JUDGMENT : V.K. Sharma, J. The appellant/accused No. 1, Satbir Singh, who was charged under Sections 363, 366 and 376 read with Section 120B of the Indian Penal Code (in short 'IPC') alongwith co-accused Subdha Devi, Ishwar Singh and Prem Lata, who were arraigned under Sections 363 and 366A read with Section 120B IPC, was tried by the learned Additional Sessions Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No. 3-S/7 of 2010. The trial ended in his conviction for the offence u/s 376 IPC and acquittal on the remaining counts and imposition of consequent sentence of rigorous imprisonment for seven years and fine of Rs. 10,000/- and in default further rigorous imprisonment for six months vide the impugned judgment/order dated 18.10.2010/20.10.2010. The co-accused were acquitted of all the charges. Being aggrieved, he is in appeal before this Court. For the sake of convenience, whereas accused No. 1 Satbir Singh shall hereinafter be referred to as the 'convict', the co-accused shall be denoted as, A2 Subdha Devi, A3 Ishwar Singh and A-4 Prem Lata. 2. The law enforcing machinery was set in motion in this case by the complainant, Poshu Ram, who submitted complaint dated 04.07.2009, Ex. PW-10/D, to the learned Sub Divisional Judicial Magistrate, Rohru, District Shimla, Himachal Pradesh, which though later on recoiled on him as well, as would be seen hereinafter, and is to the following effect, on the basis of which FIR No. 91 of 2009, Ex. PW-10/C, dated 07.07.2009, under Sections 363, 372, 373 and 109 IPC, which is re-production of the complaint itself, was registered at PS Rohru: Sir, The complainant submits as under:- 1. That the complainant is the permanent resident of village Khalai, Sub Tehsil Tikkar Tehsil Rohru, Distt. Shimla H.P. and is married and has got two daughters Smt. Ram Kali who is married and is of 26 years of age and other daughter Kumari Raksha who is studying in 6th class in Government Secondary School Tikker and the complainant, is employed as Chowkidar on regular basis in the H.P.P. W.D. Sub Division Tikkar for the last more than 15 years and has got rented house at Tikker proper where the complainant reside with his family members. 2. That Smt. Shanti is married at village Bardhar, in Tehsil Shilai Distt. 2. That Smt. Shanti is married at village Bardhar, in Tehsil Shilai Distt. Sirmour and she has got three daughters and two sons and her husband is a black smith having limited income. That Smt. Shanta who is closely related to the complainant bought her minor daughter (name withheld to protect the identity of the prosecutrix, who shall hereinafter be called as 'P') to the complainant 9 years before and has shown her helplessness to provide clothing, other necessities of life such as food etc. and requested the complainant being closely related to maintain her daughter and promised that in later period of life she will be maintaining the complainant and his wife at the time of odd hours. On this the complainant took the custody of the minor through her mother Shanti Devi 9 years before and kept her as his daughter with him at Tikker and provided every necessities of life and at present she was living with the complainant for the last more than 9 years and is of the age of about 15 years. 3. That the complainant use to purchase milk from the accused No. 1 as she has kept Jarsi Cows at her village at Thana as such she is to prove daily some time 1/2 Kg. sometime 1 Kg. Milk to complainant and use to talk with the minor daughter 'P' oftently. 4. That the accused No. 1 has got married her one daughter Smt. Premlata at village Kembla Tehsil Kembla Distt. Rohtak Haryana as was told by accused Smt. Subdha and this marriage of her daughter has taken place two years before and Smt. Subdhas son in law from Haryana used to come in Thana village of Sub Tehsil Tikker, Distt. Shimla H.P. 5. That the accused No. 1 Smt. Subdha use to take 'P' to her village at Thana oftently and some time use to stay at her residence Thana and she is to give every sought of allurement to her good company. 