JUDGMENT : B.S. Walia, J. Criminal acquittal appeal has been filed along with an application seeking leave of the Court to file the acquittal appeal against judgment, dated 28-11-2015 on file No. 173/Sessions passed by the learned 3rd Additional Sessions Judge Jammu in case titled as State v. Ajit Raj alias Kaka whereby the respondent i.e., 'accused-was acquitted of the charges under Sections 366/376, Ranbir Penal code in FIR No. 06/2012 of Police Station, Kana Chack, Jammu. 2. We have heard learned Sr. AAG. Crux of the prosecution case is that on 9-1-2012 at about 11.15 a.m., in the morning when the prosecutrix was going to her stitching centre at Purkhoo and was waiting for a Matador at the Matador stop, the accused had came there on a motorcycle and offered to drop her at Purkhoo whereupon the prosecutrix got on the motorcycle of the accused, but instead of dropping her at Purkhoo, the accused took her to the Bus Stand Jammu from where he took her to Katra from where both of them went to Bhawan for Darshan of Shri Mata Vaishno Devi where they stayed in a room at Bhawan and on that next day, came back to Katra from where the accused took the prosecutrix to Sanam Guest House where he ravished her during the night and on 11-1-2012, both the accused and prosecutrix boarded a bus from Katra to Jammu with the accused accompanying the prosecutrix upto Jewel Chowk from where he disappeared and in the mean time, brother of the prosecutrix PW 2 Tarsem Lal, who was searching for her, came there and took the prosecutrix to Police Station Kana Chak for lodging FIR against the accused. Accordingly, FIR No. 06/2012 was registered against the accused and after investigation of the case, offences punishable under Section 366/376, Ranbir Penal code being made out against the accused, challan was presented in the Court and vide order dated 25-4-2012, accused was charge-sheeted for the commission of offences under Sections 366/376, Ranbir Penal code. 3. Accordingly, FIR No. 06/2012 was registered against the accused and after investigation of the case, offences punishable under Section 366/376, Ranbir Penal code being made out against the accused, challan was presented in the Court and vide order dated 25-4-2012, accused was charge-sheeted for the commission of offences under Sections 366/376, Ranbir Penal code. 3. The prosecutrix in her statement recorded on 11-1-2012 on the basis of which FIR No. 06/2012 for offences under Section 366/376, Ranbir Penal code was registered against the accused stated that on 9-1-2012, the accused kidnapped her from Garhi Chowk when she was going to stitching centre at Purkhoo, that the accused took her to Katra and committed rape on her against her will and also threatened her that in case she disclosed about the same to anybody, he would kill her. However, prosecutrix in her statement recorded under Section 164-A Cr.P.C. stated that on 9-1-2012 while she was going to her stitching centre and was waiting for a Matador at the Matador stop Garhi, accused had come there on his motorcycle and told her that he was going to Purkhoo whereupon she got on to his motorcycle with the assurance of the accused that he would drop her at Purkhoo, but on reaching Purkhoo, the accused threatened her that she should sit on the motorcycle failing which he would kill her where after the accused took her to Jammu from where he took her in a bus to Katra and kept her for one night at Bhawan and on the next day brought her back to Katra and kept her in a hotel where he committed rape on her. However, in her statement recorded in the court, the prosecutrix stated that on 9-12-2012, she was not standing at the Matador stop but was standing in a back street from where she got on the motorcycle of the accused. The prosecutrix further stated that the accused had kept his motorcycle at Bus Stand Jammu, that a number of persons were present there, however, she did not raise any alarm, that ladies were also boarding the bus which was fully loaded with passengers and on the way to Katra, the police had searched the said bus and male members were asked to come out from the bus, whereas females including the prosecutrix were sitting in the bus. Checking/frisking was also conducted by the police near the langar of Gulshan Kumar where lady police was conducting frisking/search of the females separately. In her cross-examination, prosecutrix stated that the accused had not gagged her mouth, that accused had taken her inside the room of the hotel, that accused dragged her inside the side room, that the prosecutrix did not raise any hue and cry in the said hotel. 4. Statement of the prosecutrix not inspiring confidence, led the learned trial Court to seek corroboration of her stand from the evidence of other prosecution witnesses. 