JUDGMENT Sureshwar Thakur, J. 1. Both these appeals are being disposed of by a common judgment as they arise from a common judgment. 2. These appeals, are, directed against the judgment rendered, on, 24-12-2010/28-12-2010, by the learned Sessions Judge, Kangra at Dharamshala, in, Sessions Case No. 26-P/VII-2008, whereby the appellants have been convicted and sentenced as follows:- (1) 376(2) (g) IPC:- Both the convicted persons are sentenced to rigorous imprisonment for a period of ten years each and to pay fine of Rs. 10000/- (Rs. Ten Thousands only) each and in default of payment of fine both convicted persons will further under go rigorous imprisonment for a period of six months each. (2) 368 IPC:- Both the convicted persons are sentenced to rigorous imprisonment for a period of seven years each and to pay fine of Rs. 5000/- (Five thousands only) each and in default of payment of fine both convicted persons will further undergo rigorous imprisonment for a period of six months each. (3) 506 IPC:- Both the convicted persons are sentenced to rigorous imprisonment for a period of two years each and to pay fine of Rs. 5000/- (Rs. Five thousand only) each and in default of payment of fine both convicted persons will further undergo rigorous imprisonment for a period of three months each. 3. The prosecution case, is, that, on, 28.3.2008, the prosecutrix recorded her statement, in, Police Station Lambagaon, camp at Thural, District Kangra, H.P. at about 4.05 a.m., disclosing therein, that, on 27.3.2008, she had visited Kangra temple, to, pay obeisance and when she was waiting for a bus at ,Old Kangra Bridge, at, about 2 p.m. for returning home, a white coloured car came and stopped in front of her. The occupants of the car enquired about her destination, on, which she replied that they have no business, to, ask her. In the meantime the accused who sat on the rear seat, forcibly dragged her, into, the vehicle. The prosecutrix further stated that, on, her resisting, the accused gagged her mouth with his hand, and, threatened her that, in, case she raised a hue and cry, she would be done, to, death, and, thrown in the rivulet. She further stated, that, despite resistance, the accused committed rape on her. She also stated that despite repeated requests made to the accused persons, to, drop her at Paprola, the accused took the vehicle, towards Thural. She further stated, that, despite resistance, the accused committed rape on her. She also stated that despite repeated requests made to the accused persons, to, drop her at Paprola, the accused took the vehicle, towards Thural. She also stated that she told the accused that she intends, to, urinate, and, the moment, they stopped the car, she ran towards a nearby house. She further stated to the police that she told the occupants of the house, that, the accused were after her, upon which, occupants of the house made a telephone call, to, the police. She further stated that, on, the arrival of the police, she accompanied the police, to, police post, accused persons were already there, and, a white coloured car was also parked outside the police post. She further informed that the accused persons were interrogated by the police, in, her presence, and, both of them disclosed their names, to be, Pratap Chand and Duni Chand. Thereafter investigation was carried out by the police. The prosecutrix, as well, as, the accused were medically examined. On completion of the investigation into the offence, allegedly committed by the accused persons, report under Section 173, Cr. P.C. was prepared and filed in the Court. 4. The trial Court charged the accused, for, theirs having committed offences punishable under Section 376(2) (g), 368 & 506 IPC to which they pleaded not guilty and claimed trial. In proof of the prosecution case, the prosecution examined as many as 12 witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded in which they pleaded innocence and claimed false implication. 5. On closure of proceedings under Section 313 the of Code of Criminal Procedure, the accused persons were given, an, opportunity, to, adduce evidence, in, defence, and, they chose to adduce evidence in defence. 6. On appraisal of the evidence on record, the learned trial Court returned the findings of conviction against the accused. 