6. That the accused No. 1, 2, 3 and 4 thereafter one and a half month before hatched a conspiracy to kidnap 'P' and to take her to Haryana and to do bargaining to gel her married with an old Sikh fat who is above 58 years of age and took from him Rs. 6. That the accused No. 1, 2, 3 and 4 thereafter one and a half month before hatched a conspiracy to kidnap 'P' and to take her to Haryana and to do bargaining to gel her married with an old Sikh fat who is above 58 years of age and took from him Rs. 80,000/- for the said bargaining and kidnapped 'P' on 16.5.2009 from Tikker, Sub Tehsil Tikker, Tehsil Rohru, Distt. Shimla H.P. and the complainant made best efforts to trace out 'P' but failed in the matter and subsequently Smt. Chamku later on conveyed the message on telephone to one lady who is employed in forest department posted at Tikker that Smt. Prem Lata, Sh. Ishwar and 'P' who was bearing Gunghat and also ornament were seen traveling together in a bus from Tikker to Shimla and later on it was confirmed that the minor was kidnapped by these all persons from the lawful custody of the complainant by taking an amount of Rs. 80,000/- as it revealed. As the minor was sold by unlawful means for unlawful acts to aged person for monetary gain which is an offence u/s 363, 372, 373, 109 IPC and the accused deserve to be dealt with in accordance with law. 7. That the complainant has tried to lodge a complaint with the police at Tikker but the police has avoided the matter on one pretext or the other hence the complaint is being filed in this Ld. Court as the offence has been constituted within the jurisdiction of this Court. It is, therefore, prayed that the mischief committed by the accused fall under the provision of Sections 363,372, 373, 109 IPC and the accused deserve to be dealt in accordance with law in the interest of law and justice. Complainant 3. The investigation commenced. After recording statements of the complainant Poshu Ram and his wife, Indru Devi, u/s 161 of the Code of Criminal Procedure (in short 'Cr.P.C.'), the police alongwith the complainant went to Haryana in search of the prosecutrix, the convict, A3 Ishwar Singh and A4 Prem Lata and was able to trace A3 Ishwar Singh and A4 Prem Lata at Gharounda and the convict alongwith the prosecutrix at Kembla on 09.07.2009. On interrogation, A3 Ishwar Singh and A4 Prem Lata revealed that they alongwith A2 Subdha Devi, who is mother of A3 Prem Lata and the convict, who is cousin of A3 Ishwar Singh, being his maternal uncle's son, had enticed the prosecutrix from village Thana, Himachal Pradesh, with a view to get her married to the convict. On further interrogation, it was revealed that the prosecutrix was raped by the convict at his house in village Kurana (Haryana) on 19.05.2009. Thereafter, the police brought all of them to Police Station, Rohru, Himachal Pradesh. 4. The prosecutrix was sent for medical examination to Civil Hospital, Rohru, where she was examined by PW-12 Dr. (Mrs.) Pavitra Maitan, vide certificate Ex. PW-12/A, with the following alleged history: Person brought with the alleged H/O consentfully going with a couple called Ishwar & Prem Lata who met her at Rohru. From Rohru, where she met Satvir who was introduced to her by Ishwar & Prem Lata, all four of them went to Haryana, first to Kaamla and then to Krona, where she gives H/O having some ceremony and got married to Satvir. She gives H/O coining on her own from Tikkar to Rohru on 16/5/09. She gives H/O repeated episodes of sexual intercourse being done by the man named Poshu Ram with whom she was staying for the last 2 years forcefully on last 2 years. She also gives H/O repeated episodes of sexual intercourse being done by Satvir full penetration followed by ejaculation. No H/O of use of any contraceptive. All this history has been given by '?' herself 5. On examination of the prosecutrix, the Medical Expert, PW-12, Dr. (Mrs.) Pavitra Maitan, had observed and opined as under: No injury marks seen over any part of body. Local examination- 1. Secondary sexual characters - Breasts, pubic hair are moderately developed and auxiliary hair are separately developed. 2. P/s - White DPV. No bleeding or injury seen. P/v - 2 fingers can be easily inserted into vagina. Uterus - AV/NS infirm/mobile. In my opinion, 'P' is habitual of having sexual intercourse and the possibility of recent sexual intercourse cannot be ruled out. However, final opinion is reserved till expert forensic and expert radiological opinion regarding age. 6. 