JUDGMENT : RAJESH SEKHRI, J. 1. This appeal has been directed against judgment dated 28.09.2013, recorded by learned Sessions Judge, Pulwama, (trial court for short) vide which respondent has been acquitted in case titled State of J&K through Police Station Awantipora vs. Ghulam Mohammad Lone, for offences under Sections 363/376 of Ranbir Penal Code, 1989, (RPC). 2. Before a closer look at the grounds urged in the memo of appeal, it shall be apt to have an overview of the background facts. 3. Since the present case relates to the incident of rape of a minor girl, therefore, keeping in view the social object of preventing ostracism of the victims of sexual offences, the victim hereinafter shall be referred to as prosecutrix. 4. Shorn of irrelevant details, the prosecution case is that on 25.08.2006, complainant Ghulam Mohammad Mir (PW-1), lodged a written report at Police Station Awantipora alleging inter alia that his minor daughter was kidnapped two days ago and had been concealed at some unknown place by one of his relatives, namely, Ghulam Ahmad lone, for forcible sexual intercourse. On the receipt of this report, FIR No. 116/2006 for offence under Section 363 RPC came to be registered against the respondent. During investigation, prosecutrix came to be recovered on 27.08.2006 from the custody of the respondent/ accused from Cheripora, Anantnag. The prosecutrix was subjected to medical examination and medical certificate was obtained. After usual legal formalities, the investigation culminated into presentation of charge sheet against the respondent for offences under Sections 363/376 RPC. The respondent was formally charged, for the aforesaid offences, whereby, he pleaded innocence, prompting the trial court to ask for the prosecution evidence. Prosecution has examined all eleven witness cited in the list of witnesses. 5. The respondent/accused in his statement under Section 342 Cr.P.C. denied the inculpatory material arrogated to him in the prosecution evidence and opted for defence evidence, but failed to produce any defence witness. Learned trial court on conclusion of the trial, has held that prosecution has failed to establish the guilt and, therefore, respondent has been acquitted of the charges. 6. The appellant-State has questioned the impugned judgment of acquittal, primarily on the grounds that learned trial court has failed to appreciate prosecution evidence in the right perspective and has recorded impugned judgment of acquittal despite copious evidence, both oral and documentary, placed on record by the prosecution. 6. The appellant-State has questioned the impugned judgment of acquittal, primarily on the grounds that learned trial court has failed to appreciate prosecution evidence in the right perspective and has recorded impugned judgment of acquittal despite copious evidence, both oral and documentary, placed on record by the prosecution. According to the appellant the conviction of the respondent, in the present case can be sustained on the sole testimony of the prosecutrix. 7. Having heard rival contentions of the parties and perused the record, we have given our anxious consideration to the facts and circumstances attending the present case as also the law which governs the field. 8. There is no dispute to the settled position of law that conviction can be sustained on the sole testimony of the prosecutrix, provided it is credible, trustworthy and confidence inspiring. The testimony of the prosecutrix, in the present case, on first blush, would indicate that she has made a graphic narration of the incident, which happened to her, however, a careful examination of the testimony of the prosecutrix in totality, would reveal that her statement is not only discrepant on material aspects, but also exaggerated, thus not worthy of credence. 9. It is case of the prosecution that respondent kidnapped minor daughter of the complainant and she was subjected to forcible sexual intercourse. Respondent has been charged for the commission of offences under Sections 363/376 RPC. 10. In order to constitute an offence under Section 363 RPC, prosecution is obliged to prove that prosecutrix at the time of occurrence was a minor under the age of eighteen years. However, the record bears testimony to the fact that prosecution has failed to produce any evidence to establish that prosecutrix at the time of occurrence was a minor. It is pertinent to mention that Date of Birth certificate of the prosecutrix issued by Headmaster Government Boys Middle School, Ratnipora, Pulwama, is part of the challan presented by the prosecution. However, it is surprising to note that the said Headmaster, who issued Date of Birth certificate of the prosecutrix, has not been cited as a prosecution witness in the case. Significantly no attempt has been made by the prosecution to explain as to why said certificate was not tendered in evidence. 11. It appears that prosecution seeks to rely upon the testimony of PW-9 Dr. Significantly no attempt has been made by the prosecution to explain as to why said certificate was not tendered in evidence. 