JUDGMENT : By this common judgment, CRA-S-1494-SB-2010 and CRA-S-2671-SB-2010 are being disposed of as these arise out of one and the same judgment of trial Court pertaining to FIR No. 228 dated 14.10.2008 under Sections 363/366/376 read with Section 120-B, Indian Penal Code (IPC) Police Station Sadar, Ballabgarh. 2. The specific charge against Sita Ram alias Kallu-appellant (referred as A-1) in CRA-S-1494-SB-2010 is for offence under Section 376, IPC and against both the appellants, namely A-1 and Sukku in CRA-S-2671-SB-2010 (for short A-2) for offences under Sections 363/366 read with Section 120-B, IPC. Both the appellants were convicted of the said charges by the learned trial Court. A-1 was awarded the sentence to undergo rigorous imprisonment for 10 years and to pay a fine of `10,000/-, in default of payment of fine to further undergo rigorous imprisonment for 10 months under Section 376, IPC. Both A-1 and A-2 were also sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of `5000/- each, in default to further undergo rigorous imprisonment for 5 months each under Section 363 read with Section 120-B, IPC. They were also sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of `7000/- each in default of payment of fine to further undergo rigorous imprisonment for 7 months each under Section 366 read with Section 120-B, IPC. All the sentences were to run concurrently. 3. First Information Report (FIR) Ex. PE/2 was lodged on the written complaint Ex. PE made by father of the prosecutrix. This complaint was submitted before ASI Sher Singh of Police Station Sadar, Ballabgarh, who was present along with other officials at Sikri Bus Stand in connection with investigation in FIR No. 217 of 2008 under Sections 279/337/427, IPC of Police Station Sadar, Ballabgarh. 4. The prosecution version as stated in the complaint is that daughter of the complainant-Raj Kumar was about 17 years old. She had gone to the house of her aunt (Mausi), namely; Beena in village Fatehpur Billoch on 7.10.2008. The complainant received a telephonic information on 13.10.2008 at about 9.00/10.00 a.m. that his daughter (prosecutrix) had started for her house from village Fatehpur Billoch, but she did not reach home. She had gone to the house of her aunt (Mausi), namely; Beena in village Fatehpur Billoch on 7.10.2008. The complainant received a telephonic information on 13.10.2008 at about 9.00/10.00 a.m. that his daughter (prosecutrix) had started for her house from village Fatehpur Billoch, but she did not reach home. The complainant suspected hand of both A-1 and A-2 and one Bhola who enticed away the prosecutrix and took her to Nai Ka Nangla, Sohna, for solemnizing marriage with her. 5. It emerged during the trial, as testified by PW-4 ASI Sher Singh the Investigating Officer, that immediately he went to village Fatehpur Billoch and prepared the site plan Ex. PW-4/A. He also recorded the statements of Beena aforesaid and her son Rakesh. PW-4 immediately proceeded towards village Nai Ka Nangla accompanied by other police officials including lady Constable Mukesh. They found the prosecutrix to be present with A-1 in a room whereas the co-accused were found standing outside. The prosecutrix was recovered vide panchnama Ex. PB. 6. PW-4 further stated that all the accused and the prosecutrix were brought to Faridabad and they were medically examined at General Hospital, Ballabgarh. Statement of the prosecutrix was also recorded. On completion of investigation, challan against A-1 and A-2 was presented before the Area Magistrate whereas separate charge-sheet was presented against Bhola before the Juvenile Justice Board, Faridabad. The case was committed to the Sessions Court for trial. 7. It may be mentioned here that Bhola, the third accused was a juvenile and enquiry against him was held by the Juvenile Justice Board, Faridabad. Learned counsel for the appellants placed on record certified copy of the judgment dated 18.4.2012 passed by the Principal Magistrate, Juvenile Justice Board, Faridabad whereby Bhola stood acquitted of the charge framed against him. That judgment, however, cannot be of much significance because the prosecutrix and her father (complainant) were not available to be examined as witnesses during the enquiry and trial Court observed in the impugned judgment that both victim and her father have since died. 8. The prosecution examined 6 witnesses in support of its case. During examination of A-1 and A-2 under Section 313 Criminal Procedure Code (Cr.P.C.) the version of both A-1 and A-2 was of simple denial. They did not adduce any evidence in defence. Learned trial Court convicted and sentenced both A-1 and A-2 as aforesaid. 