penal Code Four years rigorous imprisonment and fine of Rs. 1,000/- and in default of fine she further undergo six months simple imprisonment. Offence under Section 366 Indian Penal Code Five years rigorous imprisonment and fine of Rs. 1,000/- and in default of payment of fine he further undergo six months simple imprisonments. Offence under Section 373 Indian Penal Code Seven years rigorous imprisonment and fine of Rs. 1,000/- and in default of payment of fine he further undergo six months simple imprisonment. Offence under Section 120-B Four years rigorous imprisonment and fine of Rs. 1,000/- and in default of payment of fine he further undergo six months simple imprisonment. Sohan Lal (A-2) Offence under Section 363 Indian Penal Code Four years rigorous imprisonment and fine of Rs. 1,000/- and in default of payment of fine he further undergo six months simple imprisonment. Offence under Section 366 Indian Penal Code Five years rigorous imprisonment and fine of Rs. 1,000/- and in default of payment of fine he further undergo six months simple imprisonment. Offence under Section 120-B Four years rigorous imprisonment and fine of Rs. 1,000/- and in default of payment of fine he further undergo six months simple imprisonment. 2. Shortly, the facts of the case are that on 16.08.2006, the prosecutrix (P.W.6) lodged a written report at Police Station Rishabh Dev, wherein she had claimed that she was studying in the ninth class, at Girls School, Khairwara and was living In a hostel. On 15.08.2006, after the Independence Day function was over, she boarded a jeep at 2:00 PM from Khairwara in order to reach her home at village Barna. The jeep as owned by one Lalaram and was being driven by Sohan (A-2). She further claimed that Gajendra (A-1) was also sitting Inside the jeep. Around 3:00 PM, the jeep reached her village, Barna, where all the passengers travelling with her got off. The jeep as owned by one Lalaram and was being driven by Sohan (A-2). She further claimed that Gajendra (A-1) was also sitting Inside the jeep. Around 3:00 PM, the jeep reached her village, Barna, where all the passengers travelling with her got off. But, when she tried to get off the jeep, A-1 put his hands on her mouth and threatened her that in case she shouts, he would kill her. He also told A-2 to take the jeep back to Khairwara. Thereafter, they parked the jeep near Bhagyodya Hotel at Khairwara. The curtains inside the jeep were closed. At night, A-1 told A-2 to take the Jeep back to Barna. Around 2 O'clock, at night, at Barna, they reached A-1's new house. She further alleged that A-1 pulled her out of the jeep, and told A-2 to bring the jeep back next day early In the morning. She further alleged that A-1 took her Inside the house where a cot was already kept in a room. He undressed her, and ravished her. She further claimed that at night, twice he tried to ravish her. However, she resisted him. Later on, he returned her clothes. Around 6:00 AM, A-2 brought the jeep back. A-1 threatened her to get Inside the jeep. At that time, the jeep owner, Lalaram, also came there and sat Inside the jeep. A-2 brought the jeep back to Khairwara bus-stand and dropped her. She further alleged that from Khairwara, she took another jeep and went to her house at Barna. When she reached her home, she narrated the story to her father, Manohar Lal (P.W.10) and to her mother, Niranjana (RW.7). 3. On the basis of the said report, the police chalked out a formal FIR, FIR No.246/2006, for offences under Sections 363, 376/34 Indian Penal Code and commenced investigation. 4. After a through investigation, charge-sheet was submitted for offences under Settings 363, 366, 376, 120-B Indian Penal Code against A-1, and for offences under Sections 363, 366 and 120B Indian Penal Code against A-2. 5. In order to support Its case, the prosecution examined sixteen witnesses and submitted twenty documents. However, the defence did not examine any witness but submitted a few documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced both the appellants as aforementioned. Hence, these appeals before this Court. 6. Mr. 5. In order to support Its case, the prosecution examined sixteen witnesses and submitted twenty documents. However, the defence did not examine any witness but submitted a few documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced both the appellants as aforementioned. Hence, these appeals before this Court. 6. Mr. Shambhoo Singh, the learned counsel for A-1, has raised the following contentions before this Court: firstly, according to the learned Judge, the prosecutrix was between the ages of sixteen to seventeen -years. Hence, she was major; she was competent to give consent for sexual intercourse. 