7. The first witness, who stepped into the witness box, to prove the prosecution case, is, PW-1 Dr. Sushma, who deposed, that, on 28.3.2008, on, an application of the police, comprised, in, Ex. PW-1/A, she had examined the prosecutrix, at, about 4.00 p.m. She deposed that prosecutrix divulged her age, to be 23 years. 7. The first witness, who stepped into the witness box, to prove the prosecution case, is, PW-1 Dr. Sushma, who deposed, that, on 28.3.2008, on, an application of the police, comprised, in, Ex. PW-1/A, she had examined the prosecutrix, at, about 4.00 p.m. She deposed that prosecutrix divulged her age, to be 23 years. She had obtained the consent of her mother, before her proceeding to conduct her medical examination. On examination, she found that the prosecutrix, was, moderately built, and, there, was, no mark of injury, on, her person. On, her local examination she found that:- “Pubic hair not matted (taken for chemical analysis). There was no induration / swelling / injury. Hymen was torn. Introitus admitted two fingers easily. Two vaginal swabs and two vaginal smears were taken and sent for chemical analysis in a sealed parcel.” PW-1 has deposed that the following articles were handed over to the police:- “1. Original MLC No. 133/08 2. A sealed parcel having five seals containing her clothes (Shirt, undershirt, underwear and salwar). 3. A sealed parcel having three seals containing pubic hairs clippings and two vaginal smears. 4. A sealed envelope having three seals containing two vaginal swabs. 5. Sealed envelop having three seals containing letter for chemical examination.” She further deposed, that, she had issued MLC comprised, in, Ex. PW-1/B, which bears her signature. She continued, to, depose that, on, the report of chemical examiner comprised, in, Ex. PW-1/C, she had recorded the following observations:- “1. Human semen was detected on exhibit-6B (Vaginal smears and slides). 2. Human Blood and human semen was detected on exhibit-5 (salwar), 5 b (Shirt), 5d (underwear) & Exhibit 7 (vaginal swab). 3. Blood was found in traces on Exhibit-5c (Vest) and Exhibit-6a (pubic hair) semen was not found on these exhibits.” She has deposed that the prosecutrix, was, habitual of sexual intercourse. Besides, she has deposed, that, as, divulged in the report of chemical examiner, there, is, evidence of recent sexual intercourse. Final opinion has been deposed to be comprised, in, Ex. PW-1/D. In her cross-examination, she has deposed that case history, as, furnished, to, her divulged that she, had, indulged in sex for a period of 12 days prior, to, 28.3.2008. Besides, she admits that there, is, no evidence or marks of struggle, and, resistance on any of the part of the body of the prosecutrix. 8. PW-5 Dr. PW-1/D. In her cross-examination, she has deposed that case history, as, furnished, to, her divulged that she, had, indulged in sex for a period of 12 days prior, to, 28.3.2008. Besides, she admits that there, is, no evidence or marks of struggle, and, resistance on any of the part of the body of the prosecutrix. 8. PW-5 Dr. Sunil Dutt Tiyagi, has medically examined the accused. On, medical examination of accused, Duni Chand, he observed that:- “During examination of the spinal region, no marks seen or any injury was noticed. Examination of Pubic region: Pattern and color of hair was normal. Examination of the scrotal region: Both the testicle are well developed and descended in the scrot also no sign of hydrocoel, Tubercular orcht is or any injury seen in the scrotal also the test is were normal in shape and size and there were no congenital malformation or developmental anomalies were seen. Examination of the Penis: It was well developed and there was no developmental or congenital anamalies were seen, no sign of phymosis or scar mark was seen gait was normal, no sign of alcoholic intoxication and drug intoxication was seen.” 9. On examination of accused Partap Singh, he opined that:- “Examination of Scrotum: Both the test is well developed and descended in the scrotalsc. No sign of hydrocel and tubercular orchites was seen. No sign of congenital anamalies or malformation seen No scar mark was seen. Examination of the penis: It was well developed, there was no sign of phymosis or congenital malformation seen. No scar mark was seen. Skin of the glance was rectracted. Examination of the Pubic region:- Pubic hair was normal in color and pattorn. Patient accepted that he had taken bath.” 10. PW-5 further deposed, that, undergarments, and, pubic hairs, were, preserved, and, sealed, then handed