JUDGMENT : Vivek Singh Thakur, J. 1. State has preferred instant appeal against acquittal of respondent assailing judgment dated 22.04.2014, passed by the Additional Sessions Judge, Judge(II) Kangra at Dharamshala District Kangra, H.P. in Sessions trial in RBT S.C. No. 80J/VII/13/12 dated 22.04.2014, in FIR No. 171/11, registered at Police Station Jawali District Kangra, H.P. under Sections 363,366 and 376 IPC. 2. As per prosecution case on 15.07.2011 at about 12.00 (Noon), 17 years old prosecutrix, student of 10th class, while coming back from the school after taking her examination, was kidnapped by respondent from her lawful guardianship from a place Trilokpur with intent to compel her to marry with him and thereafter during succeeding night she was sexually assaulted by respondent against her will and consent in the house of his uncle in village Ghera/Seri. 3. On 15.07.2011, police machinery was set in motion by PW-5 Jagdish Chand, father of prosecutrix, by lodging missing Report in Police Post Kotla at about 9.00 PM with request to search his daughter as she had not returned home from school after her examination, which was over at about 12.30 PM. 4. It is the case of prosecution that during day time prosecutrix had made a mobile phone call to her friend PW-14 Usha Devi and PW-5 father of prosecutrix while present in Police Post Kotla was conveyed about this by parents of PW-14 Usha Devi and thereafter PW-1 Sonu Kumar wastraced at Mecleod Ganj through his mobile, used by prosecutrix to call PW-14 Usha Devi. He led police party, PW- 2 Rajinder Singh Guleria Pradhan, PW-5 Jagdish Chand and others to the house of respondent wherefrom, on information of father of respondent, Police Party and others traced respondent and prosecutrix sleeping in the house of his uncle in village Seri. Prosecutrix was handed over to her father and respondent was arrested and also respondent and prosecutrix were medically examined. During investigation, towel, bed sheets and white chuni of prosecutrix and her date of birth certificate were also taken in possession. After completion of investigation finding prima facie, involvement of respondent in committing an offence under Sections 363,366 and 376 of the Indian Penal Code, challan was presented in the Court. On conclusion of trial, the trial Court has acquitted respondent. 5. We have heard learned counsel for parties and have also gone through record. 6. After completion of investigation finding prima facie, involvement of respondent in committing an offence under Sections 363,366 and 376 of the Indian Penal Code, challan was presented in the Court. On conclusion of trial, the trial Court has acquitted respondent. 5. We have heard learned counsel for parties and have also gone through record. 6. Prosecution has successfully proved on record, by producing date of birth certificate of prosecutrix Ex. P-5 issued under Section 12/17 of Birth and Death Registration Act, 1969 by Registrar Gram Panchayat Trilokpur, that date of birth of prosecutrix was 22.07.1994. PW-4 Kishan Kumar, Panchayat Sahayak Gram Panchayat Trilokpur proved contents of the said certificate by comparing with original record which was not disputed by or on behalf of respondent as this witness was not cross-examined despite granting opportunity. Dealing with effect of not cross-examining a witness on a particular point/circumstance, the Apex Court, after considering various judgments,in case Laxmibai and another versus Bhagwantbuva and others reported in (2013) 4 SCC 97 , has observed as under: “40 Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 ; State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 ; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 ; and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096 )”. 7. As per medical evidence, age of prosecutrix is 17 to 18 years. However, when admissible conclusive un-rebutted evidence of exact date of birth is available on record, determination of age on the basis of medical evidence is neither necessary nor relevant. In present case, though not required, medical evidence corroborates age of prosecutrix as proved on the basis of date of birth certificate. Therefore, age of prosecutrix, on the date of incident stands proved as 16 years 11 months and 12 days. 8. PW-11 Dr. Pankaj Katoch proved MLC Ex. PW-11/B issued by him after medical examination of respondent on 16.07.2011 establishing that there was nothing to suggest that respondent was incapable of performing sexual intercourse. 9. PW-13 Dr. Surekha Gupta proved MLC Ex. PW-13/B with respect to medical examination of prosecutrix along with her opinion Ex. PW-13/C endorsed thereupon according to which there was evidence of sexual intercourse. PW-10 Dr. Arvind Kumar also medically examined prosecutrix on 20.07.2011 who, on the basis of such physical examination as also that of PW-13 Dr. Surekha Gupta, opined that sexual intercourse had occurred. 