2. P/s - White DPV. No bleeding or injury seen. P/v - 2 fingers can be easily inserted into vagina. Uterus - AV/NS infirm/mobile. In my opinion, 'P' is habitual of having sexual intercourse and the possibility of recent sexual intercourse cannot be ruled out. However, final opinion is reserved till expert forensic and expert radiological opinion regarding age. 6. Since during her medical examination the prosecutrix had leveled allegations against the complainant, Poshu Ram, that he had been sexually assaulting her for the last two years, he was also booked u/s 376 IPC and a separate challan was filed against him. Both the cases were tried by the learned Trial Judge, separately, side by side and were decided vide separate judgments/orders, each dated 18/20.10.2010. In the trial held against the complainant, Poshu Ram, he was also convicted for the offence u/s 376 IPC and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- and in default to suffer further rigorous imprisonment for six months. The appeal filed by him has also been heard alongwith the present appeal and is being decided simultaneously by a separate judgment. 7. The record with regard to the date of birth of the prosecutrix was collected by the police from Gram Panchayat Koti Bounch, Tehsil Shilai, District Sirmour, according to which, she was born on 25.02.1996. On the basis of ossification test, her bony age was opined to be between 12-1/2 to 14-1/ 2 years. 8. The convict was also sent for medical examination and certificate, Ex. PX, was obtained, which revealed that there was nothing suggestive that he is incapable of performing sexual intercourse, 9. As per report of the State Forensic Science Laboratory, Himachal Pradesh, Junga, Ex. PW-10/A, neither blood nor semen was found on the clothes, vaginal smear slides and pubic hair of the prosecutrix and pubic hair of the convict. 10. On conclusion of investigation it was found that the convict, A2 Subdha Devi, A3 Ishwar Singh and A4 Prem Lata had pursuant to a criminal conspiracy kidnapped the prosecutrix with a view to marry her to the convict and pursuant thereto they had caused the prosecutrix to leave the house of the complainant Poshu Ram, on 16.05.2009 and the prosecutrix was raped by the convict, at his house in village Kurana (Haryana) on 19.05.2009. It was further found that the complainant, Poshu Ram, had been sexually exploiting the prosecutrix for the last about two years prior to 16.05.2009 when she had left his house. Accordingly, offences under Sections 372, 373 and 109 IPC were deleted from the FIR and instead offences under Sections 366A, 376 and 120B were added. Accordingly, the convict and the co-accused were sent up to face trial. On being charged, they did not plead guilty and claimed trial. The prosecution evidence followed which examined 12 witnesses in all. 11. On close of the prosecution evidence, the convict and the co-accused were examined by the learned trial Court u/s 313 Cr.P.C. wherein their defence was that of total denial, innocence and false implication. However, they did not lead any evidence in defence. 12. On conclusion of the trial, whereas the convict was convicted and sentenced for the offence u/s 376 IPC and was acquitted on other counts, co-accused were acquitted of all the charges, as already noticed. 13. I have heard the learned Counsel for the appellant (convict), the learned Assistant Advocate General for the respondent-State and gone through the records. 14. The first and foremost question which arises for determination in this case is as to what was the age of the prosecutrix at the relevant time. Both the prosecutrix, PW-1 and her mother, Smt. Shanti Devi, PW-3, are illiterate. Their statements with regard to the age of the prosecutrix cannot be said to be conclusive. The date of birth of the prosecutrix, as mentioned in extract of pariwar register, Ex. PW-7/B, as 25.02.1996 cannot be safely relied upon for the reason that the same is not based on the entries in the register of births and deaths, as stated by PW-7, Shri Sanjeev Kumar, Secretary of the concerned gram panchayat. On the basis of ossification test, the prosecutrix was found to be aged between 12-1/2 to 14-1/2 years as on or about 11.07.2009 when she was examined by PW-8, Dr. (Mrs.) Neeti Aggarwal, for ascertainment of her age vide X-ray form Ex. PW-8/A and by giving margin of two years on either side age of the prosecutrix has been held by the learned trial Court to be about 16-1/2 years. The findings to this effect are based on the evidence on record. 