JUDGMENT : SANJAY KAROL, J. 1. Assailing the judgment dated 1.11.2007, passed by learned Addl. Sessions Judge, Fast Track Court, Kangra at Dharmshala, H.P., in Sessions Case No. 15-P/VII/07, titled as State of Himachal Pradesh v. Minga Ram, whereby accused-appellant stands convicted for having committed an offence punishable under the provisions of Section 366 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of four years and fine of Rs. 20,000/-, in default thereof to undergo simple imprisonment for one year, the accused has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that on 22.3.2007, prosecutrix (PW-2) had gone to fetch water from a "Bauri" (water body) in village Badini. At about 7.00 p.m., she met the accused. On his asking, she agreed to accompany him on his motorcycle to her sister's house. After covering a little distance, she realised that accused was taking her towards Chandigarh. She protested and expressed her unwillingness to accompany. However, despite her protests, accused did not stop the motorcycle. After covering some distance, accused parked the motorcycle and lit fire as it had become cold. Accused tried to rape her which attempt she resisted. She requested the accused to drop her back to her house. However, accused threatened her not to raise any hue and cry, least he would kill her. On the premise that he would drop her back, she again sat with him on the motorcycle. Somewhere between Amb and Una (Himachal Pradesh), tyre of the motorcycle got punctured and as such they had to stop and wait. In the meanwhile finding the prosecutrix not at home, her mother Smt. Moolan Devi (PW-3) started search. Both PW-3 and wife of accused (not examined in Court) hired a taxi of Vajender Singh (PW-5) for this purpose. In the middle of night, they were able to locate the accused and the prosecutrix sitting alongside the road. PW-3 took the prosecutrix home. Sh. Udham Singh (PW-4), Pradhan of the Gram Panchayat, was informed who in turn telephonically reported the matter to the police. ASI-Yash Pal (PW-14), Incharge of Police Post, Thural, went to the village of the prosecutrix where he recorded her statement dated 23.3.2007 (Ext. PW 2/A) and sent it to Police Station, Lambagaon, where F.I.R. No. 55/2007 (Ext. Sh. Udham Singh (PW-4), Pradhan of the Gram Panchayat, was informed who in turn telephonically reported the matter to the police. ASI-Yash Pal (PW-14), Incharge of Police Post, Thural, went to the village of the prosecutrix where he recorded her statement dated 23.3.2007 (Ext. PW 2/A) and sent it to Police Station, Lambagaon, where F.I.R. No. 55/2007 (Ext. PW 10/A), dated 23.3.2007 was registered against the accused under the provisions of Sections 376/511, 363 and 366 of the Indian Penal Code. Police got the prosecutrix medically examined from Dr. Veena Gopal Sharma (PW-15) who issued MLC (Ext. PW 2/B), after taking into account the report of F.S.L. Junga (Ext. PA). With the completion of investigation, challan was presented in the Court for trial. 3. Accused was charged for having committed offences punishable under the provisions of Sections 363 and 366 of the Indian Penal Code, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as fifteen witnesses and statement of the accused under Section 313 of Code of Criminal Procedure was also recorded, in which he pleaded false implication. No evidence in defence was led by the accused. 5. Appreciating the material placed on record by the prosecution, trial Court convicted the accused for having committed an offence punishable under the provisions of Section 366 IPC and sentenced as aforesaid. Hence the present appeal. 6. Having heard learned counsel for the parties as also perused the record, I am of the considered view that findings as also the impugned judgment are not based on correct and complete appreciation of evidence and material placed on record, causing prejudice to the accused as also resulted into miscarriage of justice. 7. To my mind, prosecution story on the face of it appears to be false. Testimony of prosecution witnesses including the prosecutrix are full of fatal inconsistencies, unworthy of any credence. Witnesses cannot be said to be trustworthy. 8. Trial Court convicted the accused relying upon the testimony of the prosecutrix, but primarily for the reason that the accused misused and abused the confidence which she had reposed in him. 9. It is not in dispute that at the time of commission of the alleged offence, prosecutrix was more than 18 years of age. 10. In Court, prosecutrix has not deposed that she was subjected to rape by the accused. 11. 9. It is not in dispute that at the time of commission of the alleged offence, prosecutrix was more than 18 years of age. 10. In Court, prosecutrix has not deposed that she was subjected to rape by the accused. 