Judgment (Oral) 1. At the outset, it needs to be mentioned here that the present matter pertains to Section 376 of the I.P.C. By an amendment in the IPC, Section 228A has been inserted vide Act No. 43 of 1983, in order that the identity of the alleged victims of the offence under Section 376 I.P.C. may not be disclosed. Although, printing and publication in law journal may not be strictly included in the definition of printing and publication het purely for reasons of abundant precaution, the name of the alleged victim has not been mentioned in the present judgment and the alleged victims are only addressed as "prosecutrix". 2. Present Criminal Appeal arises out of judgment and order dated 16-10-2004 passed by the learned Sessions Judge, District Udham Singh Nagar in Sessions Trial No. 376 of 2002 whereby present appellant no. 1 has been convicted under Section 363, 366 and 376 IPC and sentenced for 7 years of rigorous imprisonment and a fine of Rs. 5000/- under Section 363 IPC, 7 years of rigorous imprisonment and a fine of Rs. 5000/- under 366 IPC and 10 years of rigorous imprisonment and a fine of Rs. 10,000/- under Section 376 IPC. The remaining appellants i.e. appellant no.2 and 3 have been convicted under Section 363 and 366 IPC and have been sentenced for rigorous imprisonment of 7 years and a fine of Rs. 5,000/- under Section 363 IPC and rigorous imprisonment and a fine of Rs. 5,000/- under 366 IPC. 3. The first information report (for short, FIR) in this matter was lodged on 20-11-2001 by the father of the prosecutrix namely Dulha Hasan at Police Station Nanakmatta, District Udham Singh Nagar stating that on the intervening night of 16/17-11-2001 at about 11:00 PM in the night his daughter i.e. the prosecutrix left the house in order to answer the call of nature and she did not return. The FIR further states that she has been kidnapped by some persons of the same village who were named as Salim S/o Safi Ahmad, Ejaj S/o Irshad, Ateek S/o Saddiq and Noori % Hamij Raja. He further states in the FIR that his daughter has taken from his house Rs. 22,000/- (Rupees Twenty Two Thousand) in cash and that persons of the same village namely Abrar, Chota and Kutub Hussain have also seen these persons taking away his daughter. He further states in the FIR that his daughter has taken from his house Rs. 22,000/- (Rupees Twenty Two Thousand) in cash and that persons of the same village namely Abrar, Chota and Kutub Hussain have also seen these persons taking away his daughter. The complainant in the end states that he tried to search his daughter but in vain and therefore he is lodging this FIR. Pursuant to the FIR, the police commenced an investigation and thereafter from the available record it appears that all the accused persons were arrested on 21-11-2001 from a bus stop of a nearby village called Pratappur at about 5:15 P.M. On the next day i.e. on 22-11-2001, the prosecutrix was sent for a medical examination at the Community Health Centre, Khatima, district Udham Singh Nagar where she was examined by a lady doctor namely Dr. Sushma Negi. The medical report states that her teeth are 7+8/8+8, her breasts are well developed, public and axillary hair well developed, hymen is old healed and vagina admits two fingers easily. Further it was noticed that there were no signs of injury on the private parts, breasts or on any other part of the body. It was further recorded in the medical report that as per the girl she is menstruating and her LMP (Last Menstrual Period) is 3 days. Thereafter the vaginal smear was taken and two slides were prepared and sent for the detection of spermatozoa or semen and other details. The prosecutrix was also referred for a bone ossification and radiological in order to determine her age. In the medical report it was found that vaginal smear contains only blood and there no spermatozoa was seen. This is further corroborated from the statement of girl given before the doctor as well as from the clinical examination that the prosecutrix was in her menstrual period. The X-ray report says that elbow joint AP view shows all the epiphysis around the elbow joint are fused with their corresponding bones, and the epiphysis of distal end of radius is under process of fusion and the distal end of ulna bone are fused. Consequently an opinion was given that the girl is between 16-18 years of age. It was further opined that "there are no signs of recent sexual activity present but she is habitual to sexual intercourse". Consequently an opinion was given that the girl is between 16-18 years of age. It was further opined that "there are no signs of recent sexual activity present but she is habitual to sexual intercourse". Her clothes i.e. her "salwar" and under garments were handed over to the police which were then sent for forensic examination. The forensic examination report shows that whereas the blood was found on "salwar", blood was not found on the undergarments but spermatozoa was found on the "salwar" as well as on the undergarments. 4. The police after completing the investigation filed a chargesheet, and the case was committed to the court of sessions for trial on 12-11-2002. The learned Sessions Judge framed charged under Section 376/366/363 IPC against accused Salim and under Section 363/366 IPC against the remaining accused. 