JUDGMENT : Dharam Chand Chaudhary, J. Appellant herein is a convict (hereinafter referred to as ‘accused’). He has been convicted for the commission of offence punishable under Sections 363, 366 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and to pay Rs.2000/- as fine for the commission of offence punishable under Section 363 of the Indian Penal Code, to undergo rigorous imprisonment for a period of two years and to pay Rs.2000/- as fine under Section 366 of the Indian Penal Code and to undergo rigorous imprisonment for a period of seven years and Rs.5000/- as fine under Section 376 of the Indian Penal code. His Co-accused Arpan Kumar, however, has been acquitted of the charge framed against him under Section 368 of the Indian Penal Code. 2. The prosecution case in a nut shell is that in the year 2008, the prosecutrix was studying in Saheed Makhan Singh Government Senior Secondary School, Pathankot. She had love affair with accused Amit Kumar. Arpan Kumar, his co-accused, was their common friend. 3. Pritam Chand (PW2), the father of prosecutrix, a resident of village Gagwal, Tehsil Nurpur, District Kangra at the relevant time was working as SDO in I&PH department at Indora. On 22.5.2008, PW2 was away to Gurgaon in connection with the treatment of his son there. On the next day i.e. 23.5.2008 around 5.00 a.m. he received a message over telephone from his wife that the prosecutrix (PW1) has not returned from the school. On hearing this PW2 returned to his house on the next day i.e. 24.5.2008. He searched the prosecutrix every where, however, could not be traced out. Ultimately, he came to know that she was seen in the company of accused Amit Kumar at Jassur. PW2 visited the house of the accused. He was also not found present in the house. This had raised suspicion that it is the accused who may have kidnapped the prosecutrix. Therefore, PW2 had lodged the report in Police Station, Nurpur which was registered as FIR No. 144 of 2008. 4. The investigation was taken in his own hand by SI/SHO Daya Sagar (PW20) of Police Station, Nurpur. The prosecutrix was recovered on 24.5.2008 itself from bus stand Shahpur while in the company of the accused and his co-accused Arpan Kumar. Therefore, PW2 had lodged the report in Police Station, Nurpur which was registered as FIR No. 144 of 2008. 4. The investigation was taken in his own hand by SI/SHO Daya Sagar (PW20) of Police Station, Nurpur. The prosecutrix was recovered on 24.5.2008 itself from bus stand Shahpur while in the company of the accused and his co-accused Arpan Kumar. On Inquiry, she disclosed that accused Amit Kumar was known to her for the last 2-3 months. On 22.5.2008, he called her over telephone that she should meet him on 23.5.2008 at Jassur. Accordingly, she went to school at Pathankot on 23.5.2008. She, however, went to the house of her friend and changed her dress there. Thereafter, she went to Jassur by bus where accused Arpan Kumar, a friend of accused Amit Kumar, met her at the bus stand. He told that accused Amit Kumar is waiting for her at Railway Station, Jassur. Consequently, the prosecutrix accompanied by accused Arpan Kumar went to Railway Station, Jassur. Accused Amit Kumar met them there. On the allurement of solemnization of marriage given to her by accused Amit Kumar she accompanied him to Pathankot. They traveled from Jassur to Pathankot by train. At Pathankot they booked two rooms in Ved Lodge situated at Railway road Pathankot. While Accused Amit Kumar and the prosecutrix stayed in room No. 106, Arpan Kumar in Room No. 104. During the night accused Amit Kumar subjected the prosecutrix, allegedly minor, to sexual intercourse. On the next day i.e. 24.5.2008 they went to Shahpur where apprehended by the police. 5. The prosecutrix and accused were identified to the police by her father PW2 Pritam Singh in the presence of Vijay Kumar PW9 and one Malkiat Singh vide memo Ext.PW2/B. An application Ext.PW15/A was thereafter made to Medical Officer, civil hospital, Nurpur for medical examination of the prosecutrix. She was medically examined by PW15 Dr. Neerja Gupta. Since in her opinion the vagina was found admitting two fingers loosely, the prosecutrix was referred to gynecologist for further examination. 6. She was also referred to Radiologist and on seeing the report, she opined that the radiological age of the prosecutrix was between 17 to 18 years. The undergarments and vaginal slides etc. preserved by her were sealed and sent to Forensic Science Laboratory for analysis. The prosecutrix was examined by PW22 Dr. Arti Gupta, the Gynecologist, Christian Medical College Ludhiana (Punjab). The undergarments and vaginal slides etc. preserved by her were sealed and sent to Forensic Science Laboratory for analysis. The prosecutrix was examined by PW22 Dr. Arti Gupta, the Gynecologist, Christian Medical College Ludhiana (Punjab). Though on her examination she did not notice any injury present over perineal region and the hymen not torn, however, was congested and vagina admitting two fingers loosely. In her opinion, she formed on the basis of the physical examination of the prosecutrix, the possibility of sexual assault was not ruled out but when cross-examined she has admitted that there was no evidence of sexual assault. 