15. (Mrs.) Neeti Aggarwal, for ascertainment of her age vide X-ray form Ex. PW-8/A and by giving margin of two years on either side age of the prosecutrix has been held by the learned trial Court to be about 16-1/2 years. The findings to this effect are based on the evidence on record. 15. As the prosecutrix has been held to be aged about 16-1/2 years as on 11.07.2009, the day she was examined by PW-3, Dr. (Mrs.) Neeti Aggarwal for ascertainment of her age vide X-ray form, Ex. PW-8/A, her age on the date of occurrence, that is, 16.05.2009 would also be above 16 years. 16. Once the prosecutrix is held to be above 16 years of age at the relevant time, that is, between 16.05.2009, when she left the house of complainant (convict) Poshu Ram in the connected case and 09.07.2009, the day she was recovered by the police in the company of the convict at Kurana (Haryana), and in view of the evidence on record that the convict and co-accused were not instrumental in 'taking' or 'enticing' her out of the keeping of the then lawful guardian, that is, complainant (convict) Poshu Ram, in the connected case or for that matter her mother-cum-natural guardian PW-3, Smt. Shanti Devi, and further that she had gone with them out of her free and independent volition, as would be seen hereinafter, no fault can be found with the acquittal of the co-accused and the convict for the offences under Sections 363, 366 and 366A IPC under the impugned judgment dated 18.10.2010 and it appears that it is for this reason that the judgment to that extent has not been challenged on behalf of the respondent-State. 17. Now arises the question as to whether the prosecutrix was subjected to sexual intercourse by the convict and if so, whether such act(s) was forcible or with her consent. In this regard it would be seen that the prosecutrix had voluntarily accompanied the convict, A3 Ishwar Singh and A4 Prem Lata from Rohru to Haryana, firstly to Kembla and then to Kurana, where, as per history given by the prosecutrix to PW-12, Dr. (Mrs.) Pavitra Maitan, at the time of her medical examination on 10.07.2009, vide certificate, Ex. PW-12/A, some ceremony was held in which she got married to the convict. The prosecutrix had further stated to PW-12 Dr. (Mrs.) Pavitra Maitan, at the time of her medical examination on 10.07.2009, vide certificate, Ex. PW-12/A, some ceremony was held in which she got married to the convict. The prosecutrix had further stated to PW-12 Dr. (Mrs.) Pavitra Maitan, that there had been repeated episodes of sexual intercourse committed upon her by the convict. However, while appearing as PW-1, the prosecutrix initially stated that the convict "did nothing with me" but in the very next breath has stated that "I was raped only once by accused Satbir". Thus according to her, she was raped by the convict only once. In cross-examination she has denied that she was never sexually abused by the convict. PW-11 ASI Mohar Singh, who had investigated this case, has stated during cross-examination on behalf of the convict that when the prosecutrix was traced at village Kurana in the company of the convict, she had told him that she had married the convict voluntarily. 18. In view of the above evidence on record, it cannot at all be said that the act(s) of sexual intercourse between the prosecutrix and the convict was a forcible act against her will and without her consent and instead it shall not be unsafe to hold that it was a consensual act(s) and she being of the age of consent, that is, above 16 years at that time it would not amount to the offence of rape u/s 376 IPC. In view of the above, the appeal is accepted and the convict is acquitted of the offence u/s 376 IPC as well. Since he is in custody, he shall be set free to his liberty forthwith unless required in any other process of law. The amount of fine, if already deposited by the convict, shall be liable to be refunded to him after the period prescribed for filing appeal against this judgment is over. In case of an appeal, the orders of the Hon'ble Apex Court shall prevail.