JUDGMENT Inder Singh s/o Atar Singh and Surendra s/o Banwari wrote a missing report to the police station Sahaspur, District Dehradun that their daughters namely, Reena and Reetu were missing from the factory since 11.07.2005. Both the fathers of the missing girls alleged that their daughters went to the factory as usual on 11.07.2005 also, but they did not return home. Missing report (Ext. Ka-1) was therefore lodged at police station Sahaspur. The said report was lodged on 10.08.2005 at 11:15 a.m. The missing girls were recovered on 03.10.2005 from the possession of the accused persons namely, Balbir Singh Bisht and Lalit Singh Vohra alias Rahul. 2. After the investigation, charge-sheet (Ext. Ka-12) was submitted against Balbir Singh Bisht and Lalit Singh Vohra alias Rahul in respect of offences punishable under Sections 363, 366 and 376 of IPC. The case was committed to the Court of Session for trial. When the trial began and prosecution opened it’s case, charges for the selfsame offences were framed against the accused persons, who pleaded not guilty and claimed trial. 3. PW1 Surendra Singh, PW2 Inder Singh, PW3 Reena, PW4 Reetu, PW5 Dr. Deepali (Medical Officer), PW6 Dr. D.S. Rawat (Radiologist), PW7 S.I. Nirvikar (Investigating Officer), PW8 Smt. Usha Devi (Head Mistress), PW9 Gulab Singh Pundir (Head Master) and PW10 Head Constable Ramesh Lal were examined on behalf of the prosecution. Incriminating evidence was put to the accused persons under Section 313 of Cr.P.C., in reply to which they said that they were falsely implicated in the case. They said that no such incident took place. No evidence was given in defence. 4. After considering the evidence on record, co-accused Balbir Singh Bisht was not found guilty of the charges levelled against him. Accused Lalit Singh Vohra alias Rahul was however convicted of the offences punishable under Sections 363, 366 and 376 of IPC. He was sentenced appropriately. Aggrieved against the conviction and sentence, an appeal was preferred by the convict-appellant Lalit Singh Vohra alias Rahul. Since co-accused Balbir Singh Bisht was exonerated of the charges levelled against him therefore, the evidence which was rendered by prosecution against him shall not be referred to by this Court while dictating the judgment. PW2 Inder was Reetu’s father, hence this Court need not discuss his evidence in that detail. Since co-accused Balbir Singh Bisht was exonerated of the charges levelled against him therefore, the evidence which was rendered by prosecution against him shall not be referred to by this Court while dictating the judgment. PW2 Inder was Reetu’s father, hence this Court need not discuss his evidence in that detail. Since co-accused Bablir Singh Bisht has been exonerated therefore, this Court also need not discuss the evidence of PW4 Reetu at length. 5. Prosecution led the evidence through PW3 Reena (as against present convict-appellant). In her examination-in-chief, PW3 said that her date of birth is 2nd July 1988. The incident took place on 16.07.2005. PW3 went to bulb factory, as usual. She proceeded to the bulb factory on 11.07.2005, at 08:00 a.m. PW4 Reetu also accompanied her, as she was also an employee in the same bulb factory. Lalit alias Rahul and Balbir met them at the factory. They said that they shall go for picnic. PW3 and PW4 agreed. Lalit alias Rahul took them to his house at Bageshwar. PW3 and PW4 were not interested in going there. They declined the offer. Lalit alias Rahul was having a knife. He threatened PW3 on the point of knife that if PW3 did not go with him, she along with her family members would be killed. PW3 stayed in Bageshwar for 6-7 days. PW3 was again taken to Faridabad. Lalit committed rape with her. She elaborated in her examination-in-chief, as to what she meant by rape. Balbir had cohabitation with Reetu (PW4). Lalit sexually assaulted PW3 in Faridabad on 5-6 occasions. After three months, when they were coming back to their houses, they were apprehended by the police near Selaqui. Recovery memo was prepared by the police. The police also took her trousers in their possession. PW3 was also medically examined. In the cross-examination, she said that, as per school certificate, her date of birth was 2nd July 1988. She passed class VIII. She worked in the factory for three months and thereafter this incident took place. PW4 Reetu was working in the factory from before. Accused Lalit was also an employee of the factory. From Bageshwar, they went to Faridabad. PW7 admitted that she did not raise alarm on her way from Bageshwar to Faridabad. PW3 said that she was now a married woman. PW4 Reetu was working in the factory from before. Accused Lalit was also an employee of the factory. From Bageshwar, they went to Faridabad. PW7 admitted that she did not raise alarm on her way from Bageshwar to Faridabad. PW3 said that she was now a married woman. PW3 refused the suggestion of learned counsel for the defence that she went with the accused Lalit Singh Vohra on her own volition. The alleged incident took place on 11.07.2005. PW3 remained with the accused Lalit for approximately three months. She was coming back to her house on 03.10.2005. Although she said that she was kidnapped by the accused Lalit on the point of knife, but the fact remains that she remained with accused for three months. During these three months she never tried to raise alarm or to inform her parents or to contact the police. In the circumstances, it appears that she was a consenting party to the sex, inasmuch as, she was about 17 years of age as on the date of incident. 