5. Prosecution in order to prove its case examined as many as 7 witnesses out of which P.W. 1 and PW. 2 are the prosecutrix and the complainant (i.e. father of the prosecutrix) respectively and P.W. 3, 5 and 6 are the witnesses who have seen the accused and the prosecutrix together on that fateful night. PW. 4 is Dr. Sushma Negi, is the one who had medically examined the prosecutrix on 22-11-2001 at Combined Health Centre, Khatima, Udham Singh Nagar and P.W.7 is the Sub Inspector Virendra Singh Raghav, who conducted the investigation in the matter. 6. Whereas P.W. 3, 5 and 6 have corroborated more or less the story of the prosecution giving the same evidence as to the fact that on the fateful night at about 11:00 P.M. they have seen the prosecutrix going with the accused persons but they did not object to it for reasons that the persons belong to the same village and there was a Diwali festival going on at that time. Further than this, there is no evidence coming from these witnesses. However, the fact remains that none of these witnesses said that the prosecutrix were being taken away forcibly or that they had any presumption that the prosecutrix was being taken away by the accused person by coercion or under threat. 7. PW 1 (i.e. the prosecutrix) in her examination in chief, which was done on 31-7-2003, says that her age is about 16 years and that she is a housewife. 7. PW 1 (i.e. the prosecutrix) in her examination in chief, which was done on 31-7-2003, says that her age is about 16 years and that she is a housewife. About 6 or 7 months prior to this deposition, she was married, and prior to her marriage she used to stay with her family and father i.e. Dulha Hasan at village Dyori, P.S. Nanakmatta, District Udham Singh Nagar. About 1 year 8 months back, (the exact date she does not remember), "Noori" one of the accused came to her house and took her outside the house as they both wanted to go and answer the call of the nature. She i.e. Noori took her to the shop of one "Allu" where she met Salim, Ateek and Ejaj (i.e. other three accused) of the same village. She immediately asked Noori as to why she was brought here but the four accused persons threatened her and a knife was also shown to her (who actually showed the knife is not disclosed). Thereafter under this threat and coercion she walked towards "Nanakmatta" and thereafter all four of them took her in a roadways but to Khatima. From Khatima, Noori and Ateek went away but Salim and Ejaj stayed with her and near the bus station taking advantage of the darkness, Salim raped her against her wishes and inspite of her resistance. In the morning, the two accused i.e. Salim and Ejaj again took her to Bareilly where she was kept in a room near a "Mazaar" (Tomb). At that time, Noori also reached the place and she was kept by Noori, Salim and Ejaj for 3 days. All these three days Salim continued to rape inspite of her resistance. During all these period Noori kept on meeting Salim. From this place Salim and Ejaj took her again to a place called Nuriya. Thereafter she pleaded with all four persons and prayed to them that they should drop her to her house. While they were at "Pratappur" Barrier and were in a process to taking her to Delhi, the police caught them along with the prosecutrix and thereafter she was handed over to her father. The prosecutrix says that her salwar and undergarments were also taken by the police for forensic examination. The exhibit was presented to her in the court and she identified that she was wearing it during that incident. The prosecutrix says that her salwar and undergarments were also taken by the police for forensic examination. The exhibit was presented to her in the court and she identified that she was wearing it during that incident. She further says that she is not literate and she has never gone to a school. In answer to a query of the court, she says that as far as rape is concerned, she was raped by Salim and not by any other persons. Her cross-examination was deferred on the request of accused for another day and it took place on the next date i.e. 1-8-2003. In her cross-examination she says that on that fateful night Noori came to her house and thereafter she went out to answer the call of nature with Noori, but she admits that toilet facilities were available inside the house and that the Noori was a frequent visitor to her house. As to the suggestion of the defence as to why she did not resist or raise a cry in the bus, she says that in the first instance when she was being taken to Nanakmatta to Khatima by bus her mouth was tied and therefore she could not speak. Regarding her journey from Khatima to Bareilly she says that through there were several passengers in the bus but she could not raise an alarm for the reason that she was under a threat or coercion of the accused persons. 