JUDGMENT Surinder Singh, Judge, (Oral). The present appeal is directed against the acquittal of the respondent hereinafter referred to as ‘the accused’ for the offence punishable under Sections 363, 376 read with Section 506 Indian Penal Code passed by the learned trial Court in Sessions Trial No. 28 of 2006 and RBT Sessions Trial No. 188- 1/2006 on 15.9.2007. 2.In short, the prosecution case, as emerges from the evidence on record, can be stated thus. In the year 2006 PW1 Bhag Chand was Chowkidar in Government High School Nathan. He is having four children, out of which prosecutrix aged about 17 years is the eldest one. (ii) On 6.2.2006, she had gone to the house of her aunt in village Bhalyani. On 10.2.2006 mother of the prosecutrix informed Bhag Chand aforesaid that prosecutrix had not reached the house despite having left the house of her aunt on 9.2.2006. (iii) On 10.2.2006, PW9 Man Singh visited Kullu in search of the prosecutrix. He went to the house of his sister and mother at Kullu. Prosecutrix was not found there. During day time around 2 p.m., prosecutrix met him at Bhutti-chowk (Kullu) and on being asked she told him that on the previous day she had left the house of her aunt and was accompanied by her cousin Asha up to the Shalyani nullah where she was waiting for the arrival of the bus. Accused was sitting in his maruti car bearing registration No. HP34-3103 and told prosecutrix that he would leave her at the place Khalara-nullah, where she intended to go, on charging ‘ 10/-. Accused further told her that his two sisters would be also boarding the car at village Bara Gaon thus, she took lift in the car. Accused drove his car towards Khalara-nullah. When she asked to stop, the accused is alleged to have threatened to kill her and not to raise alarm. Thereafter the accused took prosecutrix to Mandi via Bhoot-Nath Bridge, Bhuntar and lodged in a hotel located near Amar Tax shop. Both of them stayed for a night in room No. 301 where the prosecutrix was raped. She was threatened not to disclose this to any one, if she did so, she would be done away with her life. Thereafter the accused took prosecutrix to Mandi via Bhoot-Nath Bridge, Bhuntar and lodged in a hotel located near Amar Tax shop. Both of them stayed for a night in room No. 301 where the prosecutrix was raped. She was threatened not to disclose this to any one, if she did so, she would be done away with her life. (iv) Next morning, she was brought back by the accused in the same car and left at bus stand Kullu where her father met her and thereafter took her to police station Kullu and lodged the FIR Ext. PA. (v) Prosecutrix was medically examined on the request of the police by PW1 1 Dr. Neeru Pandit Kapoor. She noticed that hymen was torn at 7’ o clock position edges were raw and tender. There was no mark of injury on external gentalia. Doctor took three smear vaginal from posterior forensic, preserved her cloth for further chemical examination. Prosecutrix was also referred to ascertain her skeletal age. PW12 Dr. Manoj Kapoor Radiologist took ski-grams Ext. P12 to Ext. P15. Thus on epiphyses of bones, the estimated age of the prosecutrix was opined to be between 17 to 19 years. His opinion is Ext. PJ. Doctor Neeru Pandit Kapoor opined that there was an evidence of physical interference with external genetalia and also of recent coitus. She issued medico legal certificate Ext. PH containing her opinion. (vi) Accused was arrested. He was also got medically examined from PW8 Dr. Baldev Kumar and was found fit to perform sexual intercourse. His MLC is Ext. PR. During investigation, police also took into possession birth certificate of the prosecutrix Ext. PG showing her date of birth as 14.3.1989. Police also prepared site plan of the place of hotel where prosecutrix and accused had stayed. During the investigation police also took record of Manjul hotel which contained entries of accused and also the cash memo of ‘200/- to which accused had paid as rent of the hotel. 3. After completing investigation, challan was presented in the Court for the trial of the accused. He was accordingly chargesheeted to which he pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined its witnesses and respondents were also examined under Section 313 of the Code of Criminal Procedure. According to him he had old acquaintance with the prosecutrix. He was accordingly chargesheeted to which he pleaded not guilty and claimed trial. 4. To prove its case, prosecution examined its witnesses and respondents were also examined under Section 313 of the Code of Criminal Procedure. According to him he had old acquaintance with the prosecutrix. She was engaged by her parents some where but she was not interested to marry, as such, she left her house for the last about 3-4 days and called him to Khalara- Nullah from where she joined the company of accused. Both of them had gone to Mandi and stayed in a hotel. They had consensual intercourse. It is also denied that she was minor at that time. 5.The learned trial Court found that birth certificate of the prosecutrix was not reliable as according to PW9 Man Singh birth register did not contain name of the prosecutrix but in its colum No. 5 he had added the name of prosecutrix at the behest of her father on 15.2.2006, i.e. after registration of this case. Further that skeletal age of the prosecutrix was 17 to 19 years. The learned trial Court further observed that prosecutrix had accompanied the accused from Kullu to Mandi and back. During this sojourn, she happened to cross thickly populated area and various police stations and barriers, even she accompanied the accused to the market at Mandi, while staying in the hotel and had opportunity to make hue and cry and complaint had she been forcibly taken but she did not do so. Even on return journey same stations fell on the way and even after alighting from the car at bus stand Kullu, she did neither go to the police station nor complained to any body else but it was only when her father had met her and inquired about her whereabouts and cause of accompanying the accused, it was then he took her to police station and lodged the FIR thus held it a case of consensual intercourse, accordingly acquitted the accused. 6.We have heard the learned counsel for the parties, given our thoughtful consideration to the rival contentions and have reappraised the evidence on record. 