7. The accused Amit Kumar was also examined by by Dr. P.K. Aluwalia PW10 on an application submitted for his medical examination Ext.PW10/A and found capable of performing sexual intercourse. His MLC is Ext.PW10/B. Dr. Raman Sharma is the Radiologist. He conducted X-ray of shoulder, hip, elbow, wrist joints, knee joints and ankle point of the prosecutrix vide skiagrams Ext.PW21/B1 to Ext.PW21/B6 and formed the opinion that the prosecutrix was 17 to 18 years of age at that time. He has proved his opinion Ext.PW21/C. 8. The prosecutrix after medical examination was entrusted to the custody of her father in the presence of witnesses vide memo Ext.PW1/B. PW5 Harish Ralhan, owner of Ved Lodge was associated during the investigation who had handed over the extract of Ved Lodge reservation register Ext.PW5/A. The same was taken into possession vide seizure memo Ext.PW4/A in the presence of witnesses. PW11 Ajeet Singh, Secretary, Gram Panchayat, Gagwal had handed over the date of birth certificate of the prosecutrix Ext.PW11/A from the Birth and Death register in which the date of birth of the prosecutrix was recorded as 10.11.1991. The hotel at Pathankot was identified to the police by both the accused vide memos Ext.PW19/A and Ext.PW19/B. They both have also identified the rooms where they stayed vide memo Ext.PW19/C. The location map prepared by the I.O. is Ext.PW19/D. The site plan where the prosecutrix recovered in the company of both the accused is Ext.PW20/A. Accused Arpan Kumar was also got medically examined. The application made to the Medical Officer, CH, Nurpur is Ext.PW20/B. 9. On receipt of the report from State Forensic Science Laboratory Ext.PA and on the completion of the investigation the report against both the accused was filed in the Court. 10. The application made to the Medical Officer, CH, Nurpur is Ext.PW20/B. 9. On receipt of the report from State Forensic Science Laboratory Ext.PA and on the completion of the investigation the report against both the accused was filed in the Court. 10. Learned trial Judge on going through the police report and hearing learned Public Prosecutor as well as learned defence Counsel has prima-facie concluded that a case for the commission of offence punishable under Sections 363, 366 and 376 IPC is made out against accused Amit Kumar whereas under Section 368 IPC against his co-accused Arpan Kumar. They were charged accordingly. They both, however, pleaded not guilty. This has led in recording the prosecution evidence. 11. The material prosecution witnesses are PW1 (name withheld) the prosecutrix, her father the complainant PW2 Pritam Chand and mother Santosh Kumari PW3. PW5 Harish Ralhan is the owner of Ved Lodge, Railway Road Pathankot. PW11 Ajeet Singh is the Secretary, Gram Panchayat Gagwal who has produced the date of birth certificate Ext.PW11/A before the police which was taken in possession vide recovery memo Ext.PW7/A. PW14 Yashpal Singh, Clerk, DAV, Public School, Bagni, Nurpur has been examined to show that the date of birth of the prosecutrix in school record was entered as 10.11.1992. 12. The remaining prosecution witnesses are formal because PW4 and PW6 S/Shri Santosh Singh and Malkiat Singh remained associated with the investigation of the case at Pathankot in Ved Lodge which allegedly was identified in their presence. PW7 Narinder Singh, Secretary, Gram Panchayat, Toki stated that in his presence the certificate Ext.PW11/A was taken in possession vide memo Ext.PW7/A. PW8 C. Sushil Kumar is a witness to the recovery of the extract of Visitor’s register Ext.PW5/A as it was taken in possession vide memo Ext.PW4/A in his presence and also in the presence of Santosh Singh. PW9 Vijay Kumar is the Uncle of the prosecutrix. It is in his presence she was recovered at Shahpur while in the company of both accused and entrusted to the custody of her father PW2. Dr. P.K. Aluwalia had examined the accused vide MLC Ext.PW10/A. PW12 Gulwant Singh, Ex-Pradhan of Gram, Panchayat, Hatli has not supported the prosecution case qua he having made disclosure statement and as such, turned hostile to the prosecution. Dr. P.K. Aluwalia had examined the accused vide MLC Ext.PW10/A. PW12 Gulwant Singh, Ex-Pradhan of Gram, Panchayat, Hatli has not supported the prosecution case qua he having made disclosure statement and as such, turned hostile to the