10. In fact, respondent had not disputed rather claimed acquaintance with prosecutrix and her family and also in his statement under Section 313 Cr.PC, he stated that on relevant date, prosecutrix made telephonic call for picking her from the school after examination and further that prosecutrix was in visiting terms with him and his family, and he had also stayed in the house of prosecutrix and mother of prosecutrix had borrowed Rs.10,000/- from him and was assuring his marriage with prosecutrix and when he did not fulfill further demand of money, he was falsely implicated at the instance of family of prosecutrix. 11. 11. Statement under Section 313 Cr.PC is not a substantive piece of evidence and it is not equivalent to confession of accused. Conviction cannot be based solely on the basis of statement made under Section 313 Cr.PC where prosecution failed to discharge its onus to prove its case as onus to prove certain facts is on the party who asserts. Similarly, in case where prosecution discharges its burden to prove certain facts leading to some presumption or indicating guilt of accused resulting shift of onus upon accused to rebut the same then onus to prove facts contrary to prosecution case cannot be said to be discharged by accused only on the basis of statement given under Section 313 Cr.PC. In such a situation accused has also to lead substantive evidence either under Section 315 Cr.PC or to bring some substantive evidence on record during evidence of prosecution in statements of witnesses as statement under Section 313 Cr.PC can only be considered and referred to corroborate substantive evidence led by either party. Statement under Section 313 Cr.PC has corroborative value and it can also be taken into consideration to complete the chain of missing link. False or impossible plea in statement under Section 313 Cr.PC may also be taken as adverse circumstance against accused. Accused has a right to remain silent but at the same time when onus is upon him to explain certain facts and circumstances which are only in his exclusive knowledge ( say under Section 106 of Evidence Act), silence can be fatal for him. The Hon’ble Supreme Court in case Dehal Singh versus State of Himachal Pradesh reported in (2010) 9 SCC 85 has held as under:- “23” Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truth fullness or otherwise of the case of prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act………….. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined, with reference to those statements………………….” 12. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined, with reference to those statements………………….” 12. In another case Manu Sao versus State of Bihar, reported in (2010) 12 SCC 310 , the Apex Court has elaborated evidentiary value of statement of accused under Section 313 Cr.PC as under:- “12 Let us examine the essential features of this Section 313 Cr.P.C. and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code. 13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and besides ensuring the compliance thereof the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or in the alternative to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross- examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. 14. The statement of the accused can be used to test the veracity of the exculpatory of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313 (4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put as evidence against the accused in any other enquiry or trial for any other offence for which such answers may tempt to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution”. 13. PW-2 Rajinder Singh remained associated with PW- 5 Jagdish Singh, father of prosecutrix and also in investigation since beginning till last. However, in the Court, he was declared hostile for resiling from his earlier statement recorded under Section 161 Cr.PC. It is settled position of law that statement of hostile witness is not to be brushed aside in toto but Court can consider evidence of hostile witness to corroborate other evidence on record. It is also well settled that mere fact that a witness is declared hostile does not make him unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon testimony of hostile witness if corroborated by other reliable evidence. Hon’ble Supreme Court in case Raja and others Vs. State of Karnataka (2016) 10 SCC 506 has held as under:- “32. Hon’ble Supreme Court in case Raja and others Vs. State of Karnataka (2016) 10 SCC 506 has held as under:- “32. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624 . It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record.” 