5. PW 2, Tarsem Lal i.e., brother of the prosecutrix as per the prosecution case took the prosecutrix from Jewel Chowk to Police Station, Kana Chowk where the police after recording her statement registered FIR against the accused. PW 2 stated that on 9-11-2012, his sister i.e., the prosecutrix left for stitching centre at Purkhoo and when despite search they could not find her, he and his brother i.e., PW 3 Tara Chand lodged a missing persons report in Police Station Kana Chak, that on 11-1-2012 they found the prosecutrix at Jewel Chowk whereupon he and his brother took her to police station Kana Chowk where the police seized her clothes and she told the police that the accused had forcibly made her ride his motorcycle and had taken her to Katra where he committed rape on her. On the other hand, PW 3, Tara Chand i.e., other brother of the prosecutrix, who as per the prosecution case, had also accompanied the prosecutrix to the police station, stated that on 9-1-2012 while his sister was waiting for Matador at Garhi Chowk, accused had come there on his motorcycle and asked her that he would drop her at Purkhoo whereupon prosecutrix got on his motorcycle but instead of dropping her at Purkhoo, accused took her to Katra and on 9-1-2012 in the evening, he and his brother had lodged a missing persons report in the police station. On 11-1-2012, his brother Tarsem Lal had found the prosecutrix at Jewel Chowk, that accused had left her there and fled away. He and his brother had taken the prosecutrix to the police station where she informed the police about the occurrence. On 11-1-2012, his brother Tarsem Lal had found the prosecutrix at Jewel Chowk, that accused had left her there and fled away. He and his brother had taken the prosecutrix to the police station where she informed the police about the occurrence. In his testimony, PW further stated that at the time of lodging of missing person report, PW 1 and PW 2 had reported that the clothes of the prosecutrix were black coloured trouser and shirt, black coloured jacket and black coloured duppatta. However, colour of the clothes in the seizure memo was blue coloured salwar. 6. Dr. Anil Mehta, Gynaecologist i.e., PW 8, who conducted medical examination of the prosecutrix on 12-1-2012 deposed that on medical examination of the prosecutrix, he had found that she was of average built, her breast and hair were well developed and there was no trauma on her body. He had not found any seminal stains on her clothes. She was more than 19 years old. Her uterus admitted two fingers and her hymen was not intact, dead spermatozoa were seen in her vagina, she could be habitual to sexual intercourse, however, there was his topathological evidence of recent intercourse. The prosecutrix in her statement recorded on 11-1-2012 on the basis of which FIR was registered against the accused had stated her age as 20 years. The same was also stated in her statement recorded under Section 164-A, Cr. P.C. Moreover, even as per the report of the Radiologist, her age at the time of occurrence was more than 19 years. Thus, the prosecutrix was not minor and was capable of understanding the consequence of the alleged act at the relevant point of time. 7. Accused is claimed to have taken the prosecutrix on his motorcycle to Jammu where he parked his motorcycle at the Bus Stand from where both of them i.e., prosecutrix and accused boarded a bus for Katra. As per the statement of the prosecutrix, she had not boarded the bus first, but it was the accused who boarded the bus first and after his boarding the bus, the prosecutrix also boarded the bus. As per the statement of the prosecutrix, she had not boarded the bus first, but it was the accused who boarded the bus first and after his boarding the bus, the prosecutrix also boarded the bus. However, prosecutrix as per her statement did not raise any alarm while the accused had taken her to the Bus Stand nor at the Bus Stand Jammu, where as per the statement of the prosecutrix a number of persons were present and she had the opportunity to flee from the place and also to raise alarm and to get the accused apprehended. So much so, the prosecutrix did not even raise alarm in the bus which is stated to have been fully loaded with male and female passengers nor did the prosecutrix disclose about her abduction by the accused to the police at the time of their conducting search of the bus at Naka Point, that too when all the male persons including the accused was not inside the bus. She even did not inform the lady police who conducted frisking/search near Ban Ganga at Katra when the accused had gone inside the office of SMVDSC office for obtaining yatra slip and prosecutrix was standing outside and despite having an opportunity to flee from the place she did not go anywhere but waited for the accused and after his coming back, both of them went to Bhawan. 