prosecution. PW13 HC Suman working at the relevant time as Lady Constable general duty at police station, Shahpur was deputed in search of the prosecutrix along with other police officials who was recovered at Shahpur. PW15 Dr. Neerja Gupta had conducted the medical examination of the prosecutrix at Civil Hospital, Nurpur and issued MLC Ext.PW15/B. PW16 HHC Purshottam Dass the then MHC, Police Station, Shahpur had entered the rapat rojnamcha Ext.PW16/A qua missing of the prosecutrix and ran away towards Shahpur side with the accused. PW17 Bir Singh, MHC Police Station, Nurpur has supported the prosecution case qua deposit of case property with him and forwarded the same to Forensic Science Laboratory, Junga through HHC Pawan Kumar PW18. PW19 Dujesh Kumar has partly investigated the case as according to him the disclosure statement Ext.PW19/A made by accused Amit Kumar was recorded by him. He has also prepared the identification memo Ext.PW19/C of room Nos. 104 and 106 in Ved Lodge, Pathankot. PW20 Daya Sagar is the Investigating Officer whereas PW21 Dr. Raman Sharma, Radiologist and PW22 Dr. Arti Gupta, the Gynecologist. 13. On the other hand both accused in their statements recorded under Section 313 Cr.P.C. have denied all the incriminating circumstances appearing against them in the prosecution evidence being incorrect. In their defence they both pleaded that they are innocent and have been implicated in this case falsely. 14. Learned trial Judge on appreciation of the evidence oral as well as documentary and hearing learned Public Prosecutor as well learned defence Counsel has concluded that the charge under Section 368 IPC is not made out against accused Arpan Kumar. He, as such, has been acquitted of the charge so framed against him. 15. Accused Amit Kumar has, however, been held guilty of the commission of offence punishable under Sections 363, 366 and 376 IPC while arriving at a conclusion that the prosecutrix a minor has been enticed away by him from the lawful guardianship of her parents at the pretext of solemnizing marriage with her and subjected to sexual intercourse in Room No. 106 of Ved Lodge, Railway road, Pathankot (Punjab). He has been accordingly convicted and sentenced as pointed out in this judgment at the very outset. 16. Accused Amit Kumar has assailed the impugned judgment on several grounds, however, mainly that various omissions, contradictions and improvements as appeared in the prosecution evidence has lost sight of the learned trial Judge. The evidence has not been appreciated in its right perspective. There being no cogent and reliable evidence suggesting that the prosecutrix at the time of occurrence was below 16 years of age has not been appreciated in its right perspective and to the contrary the findings of conviction recorded mechanically and without application of mind. It has been pointed out that as per own statement of the prosecutrix and that of her mother as well as father she was above 16 years of age at the time of occurrence. Also that even as per the radiological age, the prosecutrix was 17-18 years of age at the relevant time. Her conduct amply demonstrate that she was not enticed away and kidnapped and rather was a consenting party to her elopement with the accused. The factum of she had been in love with the accused has also lost sight of learned trial Judge. Ext.D1, a love letter, she wrote to the accused, is also erroneously ignored. In a nut shell the complaint is that the oral as well as documentary evidence available on record has not been appreciated in its right perspective and as a result thereof the findings of conviction recorded against the accused are vitiated. The impugned judgment, as such, being legally unsustainable has been sought to be quashed. 17. On hearing Mr. Harish Kumar Verma, Advocate on behalf of the appellant-accused and Mr. R.P. Singh, learned Deputy Advocate General on behalf of the respondent-State only question which need determination in this appeal is that the prosecutrix was major above 16 years of age on the date when allegedly assaulted sexually and that being a consenting party to her elopement with the accused and also the sexual intercourse no offence under Section 363, 366 and 376 IPC is made out against the accused. 18. 