JUDGMENT Hon’ble B.S. Verma, J. (Oral) This appeal U/S 374 of the Code of Criminal Procedure (in short ‘Cr.P.C.’) has been preferred against the judgment and order dated 23-11-2006 passed by District and Sessions Judge, Rudraprayag in Sessions Trial No. 2 of 2005, U/Ss 363,366,376 I.P.C. convicting the appellant U/S 363 I.P.C. and sentencing him to undergo two years R.I. and to pay a fine of Rs. 5,000/- and in default of payment of fine to serve out three months S.I. The accused/appellant was acquitted of the charges U/Ss 366 and 376 I.P.C. 2. The prosecution case, in brief, is that on 29-11-2004, Pushkar Singh Jangwan handed over written report Ext. Ka.1 at Police Out post Augustmuni stating therein that his daughter Km. Suman, a minor girl of 14 years, went to Rudraprayag for purchasing necessary domestic goods. His wife Smt. Yasolda Devi had arranged the vehicle to carry her daughter to Rudraprayag. When Km. Suman did not return, he searched her but she could not traced out. 3. Thereafter P.W.1 Sri Pushkar Singh Jangwal informed the chauki incharge Augustmuni by telephone that his daughter Km. Suman had returned to home who had gone to attend marriage party at Srinagar. 4. On the basis of written report Ext. Ka.1, chick F.I.R. Ext. Ka.10 was prepared and case crime No. Nil/2004 U/Ss 363, 366, 376 I.P.C. was prepared against the accused. Copy of G.D. is Ext. Ka.11. The Investigating Officer visited the place of occurrence and prepared site plan Ext. Ka.15. The girl was medically examined and her statement U/S 164 Cr.P.C. were recorded by the Magistrate. The I.O. also took into custody the clothes of victim Km. Suman and prepared recovery memo Ext. Ka.13. The wearing clothes of the victim i.e. Salwar was sent for chemical examination to the Director Legal Science Laboratory, Agra,. After completion of investigation the investigating officer submitted charge sheet Ext. Ka.20 against the accused. 5. The judicial Magistrate Rudraprayag vide order dated 17-2-2005 committed the case to the court of Sessions. 6. The learned Sessions Judge framed charges U/Ss 363, 366 and 376 I.P.C. against the accused. The accused pleaded not guilty and claimed trial. 7. The prosecution to prove its case has examined P.W.1, Pushkar Singh, complainant and father of the prosecutrix, P.W.2, Km. Suman, prosecutrix, P.W.3, Smt. Yashoda Devi, mother of the victim, P.W.4, Dr. Geeta Chaudhary, P.W.5, Dr. D.K. Jain, P.W.6, Dr. The accused pleaded not guilty and claimed trial. 7. The prosecution to prove its case has examined P.W.1, Pushkar Singh, complainant and father of the prosecutrix, P.W.2, Km. Suman, prosecutrix, P.W.3, Smt. Yashoda Devi, mother of the victim, P.W.4, Dr. Geeta Chaudhary, P.W.5, Dr. D.K. Jain, P.W.6, Dr. Lalit Kishore, P.W.7, Rameshwar Prasad Semwal, P.W.8, H.C. Buddhi Singh Panwar, P.W.9 Constable 103 sanjay Gaur, P.W.10 B.C. Sharma, S.O. Rudraprayag, P.W.11 Constable Umesh Kumar and P.W.12 S.I. Balak Ram. 8. The accused in his statement U/S 313 Cr.P.C. denied the prosecution case and has alleged that he has been falsely implicated in the case on the pressure of higher authorities. However the accused did not adduce any evidence in his defence. 9. The learned Sessions Judge, after hearing the parties and considering the entire evidence on record found the accused guilty of offence U/S 363 I.P.C. and accordingly awarded sentence of imprisonment. However the accused/appellant was acquitted of the charges U/Ss 366 and 376 I.P.C. 10. Feeling aggrieved the accused has preferred this appeal. 11. Learned Amicus Curiae appearing on behalf of the appellant has contended that the trial court has acquitted the appellant U/Ss 366 and 376 I.P.C. and on the same set of evidence has convicted him for the offence U/S 363 I.P.C. The victim was consenting party and the learned Sessions Judge has committed a manifest error by holding the appellant guilty of offence U/S 363 I.P.C. 12. Prosecutrix Km. Suman has been examined by the prosecution as P.W.2. She has deposed that she was a student of class IX in G.I.C. Tilaknagar. On 28-11-2004 at about 8-9 am she had come to Rudraprayag to purchase some domestic articles. In the market accused Vinod Kumar met her and compelled her to take a cup of tea. Thereafter the accused brought her to Srinagar to see the Vaikunth Chaturdashi Mela and after enjoying the fair they returned to Rudraprayag and then accused took her to Police Line Sumerpur at his residence. The accused introduced her to other police personnel. She further stated that the accused detained her in a room and forcibly committed rape upon her and the accused also threatened her not to disclose the fact to anybody. In the next morning accused took her to her village Bhatwari where she narrated the whole story to her parents. The accused introduced her to other police personnel. She further stated that the accused detained her in a room and forcibly committed rape upon her and the accused also threatened her not to disclose the fact to anybody. In the next morning accused took her to her village Bhatwari where she narrated the whole story to her parents. This witness was cross examined at length but nothing immaterial has come out from it which may render the on oath statement of this witness as unreliable. Thus from the above statement of Km. Suman this fact is proved that accused had kidnapped her from her lawful guardianship and had carried her to Srinagar and thereafter at his residence at Sumerpur. 