over, to, police for forensic investigation. He further deposed that accused were not incapable, to, perform sexual intercourse. He had issued MLCs Ex. PW-5/B and Ex. PW-5/C, which bears his signatures. He further deposed that final reports are comprised, in, Exs. PW-5/D, and, PW-5/E. 11. PW-2 Smt. Punni Devi, mother of the prosecutrix deposed that the prosecutrix had been allowed to go Kangra Temple, to, pay obeisance, on her request. She further deposed that her daughter left at about 9 a.m. and did not return home, that night. He further deposed that final reports are comprised, in, Exs. PW-5/D, and, PW-5/E. 11. PW-2 Smt. Punni Devi, mother of the prosecutrix deposed that the prosecutrix had been allowed to go Kangra Temple, to, pay obeisance, on her request. She further deposed that her daughter left at about 9 a.m. and did not return home, that night. She further deposed that they made efforts, to, search the girl, but, she was not traceable, and, thereafter she was informed by the police about her daughter, and, was taken to Palampur Hospital. She had given consent, for, the medical examination of her daughter. In her cross-examination, she deposes that she had lodged a report of ‘missing persons’ with respect, to, her daughter, at, Police Station, Baijnath. She feigned ignorance whether the said report was made by her, on, 20.3.2008, and, whether she had mentioned, in, the application that her daughter, is, missing, since 16.3.2008. She further deposed that she has informed the police that her daughter, is, mentally disturbed. She further deposed to be incorrect the fact that she had reported to the police that of her daughter having left the house, without any information. 12. PW-3, is, the deposition of the prosecutrix. Her examination-in-chief, besides, as, divulged in the FIR lodged, qua the occurrence, comprised in Ex. PW3/A has come to be corroborated, by, the testimony of her mother, who has deposed as PW-2. However, a, reading of the deposition of PW-2, comprised in her cross-examination unravels the fact with respect to the missing of her daughter qua which she has lodged the report in Police Station, Baijnath. She has deposed, that, she does not remember, that, said report was lodged by her, on, 20.3.2008 and that it mentioned the fact of her daughter missing since 16.3.2008. A reading of deposition of the prosecutrix comprised in her cross-examination, reveals the fact of hers having admitted hers photograph having been handed over to the police by her mother. She also admits that her mother had lodged a missing report on 20.3.2008, qua the fact of hers being, not, traceable since 16.3.2008. She further admits, that, in the missing report her mother disclosed that she is mentally disturbed and leaves the house without information. She omits to recall the exact date when she had gone missing and had returned home. She further admits, that, in the missing report her mother disclosed that she is mentally disturbed and leaves the house without information. She omits to recall the exact date when she had gone missing and had returned home. She has further deposed that she had never been gone to Kangra earlier and none of their relatives/acquaintances stay at Kangra, which, is, located at, a, distance of 50 km from her village. She has omitted to reveal any date showing the date of her going, to, Kangra. She further deposed, that, at Kangra, nobody had told her about the location of Kangra Temple. She conceded the fact of Kangra bus stand being heavily populated. She admits that she omitted to reveal, to the doctor, on asking that she had sustained any injury. She further deposed that in her statement comprised in Ex. PW-3/A she has not mentioned the number of the vehicle and that she had disclosed the name of the accused, as, she had overheard them calling each other, by their names. 