11. Dr. Veena Gopal Sharma (PW-15) medically examined the prosecutrix who disclosed to her that she was taken away by the accused on 22.3.2007. She was medically examined on 24.3.2007. According to PW-15 no marks of injuries were found on any part of her body. Hymen was torn. Possibility of rape could not be ruled out. 12. In order to establish the fact that with an intent of having sexual intercourse, accused took the prosecutrix, on the pretext of dropping her to her sister's house; threatened her not to raise alarm least she be thrown from the motorcycle; and tried to commit rape, testimonies of relevant prosecution witnesses viz. prosecutrix (PW- 2), her mother Smt. Moolan Devi (PW-3) and Pradhan of the Gram Panchayat Sh. Udham Singh (PW-4) needs to be examined. These are the only relevant prosecution witnesses. 13. In Court, prosecutrix (PW-2) states that on 22.3.2007 at 7.00 p.m. when she had gone to fetch water from the "Bauri", she met the accused who offered to take her on his motorcycle to her sister's house. She agreed and sat on the motorcycle. Accused told her that he was taking her to Chandigarh. She started crying and requested him to take her back home, but he did not. On the way, accused stopped the motorcycle and lit fire for warming up. He tried to commit rape which she resisted. Near Amb, motorcycle was stopped as tyre got punctured. Accused told her that he would marry her at Chandigarh where he had a house and they would permanently reside there. She was also threatened by the accused. In the meanwhile, her mother and wife of the accused reached and she was taken back home. Significantly prosecutrix states that earlier, twice accused had tried to have sexual intercourse with her. She did not report the matter as accused had threatened that he would defame her and none would marry her. 14. On first brush, it appears that prosecutrix is telling the truth. But close scrutiny of her cross examination would only reveal that it is not so. She did not report the matter as accused had threatened that he would defame her and none would marry her. 14. On first brush, it appears that prosecutrix is telling the truth. But close scrutiny of her cross examination would only reveal that it is not so. She admits that in the village there is a water tap where water is available all the time. As such, she had no reason to go to the 'bauri' to fetch water and that too in the late hours of the evening. It be only appreciated that in the month of March, days are not long and normally womenfolk do not leave home alone and that too for fetching water. The foundation of the prosecution story does not inspire confidence. 15. Be that as it may, prosecutrix admits that ever since accused has opened a shop in the village, it has affected business of Udham Singh (PW-4). No adverse inference can be drawn from this statement of hers, but it only probabilises the defence of false implication on the asking of PW-4, on account of business rivalry, as the family of prosecutrix is under his obligation. 16. Further prosecutrix admits it to be correct that of her own volition, she agreed to go with the accused on his motorcycle. Significantly, she does not disclose the agreed destination. She does not disclose the name of her sister or the place of her residence. It is not that her visit was preplanned. Why is it that all of a sudden, she agreed to visit her sister's house and that too without informing her mother. If twice accused had tried to have physical relationship with her, there was all the more reason for her not to have travelled with the accused in the late hours of the evening. The witness also admits that since nothing had happened to her, initially she had refused to get herself medically examined. 17. In Court her testimony that accused forcibly tried to rape her is mere exaggeration if not falsehood. She was confronted with her previous statement (Ext. PW-2/A) and such fact is not recorded there. She admits that they crossed various public places/bazaars and did not raise any alarm. 18. Prosecutrix had attained the age of discretion. She sat on the motorcycle on her own volition. She was confronted with her previous statement (Ext. PW-2/A) and such fact is not recorded there. She admits that they crossed various public places/bazaars and did not raise any alarm. 18. Prosecutrix had attained the age of discretion. She sat on the motorcycle on her own volition. At that time, there was neither any threat nor any fear or seduction on the part of the accused. Hence, offence punishable under the provisions of Section 366 IPC cannot be said to have been made out against the accused. 