8. Prosecutrix did not disclose either to the Manager or to the staff of the Hotel where the accused had taken her of her having been abducted nor did she raise any alarm in the said hotel. The same goes to show that the accused had not kidnapped/abducted the prosecutrix rather the prosecutrix herself accompanied the accused from Garhi Chowk from where the accused had taken her on his motorcycle. The prosecutrix neither raised alarm nor made any attempt to get the accused apprehended despite her having numerous opportunities. The fact that no such steps were taken by the prosecutrix proves beyond an iota of doubt that the prosecutrix was a willing and consenting party in going with the accused and that the accused had not kidnapped her, instead she had gone with the accused of her own free will. 9. The fact that no such steps were taken by the prosecutrix proves beyond an iota of doubt that the prosecutrix was a willing and consenting party in going with the accused and that the accused had not kidnapped her, instead she had gone with the accused of her own free will. 9. Hon'ble Supreme Court in Gabbu v. State of M.P. (2006) 5 SCC 740 : ( AIR 2006 SC 2461 ) held that in order for an act to constitute an offence under Section 366, IPC, mere abduction is not enough, it much be proved that the accused abducted the woman with the intent that she may be compelled to marry any person or in alternative 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. Rape implies ravishment of a woman without her consent, by force, fear or fraud or against her will where she is about the age of 16 years. In case she is below the age of 16 years, consent of the victim is immaterial. 10. In Ram Dass and others v. State of Maharashtra, ( AIR 2007 SC 155 ) Hon'ble Supreme Court held that conviction in cases of sexual offences can be recorded solely on the testimony of the prosecutrix provided that the same is probable, truthful, reliable and free from any doubt. Relevant extract of the aforesaid decision is reproduced hereunder : 'It is no doubt true that the conviction in a case of rape can be based solely on the testimony of prosecutrix but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exists no circumstances which casts shadow of doubt over her veracity. If the evidence of the prosecutrix is of such quality that may be sufficient to suggest an order of conviction solely on the basis of her testimony. In the instant case, we do not'. 11. Thus, the law is well settled that even solitary statement of the prosecutrix can also be acted upon to record conviction of the accused subject to the condition of the statement of the prosecutrix being unimpeachable and not casting any shadow of doubt over the veracity of her statement. In the instant case, we do not'. 11. Thus, the law is well settled that even solitary statement of the prosecutrix can also be acted upon to record conviction of the accused subject to the condition of the statement of the prosecutrix being unimpeachable and not casting any shadow of doubt over the veracity of her statement. As per the aforementioned position of law and the factual position as has been noted above on the basis of evidence of the prosecutrix, her brothers i.e., PWs. 2 and 3 and Dr. Anil Mehta, Gynaecologist i.e., PW. 8, it is clear that the prosecutrix was neither abducted nor kidnapped but was a willing and consenting party in going along with the accused. Accordingly the accused cannot be held guilty of the offence under Section 366, Ranbir Penal code. 12. The prosecutrix was admittedly more than 19 years of age and close to 20 years of age at the time of occurrence as per the evidence of the Radiologist as well as Gynaecologist i.e., PW8. The prosecutrix accompanied the accused to the Bus Stand Jammu and from there to Katra, Bhawan and back to Jammu without making any complaint against the accused despite getting numerous opportunities to flee as well as to complain against the accused to the police of his having abducted her, but the prosecutrix neither took any such step nor did she make any resistance at the time of sexual intercourse on her. Moreover, as per the Gynaecologist i.e., PW 8 there was no injury on the body of the prosecutrix or on her private parts. Had the accused committed forcible rape upon the prosecutrix she would have suffered injury on her body. On the contrary, as per the report of the Gynaecologist, who medically examined the prosecutrix, she was habitual to sexual intercourse. 