13. PW-4 Shri Des Raj deposed, that, on 27th of the last year, month whereof he has been unable to recall, at about 9/10 p.m., a, girl about 20/21 years came to his house. She was perplexed. At the time of her visiting, his house, his wife was also present there. On inquiry she revealed that two boys have taken her, in, their indica car and had committed rape on her. She requested him to keep her for a night and she would leave their house early, the next morning. PW-4 further deposed that when he enquired about the address of girl, no satisfactory reply was given to him by her. Thereafter, he, telephonically informed the police about the girl, and, police official of Police Post Thural came to his house and took the girl with him. In his cross-examination, he deposes that, he has not stated, to, the police in his statement that the girl who had come to his house, apprised him that she was forcibly taken by two boys in their Indica car and they had committed rape on her. He, also, deposed that he did not disclose name of the girl to the police. Besides, he has deposed that even on asking the girl about her name she omitted to disclose her name. He, also, deposed that he did not disclose name of the girl to the police. Besides, he has deposed that even on asking the girl about her name she omitted to disclose her name. He further deposed that he did not see the girl coming from the car or anybody accompanying her. 14. PW-6, Sh. Birbadar Singh, deposed that on 28.3.2008 he had gone to P.S. Lambagaon and SHO had cut the portion of stains of seat of the Car bearing No. HP - 15A-8001 and were sealed in a parcel and were taken into possession vide recovery memo Ex.PW6/A which was signed by him and H.C. Vipan Kumar. 15. PW-7 HC Bipan Sharma has deposed that on 27.3.2008, where he had laid a naka, then, at about 11.30 p.m. they sighted one swift vehicle coming from the side of Palampur, which on signaled to be stopped and on stopping whereof at some distance from the Naka, two gents and a girl were found occupying the vehicle. He further deposed, that, he noticed a girl getting down from the car. He further deposed that, he alongwith HHC Rakesh Kumar, rider of Motorcycle had followed that car and stopped the car at a distance of 200 meters, from the laying of Naka. He brought both accused alongwith car to P.P. Thural. He deposes that a telephonic message received from PW-4 Des Raj, that, a girl had come to his house with further disclosure therein that two persons chasing her and their car had gone to Sujanpur side. On this information, he entered rapat No.20, Ex.PW7/A, in, the daily diary. After the receipt of this information, he, went to the house of Desh Raj and brought the victim, to, P.P. Thural along with Desh Raj and his wife. The victim identified the accused in the Police Post, to be the same persons, who had taken her. He deposed that he lodged report No.21, Ex.PW7/B and thereafter telephonically informed SHO, P.S. Lambagoan on which SHO reached the Police Post, Thural and had recorded the statement of the victim. On 28.3.2008 the car bearing No. HP-15A-8001 along with its documents and key was taken into possession vide recovery memo Ex.PW7/C, on, which he and Rakesh signed as witness. In cross-examination, he admitted the suggestion that there, is, no mention of the name and particulars of the girl. On 28.3.2008 the car bearing No. HP-15A-8001 along with its documents and key was taken into possession vide recovery memo Ex.PW7/C, on, which he and Rakesh signed as witness. In cross-examination, he admitted the suggestion that there, is, no mention of the name and particulars of the girl. He deposed, that, on his asking, the girl did not disclose that she had been missing from her home for, 12, days prior to 28.3.2008. He has deposed that no test identification parade was carried out of the accused or other person in the presence, of, a Magistrate by the prosecutrix. 16. PW-8 H.C. Subhash Chand, MHC deposed, that, on 28.3.2008, S.I./SHO Tilak Raj had deposited with him 7 sealed parcels and one sealed envelope and, he, entered the same, in, the Malakhana register. On 31.3.2008, he, handed over the above referred case property and sealed envelope to HHC Duni Chand vide R.C. No.49/21 for depositing the same at FSL, Junga. 17. PW-9 Duni Chand, deposed that, on, 31.3.2008, MHC Subash Chand had handed over to him case property of the case vide R.C. No.59/21 for being deposited in FSL, Junga and, he, deposited the same on 7.4.2008 with the FSL, Junga and thereafter he handed over the receipt to the MHC. No tampering was made till the parcels remained in his possession. 