18. Before coming to the factual matrix and also reappraisal of the evidence available on record, it is desirable to take note as to under what circumstances it can be inferred that the prosecutrix, a minor has been kidnapped from the lawful guardianship of her parents and under what circumstances she can be said to have been subjected to forcible sexual intercourse. A bare perusal of Section 361 IPC reveals that if a female under 18 years of age is enticed away by a person from her lawful guardianship without the consent of her guardian, such person can be said to have committed the offence of kidnapping. The essential ingredients to constitute an offence of kidnapping, therefore, is enticing away a minor form her lawful guardianship without the consent of her guardian or any other person legally authorized to consent on behalf of such guardian of minor. Such person can be said to have committed an offence of kidnapping punishable under Section 363 of the Indian Penal Code. Similarly an offender can be said to have committed an offence punishable under Section 366 IPC if proved on record that the prosecutrix was kidnapped/abducted by the accused intentionally and deliberately to compel her to solemnize marriage with her against her will or forced to have illicit intercourse with him. 19. Now if coming to the commission of offence punishable under Section 376 of the Indian Penal Code in a case of minor, the commission of such an offence can be inferred once it is established that the prosecutrix has been subjected to sexual intercourse and such an act may be with her consent. However, in a case where the prosecutrix is not minor, the prosecution is required to plead and prove beyond all reasonable doubt that such carnal intercourse with her was against her will and without her consent. 20. Now if coming to the legal principles attracted in a case of this nature, in State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393 , the Apex Court has held that the own statement of the prosecutrix if inspires confidence is sufficient to bring the guilt home to the accused. 20. Now if coming to the legal principles attracted in a case of this nature, in State of Punjab Vs. Gurmeet Singh and others, AIR 1996 SC 1393 , the Apex Court has held that the own statement of the prosecutrix if inspires confidence is sufficient to bring the guilt home to the accused. The apex Court in order to ensure that an innocent person is not implicated in the commission of an offence of this nature, while taking note of the judgment in Gurmeet Singh’s case supra has however diluted the ratio thereof in Ranjit Hazarika Vs. State of Assam, (1998) 8 SCC 635 and held that the statement of prosecutrix cannot be universally and mechanically applied to the facts of every case of sexual assault, as in its opinion, in such cases, the possibility of false implication can’t also be ruled-out. Similar was the view of the matter taken again by the apex Court in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and another, (2003) 3 SCC 175 . While placing reliance on this judgment and the law laid down by the Apex Court in the judgment supra, this Court in Criminal Appeal No. 481 of 2009 titled State of Himachal Pradesh V. Negi Ram, decided on 27th May, 2016 has held as under:- “15. Therefore, the legal position as discussed supra makes it crystal clear that irrespective of an offence of this nature not only grievous but heinous also, the Court should not got swayed merely by passion and influence only on account of the offence has been committed against a woman and rather keep in mind the cardinal principle of criminal administration of justice, that an offender has to be believed to be innocent unless and until held guilty by the Court after satisfying its judicial conscience on the basis of given facts and circumstances of each case as well as proper appreciation of the evidence available on record.” 21. It is again well settled at this stage that in a case of this nature the age aspect of the prosecutrix assumes considerable significance. 22. Now if coming to the facts of this case, the prosecution claims the date of birth of the prosecutrix as 10.11.1992. To substantiate this part of its case the prosecution has placed reliance on the secondary school examination certificate Ext.PW20/D. This is a photocopy of the certificate. 22. Now if coming to the facts of this case, the prosecution claims the date of birth of the prosecutrix as 10.11.1992. To substantiate this part of its case the prosecution has placed reliance on the secondary school examination certificate Ext.PW20/D. This is a photocopy of the certificate. In this document her date of birth is entered as 10.11.1992. It is the IO PW20 the then SI/SHO, Police Station, Nurpur has proved this documents in his statement. The only witness examined in this behalf is PW14 Yashpal Singh. As per his version 10.11.1992 is the date of birth of the prosecutrix recorded in the school record. He further tells us that such age of prosecutrix has been recorded on the basis of school leaving certificate issued by the school where she was previously studying. The record of that school where initially the prosecutrix was admitted has, however, not been produced. Interestingly enough, her mother while in the witness box as PW3 has stated that at the time of alleged occurrence