13. This Court in Yog Raj v. State and others, 2010 (3) JKJ 30 HC in paragraph No. 18 of its judgment while taking into account similar circumstances, held that the prosecution case did not fit in with normal human conduct so as to inspire confidence to hold that the accused had committed the crime. Relevant extract of the aforementioned decision is reproduced hereunder : '18. The story as projected in prosecution case does not fit in with normal human conduct, so as to inspire confidence to hold that the accused has committed the crime. Relevant extract of the aforementioned decision is reproduced hereunder : '18. The story as projected in prosecution case does not fit in with normal human conduct, so as to inspire confidence to hold that the accused has committed the crime. The prosecutrix has not suffered any injury nor there was any mark of violence on the private parts of her body, though she has tried to explain that she could not resist because of her ailment. What was that ailment; Is that she had delivered a baby one year prior to the occurrence and said baby had died? It no where surfaces in her deposition that she had any such ailment on the date of occurrence, which would render her helpless to resist against the alleged act of the accused. This position also gives rise to suspicion. Under such circumstances, the sole testimony of the prosecutrix cannot be made basis for conviction. Inconsistency in the medical evidence and testimony of prosecutrix coupled with non examination of the Investigating Officer or of the persons who were said to be present but not cited as witness and even their names have not been ascertained despite mention made by the prosecutrix, creates a serious doubt.' 14. The entire prosecution evidence goes to show that there is no explanation whatsoever forthcoming on record even to remotely suggest that the prosecutrix made any resistance whatsoever. The entire conduct of the prosecutrix in her alleged kidnapping and ravishment is highly improbable as it is not believable that a grown up girl of more than 19 years of age (close to 20 years) would allow herself to be ravished without a struggle or for that matter without making an attempt to flee from the clutches of her abductor despite numerous opportunities besides opportunities to get the accused apprehended. Besides there was no injury on her hand, arms, face or any other part of the body. The same when considered in the context of other aspects of the matter suggests that the intercourse was not forcible, rather it was with her consent as it is not the case of the prosecution that the accused was having any kind of weapon with him to scare her. The same when considered in the context of other aspects of the matter suggests that the intercourse was not forcible, rather it was with her consent as it is not the case of the prosecution that the accused was having any kind of weapon with him to scare her. Accordingly, ratio of law laid down by the Hon'ble Supreme Court in Narinder Kumar v. S. Vasantrajan's case is attracted to the facts of the case and in view thereof, finding of the learned trial Court that the intercourse was not forcible, rather it was with the consent of prosecutrix does not warrant any interference. 15. That another aspect of the matter is that the accused allegedly ravished the prosecutrix in Sanam Guest House at Katra, however, neither the Investigating Officer visited the place where the accused had ravished her nor had seized any incriminating material except the entry register from the said Guest House. Even the entry register has not been seized by the Investigating Officer but by PW 10 Zaffarullah Khan on the direction's of the Investigating Officer. In the absence of other evidence i.e., statement of Manager and staff of the hotel, the entry register cannot be made the basis for the conviction of the accused for the offence of rape. Even the Investigating Officer did not prepare a site plan nor seized any material from the room where the prosecutrix was allegedly ravished by the accused which further creates a serious doubt on the genuineness of the prosecution case. That apart, there is no evidence on record to suggest that there was any threat of the accused to the prosecutrix as a result of which she did not raise any alarm nor disclosed about the alleged occurrence to anybody. Moreover, as per the factual position as noted above, it is clearly evident that the prosecutrix willingly accompanied the accused as she never made any attempt whatsoever either to flee from the clutches of the accused or to make any complaint to either any passerby or to the police at Naka point or to the lady police at Bhawan or to the Manager/staff of the hotel where the accused and prosecutrix stayed for a night. Accordingly, the finding of the trial Court that as on the date of occurrence, the prosecutrix was more than 19 years (close to 20 years) besides as per medical examination by the Gynaecologist i.e., PW 8, she was habitual to sexual intercourse, therefore, the possibility of accused having sexual intercourse with prosecutrix with her consent cannot be ruled out does not warrant any interference. 