9. 8. The prosecution examined 6 witnesses in support of its case. During examination of A-1 and A-2 under Section 313 Criminal Procedure Code (Cr.P.C.) the version of both A-1 and A-2 was of simple denial. They did not adduce any evidence in defence. Learned trial Court convicted and sentenced both A-1 and A-2 as aforesaid. 9. I have heard learned counsel for the appellants, the State counsel and gone through the trial Court record quite extensively with their able assistance. 10. Learned counsel for the appellants challenged the findings of conviction inter alia on the grounds:- (i) that the prosecutrix was more than 18 years old; (ii) that the conviction cannot be based on un-corroborated testimony of prosecutrix alone, which is also discrepant and improbable; and (iii) that the report of Forensic Science Laboratory (FSL) rules out the story of sexual intercourse with prosecutrix. 11. On the other hand, learned State counsel supported the conclusions of the trial Court and submitted that the prosecutrix would not come out openly against the appellants falsely, as her honour and dignity and that of her family was at stake. It is also contended that father of prosecutrix died just after two months of the occurrence, so his non-examination cannot be adversely commented upon. The prosecutrix stated as PW-1 that her father died on 11.12.2008. 12. The first point for determination is the age of prosecutrix at the relevant time. The trial court held the date of birth of prosecutrix as 25.3.1991 and thus it was found that on the date of occurrence i.e. 13.10.2008, she was less than 18 years. The trial Court arrived at this conclusion only from the oral testimony of prosecutrix ignoring the other relevant factors. No documentary evidence to determine age of the prosecutrix was collected. Prosecutrix as PW-1 stated that she has studied up to 10th class. It was thus very convenient to collect the school record in proof of date of birth of prosecutrix, which has not been done. There is thus scope of raising adverse inference against the prosecution on the subject. In any case if it was not possible to collect the record of birth, the other mode of proof was to get medical examination of prosecutrix by ossification test, as recommended by the doctor who conducted medico-legal examination of prosecutrix. 13. After initial hesitation, PW1 admitted Ex. In any case if it was not possible to collect the record of birth, the other mode of proof was to get medical examination of prosecutrix by ossification test, as recommended by the doctor who conducted medico-legal examination of prosecutrix. 13. After initial hesitation, PW1 admitted Ex. DB the letter written in her own hand. This letter is addressed to SHO, Police Station Sadar, Ballabgarh. To wriggle out of the admissions made in Ex. DB PW-1 stated that this letter was got written from her by the accused in police station when her father left police station for a while and the police people had gone inside. 14. Otherwise the version of prosecution is that the prosecutrix was not brought at police station. PW-4 stated in cross-examination that from village Nia Ka Nangla where the accused persons and prosecutrix were recovered they came direct to General Hospital, Ballabgarh where the accused were got medically examined. Then they came to BK Hospital, Faridabad for medical examination of the girl. PW-4 further stated that after the medical examination of the prosecutrix, she was handed over to her parents in the hospital itself. He categorically stated that the prosecutrix was not taken to the police station that day. Thereafter neither the prosecutrix nor her parents met PW-4 in this case. Therefore, the explanation furnished by the prosecutrix that letter Ex. DB was got written from her by A-1 in the police station on the day she was recovered, is totally ruled out. 15. In this letter Ex. DB, date of birth of the girl was stated as 25.3.1990. Similarly, PW-4 in cross-examination stated that prosecutrix was major at that time and her date of birth as per record is 25.3.1990. 16. Learned State counsel submitted that the above version was stated by Investigating officer only on the basis of writing Ex. DB and, therefore, should not be given undue weight. There is, however no such indication in the cross-examination of PW-4 that he stated about majority of the girl from date of birth recorded in Ex. DB. However, in the absence of anything to the contrary the version stated by prosecutrix herself in the letter Ex. DB about her date of birth cannot be lightly brushed aside. 