14. In the aforesaid settled position and in the light of admitted and proved facts and circumstances, veracity of prosecution witnesses particularly that of prosecutrix is to be evaluated for determining the guilt of respondent on the basis of material on record. 15. PW-5 Jagdish Singh is father of PW-3, prosecutrix. When prosecutrix did not return home till late evening despite her examination was over about 12.30 PM, PW-5 approached PW-2 Rajinder Singh Guleria, Panchayat Pradhan where after both of them went to police post Kotla and filed an application Ex. PW-5/A about missing of prosecutrix. According to PW-5 during that period a telephonic call was received from father of PW-14 Usha Devi, a friend of prosecutrix, disclosing that PW- 14 had received a telephonic call from prosecutrix from Mobile Phone No. 9805497823 and the said fact was brought in the notice of police. 16. On tracing PW-1 Sonu Kumar through his mobile used by prosecutrix to call Usha Devi, he took police party as well as PW-2 and PW-5 to the spot wherefrom Police party and others reached in the house of respondent and on the basis of information given by father of respondent, prosecutrix and respondent were traced in village Seri sleeping in a room in house of uncle of respondent. These facts stand proved on record being not disputed in cross-examination. These facts stand proved on record being not disputed in cross-examination. From trend of cross-examination read with explanation given in statement of respondent recorded under Section 313 of the Code of Criminal Procedure, it can safely be inferred that it is admitted fact that in the night of 15.07.2011 prosecutrix was found sleeping with respondent in house of his uncle. There are positive suggestions put to prosecutrix, also admitted by her, that when she and respondent reached in the house in village Seri, an elderly couple was present there and room of that couple was opposite to the room in which she was and those persons had inquired respondent about her and respondent had told that she was his friend and those persons provided meal to them and she shared bed with respondent during night. In cross-examination of PW-15 Investigating Officer also, though denied by him, it was suggested that at place Ghera prosecutrix had told him that she had gone with respondent with her consent. 17. Replying to question No. 34, in statement under Section 313 of the Code of Criminal Procedure, respondent stated that prosecutrix was in visiting terms with him and his family and she invariably used his taxi and he had also stayed in the house of prosecutrix. In cross-examination to PW-5 Jagdish Singh, about which he expressed ignorance, it was suggested that respondent and prosecutrix were good friends, they loved each other and prosecutrix wanted to marry respondent. The facts that prosecutrix accompanied respondent to his house and stayed with him in the house of his uncle and was found sleeping in one room with respondent also have corroboration from trend of cross-examination. These facts also stand proved on record beyond reasonable doubt. 18. In examination-in-chief, PW-3 categorically stated that respondent sexually assaulted her during night on 15.07.2011 and in cross-examination, she stated that she was sexually assaulted by respondent twice. The fact that she had not resisted at that time, was not disputed rather admitted by her. A suggestion put to prosecutrix, which she admitted, that she had shared bed with respondent during that night, also corroborates the prosecution story that during the night of 15.07.2010, prosecutrix was exposed to sexual intercourse by respondent. This fact also stands established with corroboration of scientific evidence on record. 19. A suggestion put to prosecutrix, which she admitted, that she had shared bed with respondent during that night, also corroborates the prosecution story that during the night of 15.07.2010, prosecutrix was exposed to sexual intercourse by respondent. This fact also stands established with corroboration of scientific evidence on record. 19. Now, question as to whether prosecutrix was enticed or taken by the respondent out of lawful guardianship by taking her from school to his uncle’s house and she was subjected to sexual intercourse without her consent, and in case there was consent of prosecutrix as to whether prosecutrix was competent to consent for the same, is to be decided. 