16. No doubt, report submitted by FSL Srinagar shows presence of seminal stains/blood-stains of human region on salwar and underwear of the prosecutrix, however, in order to connect the accused with the commission of offence of rape, it was incumbent on the Investigating Officer to match the blood group found on the salwar of the prosecutrix vis-a-vis the blood group of the accused. However, the Investigating Officer has not done the same. In the aforementioned circumstances, the finding of the trial Court rejecting the plea for convicting the accused for offence under section 376, Ranbir Penal code does not warrant any interference. 17. Additionally, as per the prosecution case the salwar and underwear of the prosecutrix which were seized on 12-1-2012 were sent by SDPO Domana to FSL Srinagar on 27-1-2012 after getting the same resealed from Executive Magistrate on 24-1-2013 and the same were received by FSL Srinagar on 16-2-2012. However, learned Trial Court recorded that it was not clear that from the time of seizure of clothes i.e., 12-1-2012 till its deposit in FSL Srinagar on 16-2-2012 as to where the said clothes were kept or handled by how many people. The prosecution has also not examined the Malkhana register where the salwar/pajama and underwear were allegedly kept. The clothes which the victim was wearing on the day of occurrence as has been mentioned in the missing report were trouser, shirt, jacket and dupatta all of black colour, however, the salwar seized by the Investigating Officer was of blue colour. Thus, the clothes mentioned in the missing person report and in the seizure memo are not the same which goes to show that the prosecutrix was not wearing the clothes which were seized by the police and sent to the FSL for examination. Even, the aforementioned finding of the trial Court does not warrant any interference. 18. The allegation by the prosecution against the accused is of his having committed grave offence. Even, the aforementioned finding of the trial Court does not warrant any interference. 18. The allegation by the prosecution against the accused is of his having committed grave offence. However, the law is well settled that more serious the offence, the more stricter is the degree of proof. Accordingly, higher degree of credibility of the evidence is required to convict accused for the offence of rape. However, as has been noted above, the material brought on record by the prosecution does not inspire confidence in the allegations levelled against the accused. On the contrary, the same is clearly suggestive of the prosecutrix being a willing participant in the entire episode. The conduct of the prosecutrix from the start of the incident is highly improbable. 19. Prosecutrix claims to have been waiting for Matador at the Matador stop and accused, who was on motorcycle, had come there and offered to drop her at stitching centre Purkhoo. Accordingly, the prosecutrix must have known the accused otherwise no young girl in the age group of 19/20 years would willingly sit with a stranger on his mere asking. Prosecutrix further claims that instead of dropping her at stitching centre Purkhoo, the accused took her to Bus Stand. However, she never made any attempt to raise an alarm at that point of time nor did she raise alarm at the Bus stand and as per her statement it was the accused who boarded the bus first and she boarded the bus later on. Neither she made any attempt to run away at that point of time nor made any attempt to raise hue and cry to get the accused apprehended. So much so, the prosecutrix did not even raise alarm in the Bus which was fully loaded with male and female passengers. She never made any attempt to bring the fact of her alleged abduction to the police when the police stopped the bus for checking at Naka point and all the male members were asked to come out from the bus and only ladies including the prosecutrix remained in the bus. There was no fear at that point of time and the prosecutrix could have openly told the police but she never made any such complaint to the police nor she made any complaint to the lady police who were conducting frisking/search of the females separately, of her having been abducted by the accused. There was no fear at that point of time and the prosecutrix could have openly told the police but she never made any such complaint to the police nor she made any complaint to the lady police who were conducting frisking/search of the females separately, of her having been abducted by the accused. The prosecutrix never made any attempt to raise hue and cry in the hotel where she was allegedly ravished by the accused. The entire sequence of events narrated above is spread over the period 9th to 11th January 2012. 20. Thus, in the light of the position as noted above, the findings recorded by the learned trial Court do not warrant any interference whatsoever. Accordingly, finding application seeking leave to file appeal against acquittal bereft of merit, we dismiss the same. Resultantly, the appeal is also dismissed.