17. PW-6 Dr. N. Kaur had conducted the medico-legal examination of the prosecutrix on 14.10.2008 itself and tendered her affidavit Ex. DB. However, in the absence of anything to the contrary the version stated by prosecutrix herself in the letter Ex. DB about her date of birth cannot be lightly brushed aside. 17. PW-6 Dr. N. Kaur had conducted the medico-legal examination of the prosecutrix on 14.10.2008 itself and tendered her affidavit Ex. PW-6/A. The doctors referred the prosecutrix for dental and radiological department for age verification but no further evidence is forthcoming with regard to the aforesaid tests. 18. In Sunil v. State of Haryana, 2010 (1) SCC 742 : ( AIR 2010 SC 392 ) the Hon- ble Supreme Court held in the circumstances of the case, failure of getting the prosecutrix examined from Dental Surgeon or Radiologist, despite the fact she was referred to them is a serious flaw in the prosecution version. Hon- ble Supreme Court further observed that this would not mean laying down as a rule that all these tests must be performed in all cases, but in the said case, in absence of primary evidence, reports of the Dental Surgeon and the Radiologist would have helped in arriving at the conclusion regarding age of the prosecutrix. In that case, the prosecution had failed to produce admission form of the school and the School Leaving Certificate produced was obtained only after the incident. 19. It is thus held that prosecution was unable to establish that prosecutrix was a minor girl rather she was about 18½ years old at the relevant time. It must be noticed that even the prosecution version was not specific that the girl was minor not so alleged against the appellants in charges framed in the case. 20. The next question would be that even if the prosecutrix was about 17½ years old at the time of occurrence, there was no scope of holding that she was enticed away by A-1 being at the verge of attaining majority and intelligent enough to exercise her discretion. 21. In the letter Ex. DB, it was stated that prosecutrix wanted to enter into matrimony with A-1 and had in fact performed the ritual of marriage as she was wearing ' mangalsutra- and the ornament called ' chutki- on her feet. It is also stated in Ex. DB that the girl had herself called A-1 by making a phone call. It was further stated in Ex. It is also stated in Ex. DB that the girl had herself called A-1 by making a phone call. It was further stated in Ex. DB that parents of prosecutrix were not treating her properly rather used to torture her. 22. It is the prosecution story that the girl had left the house of her aunt on 13.10.2008. She was statedly recovered along with the accused on 14.10.2008 from village Nai Ka Nangla, Sohna. The prosecutrix stated that her mother was recently operated upon. On 13.10.2008 at about 9.00 or 10.00 a.m. she received a telephone call from A-1 that condition of her mother was not good and her mother had been asking about the prosecutrix time and again. 23. On receiving this phone call the prosecutrix reached Ambedkar Chowk, Ballabgarh where all the three accused met her. At that point of time, the prosecutrix came to know of the false excuse of A-1 in calling her there. PW-1 further stated that A-1 started pressurizing her for marriage but she resisted. The accused persons threatened to kidnap brother of prosecutrix and the prosecutrix was forcibly taken in a train to Delhi from where she was taken to Gurgaon in a bus and then in a Jeep to Sohna from there the prosecutrix was taken to the house of a relative of A-2. At that place, she was taken in a room and A-1 forcibly committed sexual intercourse with her. At that moment, A-2 promised the prosecutrix to get her a job. Again she was taken to the fields at night and A-1 committed rape on her twice. There the police came accompanied by her father and she was recovered. 24. In cross-examination, the prosecutrix stated that she started from village Fatehpur Billoch in an auto rickshaw at about 9.00 or 10.00 a.m. and came at Ambedkar Chowk. From there she was taken by all the three accused in an auto-rickshaw to Railway Station from where she was taken to Delhi. There were many passengers at the Railway Station and in the train. They reached Delhi after about 1½ hours. From the Railway Station she was taken to a bus stand but stated that when she tried to speak to the passengers, the accused threatened her with dire consequences. The prosecutrix further stated that after committing rape A-1 stated that he would not marry her. They reached Delhi after about 1½ hours. From the Railway Station she was taken to a bus stand but stated that when she tried to speak to the passengers, the accused threatened her with dire consequences. The prosecutrix further stated that after committing rape A-1 stated that he would not marry her. She rather stated that she never wanted to marry with A-1 but accused was forcing her for that. The prosecutrix admitted in cross-examination that she knew A-1 for the past 8/9 years being her neighbour. 