20. Prosecutrix, in her statement Ex. PW-3/A recorded under Section 154 of the Code of Criminal Procedure as well as in Court, stated that after examination, at about 12.00 noon, she reached near gate of her school at Trilokpur near the van of respondent, where respondent allured her for marriage and on her refusal, forcibly put her in his van and took away. They left the said van on stopping for empty fuel tank at Bhali and therefrom travelled in a bus to Banoi wherefrom respondent took her to his home at Jhikar in a long white car where father of respondent scolded him and directed to leave prosecutrix with her parents, and about half an hour there after, respondent arranged a Alto car and also clothes of his sister-in-law (Bhabi) and informed her that they had to go Ghera where after and they started to Ghera in Alto Car. On the way, her school dress was got changed by respondent and she also contacted her friend through mobile phone of PW-1 Sonu Kumar driver of car, and from Ghera they went to village Seri on foot where after taking meals, respondent took her in a room of his uncle and slept with her and ravished her. 21. Prosecutrix also admitted that the bus boarded by them was full of passengers and there were 3-4 other persons already sitting in the long white car in which they travelled from Banoi to Jhikar. 21. Prosecutrix also admitted that the bus boarded by them was full of passengers and there were 3-4 other persons already sitting in the long white car in which they travelled from Banoi to Jhikar. She went with respondent from school to Bhali in his van in broad day light, travelled in public transport vehicle i.e. bus from Bhali to Banoi, there from to village of respondent in a car with 3-4 other passengers, from Jhikar to Ghera in car driven by PW-1 Sonu Kumar, walked together on foot for 3 Kms from Ghera to Seri but she did not complain and even tried to complain to anybody in the bus or in the car or to anybody at Bhali, Banoi, Jhikar, Ghera or Seri. She was allegedly taken away forcibly by respondent in his van during peak hours of school as it was time when examination was over and maximum students were bound to be present at the gate of the school. Prosecutrix herself stated that there were other vehicles also parked in front of the gate of the school but there is, not even murmur, in her statement either in Ex. PW-3/A or in the Court that she had even made slightest effort to raise alarm or to approach any persons on these public places against forcible act of respondent. 22. It is also noticeable that respondent was scolded by his father for bringing prosecutrix to his house and was asked to leave prosecutrix with her parents but at that time also prosecutrix conspicuously, not only remained silent but voluntarily accompanied respondent in car of PW-1 to go to Village Ghera, changed her clothes, made mobile call to PW-14 and there after walked with respondent for about 3 Kms to reach house of his uncle at Seri for staying. At Seri also, on claiming her to be his friend in reply by respondent to question raised by his uncle, she remained silent and continued to join respondent even in bed till both of them were traced by police and her father. 23. It is prosecution case that prosecutrix contacted PW-14 Usha Devi on mobile which helped police to trace her. PW-2 Rajinder Singh Guleria, PW-14 Usha Devi and PW-17 ASI Deepak Kumar corroborated the said fact. PW-1 Sonu Kumar also stated that respondent and girl accompanying him, while travelling in his car, used his mobile to call someone. 23. It is prosecution case that prosecutrix contacted PW-14 Usha Devi on mobile which helped police to trace her. PW-2 Rajinder Singh Guleria, PW-14 Usha Devi and PW-17 ASI Deepak Kumar corroborated the said fact. PW-1 Sonu Kumar also stated that respondent and girl accompanying him, while travelling in his car, used his mobile to call someone. It establishes that prosecutrix was free to call anybody when she was travelling with respondent which falsify the stand of prosecutrix that she was forcibly taken or enticed by respondent for getting married. 24. Admittedly location of prosecutrix and respondent was traced on the basis of her telephonic call to her friend PW- 14 Usha Devi. Prosecutrix and PW-5 admitted that mother of prosecutrix was also having mobile phone. While travelling with respondent, prosecutrix having opportunity to make a call, made it to her friend but not to her mother. She did not try to inform her parents about forcible act allegedly being committed by respondent and taking her without her consent. 25. Age of prosecutrix in instant case stands proved more than 16 years and consent on her part in the episode is duly established on record. There fore, for consent, no case under Section 375 punishable under Section 376 IPC is made out against respondent. 