18. PW-10, HHC Rakesh Mishra, deposes that on receiving the information regarding the kidnapping of a girl by two boys in their car, he, along with HC Vipan Chand chased the car and stopped, it, at Noun. It was a swift car bearing No.HP-15A-8001 in which the accused, whom he identified in Court, were sitting. They were brought to the Police Post Thural along with the car. He deposed that thereafter he and H.C. Vipan Chand had gone, to, the house of Desh Raj and found the prosecutrix in his house. They brought her to police post at about 11.40 p.m. She was accompanied by Desh Raj and his wife. The prosecutrix identified the accused in the Police Post. On information being given to the SHO, P.S. Lambagaon, he, reached the Police Post Thural and the car along with its documents were taken into possession in their presence. He has admitted the suggestion that he had not seen the girl with the accused. The prosecutrix identified the accused in the Police Post. On information being given to the SHO, P.S. Lambagaon, he, reached the Police Post Thural and the car along with its documents were taken into possession in their presence. He has admitted the suggestion that he had not seen the girl with the accused. He has admitted the suggestion that he had not seen the girl in the Court on the day on which his statement was recorded. 19. PW-11 ASI Dalip Singh deposed that on 28.3.2008, on receiving rukka from SI Tilak Raj through constable Chandan, he recorded the FIR, Ex.PW11/A through MHC, which was signed by him. He made the endorsement, Ex.PW11/B on the rukka. 20. PW-12 SI Tilak Raj, deposed that on receiving information on telephone from P.P. Thural regarding the kidnapping of a girl by two boys, he, entered rapat No.29, Ex.PW12/A and proceeded to P.P. Thural along with lady constable Sunita Kumari and other police officials. On reaching the Police Post, he, found the prosecutrix to be present there and he recorded her statement Ex.PW3/A. On 28.3.2008, the prosecutrix was sent by him for medical examination to the SMO, Sub Divisional Hospital and procured MLC Ex.PW1/B. The accused were also subjected for medical legal examination at PHC, Lambagoan and has procured theirs MLCs being Ex. PW5/B and Ex.PW5/C. He has deposed, that, the statement of the prosecutrix under Section 164 of the Cr.P.C., was recorded before the learned JMIC-II, Palampur on an application, Ex.PW 12/C being moved by him. The vehicle used in the crime was taken into possession along with its documents and key vide recovery memo Ex.PW7/C. He has deposed, that, on the demarcation of the accused, on 30.3.2008, he, prepared the site plan Ex.PW12/D. In cross-examination, he has admitted the suggestion that at Kangra bus stand, there is a huge rush of people throughout day and night. He has also admitted the suggestion that there are number of shops opposite the Kangra bus stand. He deposed, that, there are shops on both sides right from the road till the temple and it had not come in his investigation that, any relative of the prosecutrix was residing at Kangra Temple. He has admitted the suggestion that in order to come from old Kangra to Kangra bus stand one has to pass through the Kangra Bazar. He deposed, that, there are shops on both sides right from the road till the temple and it had not come in his investigation that, any relative of the prosecutrix was residing at Kangra Temple. He has admitted the suggestion that in order to come from old Kangra to Kangra bus stand one has to pass through the Kangra Bazar. He has denied the suggestion that prosecutrix was never, in, the company of the accused and no officials or any other persons had seen her alighting from the said car. 21. The learned counsel appearing for the accused/appellants, has, contended before this Court that prosecutrix, was, aged about 23 years, at, the time of alleged commission of the offence. He proceeded to canvass before this Court that, hence, hers having arrived at the age of consent and with evidence on record, though, palpably unraveling the fact of hers having consented to the alleged perpetration of sexual intercourse on her person by the accused, it, hence, having been misappraised by the learned court below, has, consequently caused gross miscarriage of justice. Therefore, the learned counsel contends, that, findings of conviction returned against the accused/appellants be set aside. 22. On the other hand, learned Additional Advocate General has contended that the findings recorded by the learned court below are based on a mature and balanced appreciation of evidence on record, hence, do not warrant any interference. 