11. It appears that prosecution seeks to rely upon the testimony of PW-9 Dr. Aaliya Bashir, who conducted medical examination of the prosecutrix, after the commission of the offence. While certifying that prosecutrix was subjected to sexual intercourse, PW-9 Dr. Aaliya Bashir, has recorded age of the prosecutrix as 16/17 years old in the certificate EXTP-9. However, on cross-examination, the doctor has clarified, that age of the prosecutrix reflected in the medical certificate was not data based, as she did not conduct any ossification test. As a matter of fact, the prosecutrix, was referred by the Investigation Agency to PW-9 Dr. Aaliya Bashir, for examination regarding evidence of recent sexual activity and she was never asked to tender any opinion regarding age of the prosecutrix. The age of the prosecutrix in such cases is generally written by a doctor, on the certificate as disclosed by the prosecutrix or the persons accompanying her at the time of examination. Since, Dr. Aaliya Bashir, has herself admitted in her cross-examination that age of the prosecutrix mentioned in the certificate as 16/17 years was not data based nor she conducted any ossification test to say so, therefore, the opinion tendered by Dr. Aaliya Bashir, with respect to the age of the prosecutrix, carries no weight. Therefore, we concur with the observation of learned trial court that prosecution having failed to prove that prosecutrix at the time of occurrence was a minor under sixteen years of age, offence under Section 363 RPC is not made out against the respondent. 12. The respondent is also alleged to have kidnapped the prosecutrix with an intention to rape her and has been charged for offence under Section 376 RPC. There is no eye witness to the occurrence. The prosecution in order to substantiate the allegation of rape has relied upon sole testimony of the prosecutrix. Rest of the prosecution witnesses, including parents of the prosecutrix are hearsay. The prosecutrix has deposed that she was taken to Gujjar Cottage located in a forest area by the respondent, she asked for water, accused gave her water bottle and the moment she consumed water, she fell unconscious. Rest of the prosecution witnesses, including parents of the prosecutrix are hearsay. The prosecutrix has deposed that she was taken to Gujjar Cottage located in a forest area by the respondent, she asked for water, accused gave her water bottle and the moment she consumed water, she fell unconscious. The prosecutrix has further deposed that she was raped by the respondent/accused in her unconscious state of mind and when she regained conscious, she felt that she had been raped by the accused. As per Modi’s Medical Jurisprudence and Toxicology (23rd edition), to constitute an offence of rape, the only statement that may be made by a Medical Officer is the evidence of recent sexual intercourse. Whether rape has occurred or not, is a legal conclusion to be drawn from the statement of the prosecutrix, coupled with the statement of the Medical Officer with respect to evidence of recent sexual activity. PW-9 Dr. Aaliya Bashir, who has examined the prosecutrix, has only certified in her certificate EXT-P9 that she found that sexual intercourse was done and that there was no wound or tear found during examination. The concerned doctor has nowhere stated that there was any recent sexual activity. It is pertinent to mention that prosecutrix is stated to have been recovered from the possession of the respondent on 27th August, 2006, and she was subjected to medical examination on the same date and since no wound or fresh tear was found on the private parts of the prosecutrix and there is no certificate of the doctor that there was any evidence of recent sexual activity on the person of the prosecutrix, therefore, it shall be difficult to hold that prosecutrix was subjected to forcible sexual intercourse immediately prior to her recovery from the custody of the respondent. Therefore, prosecution has also failed to prove charge of rape punishable under Section 376 RPC, by leading trustworthy and credible evidence. 13. The place of recovery of the prosecutrix, in the present case, is also under cloud. The prosecution case is that prosecutrix was recovered by Awantipora Police on 27.08.2006 from Cheripora, Anantnag. The I/O, PW-11 ASI Ab. Rehman is the scribe of the memo of recovery of the prosecutrix and PWs 1 and 3 are witnesses to the said recovery memo. The place of recovery of the prosecutrix, in the present case, is also under cloud. The prosecution case is that prosecutrix was recovered by Awantipora Police on 27.08.2006 from Cheripora, Anantnag. The I/O, PW-11 ASI Ab. Rehman is the scribe of the memo of recovery of the prosecutrix and PWs 1 and 3 are witnesses to the said recovery memo. Both witnesses to the recovery memo, PW-1 and PW-3 in cross examination, have stated that prosecutrix was recovered from Utroosu Shangus, and two constables of the said police post, apprehended both prosecutrix and the accused, from where, they were taken to Awantipora Police Station. Pertinently another prosecution witness PW-4 has introduced altogether a different story by stating that prosecutrix was recovered from Bulbul Kokernag. Therefore, both PWs 1 and 3, witnesses to the recovery of the prosecutrix, as also PW-4 have falsified the very prosecution story on two counts that prosecutrix was recovered by the Awantipora Police Station and that she was recovered from Cheripora, Anantnag. It is evident that there are serious contradictions in the testimonies of the prosecution witnesses regarding place of recovery of the prosecutrix as also the Police Station who recovered her. In the circumstances, it may not be safe to conclude that prosecutrix in the present case was recovered from the custody of the respondent. 