JUDGMENT : Mrs. Sabina, J. 1. Appellants along with another had faced trial in FIR No. 275/87 registered by Police Station Kumher, District Bharatpur, under Section 363, 380 Indian Penal Code 1860 (hereinafter referred to as ‘IPC’). 2. Prosecution story in brief was that the prosecutrix had been kidnapped by the accused and had been raped by appellant Bharat. 3. After completion of investigation and necessary formalities challan was presented against nine accused. The case was committed by the Magistrate to court of Sessions. Thereafter supplementary challan was presented against two more accused. The case was committed to the court of Sessions. Both the challans were clubbed by the trial court. Six accused were discharged by this court. Charges were framed against the appellants and accused Khubi Ram under Section 147, 366 IPC. Appellant was also charged under Section 376(2) (g) IPC. 4. During trial prosecution examined 14 witnesses. Appellants when examined under Section 313 Cr.P.C. prayed that they were innocent and had been falsely involved in this case. 5. Trial Court vide judgment/order dated 30.7.1993 ordered the conviction and sentence of the appellants under Section 366, 147 IPC. Appellant Bharat was also convicted and sentenced under Section 376(2)(g) IPC. Accused Khubi Ram was acquitted of the charges framed against him. Hence, the present appeal by the appellants. 6. Learned counsel for the appellants has submitted that, in-fact, the prosecutrix was having a love affair with appellant Bharat. Parties were living in the neighbourhood. Appellant Bharat wanted to perform marriage with the prosecutrix. Due to difference in their caste, marriage of the prosecutrix with appellant Bharat could not be performed. Prosecutrix had left her home with appellant Bharat of her own accord and had lived with him for a number of days. However, when the prosecutrix was recovered, she has falsely involved appellant Bharat and his family members in this false case under pressure of her parents. 7. Learned State Counsel, on the other hand, has opposed the appeal. 8. P.W. 1 Happu deposed that on 18.12.1987 at about 9.00 p.m. Pooran Singh had come to his house and had told him that his daughter was not traceable. They had tried to search for the girl and when they reached the road while going towards Kumher they saw that a tractor had been parked on the road. 8. P.W. 1 Happu deposed that on 18.12.1987 at about 9.00 p.m. Pooran Singh had come to his house and had told him that his daughter was not traceable. They had tried to search for the girl and when they reached the road while going towards Kumher they saw that a tractor had been parked on the road. Ram Singh, Khubi Ram, Govind, Lakho, mother of Khubi Ram Maya and his sister Laxmi were present there. The said persons encircled their tractor and told them that their daughter was with them and they had kidnapped her. With great difficulty they reached Kumher on their tractor. In his cross-examination he deposed that a case was pending against him qua theft of crop instituted by Maya Devi. Three cases were pending against him. A case was also pending at Bharatpur against him qua infliction of injuries to Ram Singh. 9. P.W.2 Rewati corroborated the statement of P.W.1. 10. P.W.3 Tirveni deposed that about 5 years ago at about 8.30 p.m., she was preparing meals. Her daughter/prosecutrix was knitting a sweater and her son Devendra was sitting on a cot. As it had gone dark, her son came towards her and told her that he was scared. When she went to light the lamp, she saw that the prosecutrix was missing. She tried to search for her daughter in the neighbourhood. When they were going to lodge the report along with Rewati and Happu, they were threatened by Ram Singh, Jeevan, Khubi, Lakho, Govind, Laxmi, Janki, Maya. One box containing jewellery and Rs. 1100/- was also missing. 11. P.W.5 Pooran has corroborated the statement of his wife P.W.3. 12. P.W. 6 Devendra deposed that on 18.12.1987 he was lying on a cot. His sister was sitting on a cot and was knitting a Sweater. Lamp of the room was glowing. In the meantime Bharat, Lakho, Khubi, Ramsingh, Govind, Peetam and Jeevan Akwam Brahmin came there. Bharat, blew the lamp and kidnapped his sister. He narrated the occurrence to his mother. 13. P.W.9 Dr. Bhopal Singh deposed that he had medically examined the prosecutrix and had opined that her age was more than 16 years and less than 18 years. He further stated that in order to give an opinion as to whether the prosecutrix had been sexually assaulted, he had reserved the same till the receipt of the report of Forensic Science Laboratory. Bhopal Singh deposed that he had medically examined the prosecutrix and had opined that her age was more than 16 years and less than 18 years. He further stated that in order to give an opinion as to whether the prosecutrix had been sexually assaulted, he had reserved the same till the receipt of the report of Forensic Science Laboratory. He proved the report Ex.P.10. 14. Prosecutrix, while appearing in the witness box as P.W.13, deposed that about 4 years back she was present in her house. At about 8.00 p.m., she was knitting a Sweater and her brother was lying on a cot. The lamp was glowing. Jeevan, Ramsingh, Gokul, Peetam, Khubi, Bharat, Goving, Lakho and two unknown persons came inside and picked her up forcibly by shutting her mouth. They took her in a trolley to Nadbai. She was made to drink water in which something had been mixed. She was taken by train to Jaipur from Nadbai. Ram Singh and Jeevan did not accompany them. Bharat took her from Nadbai to Jaipur by train along with two unknown persons and Gokul. When she was kept at Jaipur in a room she was given beatings at night and she became unconscious. Later, she was told by Bharat that she had been raped by him, Gokul and two unknown persons. When she regained consciousness, she realised that she had been raped. From Jaipur she was taken to Bombay by Bharat, Khubi and two unknown persons. Gokul returned home from Jaipur. She was kept in a room of some relative at Bombay for 3-4 days. She realised that all the accused were related to each other. At Bombay she was raped by Bharat, Khubi and two unknown persons. Bharat was carrying a small pistol. Thereafter the accused made a plan to sell her. Thereafter accused brought her to village Anah near Bharatpur and she was kept in a room for one day. Then she was taken to Vrindavan where she was kept for two days and she was raped by Bharat. Thereafter she was brought from Vrindavan and to Saukh and there she was kept for one day in the house of Shanker and one day in the house of Gokul. She was got medically examined by the police. 