23. It is undisputed, that, the prosecutrix had arrived at the age of consent. Even though, the testimonies of PW-2 and PW-3 mother of the prosecutrix and the prosecutrix comprised only in their respective examinations-in-chief do not, hence, attain, obviously, the pedestal of solemnity. Rather, for the testimonies of PW-2 and PW-3, to, attain the plank of absolute truth, they have to pass, through, the test of their discerning analysis by this Court in wholesome reading thereof. A perusal of and an incisive wholesome reading of the testimony of PW-2, unravels the fact of hers having lodged a missing report, on, 20.3.2008 with police Station, Baijnath, regarding the factum of the prosecutrix having gone missing, on, 16.3.2008. The said fact, is, also conceded, to, by the prosecutrix, as, apparent on a reading of her cross-examination as well. A perusal of and an incisive wholesome reading of the testimony of PW-2, unravels the fact of hers having lodged a missing report, on, 20.3.2008 with police Station, Baijnath, regarding the factum of the prosecutrix having gone missing, on, 16.3.2008. The said fact, is, also conceded, to, by the prosecutrix, as, apparent on a reading of her cross-examination as well. Now the fact of the prosecutrix having gone missing, since, 16.3.2008 and the fact of theirs being, no, revelation by her to PW-1, the Doctor, who examined, her, of hers having suffered any injury on her person, considered, in, conjunction with the fact, as, emanating in the cross-examination of PW-1, of, it being disclosed, to, her that she had indulged in sex for a period of 12 days prior to 28.3.2008, sequels, the following inferences, more so, given the fact that, there, is absence of injury on the person, of, both the accused, as, apparent from the reading of their respective MLCs Ex. PW-5/B and Ex. PW-5/C:- (a) That the prosecutrix voluntarily joined the company of the accused. (b) Even when she had arrived at the age of consent she even without intimating her parents, having joined the company of the accused, as such, hers joining the company of the accused was consentual as well as a voluntarily act, on the part of the prosecutrix. (c) Absence of resistance by the prosecutrix, to, the alleged sexual overtures of the accused or to the alleged perpetration of sexual intercourse on her person, personifies the fact of hers having consented, to, the sexual overtures of the accused. Apart therefrom with this court having drawn the conclusion, that, the prosecutrix had voluntarily joined the company of the accused, since, 16.3.2008 when she had without the permission of her parents, left her house and up to her discovery on 27.3.2008, on, intimation to the police by PW-4, another, significant fact which has emerged, on, a wholesome reading of the testimonies of PW-2 and PW- 3, is, the fact of prosecutrix having deposed the fact, of, hers having proceeded, to, Kangra temple to pay obeisance. However even, if, she had proceeded to Kangra Temple to pay obeisance and given the fact that when, she deposes in her examination-in-chief that she had in hers proceeding, to, Kangra Temple to pay obeisance, taken the permission of her mother, yet the said fact is falsified by her mother comprised in hers having lodged a missing report qua the fact of her gone missing from home, since, 16.3.2008 with the Police station concerned. Now with the fact of the prosecutrix having proceeded to Kangra Temple to pay obeisance having stood falsified or even, if, assuming that she had at any stage of her staying away from him, since, 16.3.2008 to 27.3.2008 had visited the Kangra Temple, obviously, then, when she concedes to the fact of the vicinities, of both of Kangra Temple, as well, as, Kangra Bus Stand being heavily populated, hers having omitted to, in case, she was compelled by the accused, to join their company, to report the fact to any of the shopkeepers, in, the vicinity of Kangra Temple as well as Kangra Bus Stand, even, when she had an adequate opportunity, to do so, articulates and is communicative of the fact of hers having acquiesced to join the company of the accused. Further, the prosecution has omitted to adduce evidence divulging that she was precluded by threats meted to her by the accused to report the matter either to the police, or, to the shopkeepers in the vicinity of Kangra Temple and Kangra Bus Stand, such omission, rears an inference that, hence, she voluntarily joined the company of the accused persons. Besides, her prolonged and inordinately procrastinated stay in the company of the accused in populous areas aforesaid, denotes as well as magnifies, hers outspoken consent to hers joining the company of the accused, as well, as, in hers performing sexual act with the accused. 