JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 25.2.2008, passed by the learned Sessions Judge, Mandi, H.P. in Sessions Trial No. 15 of 2006, titled as State of Himachal Pradesh v. Kushal Chand & another, whereby both the accused (appellants herein) have been convicted for having committed offences punishable under the provisions of Sections 363, 366 and 376 (2)(g) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.5000/- (rupees five thousand) each and in default of payment of fine to undergo imprisonment for one year for the offence punishable under Section 376 (2)(g) IPC, rigorous imprisonment for two years with fine of Rs.2000/- (rupees two thousand) each and in default of payment of fine to undergo imprisonment for three months, for the offence punishable under Section 366 IPC, the accused have filed the present appeal under the provisions of Section 374(II) of the Code of Criminal Procedure, 1973. 2. As per the case of the prosecution, prosecutrix (PW-6) was living with her father Sh. Chhitru Ram (PW-1) at village Ropari, Police Station Sarkaghat. She was studying in eighth standard at Devbrarta High School. On 6.2.2006 she left for school but did not return home. PW-1 made inquiries and searched for his daughter but she was nowhere to be found. On 8.2.2006, PW-1 lodged a complaint (Ext. PA) with the police, disclosing that on 7.2.2006 he received a telephonic call from Smt. Kamla Devi mother of Kushal @ Bicky (accused No.1), that her son had committed a wrong act and that he should meet her to resolve the issue. On 8.2.2006 Sh. Changu Ram, ward member of the area informed the police about the whereabouts of the prosecutrix. Upon search she was recovered vide memo (Ext. PB) in the presence of witness Sh. Prem Singh (PW-3). Same day prosecutrix made a statement to the police that both the accused had taken her to Shimla on 6.2.2006. Following day she was brought to Mandi where she was taken to a newly constructed house and subjected to rape. A day thereafter Sh. Changu Ram, ward member, took her and the accused to his house. Thereafter police came and handed over her custody to her parents. On the basis of complaint (Ext. PA), F.I.R. No. 30/2006 dated 8.2.2006 (Ext. Following day she was brought to Mandi where she was taken to a newly constructed house and subjected to rape. A day thereafter Sh. Changu Ram, ward member, took her and the accused to his house. Thereafter police came and handed over her custody to her parents. On the basis of complaint (Ext. PA), F.I.R. No. 30/2006 dated 8.2.2006 (Ext. PQ) was registered at Police Station Sarkaghat, against the accused under the provisions of Sections 363, 366 of the Indian Penal Code. SI-Desh Raj (PW-14) conducted the investigation. He recovered clothes of the prosecutrix and the accused persons and prepared spot map (Ext. PS & PT). Prosecutrix was got medically examined from Dr. Renu Behl (PW-7) who issued MLCs (Ext. PF & PG). Though on 9.2.2006, prosecutrix refused internal examination of her private parts, but on 15.2.2006 allowed herself to be examined completely. The Doctor opined that prosecutrix had been subjected to sexual intercourse. To determine the age of the prosecutrix, police got her medically examined from Dr. P.K. Soni (PW-5) who issued certificate (Ext. PF). Also birth certificate issued by the panchayat (Ext. PC) and one issued by the Headmaster, Govt. High School Devbrarta (Ext. PN) were taken on record by the police. At the time of commission of crime, she was less than sixteen years of age. With receipt of report of the F.S.L. Junga (Ext. PP), SHO-Hari Ram (PW-15) presented the challan in court. 3. Accused were charged for having committed offences punishable under the provisions of Sections 363 and 366 IPC both read with Section 34 IPC as also 376 (2)(g) IPC, to which they did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as fifteen witnesses and statements of the accused under the provisions of Section 313 of the Code of Criminal Procedure were also recorded. According to accused Kushal Chand (accused No. 1), prosecutrix desired to get married to him, which offer was not acceptable and as such he stands falsely implicated. Whereas, according to accused Virender Kumar (accused No. 2), who happens to be cousin of the prosecutrix, on 6.2.2006 he met the prosecutrix on the road. She disclosed to him that her parents had beaten her up as she had not attended the school. Hence he brought her home. Whereas, according to accused Virender Kumar (accused No. 2), who happens to be cousin of the prosecutrix, on 6.2.2006 he met the prosecutrix on the road. She disclosed to him that her parents had beaten her up as she had not attended the school. Hence he brought her home. Thereafter, his mother took the prosecutrix to attend a function (jagarata) in the village, where prosecutrix proposed to get married to accused No. 1. The proposal was turned down. On 7.2.2006, mother of accused No. 1 telephonically informed the parents of the prosecutrix about the same. It is because of this fact, both he and accused No. 1 stand falsely implicated. 