6. PW1 Surendra Singh was the father of victim (Reena). PW1 said that Reena was aged 17 years. She studied up to class VIII. When the incident took place Reena was an employee of tubelight factory, Selaqui. About one year ago (from the date of PW1’s deposition), Reena went to her office at 08:00 a.m., as usual. She did not return. PW1 started making search for the missing daughter. When she did not return for a week, PW1 gave a report to the police station concerned that his daughter was missing. PW1 proved missing report (Ext. Ka-1) lodged by him. After about 20 days, the owner of Balbir Hotel intimated him that accused and co-accused kidnapped Reena and Reetu. The girls were recovered by the police subsequently. PW2 Inder was the father of Reetu. As has been said earlier, the co-accused, with whom she eloped, was acquitted of the charges framed against him. PW4 Reetu accompanied PW3 Reena, as they worked together in the Selaqui bulb factory. PW4 said that no rape was committed with her (and therefore co-accused was acquitted). PW7 S.I. Nirvikar was the Investigating Officer of the case. PW10 Head Constable Ramesh Lal was a formal witness. 7. PW5 Dr. Deepali, Medical Officer, Doon Women’s Hospital, Dehradun was posted in the same capacity on 04.10.2005. PW5 Dr. PW4 said that no rape was committed with her (and therefore co-accused was acquitted). PW7 S.I. Nirvikar was the Investigating Officer of the case. PW10 Head Constable Ramesh Lal was a formal witness. 7. PW5 Dr. Deepali, Medical Officer, Doon Women’s Hospital, Dehradun was posted in the same capacity on 04.10.2005. PW5 Dr. Deepali found no mark of injury on the private parts of Reena (victim). The hymen was found torn. There was slight bleeding in her private parts. Vagina admitted two fingers easily. Vaginal smear was taken for hystopathological examination. PW5, in medico-legal report (Ext. Ka-5) opined that no definite opinion about rape could be given. The patient was sent for conducting x-ray to the Radiologist for determination of her age. Vaginal smear was sent for hystopathological examination. PW6 Dr. D.S. Rawat, Sr. Radiologist, Doon Hospital found that lower epiphysis of radius and ulna of patient (Reena) were fused. All epiphysis around knee were fused. According to Ext. Ka-8, Reena’s age was above 17. On the basis of the report of the Radiologist (PW6), PW5 Dr. Deepali gave a supplementary report (Ext. Ka-6) holding that the age of Reena was more than 18 years. 8. But it is a settled law of the land that entry in the scholar’s register about the date of birth of any student gets precedence over any other piece of evidence, be it medical report or any other form of evidence. The evidence tendered by PW8 and PW9 assumes importance in this context. PW8 Usha Devi was the Principal of Girls Junior High School, Sudhowala, Dehradun. She was working in that Junior High School since 2004. PW8 brought the scholar’s register pertaining to victim Km. Reena. According to the scholar’s register, Reena’s date of birth was 02.07.1988. Reena was admitted in said school on 03.07.1998. She left the school on 21.05.2001 after passing class VIII. PW8 proved school leaving certificate (Ext. Ka-14). PW8 also said that Reena was admitted in this school on the basis of Transfer Certificate issued by the school in which Reena was studying earlier. PW8 also proved the Transfer Certificate (Ext. Ka-15) of earlier school. 9. PW9 Gulab Singh Pundir was the Head Master of Primary School, Sudhowala, Dehradun, who said that Reena d/o Surendra Singh was admitted in this school in class I on 06.07.1993. PW8 also proved the Transfer Certificate (Ext. Ka-15) of earlier school. 9. PW9 Gulab Singh Pundir was the Head Master of Primary School, Sudhowala, Dehradun, who said that Reena d/o Surendra Singh was admitted in this school in class I on 06.07.1993. She passed out class V from Primary School, Sudhowala and therefore, school leaving certificate was issued on 20.05.1998. It was reiterated by PW9 that Reena’s date of birth was 02.07.1988 and he also proved the photocopy of register (Ext. Ka-15). Thus it is settled that Reena’s date of birth was 02.07.1988. The incident took place on 11.07.2005, and by this analogy, Reena was aged about 17 years and definitely below 18 years of age, as on the date of incident. 