7.No doubt, medical evidence establishes that the prosecutrix was exposed to coitus. Even prosecutrix substantiated this fact when examined in the Court, which fact stands also admitted by the accused but pleaded consent. 6.We have heard the learned counsel for the parties, given our thoughtful consideration to the rival contentions and have reappraised the evidence on record. 7.No doubt, medical evidence establishes that the prosecutrix was exposed to coitus. Even prosecutrix substantiated this fact when examined in the Court, which fact stands also admitted by the accused but pleaded consent. In such a situation, it was sine qua non on the prosecution to prove that prosecutrix was a minor at the time of alleged incident or in any case less than the age of her discretion. For that they put reliance on the birth certificate Ext. PG which was sought to be proved from PW9 Man Singh who was Panchayat Secretary at the relevant time. He stated that he did not know who was author of the birth entry in the Panchayat register but admitted that the name of the prosecutrix was kept blank in the birth register at the time of making this entry and in column No. 5, he entered the name of prosecutrix at the behest of her father, after the incident, i.e., 15.2.2006. The father of the prosecutrix had four issues; therefore, it was incumbent upon the prosecution to link the birth entry with the prosecutrix to which they miserably failed. If this date of birth is to be taken correct, even than she comes out to be above the age of discretion. Further, medical evidence with respect to the age reveals that her age was between 17 to 19 years, as deposed by PW12 Dr. Manoj Kapoor. Thus, the prosecutrix has been proved to be more than the age of discretion. 8. Now coming to the statement of the prosecutrix whose statement otherwise is legally sufficient to convict the accused if it is worth inspiring confidence. She stated that on 9.2.2006 while returning to her parental house from the house of her aunt, her niece Asha accompanied her up to the main road at Bharyali. Around 2 p.m. she was waiting for the bus at Shalngan nullah, she ntoiced maruti car of the accused parked on the road side and accused asked her where she was to go. When she told that she wanted to go to Khalara-nullah, accused told her that he would take her on charging ‘10/-, on this, she got into the car, at that time Asha had returned to her house. When she told that she wanted to go to Khalara-nullah, accused told her that he would take her on charging ‘10/-, on this, she got into the car, at that time Asha had returned to her house. This fact stands admitted by Asha (PW1 4) and she further stated that prosecutrix boarded car and occupied front seat of the car. 9. Prosecutrix admittedly had visited Kullu on many occasions from her native place. Hence forth, the journey of the prosecutrix on the day of incident, with the accused as revealed by her in her statement especially in cross examination is quite interesting and spells out the tacit consent. According to her she had occupied the rear seat of maruti car and on the way she tried to escape, but she was threatened by the accused to sit quietly. But she stated that there was a heavy flow of traffic between Bhutti Chowk and Khalara nullah. She did not notice any police official at Bhutti Chowk but they had crossed Shishamati Bazar, thereafter Dhalpur bazaar situated between Bhuti- Chowk and Khalara nullah. She further stated that the area between Bhutti Chowk and Bhoot Nath bridge is thickly populated. They had crossed the bridge and went to Jia, crossed Jia bridge. After crossing Bhunter Bazaar the car was stopped by the accused for about 15 minutes at the bridge. Thereafter, he reversed back the car as it could not have crossed through the bridge. It was bye-passed. She also admitted that many shops and populated areas were located between Bajora and Mandi. On reaching Mandi, accused went inside the hotel and she remained sitting in the car. This shows that at that time, she had opportunity to escape but she did not do so but kept sitting in the car for about 10 minutes as admitted by her. Thereafter, the accused came there and asked her to accompany him in the hotel. She followed him though she stated that thereafter she did not go to bazaar from the hotel room but this fact find mentioned in her statement recorded under Section 161 of the Code of Criminal Procedure, with which she was confronted. 10.Further, PW7 Anil Kumar who was waiter in hotel Manjul at Shoulikhad, Mandi stated that accused after checking in to the hotel had left along with a lady to the market. 10.Further, PW7 Anil Kumar who was waiter in hotel Manjul at Shoulikhad, Mandi stated that accused after checking in to the hotel had left along with a lady to the market. Further prosecutrix stated that on their return journey, when they proceeded from Mandi to Kullu, they did not stop any where in mid way till they reached bus stand Kullu. She admitted that there were number of shops located at the bus stand and did not disclose about this incident to any body else except her father. 11. It is pertinent to note that she stated that her father had shown annoyance at bus stand Kullu as to why she had gone with the accused to Mandi, meaning thereby that he had noticed and knew about the fact that prosecutrix had gone with the accused to Mandi, it was then she narrated about the above stay to him. But the circumstances aforesaid lead us to the conclusion that the prosecutrix was a consenting party. 12. The alleged threatening given by the accused also stands not proved. As already stated above, prosecutrix had several opportunities either to raise hue and cry or to make complaint to the police officials, hotel owners and also persons to whom she met on the way even at Mandi bazaar and Kullu but she kept mum. It was only when her father asked reasons about her association with the accused, as aforesaid, she appears to have pleaded to him about the alleged threats by which she could not resist. The material about act and conduct, brought in cross-examination of the prosecutrix make her version unworthy of credence. 13. Therefore, the above facts and circumstances of the case lead us to an inescapable conclusion that the prosecutrix was a consenting party as such prosecution failed to prove the offences charged against the accused beyond reasonable doubt. The appeal is without any merit hence dismissed. 14.The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case. 15.The matter stands disposed of. Send down the records.