7. Secondly, the conduct of the prosecutrix belies her testimony. For, according to the prosecutrix herself, A-1 had outraged her modesty while the jeep was returning from Bama to Khairwara. Moreover, according to her, the jeep was parked in front of Bhagyodya Hotel for almost three to four hours. She sat quietly along with A-1 Inside the jeep. She neither raised any hue and cry, nor tried to run away from his custody. Furthermore, in the cross-examination, she admits that while the jeep was going back form Barna to Khairwara, they had run Into a traffic jam. The police personnel were trying to clear the traffic jam. Despite the presence of the police personnel, again, she neither protested, nor told the police, although according to her, A-1 had tried to outrage her modesty. Thus, the conduct clearly shows that she was voluntarily accompanying A-1 from Khairwara to her village Barna and back to Khairwara. In her cross-examination, she further admitted that when the jeep was caught in the traffic jam, the police personnel came and asked A-2 to park the jeep on the side of the road. Despite the fact that the police personnel came and spoke to A-2, still she did not seek any help of the police. Moreover, according to her, when the jeep was parked for three to four hours in front of the hotel, ten to twelve police personnel were present. Yet, she did not raise any hue and cry. 8. Thirdly, although she claimed that she was ravished by A-1, her testimony is not supported by the medical evidence. According to medical report (Ex.p.9), she has not suffered any injuries on her body. Moreover, Dr. Yet, she did not raise any hue and cry. 8. Thirdly, although she claimed that she was ravished by A-1, her testimony is not supported by the medical evidence. According to medical report (Ex.p.9), she has not suffered any injuries on her body. Moreover, Dr. Sunita Shekhawat has clearly written that the opinion with regard to the commission of rape can be given only after receiving the report about the vaginal swab and smear from the FSL. Despite the fact that the FSL report (Ex.P/20) does show the existence of human semen in the undergarments worn by the prosecutrix and In the vaginal swab and smear, even then the investigating agency has not sought the clear cut opinion of the doctor whether It indicates the committing of rape or not? Therefore, a major lacuna has been left by the investigating agency. Hence, an adverse inference should be drawn against the prosecution. 9. Fourthly, the prosecutrix is not a witness of sterling worth. For, her testimony is replete with the self-contradictions. In the FIR, she claimed that when she boarded the jeep, A-1 was already sitting. Yet, in her cross-examination, she claims that this fact was wrongly mentioned in the FIR. Moreover, Initially, she does not name Subhash and Jhamak Lal as the accused persons. However, later on, in her testimony she embroiled their names. In her first statement recorded under Section 161 Criminal Procedure Code she does not name Subhash as an accused. It is only in her supplementary statement she involved Subhash as an accused. Hence, the story which begins only with A-1 and A-2 ended with three other accused persons. Since she has been exaggerating her story, her story is replete with contradictions. Relying upon the case of Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 , the learned counsel has contended that the testimony of the prosecutrix cannot be taken as a gospel truth, especially when it is full of contradictions and exaggeration. More so, if her testimony is belied by her conduct, the court should look for corroborative evidence. However, in the present case, the medical report does not corroborate the testimony of prosecutrix. 10. Fifthly, according to the prosecutrix she did not apply for leaving the hostel. According to the testimonies of her parents, Manohar Lal (PW.10) and Niranjana (P.W.7), they did not apply for leaving the hostel. However, in the present case, the medical report does not corroborate the testimony of prosecutrix. 10. Fifthly, according to the prosecutrix she did not apply for leaving the hostel. According to the testimonies of her parents, Manohar Lal (PW.10) and Niranjana (P.W.7), they did not apply for leaving the hostel. Moreover, according to the parents, they were unaware of the fact that their daughter had left the hostel on 15.06.2006. According to the learned counsel these facts coupled with her behaviour in the jeep and thereafter clearly shows that she discretely left the hostel and eloped with A-1. Thus she was a consenting party. 11. Sixthly, as far as offences under Sections 363 and 366 Indian Penal Code are concerned, relying upon the case of S. Varadarajan v. State of Madras, AIR 1965 SC 942 , the learned counsel has contended that the prosecutrix was major enough to know the implications of her conduct. Hence, the learned Judge was not justified in convicting A-1 for offences under Sections 363 and 366 Indian Penal Code. 12. Lastly, there is no evidence to show that there was any conspiracy hatched between A-1 and A-2. Hence, A-1 could not be convicted for offence under Section 120B Indian Penal Code. 13. Taking the cue from Mr. Shambhoo Singh, Mr. Bhagirath Ray Bishnoi, the learned counsel for A-2, has contended the since it is a case of elopement with A-1, A-2 has wrongly been convicted for offences under Sections 363 and 366 Indian Penal Code. Moreover, in her cross-examination, the prosecutrix clearly admits that she had travelled in the jeep on four to five occasions earlier. A-2 happens to be merely a taxi driver who takes the passengers from one place to other. There is no evidence available on record which indicates "prior meeting of mind or a pre-planned arrangement" between A-1 and A-2 for enticing and taking the prosecutrlx. Therefore, the learned Judge has erroneously convicted A-2 for offence under Section 120B Indian Penal Code. 14. Per contra, Mr. Anil upadhyay, the Public Prosecutor, has vehemently contended that the prosecutrix's