the prosecutrix was 16 and ½ years of age. Such is her statement in examination-in-chief. Not only this, but her father PW2 has also stated that while the age of his son at the relevant time was 19 years, the daughter (prosecutrix) was of 16 years. Significantly the radiological age of the prosecutrix as opined by Dr. Raman Sharma PW21 was 17-18 years at the relevant time. 23. Above all there is nothing on record to suggest as to who has produced Ext.PW20/D before the police. It is the I.O.PW20 who has tendered the same in evidence while in the witness box. As a matter of fact, the evidence as to who has produced this document and when taken into possession by the Investigating Officer should have been produced. The same was required to be taken in possession vide seizure memo and in presence of the witnesses. For want of such evidence this document cannot be believed as legal and acceptable evidence. PW14 Yashpal Singh has simply stated that as per the school record the date of birth of the prosecutrix is 10.11.1992. As per his further testimony the same was entered in the record on the basis of school leaving certificate issued by the previous school. This witness is also of no help to the prosecution. PW14 Yashpal Singh has simply stated that as per the school record the date of birth of the prosecutrix is 10.11.1992. As per his further testimony the same was entered in the record on the basis of school leaving certificate issued by the previous school. This witness is also of no help to the prosecution. The certificate Ext.PW20/D, as such, cannot be taken as a valid proof qua the date of birth of the prosecutrix. It has been held by this Court in Ramesh Sharma versus State of Himachal Pradesh, 2013(3) Shim.LC 1386 that in order to determine the age of a person with the assistance of the school record it is the admission register and admission form filled up at the time of admission of a child in the school where he or she is initially admitted, an authentic proof thereto. This judgment reads as follow:- “24. Hon’ble Apex Court in State of Chhatisgarh Vs. Lekhram, AIR 2006 SC 1746 , has held that the register maintained in a school is admissible evidence to prove the date of birth of the person concerned, if it is proved that the same has been maintained by the authorities in the discharge of their public duty and there is evidence to show as to who had disclosed the date of birth of such person at the time of his/her admission in the school.” 24. If coming to the another date of birth certificate Ext.PW11/A issued by PW11 Secretary Gram Panchayat, Gagwal the date of birth of prosecutrix therein has been recorded as 10.11.1991. PW11 in his examination-in-chief has stated that he has issued this certificate on the basis of the entries made in the Birth and Death register. Therefore, as per this document the date of birth of the prosecutrix is not 10.11.1992 as claimed by the prosecution and rather 10.11.1991. Therefore, the prosecution itself has produced contradictory evidence qua this aspect of the matter. On the other hand the judgment in Ramesh Sharma’s case, cited supra, qua this aspect reads as follows: “26. In Birad Mal Singhvi v. Anand Purohit, 1988 Supp. Therefore, the prosecution itself has produced contradictory evidence qua this aspect of the matter. On the other hand the judgment in Ramesh Sharma’s case, cited supra, qua this aspect reads as follows: “26. In Birad Mal Singhvi v. Anand Purohit, 1988 Supp. SCC 604 this Court held: "To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded." 27. Similar is the ratio of the judgment again that of Hon’ble Apex Court Madan Mohan Singh and others Vs. Rajni Kant and another, AIR 2010 SC 2933 , which reads as follows: “18. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma Vs. State of Bihar, AIR 1970 SC 326 ; Ram Murti Vs. State of Haryana, AIR 1970 SC 1029 ; Dayaram & Ors. Vs. Dawalatshah & Anr., AIR 1971 SC 681 ; Harpal Singh & Anr. Vs. State of Himachal Pradesh, AIR 1981 SC 361 ; Ravinder Singh Gorkhi Vs. State of U.P., (2006) 5 SCC 584 ; Babloo Pasi Vs. State of Jharkhand & Anr., (2008) 13 SCC 133 ; Desh Raj Vs. Bodh Raj, AIR 2008 SC 632 ; and Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681 . State of U.P., (2006) 5 SCC 584 ; Babloo Pasi Vs. State of Jharkhand & Anr., (2008) 13 SCC 133 ; Desh Raj Vs. Bodh Raj, AIR 2008 SC 632 ; and Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681 . In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases.” 25. In view of what has said supra, on the basis of the documentary evidence produced by the prosecution it cannot be believed by any stretch of imagination that the prosecutrix is born on 10.11.1992. 