19. One cannot lose sight of the fact that prosecutrix kept on sitting on the motorcycle for more than 10 hours. They passed through busy market places, yet no alarm was raised by her. She tries to justify her conduct by deposing that accused had threatened her. What were such threats have not been elaborated. Accused could not have thrown her from the motorcycle as he would have himself got hurt in that process. Prosecutrix admits that at two places, vehicle was stopped. At one place, accused had even lit fire and both had warmed up themselves. Now what prevented the prosecutrix to flee away from the spot. It is not that prosecutrix was not familiar with the terrain or accused was armed. 20. Initially, prosecutrix disclosed to the police that accused had raped her which fact was found to be not correct during investigation. Resultantly, accused was charged only for offences punishable under the provisions of Section 363 and 366 IPC. 21. Prosecutrix cannot be said to be a trustworthy witness also for the reason that her statement is full of exaggerations, improvements and embellishments. She states that earlier accused had forcibly tried to have sex with her on two occasions, which fact she did not disclose to the police. 22. There is yet another factor which heavily weighs in favour of the accused. Prosecutrix was found missing from her home on 22.3.2007 and complaint was lodged with the police that too on telephone, only on 23.3.2007. Why not earlier? After all prosecutrix was recovered same day. Pradhan Udham Singh (PW-4) states that on 23.3.2007, at about 2:30 - 3.00 p.m., both prosecutrix and her mother informed him about the incident. Also mother of the prosecutrix told him that she would inform the police. Why not earlier? After all prosecutrix was recovered same day. Pradhan Udham Singh (PW-4) states that on 23.3.2007, at about 2:30 - 3.00 p.m., both prosecutrix and her mother informed him about the incident. Also mother of the prosecutrix told him that she would inform the police. It be only observed that police station is only at a short distance from the house of the prosecutrix. In fact, police was informed on telephone. Why not by the mother? The time gap in reporting the matter to the Pradhan and the police has not been sufficiently explained. As per F.I.R. (Ext. PW 10/A), police was informed on 23.3.2007 at about 9.30 p.m., whereas, according to the Pradhan (PW-4), who was duty bound to inform the police about the occurrence of the incident, he came to know about the incident at about 2.30 - 3.00 p.m. Why did he delay? Significantly, prosecutrix was examined by the Doctor (PW-15) only on 24.3.2007 at 5.30 p.m. Even this delay stands unexplained. Now all this renders the prosecution case to be extremely doubtful. 23. What is also important is the fact that Pradhan Udham Singh (PW-4) admits that on 23.3.2007, prosecutrix never revealed anything to him. 24. Deposition of mother Smt. Moolan Devi (PW-3) only reveals that 'gagar' (tumbler) which prosecutrix had taken to fetch water was not handed over to the police. This further probabilises the defence of the accused, rendering the genesis of the prosecution story to be doubtful. She further states that she went along with the wife of the accused to search for her daughter on the highway leading to Chandigarh. Crucially, wife of the accused has not been examined in Court nor was she associated by the police during investigation. Also what made this witness proceed towards Chandigarh stands unexplained. Perhaps she was aware that prosecutrix had left with the accused to Chandigarh. In this backdrop her statement that she kept on searching for her daughter for two hours between 7.00 and 9.00 p.m. appears to be false. Also why did she go with the wife of the accused. It is not that they are relatives or the wife was suspecting the accused of any infidelity. The theory of recovery appears to be unbelievable. 25. Also why did she go with the wife of the accused. It is not that they are relatives or the wife was suspecting the accused of any infidelity. The theory of recovery appears to be unbelievable. 25. That accused misused and abused the confidence and trust which prosecutrix reposed in him, as she would call him 'Maama', is a factor which primarily weighed with the trial Court in convicting the accused. In the backdrop of the aforesaid discussions, I am of the considered view that trial Court got swayed with this notion, resulting into incorrect appreciation of prosecution evidence in its entirely. 26. Hence for all the aforesaid reasons, it cannot be said that the judgment passed by the trial Court is based on sound principles of law, clear and cogent piece of evidence or that testimony of relevant prosecution witnesses inspires confidence in any manner. 27. As such, present appeal is allowed and the judgment of conviction and sentence passed by the trial Court is set aside and the accused is acquitted of the charged offences. Bail bonds furnished by the accused are discharged. 28. Appeal stands disposed of, so also the pending application(s), if any.