15. P.W.12 Mahaveer Prasad deposed that on 19.12.1087 he was posted as Assistant Sub-Inspector, Police Station Kumher. Thereafter she was brought from Vrindavan and to Saukh and there she was kept for one day in the house of Shanker and one day in the house of Gokul. She was got medically examined by the police. 15. P.W.12 Mahaveer Prasad deposed that on 19.12.1087 he was posted as Assistant Sub-Inspector, Police Station Kumher. He had recorded statements of witnesses and had prepared rough site plan. Thereafter investigation was handed over to ASI Ram Singh. P.W.12 in his cross-examination deposed that on 20.12.1987, he had recorded statement of Chetan under Section 161 Cr.P.C. The said witness had told him that the accused Bharat and the prosecutrix were having a love affair and used to meet each other secretly. 16. As per the medical opinion, prosecutrix was aged more than 16 years and less than 18 years. The said opinion is Ex.P.9. Appellant Bharat was aged about 24 years at the time of alleged occurrence. Parties are residing in the neighbourhood. P.W.1 deposed in his cross-examination that house of Ram Singh was opposite his house and there was a passage in between. Thus, the prosecutrix and the accused were known to each other. There is force in the arguments raised by the learned counsel for the appellants that the prosecutrix and appellant Bharat were having a love affair. P.W.12 Investigating Officer has also deposed in his cross-examination that during investigation he had been told by witness Chetan that the prosecutrix and appellant Bharat were having a love affair and they used to meet secretly. Prosecutrix had gone with the appellant from her village to Nadbai and then to Jaipur and then to Bombay and then to village Anah near Bharatpur and then to Mahmadpur and then to Vrindavan and then to Saukh. From these facts an inference can be drawn that the prosecutrix had in-fact left her home with appellant Bharat of her own accord and had gone with him from place to place and had made no effort to inform her relatives. Had the prosecutrix been kidnapped against her wishes, she would have raised alarm while she was travelling in train etc. from place to place. It appears that the families of the appellant Bharat and prosecutrix were not agreeable to perform their marriage and due to this reason appellant Bharat and prosecutrix ran away from home and kept moving from one place to another. from place to place. It appears that the families of the appellant Bharat and prosecutrix were not agreeable to perform their marriage and due to this reason appellant Bharat and prosecutrix ran away from home and kept moving from one place to another. It appears that the family members of the prosecutrix got very upset because their daughter had been taken away by the son of the appellant No.4, they involved appellant Bharat and his family members in this case by putting forth an improved and exaggerated version. Even the prosecutrix had named more persons as accused. Out of the persons named by her, trial was held only against accused Bharat and Khubi. Khubi is also brother of appellant Bharat. Khubi was however, acquitted by the trial court on the plea of alibi. Complainant had involved 11 persons by giving an exaggerated version. Six persons were discharged by this court and charge qua offence of rape was framed against appellant Bharat. 17. Although P.W.1, P.W.2 and P.W.3 have deposed that appellant Govind Ram, Ram Singh and Lakho along with others had blocked their passage and had stated that the prosecutrix was with them but the said version of the prosecution fails to inspire confidence. Criminal cases are also pending against P.W.1 at the instance of Appellant No.4. Thus, the parties are not on cordial terms. It appears that the witnesses have levelled allegations against the family members of appellant Bharat out of hurt and anger as their daughter had run away with appellant Bharat. Family members of the prosecutrix must have also felt shame on account of action of their daughter and had put the entire blame on the family members of Bharat by suggesting that family members of Bharat were also responsible for elopement of their daughter with Bharat. 18. As per Section 375 IPC as applicable at the relevant time, a person could be said to have committed rape if he had sexual intercourse with a woman, with or without her consent, when she was under 16 years of age. Prosecutrix in the present case was more than 16 years old. As a result, story put-forth by the prosecution that the appellant Bharat had raped the prosecutrix is liable to be rejected. Prosecutrix in the present case was more than 16 years old. As a result, story put-forth by the prosecution that the appellant Bharat had raped the prosecutrix is liable to be rejected. Rather, from the circumstances of the case, it is evident that the prosecutrix had gone with appellant Bharat of her own accord as she was having love affair with him and she had sexual intercourse with appellant Bharat with consent. In the facts and circumstances of the present case appellant was liable to be acquitted of the charge framed against him under Section 376 IPC. Section 361, 363, 366 IPC read as under :- “361. Kidnapping from lawful guardianship. - Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation. - The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.” “363. Punishment for kidnapping. - Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” “366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].” 19. A person can be said to have been taken or entice any minor girl under the age of 18 years, if she has been kept out of lawful guardianship without the consent of the guardian. Since the prosecutrix was less than 18 years of age, appellant can be said to have committed the offence of kidnapping. However, appellant was liable to be acquitted of offence under Section 366 IPC as the ingredients of the said Section are not proved in the present case. 20. Accordingly, conviction of appellant Bharat under Section 376(2)(g), 366 and 147 IPC is set aside. However, appellant Bharat is held guilty of offence punishable under Section 363 IPC and is convicted thereunder. Appellant Bharat is sentenced to imprisonment already undergone by him. So far as appellants Lakho, Govind Ram and Ram Singh are concerned, they are acquitted of the charges framed against them. Appeal stands disposed of accordingly.