26. So far as charges under Sections 363 and 366 IPC are concerned, prosecutrix is below 18 years of age and for taking or enticing a minor female under 18 years of age from lawful guardianship respondent can be convicted as for age of prosecutrix, her consent will be immaterial for purpose of Section 361 IPC, in case it is found that she was taken or enticed by respondent. But before convicting a person under Section 363 and 366 IPC, evidence must establish that there was an active role of that person in enticing or taking a minor out of lawful guardianship with intention to compel minor to marry. 27. In her statement Ex. PW-3/A, prosecutrix stated that respondent visited her house thrice. On the other hand in Court she deposed that she was not known to respondent prior to the incident. However, in her later part of statement, she stated that respondent had visited her house once, two years prior to the incident but was not seen by her and his visit was informed to her by her cousin. On the other hand in Court she deposed that she was not known to respondent prior to the incident. However, in her later part of statement, she stated that respondent had visited her house once, two years prior to the incident but was not seen by her and his visit was informed to her by her cousin. She also stated that her friend Neha used to talk with respondent on Mobile Phone and to tell her that a person from Dharamshala knew her. She also stated that her mother might have taken lift in vehicle of respondent many times. Father of prosecutrix, PW-5 Jagdish Singh admitted that vehicle of respondent was being plied regularly in village but he expressed his ignorance about taking lift in the said vehicle by prosecutrix or his wife and visits of respondent in his house on numerous occasions and also night stay in his and his wife’s absence. He also denied knowledge about friendship and love affair of his daughter with respondent and desire of his daughter to marry respondent. He did not deny these facts specifically and gave evasive replies to the suggestions put to him with regard to relations of respondent and his family. 28. Though, respondent claiming visiting house of prosecutrix on various occasions as also stated in his statement under Section 313 Cr.PC, however, prosecutrix denied the same and her father expressed ignorance about the same. Therefore, statement under Section 313 Cr.PC, in isolation, can not be made basis for deriving inference of such intimacy for want of substantive evidence on record in this regard. Hence, there is nothing on record to establish that even prior to date of incident, respondent played some role at any stage to solicit or persuade prosecutrix to abandon her legal guardianship. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of prosecutrix. That part, in our opinion, as held in S. Varadarajan vs. State of Madras AIR 1965 SC 942 , falls short of an inducement to the minor to slip out of the keeping of her lawful guardianship and is, therefore, not tantamount to ‘taking’ or ‘enticing’. 29. Prosecutrix was just about to reach majority and she herself left along with respondent. 29. Prosecutrix was just about to reach majority and she herself left along with respondent. From evidence on record, it is duly proved that she boarded various vehicles including public transport and travelled with respondent at various places and also walked on foot about 3 Kms. She knowingly and voluntarily joined respondent. There is nothing on record to show any inducement by respondent or any active participation on his part by him in formation of intention of prosecutrix to accompany him. Active role on the part of respondent for inducing prosecutrix in taking or enticing prosecutrix out of the keeping of lawful guardianship of her parents cannot be said to have established. Intimacy of respondent with prosecutrix so as to entice or influence her is neither alleged nor admitted much less established on record. Therefore, respondent cannot be said to have ‘taken’ her out of her lawful guardianship. In present case, there is no enticing or taking as required to punish respondent under Sections 363 and 366 IPC. 30. From the above discussion, it is evident that the evidence adduced by the prosecution, cannot be treated as cogent, reliable, credible and trustworthy so as to prove offence alleged to be committed by respondent beyond reasonable doubt. 31. It is a settled principle of law that acquittal strengthens presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. The respondent has been acquitted by the trial Court. It cannot be said that learned trial court has not appreciated evidence correctly and completely and acquittal of accused has resulted into travesty of justice or has caused mis-carriage of justice. In this appeal, prosecution has failed to make out a case for interference in impugned judgment. 32. The present appeal, devoid of any merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the respondent are discharged. Records of the Court below be sent back forth with.