14. Another flaw in the prosecution case is failure on the part of Investigating Officer to seize Pheran and Trouser of the prosecutrix. The prosecutrix in her statement has stated that Collar of her pheran was torned and there were blood stains on her trouser. However, neither pheran nor blood stained trouser of the prosecutrix has been seized by the Investigating Agency. 15. Further, it is the prosecution case that father of prosecutrix, PW-1 Ghulam Mohammad Mir, lodged missing report of the prosecutrix on 25.08.2006, alleging inter alia that his minor daughter was kidnapped by the respondent two days ago. It implies that prosecutrix was kidnapped by the respondent on 23.08.2006. She is stated to have been recovered on 27.08.2006, i.e. five days after the alleged occurrence of kidnapping by the respondent. However, the prosecutrix in her statement in the trial court has stated that they stayed in Gujjar Cottage for one night only and the next day respondent took her to the road side and they were travelling by foot or by Sumo for the whole day. However, the prosecutrix in her statement in the trial court has stated that they stayed in Gujjar Cottage for one night only and the next day respondent took her to the road side and they were travelling by foot or by Sumo for the whole day. While she was sitting on the road, her father (PW-1) and grandfather (PW-3) came to the spot along with Police. It is pertinent to underline that prosecutrix in her cross-examination has categorically testified that it was wrongly mentioned in her statement under Section 161 Cr.P.C. that accused raped her for three nights. A critical analysis of the testimony of the prosecutrix, recorded by the trial court, would reveal that prosecutrix was recovered by the police on the very next day of the alleged kidnapping i.e. on 24.08.2006 and not five days after the occurrence on 27.08.2006, as claimed by the prosecution. Therefore, prosecution case is also found discrepant on this material aspect. 16. Another vital aspect of the matter, which cannot be lost sight of is failure on the part of the Investigating Agency to seize the vehicle used in the commission of crime and to cite the Sumo driver as a material prosecution witness. It is statement of the prosecutrix that accused gagged her mouth and took her to some unknown place through fields, where she was made to board a Sumo. She was taken to a Gujjar Cottage located in a forest area, where she was raped by the respondent. Next day respondent took her to the road side and they were travelling for the whole day either by foot or by Sumo. She has categorically stated that there was driver in the Sumo. In these circumstances, the Investigating Agency was not only obliged to seize the vehicle used in the commission of the crime, but also cite the Sumo driver as a material prosecution witness to prove complicity of the respondent in the abduction of the prosecutrix. The Investigating Officer (PW-11) ASI Abdul Rehman has not uttered even a single word about failure on his part on this count. Though as a general rule, it can be stated that remissness or defect in the investigation would not have any impact in the prosecution case unless miscarriage of justice is brought about or serious prejudice is caused to the accused. Though as a general rule, it can be stated that remissness or defect in the investigation would not have any impact in the prosecution case unless miscarriage of justice is brought about or serious prejudice is caused to the accused. The short comings in the investigation become marginal in case testimonial potency of the prosecution witnesses are worthy of credence. However, in the present case failure on the part of the Investigating Officer to seize the vehicle used in the abduction of the prosecutrix and cite the Sumo driver as a prosecution witness is a glaring lapse on the part of Investigating Agency, sufficient to dislodge the prosecution case. 17. Finally, it appears from the testimony of the prosecutrix that she was taken by the respondent on foot or by Sumo to road side, near bus stand, which is frequented by people and where vehicles were plying. Although prosecutrix has deposed that when she tried to raise hue and cry, respondent gagged her mouth and since she was threatened by him, she could not raise alarm. However, this statement of the prosecutrix does not inspire confidence, because it is neither the prosecution case nor stated by the prosecutrix that accused was armed with any weapon. Therefore, there were various opportunities and occasions available to the prosecutrix to raise alarm and escape from the clutches of the accused. However, there is nothing in the statement of the prosecutrix to suggest that she made any such attempt. In our opinion such unnatural and improbable conduct on the part of the prosecutrix is sufficient to expose the fallacy of the entire prosecution case. 18. For what has been observed and discussed above, we do not find any illegality much less perversity in the well reasoned impugned judgment of acquittal propounded by trial court. Hence, the present appeal being bereft of merit is dismissed and impugned judgment is upheld. 19. Record of the trial court be returned with convenient dispatch.