testimony ordinarily is to be taken as a gospel truth. The prosecutrix has narrated a consistent story: how she was taken by A-1 and A-2 from her village Barna to Khairwara, how she was subjected to rape by A-1, and how she reached her home. 14. Per contra, Mr. Anil upadhyay, the Public Prosecutor, has vehemently contended that the prosecutrix's testimony ordinarily is to be taken as a gospel truth. The prosecutrix has narrated a consistent story: how she was taken by A-1 and A-2 from her village Barna to Khairwara, how she was subjected to rape by A-1, and how she reached her home. Secondly, according to the medical evidence, she is between the ages of sixteen to seventeen. Therefore, according to the medical evidence, she is minor for the purpose of Section 363 and 366 Indian Penal Code. Thirdly, A-1 and A-2 had entered into a conspiracy to entice and to take away the prosecutrix. Since A-2 had driven A-1 and the prosecutrix to and fro, he has rightly been convicted for offences under Sections 120B Indian Penal Code. Hence, the learned Judge (sic. Public Prosecutor) has supported the impugned judgment. 15. Heard the learned counsel for the parties, perused the judgment, examined the record and considered the case law cited at the Bar. 16. Is the testimony of the prosecutrix be taken as a gospel truth under all circumstances which may present themselves before a Court? This is a moot question before this Court. Although repeatedly, the courts have held that the testimony of the prosecutrix should be accepted without a pinch of salt, but it is not a presumption of law that a prosecutrix always speaks the truth and nothing but the truth. Like any other human being, the prosecutrix is subjected to different pressures. Since premarital sex not only damages the honour of the family, but also dents the prestige of the prosecutrix, at times, premarital sex may be given the colour of rape in order to protect the honour of the family and the prestige of the prosecutrix. Generally, a case of the rape is based on the sole testimony of the prosecutrix. Therefore, her testimony would have to be subjected to the same set of tests as is applicable in the case of testimony of sole witness. According to the settled principle of law, conviction can be based on the testimony of a sole eye-witness, provided that the witness is of sterling worth. In case, the witness were to shift his/her story then the sole witness should not be relied upon for the purpose of conviction. According to the settled principle of law, conviction can be based on the testimony of a sole eye-witness, provided that the witness is of sterling worth. In case, the witness were to shift his/her story then the sole witness should not be relied upon for the purpose of conviction. The same test has to be applied even in the case of the prosecutrix's testimony, in order to test the veracity of her testimony, In order to separate the wheat from the chaff. The Court should also test her testimony on the touchstone of her conduct. The Court should see the extent of threat meted out to the prosecutrix. The Court should also see whether she has quietly accompanied the alleged rapist without any protest, without raising any hue and cry, without trying to run away from his custody or not? For, ordinarily a woman would not continue to accompany her alleged rapist or a person who has outraged her modesty. While analyzing the evidence of this case, the aforementioned criteria have to be kept in mind. 17. A bare perusal of the statements of prosecutrix recorded under Section 161 Cr.PC. and under Section 164 Cr.PC. along with her testimony before the Court, clearly reveals that the prosecutrix has been changing her stand. Initially, in her statement recorded under Section 161 Criminal Procedure Code she had roped In appellant No.1 & 2 and Lala Ram. However, subsequently, In her statement recorded under Section 164 Cr.PC. she also roped in Jhamaklal and Subhash. Even In her supplementary statement recorded under Section 161 Criminal Procedure Code, she named Jhamaklal and Subhash along with the appellants and Lala Ram. She maintained the same story even during her testimony, However, the learned trial Court did not believe her testimony with regard to Lala Ram, Jhamaklal and Subhash and has acquitted them. Thus, it Is apparent that the prosecutrix has been improving upon her story - an improvement which amounts to contradiction. 18. Even otherwise, her testimony Is self-contradictory in her examination-in-chief, she claims that when she was getting down from the jeep in her village, A-1 stopped her from getting down from the jeep. Yet, in her cross-examination, she claims that Jhamaklal stopped her from getting down from the jeep. Because of myriad positions taken by the prosecutrix, the prosecutrix does not appeal to be a witness of sterling worth. 19. Yet, in her cross-examination, she claims that Jhamaklal stopped her from getting down from the jeep. Because of myriad positions taken by the prosecutrix, the prosecutrix does not appeal to be a witness of sterling worth. 