5. Appreciating the material placed on record by the prosecution, trial Court convicted the accused of all the charged offences and sentenced them to undergo imprisonment as observed herein earlier. 6. Mr. K.B. Khajuria, learned counsel for the appellants has assailed the judgment, inter alia, on the ground that accused stand falsely implicated. Without prejudice, in the alternative, it is urged that at best it is a case of consensual sex. Hence the judgment requires interference. 7. The first question which needs to be considered is the age of the prosecutrix. Sh. Surjan Singh, Panchayat Secretary (PW-2) has proved the certificate (Ext. PC) issued by the Panchayat, which records the date of birth of the prosecutrix as 9.6.1991. This date of birth is also proved on record by Sh. Manohar Lal (PW-11), Headmaster Government High School, Devbrarta, where prosecutrix was studying. Certificate of date of birth (Ext. PN) stands proved by him. As per these certificates age of the prosecutrix, as on the date of occurrence of the offence, is less than fifteen years. 8. In fact, the issue of age of the prosecutrix, materially stands corroborated by Dr. P.K. Soni (PW-5) who has proved medical record (Ext. PE/1 to PE/4). He has clearly opined the radiological age of the prosecutrix to be between 14 to 16 years. In court he has deposed as such. Significantly except for a vague suggestion that there can be variation of two years in age on either side, there is no cross examination of this witness by the accused. PE/1 to PE/4). He has clearly opined the radiological age of the prosecutrix to be between 14 to 16 years. In court he has deposed as such. Significantly except for a vague suggestion that there can be variation of two years in age on either side, there is no cross examination of this witness by the accused. The Apex Court in State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550 has clearly held that there is no rule, much less an absolute one, that two years have to be added to the age so determined by the Doctor. 9. Further from the un-controverted testimony of both the prosecutrix (PW-6) and her father (PW-1) the fact that, age of the prosecutrix is below 16 years also stands established on record. Hence we have no hesitation in agreeing with the findings so returned by the trial Court that prosecutrix, as on the date of offence, was less than sixteen years of age. 10. The fact that PW-1 had lodged report (Ext. PA) with the police disclosing the factum of missing of his daughter i.e. the prosecutrix stands proved from his testimony. Significantly accused have admitted that Kamla Devi, mother of accused No. 1 had made a telephone call to PW-1. Thus correctness of the report made by PW-1 with the police stands materially established and proved. 11. It be also observed that accused have not led any evidence in support of their defence. Though absence thereof, cannot be taken as a ground or reason to support the prosecution case. Prosecution has to stand on its own legs and prove its case, beyond reasonable doubt, clearly establishing the guilt of the accused in relation to the charged offences. 12. Consent, in view of age of the prosecutrix cannot be a defence. It is a settled principle of law. [See: Iqbal v. State of Kerala (2007) 12 SCC 724 ; State of Uttar Pradesh v. Chhotey Lal (2011) 2 SCC 550 ; Kamalanantha & others v. State of T.N. (2005) 5 SCC 194 ; Dilip v. State of Madhya Pradesh, JT 2013 (8) SC 529; Kailash @ Tanti Banjara v. State of Madhya Pradesh, JT 2013 (8) SC 548; Lillu @ Rajesh & anr. v. State of Haryana, JT 2013 (10) SC 439 and State of H.P. v. Nandu & others, 2011 (2) Him. L.R. (DB) 852.] 13. v. State of Haryana, JT 2013 (10) SC 439 and State of H.P. v. Nandu & others, 2011 (2) Him. L.R. (DB) 852.] 13. Case set up by the accused, as is evident from the suggestions put to both ASI-Desh Raj (PW-14) and prosecutrix (PW- 6), one fact is evident that accused had taken the prosecutrix to Shimla and brought her to Mandi. She remained with them, till her custody was handed over to her parents by the police. There are suggestions in the affirmative on these factual aspects. 