13. The prosecution version is that Km. Suman at the time of incident was 14 years of age. P.W.5, Dr. D.K. Jain Radiologist had taken x-ray of Km. Suman on 4.12.2004. According to the doctor epiphysis of lower end of radius and ulna bone were not fused with their shafts. In the opinion of the doctor the age of the girl was between 14-15 years. The victim at the time of recording her statement U/S 164 Cr.P.C. has given her age as 14 years and in the date of birth certificate issued by Principal, Government Inter College Tilaknagar, Rudraprayag, Ext. Ka.9 the date of birth of Km. Suman is noted as 25.6.1990 and from this certificate the age of the victim at the time of incident comes in between 14-15 years. Thus, from the above evidence on record, it is proved that the victim at the time of incident was a minor girl below the age of 15 years. The prosecution has been able to establish its case against the accused U/S 363 I.P.C. for kidnapping Km. Suman from her lawful guardianshaip and the conviction of the accused under this count is upheld. 14. So far other part of the offence i.e. U/s 376 and 366 I.P.C. is concerned the learned Sessions Judge has rightly acquitted the accused under these sections. Although the prosecutrix had given statement that the accused had committed rape upon her but has not stated in specific terms that the accused had put his male organ inside her private part and caused penetration. The story of rape is belied by the medical evidence also. P.W.4, Dr. Geeta Chaudhary has medically examined Km. Although the prosecutrix had given statement that the accused had committed rape upon her but has not stated in specific terms that the accused had put his male organ inside her private part and caused penetration. The story of rape is belied by the medical evidence also. P.W.4, Dr. Geeta Chaudhary has medically examined Km. Suman on 3.12.2004 at District Hospital Pauri Garhwal. According to this witness the breasts of the victim were well developed, pubic hairs on her private part were fully developed, there was no sign of scratch marks on the body, no injury was found on her private parts, one finger can easily entered in her vagina. The doctor also took vaginal smear and prepared the slides and sent it for pathological examination. In the opinion of this witness no injury was found in the hymen of vagina as well as on private part. In the supplementary report Ext. Ka.6 the doctor has stated that there was no evidence of hymen broken and no opinion was given whether intercourse or attempt to commit intercourse was made upon the victim. Thus in view of medical evidence as well as on oath statement of the victim the prosecution has not been able to prove the offences U/Ss 376 and 366 I.P.C. against the accused, as it has not come in the statement of the prosecutrix that the accused had kidnapped her to marry with her against her will and offence of commission of rape has not been established and the learned trial court was justified in acquitting the accused under these offences. 15. Besides the evidence of prosecutrix P.W.2 Km. Suman there is no evidence to establish this fact that she was subjected to intercourse by the accused/appellant. P.W.1, Pushkar Singh is the father of the victim and this witness has proved the written report Ext. Ka.1. Dr. Lalit Kishore Gusain has been examined as P.W.6. He has examined Km. Suman and as per his report no spermatozoa was found. According to this doctor there was no discharge of semen, and there was absence of sperms in the semen. The other witnesses are police personnel who are formal in nature. 16. Ka.1. Dr. Lalit Kishore Gusain has been examined as P.W.6. He has examined Km. Suman and as per his report no spermatozoa was found. According to this doctor there was no discharge of semen, and there was absence of sperms in the semen. The other witnesses are police personnel who are formal in nature. 16. Thus in view of discussions made above, I am in full agreement with the view taken by the learned Sessions Judge holding the accused/appellant guilty for an offence U/S 363 I.P.C. and sentencing him to undergo R.I. for two years and imposing fine of Rs. 5000/- and in default of payment of fine to further undergo three months S.I. and acquitting him U/Ss 376/366 I.P.C. 17. The appeal lacks merit and is dismissed. The judgment and order passed by the trial court is affirmed. 18. The accused/appellant is on bail. His bail bonds are cancelled and sureties discharged. He be taken into custody forthwith to serve out the sentence awarded against him. 19. Let the L.C.R. be sent to the court below for compliance of the order.