19. Moreover, in her examination-in-chief, she claimed that while jeep was being brought back from her village Barna to Khairwara, A-1 had outraged her modesty. Yet, in her cross-examination, she claims that while the jeep was coming from Barna to Khairwara and went back to Barna, A-1 did not misbehave with her. 20. In a catena of cases, the Hon'ble Supreme Court has held that the testimony of the prosecutrix should be tested on the touch stone of her conduct. In the present case, to say the least, the conduct of the prosecutrix is rather unusual. According to her, when the jeep was being brought back from her village Barna to Khairwara, it was parked in front of Bhagyodya Hotel for about three to four hours. In her cross-examination, she admits that there was a large crowd around the hotel. She further admits that there were about ten to twelve policemen in the vicinity. Although she claims that by that time A-1 had outraged her modesty in the jeep, yet she neither raised any hue and cry, nor informed the police, nor tried to run away from the clutches of A-1. In her cross-examination, she has also admitted that when the jeep ran into traffic jam, a police personnel had asked Sohan to park the jeep on the side of the road. Yet, even at this juncture, she neither raised any hue and cry, nor sought the help of the police. 21. Even after the alleged rape at the dead of the night, her behaviour is rather unusual. According to her, on the next morning, around 6:00 AM, Lala Ram and Sohan reached the house of A-1. According to her, she quietly sat in the jeep and went back to Khairwara with them. She neither informed Lala Ram, nor sought his help, although she claims that she knew that he was the owner of the jeep. Although she claims that there were large number of people at the Khairwara bus-stand, but even there she did not raise any hue and cry when she was dropped off. She neither informed Lala Ram, nor sought his help, although she claims that she knew that he was the owner of the jeep. Although she claims that there were large number of people at the Khairwara bus-stand, but even there she did not raise any hue and cry when she was dropped off. Therefore, her silence throughout the period when she was travelling with A-1, casts grave doubt on the veracity of her allegation with regard to rape. 22. Another piece of evidence which udnermines her allegation is the fact that she clearly admits that she left the hostel without seeking the prior permission of the hostel authorities. Moreover, she did not Inform her parents that she is leaving the hostel and coming back home. For, according to her parents, they were under the impression that their daughter Is safely In the custody of the hostel. Moreover, If the Intention of the prosecutrix was to go back to Bama, she would have Informed the hostel authorities, would have taken their permission to leave the hostel premises, yet she quietly slipped out of the hostel premises without Informing any of the hostel authorities. This conduct clearly Indicates that she left the hotel with prearranged design. This particular fact coupled with the lack of protest during her entire travel from Barna to Khairwara and back from Khairwara to Barna and again back to Khairwara, casts a grave doubt on the veracity of her story. 23. As far as the age of the prosecutrix is concerned, the learned Judge has concluded, on the basis of medical evidence, that the prosecutrix was between the ages of sixteen to seventeen. Therefore, she was competent to give consent for sexual intercourse. 24. In the case of S. Varadarajan (supra), the Apex Court was of the opinion that if a girl goes of her own volition with the accused there is neither an element of 'taking', nor the element of 'enticing' has occurred. Therefore the case would not fall under the ambit of Section 361 Indian Penal Code. In the present case, since the prosecutrix seems to have left the hostel out of her own volition, since from her conduct it appears that she had accompanied appellant No.1, the offence under Section 361 is not made out. Therefore the case would not fall under the ambit of Section 361 Indian Penal Code. In the present case, since the prosecutrix seems to have left the hostel out of her own volition, since from her conduct it appears that she had accompanied appellant No.1, the offence under Section 361 is not made out. Hence, there is no element of 'taking' or 'enticing' the prosecutrix by the appellant No.1, Thus, the learned Judge has erred in convicting appellant No.1 for offences under Sections 363 and 366 Indian Penal Code. 25. As far as offence under Section under Section 120B is concerned, a bare perusal of the prosecutrix's testimony clearly reveals that the prosecutrix had roped more persons than merely A-1 and A-2 According to her, even Jhamak Lal, Lalaram were part of the conspiracy to abduct her. However, the learned trial Court, having critically analyzed the evidence, has acquitted the other accused persons. Considering the fact that A-2 was merely a taxi driver, there is no evidence on record to show that A-2 and A-1 had entered into a pre-arranged conspiracy for offence under Sections 363 and 366 Indian Penal Code. Hence, the learned Judge was unjustified In convicting A-1 and A-2 for under Section 120B Indian Penal Code. 26. For the reasons stated above, the appeals are hereby, allowed and the Impugned judgment dated 29.05.2007 is, hereby, quashed and set aside. 27. Since Gajendra S/o Shri Manilal Is In jail, he shall be set at liberty forthwith, If he Is not wanted in any other criminal case. Since Sohan Lal is on ball, his bail bonds are, hereby, discharged.Appeal allowed. *******