8. The fact is that she remained with the accused persons for 4 - 5 days and there is absolutely no effort on her part to either raise a cry or to escape from the clutches of the accused persons either in the bus or at the place, where she says she was kept by the accused. This, together with the fact that there are absolutely no injuries on the body of the prosecutrix including her private parts, (though she was madically examined on the next date of recovery i.e. 22-11-2001) creates a doubt in her story. Further during her deposition, she clearly makes a wrong statement that at the time she was recovered, she was not menstruating whereas in the medical report as well as own admission of the prosecutrix scribed in the medical report, she says that she was in menstrual period at the relevant time when she was medically examined. Further during her deposition, she clearly makes a wrong statement that at the time she was recovered, she was not menstruating whereas in the medical report as well as own admission of the prosecutrix scribed in the medical report, she says that she was in menstrual period at the relevant time when she was medically examined. The testimony of this witnesses does not appear to be true and therefore fails to inspire confidence. 9. PW 2 i.e. father of the prosecutrix and the complainant has repeated the same story which is reported by him in the FIR, however there is no reasonable explanation shown as to why the FIR has been lodged belatedly except that he has been searching for his daughter all this while. 10. PW 4 Dr. Sushma Negi who conducted medical examination of the prosecutrix, in her deposition confirms the medical report. Though it is true that in her examination in chief at one stage she says that it is possible that the girl may be of 14 years of age. However, from all available evidence, it is, however, established that the prosecutrix was between 16 to 18 years of age and was around 18 years of age at the relevant time. 11. It is true that in such cases i.e. in cases of rape conviction can be based merely on the testimony of the prosecutrix but when conviction can be based on the sole testimony of the prosecutrix that testimony has to be examined very carefully and its veracity and truthfulness has to be carefully examined. In the present case, this testimony fails to inspire confidence as the prosecutrix has given a wrong statement on more than one occasions. Moreover, her entire action in the incident where there is no effort on her part to escape from the clutches of the accused shows that she was a consenting party in the entire incident. From this, together with the fact that in medical report there are no injuries on the private parts or the body of the prosecutrix or elsewhere, it is clear that it is not a case of rape and no offence under Section 376 IPC is made out. From this, together with the fact that in medical report there are no injuries on the private parts or the body of the prosecutrix or elsewhere, it is clear that it is not a case of rape and no offence under Section 376 IPC is made out. From the same evidence, no offence under Section 366 IPC is also made out for the simple reason that the available evidence does not suggest that the prosecutrix was seduced or enticed by any of the accused and therefore the accused cannot come within the ambit of Section 366 IPC as well. 12. As regarding Section 363 IPC it is true that if the age of the girl is established under 18 years (hence she is a minor) and has been illegally taken away from the custody of legal guardian a case is made out. But there is no definite evidence that the prosecutrix was less than 18 years of age. The medical evidence is after all only an opinion and it is based on a degree of presumption. Moreover, in such cases benefit of one to two years can always be granted to the accused. Therefore, considering all the facts in matter the charges under Section 363 IPC is also not established. 13. Having said this is must also be stated that all the accused has made a plea that they were juvenile on the date of alleged incident and therefore the Court by order dated 7-5-2013 directed the Chairman, Juvenile Justice Board to determine the age of all the three accused in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Since there was no available material before the Juvenile Justice Board, the matter was referred for medical opinion and all the accused were examined by the Medical Board and they were examined on 6-6-2013 which gave an opinion that on the alleged date of incident the accused could be about 15 to 16 years of age in approximation. On the basis of report of the medical board, the Juvenile Justice Board vide its order dated 23-7-2013 declared all the accused as juvenile. 14. Be that as it may, since this Court has come to the conclusion that based on available evidence before the trial court the finding of conviction was wrong, the same is hereby set aside. 15. On the basis of report of the medical board, the Juvenile Justice Board vide its order dated 23-7-2013 declared all the accused as juvenile. 14. Be that as it may, since this Court has come to the conclusion that based on available evidence before the trial court the finding of conviction was wrong, the same is hereby set aside. 15. Hence, the appeal is allowed and the conviction and sentence against the appellants awarded by the trial court in its order dated 16-10-2004 under Section 376, 366 and 363 IPC against appellant no. 1 and under Section 366 and 363 IPC against appellant nos. 2 and 3 passed by Sessions Trial No. 376 of 2002 is set aside. The appellants are acquitted from the charges levelled against them. The are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. 16. Let the trial court record be sent back to the court concerned.