14. Having closely scrutinised the testimony of the prosecutrix, we find her to be a reliable witness and her statement to be inspiring in confidence. It is a settled principle of law that sole testimony of the prosecutrix, if inspiring in confidence, is sufficient to establish the guilt of the accused and convict him for the charged offence. [See: State of H.P. v. Asha Ram, (2005) 13 SCC 766 ; State of H.P. v. Gian Chand, (2001) 6 SCC 71 and Din Diyal @ Dinu v. State of H.P., 2011 (1) Him. L.R. (DB) 180.] 15. In court, prosecutrix has clearly deposed that on 6.2.2006 she met her cousin Virender @ Bitu (accused No. 2) at Devbrarta who took her to Sarkaghat in a vehicle where they met Kushal @ Bicky (accused No. 1). Then they both took her to Shimla where they stayed in a rented accommodation. Next day she was brought to Mandi and made to stay in a newly constructed building where she was forcibly subjected to sexual intercourse by both of them. Following day she was taken to the house of accused Bicky (accused No.1) at village Chattar where she changed her clothes. From there Sh. Changu Ram, ward member, took her alongwith the accused to his house. Thereafter police came and her custody was handed over to her parents. In cross examination she has explained that she was subjected to rape by both the accused at Mandi. She could not offer resistance at the time of crime as the accused persons had given her some stupefying medicine/intoxicant in the shape of tablets. She remembers that accused gave two tablets which also gave her a head ache. The crime was committed under the state of intoxication. Unequivocally she has deposed that both committed rape one by one in the presence of each other. She remembers that accused gave two tablets which also gave her a head ache. The crime was committed under the state of intoxication. Unequivocally she has deposed that both committed rape one by one in the presence of each other. Her testimony is clear, convincing and reliable. It inspires confidence. 16. Medical evidence i.e. the MLCs (Ext. PF & PG) duly proved by Dr. Renu Behl (PW-7) also corroborates the factum of sexual intercourse. Absence of injury on victims private parts would not render her testimony to be unbelievable. [See: Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 ] In any event it is not the case of the prosecution that she was subjected to intercourse under threat, force or coercion. 17. We have also considered the testimony of other prosecution witnesses and more particularly that of Sh. Prem Singh (PW-3) who witnessed the custody of the prosecutrix being handed over to her father by the police, which fact stands affirmed by ASI-Desh Raj (PW-14). The spot of crime was verified by Const. Brij Lal (PW-10), which may not have a direct bearing on the decision of the case. The accused were got medically examined from Dr. Harvinder Singh (PW-8) who issued MLCs (Ext. PJ & PL), evidencing the fact that they were capable of committing the crime. 18. Thus, in our considered view, prosecution has been able to establish, beyond reasonable doubt, the factum of rape committed by both the accused on the prosecutrix. 19. However, with regard to offences punishable under the provisions of Sections 363 and 366 IPC we find that the Court below has erred in convicting the accused. There is no discussion of any material (evidence) or reasons assigned by the Court below. It is also not the case of the prosecutrix that she was kidnapped from her lawful guardianship or that that the accused, at any point of time, had compelled her to marry any one of them. Evidence suggests that she remained with the accused and freely moved from one place to another, in public transport, during broad day light. This was till she reached at Mandi. Consequently we set aside the conviction of the accused and the sentence imposed in relation to offences punishable under the provisions of Section 363 and 366 of the Indian Penal Code. 20. This was till she reached at Mandi. Consequently we set aside the conviction of the accused and the sentence imposed in relation to offences punishable under the provisions of Section 363 and 366 of the Indian Penal Code. 20. However, conviction and sentence so imposed by the trial Court in relation to offence punishable under the provisions of Section 376 (2)(g) is upheld. 21. Hence for all the aforesaid reasons, present appeal is partly allowed. 22. Appeal stands disposed of, so also the pending application(s), if any.