10. Section 375 of IPC defines rape to mean that a man is said to have committed rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- Sixthly with or without her consent, when she is under sixteen years of age. 11. Thus, according to the scheme of Section 375 of IPC, if the victim is below 16 years as on the date of incident, her consent in the act of sex was immaterial. But if the victim is found to be a consenting party to the sexual activity, her age assumes significance. In the instant case, it is more than clear that she was above 16 years of age, on the basis of school certificate as well as on the basis of Radiologist report. Any prudent person will come to the conclusion that the girl was a consenting party to the sexual activity, if she was roaming freely with the accused for three months. In the circumstances, this Court is unable to hold that the accused committed offence punishable under Section 375 of IPC, but the same is not true in respect of offences punishable under Sections 363 and 366 of IPC. The age of reckoning, for the purposes of those sections, is 18 years. If the victim is found to be below 18 years of age, then in that case her consent, if any, is immaterial. The age of reckoning, for the purposes of those sections, is 18 years. If the victim is found to be below 18 years of age, then in that case her consent, if any, is immaterial. In other words, if the victim, below 18 years, is taken by the accused, even if with her consent, the offence of taking or enticing the victim away from the custody of lawful guardianship will be made out. The age of reckoning for the purpose of Section 363 and Section 366 of IPC is the same. In the instant case, whereas this Court held, that the age of victim was 17 years, that is below 18 years, then even if she volunteered to go with the accused, nobody can save the accused from holding guilty of the offences punishable under Sections 363 and 366 of IPC. By that analogy, the accused-appellant Lalit Singh Vohra alias Rahul committed offences punishable under Sections 363 and 366 of IPC. 12. The same could not be said in respect of co-accused Balbir Singh Bisht, inasmuch as PW4 Reetu, said in her examination-in-chief, that she went with co-accused Balbir on her own volition. PW4 said in her examination-in-chief that she was 17 years of age on the date of incident. She also declined that she ever gave statement under Section 164 of Cr.P.C. before the Magistrate. She said, in unequivocal terms, that she still loved co-accused Balbir. PW4 was declared hostile. In other words, co-accused Balbir was exonerated of the charges, inasmuch as PW4, who eloped with him refused to support prosecution story. The case of the accused-appellant Lalit Singh Vohra alias Rahul vis-a-vis. his relationship with PW3 is entirely on different footing. 13. Thus, while it can safely be said that the offence punishable under Section 376 of IPC is not proved against the accused-appellant Lalit Singh Vohra alias Rahul, but at the same time it can safely be concluded that the offences punishable under Sections 363 and 366 of IPC were proved against the accused-appellant beyond reasonable doubt. 14. The delay in such cases is explainable, as was held by the Hon’ble Apex Court in Harpal Singh and another v. State of Himachal Pradesh, AIR 1981 SC 361 . In the instant case also, efforts were made by the parents of the missing girls to trace them out. This process consumed a good number of days. 14. The delay in such cases is explainable, as was held by the Hon’ble Apex Court in Harpal Singh and another v. State of Himachal Pradesh, AIR 1981 SC 361 . In the instant case also, efforts were made by the parents of the missing girls to trace them out. This process consumed a good number of days. When they left the hope of recovery of their daughters, only then the FIR was lodged. 15. Thus, on the basis of evidence on record, it is not proved beyond reasonable doubt that the accused-appellant has committed the offence punishable under Sections 376 of IPC. But, the offences punishable under Sections 363 and 366 of IPC were proved against the accused-appellant beyond reasonable doubt. Prosecution has been able to prove it’s case against accused-appellant beyond reasonable doubt on two counts (Sections 363 and 366 of IPC). It has reasonably failed to prove it’s case on the third count (Section 376 of IPC). 16. The criminal appeal is, accordingly, allowed in part. The conviction and sentence recorded by the trial court against the appellant Lalit Singh Vohra alias Rahul in respect of offence punishable under Section 376 of IPC is hereby set aside. He is acquitted of said charge. But, his conviction and sentence in respect of offences punishable under Sections 363 and 366 of IPC awarded by the court below is hereby affirmed / maintained. Accused-appellant Lalit Singh Vohra alias Rahul is on bail. His bail is cancelled. Accused-appellant shall undergo imprisonment in respect of offences punishable under Sections 363 and 366 of IPC as awarded to him by the court below. Period of detention already undergone by the accused-appellant during investigation, trial and pendency of this appeal, shall be set off against the sentence of imprisonment thus awarded to him. The trial court shall ensure that the accused-appellant serves out the sentence as modified by this Court. 17. Let the lower court records along with a copy of this judgment be sent back to the court below for compliance. Appeal partly allowed.