JUDGMENT 1. - Both the appeals arise out of the judgment and order dated 19.8.1989 passed by the learned Additional District & Sessions Judge, Dholpur in Sessions Case No. 98/85. Whereas the appellants in Criminal Appeal No. 291/1989 have been convicted under Sections 368 & 366 of the Indian Penal Code (for short, hereafter referred to as 'IPC') respectively and sentenced accordingly, the appellant in Criminal Appeal No. 301/1989 has been convicted under Sections 366 & 376 IPC. For conviction of the appellants under Section 366 & 368 IPC, they have been sentenced to undergo four years rigorous imprisonment and to pay a fine of Rs. 1000/- each, in default, to suffer rigorous imprisonment for further six months and for the offence under Section 376 IPC, appellant-Nand Kishore has been sentenced to undergo seven years rigorous imprisonment and pay a fine of Rs. 2000/-, in default, to suffer one year's rigorous imprisonment in addition. 2. I have heard Mr.P.C.Jain and Mr. Deepak Soni, learned counsel for the appellants and Mr. Javed Choudhary, learned Public Prosecutor, Rajasthan. 3. The root of the prosecution case lies in a report lodged on 16.5.1984 by the prosecutrix Smt.Shoba with Sosar Police Station alleging that one Sharma, later on identified by her to be the appellant (in Criminal Appeal No. 301/1989 i.e. Nandkishore Sharma) used to visit Yakub, her neighbour. He used to be accompanied by one Ramjani-appellant No. 2 (in Criminal Appeal No. 291/1989) , as a result whereof she became acquainted with them. She accused Nandkishore Sharma and Ramjani to have induced her to accompany them with the promise that they would arrange for her marriage. She alleged that thereafter the appellant-Nandkishore committed forcible sexual intercourse with her against her will and when she tried to protest, he threatened to kill her. She mentioned that thereafter both of them took her to the village of Ramjani, and eventually, sold her to the appellant-Alam Khan where after the police recovered her from the latter's custody. 4. On the basis of this information, the police registered a case under Sections 366, 368 & 376 IPC against these three persons, and eventually, submitted a charge-sheet. Whereas the appellants Alam Khan and Ramjani were charged under Sections 368 & 366 IPC respectively, appellant-Nandkishore was charged under Sections 366 & 376 IPC. All the appellants denied the charge and faced the trial. Whereas the appellants Alam Khan and Ramjani were charged under Sections 368 & 366 IPC respectively, appellant-Nandkishore was charged under Sections 366 & 376 IPC. All the appellants denied the charge and faced the trial. The prosecution examined several witnesses, including the prosecutrix-Shoba, PW-3 and also Dr. Om Prakash Mittal, PW-2, who medically examined her. The appellants, in course of their statement under Section 313 Cr.P.C., denied the charge. However, they did not adduce any evidence in defence. The learned trial court, on the basis of the materials on record and after hearing the learned counsel for the parties, convicted and sentenced the appellants as above. 5. The learned counsel for the appellants have argued that the prosecution having failed to establish the charge against them, the learned trial court erred in law and on facts in holding them guilty by wrongly shifting the burden of proof on them. As the prosecutrix was a major at all relevant times, in absence of any inducement or threat exerted by the appellants, the charge against them had remained unproved. Moreover, the medical report does not establish the imputation of rape levelled against the appellant-Nandkishore, he argued. As the testimony of the prosecutrix, even if accepted on its face value, demonstrates that she freely moved in the public while travelling from one place to another and during the time of her stay with the appellants, the charge of abduction and wrongful confinement contemplated under Sections 366 & 368 IPC, was patently a myth and thus, the appellants ought to be acquitted. 6. The learned Public Prosecutor per contra has argued that the prosecutrix was a young woman of 18 years and her evidence being consistent on the aspects of allurement, forcible intercourse and wrongful confinement, the learned trial court was perfectly justified in convicting and sentencing the appellants and thus, no interference with the impugned judgment and order is called for. 7. Having regard to the nature of the charge, the evidence of the prosecutrix-Shoba, PW-3 and that of Dr.Om Prakash Mittal, PW-2, is of utmost relevance. The prosecutrix in her testimony stated that before the incident she was married to one Kasya, who after two years therefrom, abandoned the matrimonial home, and that, since then she had been leaving separately. 7. Having regard to the nature of the charge, the evidence of the prosecutrix-Shoba, PW-3 and that of Dr.Om Prakash Mittal, PW-2, is of utmost relevance. The prosecutrix in her testimony stated that before the incident she was married to one Kasya, who after two years therefrom, abandoned the matrimonial home, and that, since then she had been leaving separately. She stated that the appellant-Nandkishore represented before her, just before the incident, that he would arrange for her marriage, and on that promise, brought her from Sosar. She testified that he then kept her in a lodge, where he committed forcible sexual intercourse with her. They then went to a village and stayed in the house of the appellant-Ramjani, and thereafter, she was brought to the house of the appellant-Alam Khan. She stated that during her stay in the house of Alam Khan, he used to go to the nearby well to fetch water, and that, it was then that she was recovered by the police. She admitted of having been subjected to medical examination thereafter. In cross-examination, she inter alia stated that she accompanied the appellant- Nandkishore in a bus, and that, though he had promised her to give her in marriage, he did not use any force. She also deposed of not having made any complaint to anybody that the appellant-Nandkishore had outraged her modesty. She also stated that during her stay in the house of Alam Khan, she did not complain that she had been wrongfully confined. 8. The evidence of PW-2 Dr.Om Prakash Mittal is to the effect that on the basis of the medical tests, her age was ascertained to be between 17 to 19 years. The testimony of this witness does not disclose any finding whatsoever with regard to the charge of rape on her. 9. On an analysis of the evidence of the prosecutrix and the medical witness, as narrated herein-above, I am of the considered opinion that the charges levelled against the appellants have not been proved by the prosecution. The prosecutrix, at the relevant point of time, was a major. She had been married and her husband having deserted her, she used to stay alone and not with her parents, who were alive. According to her, she used to earn her livelihood by engaging herself as a labourer. The prosecutrix, at the relevant point of time, was a major. She had been married and her husband having deserted her, she used to stay alone and not with her parents, who were alive. According to her, she used to earn her livelihood by engaging herself as a labourer. She has been categorical in stating that the appellant-Nandkishore and Ramjani did not use any force to make her accompany them. There is no medical evidence of rape as alleged by her. That she had been known to Nandkishore Sharma and Ramjani from much before the incident, is evident from her testimony. Her evidence at the trial also establish that though she had ample opportunities of complaining about her abduction, wrongful confinement and forcible sexual intercourse, she did not do so. That she was not wrongfully confined during her stay in the house of appellant-Alam Khan, is also apparent from her free movements. Though she travelled with Nandkishore Sharma in public, she did not admittedly, at any point of time, raise any alarm to rescue her from his custody. 10. On a totality of the considerations as herein-above, the conviction of the appellants as recorded by the learned trial court, cannot be sustained. The impugned judgment and order is set aside. The appellants are set at liberty. Their bail bonds stand discharged. 11. The appeal is allowed. 12. A copy of this order be placed in both the files.Appeal allowed. *******