25. The other important aspect is that the doctor recorded in the MLR of the prosecutrix, that as per the information of the girl, no sexual assault was done. This is also recorded at the top of the medico-legal report Ex. PW-6/A. PW-6 (Dr. N. Kaur) stated in the affidavit Ex. PW-6/A that there was no external mark of injury found on the person of the prosecutrix. The doctor also prepared a vial containing two vaginal swabs and a packet of maroon colour underwear of prosecutrix into a sealed parcel and handed over the same to the police for chemical examination. 26. Ex. PA is the copy of report of Forensic Science Laboratory, Madhuban, Karnal (Haryana) where the sealed parcels were sent for examination. Even the sealed parcel containing underwear was sent to the said laboratory. Vide report Ex. PA of FSL semen could not be detected on any of the exhibits sent for examination. 27. The prosecutrix who was kidnapped on 13.10.2008 was recovered on the next day i.e. 14.10.2008. It was on 14.10.2008 itself that her medico-legal examination was conducted. It is stated by PW-6 Dr. N. Kaur in cross-examination that there was tearing of hymen which was 4 to 7 days old and the same was not fresh case of sexual intercourse. The doctor was quite specific in stating that sexual intercourse was committed 4 to 7 days ago. It is nowhere the testimony of prosecutrix or the story of prosecution that the girl had sexual intercourse with A-1 anytime between 7.10.2008 till 13.8.2010 the time during which she had gone and stayed at her aunt- s place. 28. The doctor was quite specific in stating that sexual intercourse was committed 4 to 7 days ago. It is nowhere the testimony of prosecutrix or the story of prosecution that the girl had sexual intercourse with A-1 anytime between 7.10.2008 till 13.8.2010 the time during which she had gone and stayed at her aunt- s place. 28. In Tameezuddin alias Tammu v. State of (NCT) of Delhi 2009 (15) SCC 566 : (AIR 2009 SC (Supp) 2519), the Hon- ble Supreme Court observed that it is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. 29. Even in Pandurang Sitaram Bhagwat v. State of Maharashtra 2005 (9) SCC 44 : ( AIR 2005 SC 643 ) the Hon- ble Supreme Court held that the approach of the learned trial Judge that ordinarily a lady would not ' put her character at stake' may not be wrong but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. It was further held that the law reports are replete with decisions where charges under Sections 376 and 354 of the Indian Penal Code have been found to have been falsely advanced. 30. This is not a case where the girl was taken from her own house rather according to the prosecutrix she was called on a telephonic message received from A-1 though on the pretext that her ailing mother was wanting her to return home. No such call data to connect the aforesaid statement was collected during investigation. The prosecutrix stated that this telephone call was received on the landline phone installed in the house of her aunt at Fatehpur Billoch. It was suggested that in fact the prosecutrix was having mobile phone No. 98919-06250 provided by A-1 and she made a phone call to A-1 on his mobile No. 98911-23954. A suggestion was also put to her that she had called A-1 to take her away otherwise she would commit suicide. 31. From the discussion made above, I find that testimony of prosecutrix when compared with the series of contradictions and in-consistencies does not inspire confidence. A suggestion was also put to her that she had called A-1 to take her away otherwise she would commit suicide. 31. From the discussion made above, I find that testimony of prosecutrix when compared with the series of contradictions and in-consistencies does not inspire confidence. The charge against both A-1 and A-2, therefore, is not proved beyond suspicion. 32. As a sequel to the foregoing discussion, both the appeals CRA-S-1494-SB-2010 (Sita Ram alias Kallu v. State of Haryana) and CRA-S-2671-SB-2010 (Sukku v. State of Haryana) are allowed by setting aside the judgment of conviction against both A-1 (Sita Ram alias Kallu) and A-2 (Sukku) and they are acquitted of the charges framed against them. A-1 Sita Ram alias Kallu who is in custody be set at liberty forthwith if not required in any other case and the bail bonds furnished by A-2 Sukku shall stand discharged. Appeals allowed.