24. Now in the above background, the testimony of PW-4, at, whose house the prosecutrix arrived, on, 27.3.2008 and took refuge therein, for, a night assumes importance. PW-4 deposed, that, on the arrival of the prosecutrix, he, noticed her to be in a perplexed state and of hers having disclosed to him of two boys having taken her, in, their Indica car and having committed rape on her. PW-4 deposed, that, on the arrival of the prosecutrix, he, noticed her to be in a perplexed state and of hers having disclosed to him of two boys having taken her, in, their Indica car and having committed rape on her. However, the said fact of the prosecutrix having made a disclosure to him that she was taken in an Indica car, by the accused, who committed rape upon her comprises and constitutes, both embellishment and an improvement, arising from the omissions at the earliest on the part of the above to disclose the facts, as, testified by PW-4. Consequently, the testimony of PW-4 having acquired the taint of embellishments or improvement, renders the said fact unbelievable. In sequel and as a concomitant, this Court, is, of the view that it does compel this Court, to, detract from the findings of conviction recorded by the learned Trial Court below. Moreover, the omission on the part of the prosecutrix to depose qua the make of car, in, which she was taken by the accused, further aggravates the magnitude of incredibility of PW-4, hence, renders, unbelievable, the testimony of PW-4, qua, the disclosure by the prosecutrix to him of her having taken by the accused, in, a car and hers having been subjected to forcible sexual intercourse by them. The said view, is, anvilled upon a close and discerning evaluation of the testimonies of PW-2, 3 and 4. 25. The summon bonum of the above discussion is that, even, if the prosecutrix took to join the company of the accused or was subjected to sexual intercourse, at, their instance, both the fact of hers joining the company of the accused, as well, as, hers being subjected to sexual intercourse, at, the instance of the accused, have no elements of compulsion and duress. Both the acts aforesaid, for the reasons afforded hereinabove, are on an incisive and piercing evaluation of the testimonies of the prosecution witnesses, hence, construable to be bereft, of, exercise of force by the accused, rather, they are construable to be consensual acts. 26. Even, though, the learned Additional Advocate General has contended before this Court that given the statement of the prosecutrix, comprised in Ex.PW3/B, recorded under Section 164 of the Code of Criminal Procedure before the Judicial Magistrate 1st Class, Palampur, the case of the prosecution proved beyond hilt. 26. Even, though, the learned Additional Advocate General has contended before this Court that given the statement of the prosecutrix, comprised in Ex.PW3/B, recorded under Section 164 of the Code of Criminal Procedure before the Judicial Magistrate 1st Class, Palampur, the case of the prosecution proved beyond hilt. However, the Hon’ble Apex Court in State of Delhi vs. Shri Ram Lohia, AIR 1960 SC 490 , Ram Charan vs. State of U.P., AIR 1968 SC 1270, Ram Krishan vs. Harmit Kaur, AIR 1972 SC 468 , Dhanabai vs. State of Tamil Nadu, AIR 1980 SC 628 has held that a statement recorded under Section 164 of the Cr.P.C. is not a substantive piece of evidence. Consequently, the statement of the prosecutrix recorded under Section 164 of the Cr.P.C., comprised in Ex.PW3/B, while, not constituting a substantive piece of evidence, rather, her testimony recorded in Court, alone comprising substantive evidence, hence, when on its keen discernment, an inference surges forth that, her testimony is uninspiring and untrustworthy, consequently, the inference drawn aforesaid renders Ex.PW3/B to be of no probative worth. Consequently, then the findings as recorded by the learned trial court below are wholly anchored upon gross mis-appreciation of evidence on record and deserve interference by this Court. 27. Hence, the appeals are allowed and the impugned judgment of the learned trial Court is set aside. The accused/appellants are acquitted of the offences charged and they be set free forthwith, if not required in any other case. Fine amount, if any, deposited by the accused/appellants, be refunded to them. Records be sent back.