26. Therefore, as per radiological age also, the age of the prosecutrix at the relevant time was 17-18 years. The present, as such, is not a case where it is proved beyond all reasonable doubt that the prosecutrix at the time of her elopement with the accused was minor below 18 years of age for the purpose of commission of offence punishable under Section 363 and 366 IPC and 16 years for that under Section 376 IPC. 27. On the other hand, as per her own admission she was in love with accused Amit Kumar. She admit letter Ext.D1 when put to her in cross-examination having been written by her to the accused. As per this letter, she was not only with love with the accused but interested in solemnizing marriage also with him. Her conduct that on 23.5.2008 when went to school she had taken extra clothes in her bag, she went to the house of her friend, changed her school dress there and worn the clothes she had taken with her show that she had gone with every preparation to flee away with the accused. At Jassur she acted as advised by accused Arpan Kumar and accompanied by him she went to Railway Station there. The principal accused Amit met her there and she went to Pathankot in the company of both accused in a train. At Jassur she acted as advised by accused Arpan Kumar and accompanied by him she went to Railway Station there. The principal accused Amit met her there and she went to Pathankot in the company of both accused in a train. She lived there during night in the company of accused Amit Kumar in room No. 106 of Ved Lodge. There is no denial thereto and rather it is the own case of the prosecution that she cooperated with the accused at each and every stage after her elopement with him. Therefore, when it is held that she was not below 16 years of age, the present is not a case where it can be believed that she was enticed away by the accused and rather a consenting party to her elopement with them. Therefore, even if it is believed that she was subjected to sexual intercourse during that night by accused Amit Kumar, such an act was with her consent and as per her will and not forcible. 28. The medical evidence if perused though PW22 Dr. Arti Gupta in her examination-in-chief has not ruled out the possibility of sexual intercourse with the prosecutrix, however, when cross-examined the suggestion that there was no evidence of sexual assault committed upon the prosecutrix has been admitted as correct. Above all both doctors PW15 and PW22 have not noticed any injuries or mark of struggle on the person of the prosecutrix. Therefore, even if she was subjected to sexual intercourse such an act was not forcible or against her will and without her consent and rather a consensual act. 29. The present is a case where the age of the prosecutrix at the relevant time was above 16 years which as per the medical evidence may even be 17-18 years. The accused was also of tender age being 19 years old at that time. They both were also in love with each other. 30. As already noticed the remaining prosecution witnesses being formal qua the recovery of the prosecutrix, entrustment of her custody to PW2 and qua identification of Ved Lodge and the rooms where the accused and prosecutrix allegedly stayed are formal and there evidence at the most could have been used as link evidence had the prosecution otherwise been able to bring guilt home to the accused beyond all reasonable doubts. 31. 31. Similarly the official witnesses are also formal having remained associated with the investigation of the case in one way or the other. Therefore, looking the present case from any angle, the involvement of the accused in the commission of alleged offence is not established beyond all reasonable doubt. Learned trial Judge has failed to appreciate the evidence available on record in its right perspective and got swayed by passion and also for the reason that the offence is against a woman and the accused had subjected the prosecutrix, allegedly a minor girl to sexual intercourse. The findings so recorded being based on surmises and conjectures are, however, neither legally nor factually sustainable. The above poser, therefore, is answered accordingly. 32. The upshot of the discussion hereinabove would therefore be that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. The accused, therefore, is entitled to benefit of doubt and ultimately acquittal. 33. In view of what has been stated hereinabove, the present appeal is accepted and the impugned judgment set aside. Consequently, the conviction of the accused is also quashed and set aside. During the pendency of the case in the trial Court, he was on bail and after his conviction and sentence by learned trial Court is in judicial custody and serving out the sentence for the last more than eight months. Therefore, he is ordered to be set free forthwith, if not required in any other case. 34. The appeal is accordingly allowed and stands disposed of.