Ramu vs State of Himachal Pradesh

Dharam Chand Chaudhary, J.—Aggrieved by the judgment dated 28th July, 2012, in Sessions Trial No. 15 of 2012, convict Ramu, hereinafter to be referred as ''the accused'', has preferred this appeal for setting aside the same on the grounds, inter alia, that learned trial Court has not appreciated the evidence available on record in its right perspective and rather misread and misconstrued the same while recording the findings of conviction against him under Sections 363 and 376 of the Indian Penal Code. It has further been pointed out that evidence as has come on record by way of the testimony of the prosecutrix has been given undue weight-age, particularly when the same, according to him, hardly inspires any confidence and rather contrary in nature.

The prosecutrix (PW-1) (name withheld), is daughter of Piar Singh (PW-3) and Smt. Kamlesh Kumari (PW-2), is her mother. PW-3 has two houses one (new) in the valley side, i.e., below the road and another (old) in hill-side, i.e., above the road. He alongwith his father and sons, was sleeping in the new house, whereas his wife Smt. Kamlesh Kumari (PW-2), his mother and the prosecutrix in the old house. During the night intervening 26th/27th November, 2011, the prosecutrix was sleeping with her grand-mother aged around 62 years. The prosecutrix came out of the room around 10.00 p.m. to answer the call of nature. The accused allegedly gagged her mouth and took her to road where a pick-up bearing registration No. HP-68-0116 was lying parked. She was made to board that vehicle forcibly. Accused drove the same towards Chamba side. On the way one Ramesh Kumar (PW-7) met them. He was going to river for doing fishing. The accused disclosed to Ramesh Kumar that the prosecutrix was the sister of his brother-in-law and that her mother was ill at Pathankot and that he had to drop her at Pathankot. Also that they had to catch the bus to Pathankot, therefore, requested said Ramesh Kumar to bring the vehicle back from the place where they are able to catch the bus. They, however, could not catch the bus. On the request of accused, said Ramesh Kumar made them to stay in the house of his relations at village Kakira and he came thereafter to the village alongwith the vehicle. A lady, the owner of that house made the prosecutrix and the accused to sleep in a room. There the accused subjected her to sexual intercourse twice during the night.

The prosecutrix was threatened with dire consequences in case she disclosed the incident to anyone else. She anyhow managed her escape from the accused and boarded a bus coming to Chamba side. She alighted from the bus at Bhedu-farm in village Sarol. Her cousin Bhuvnesh Kumar (Tanu) (PW-4) met her there. He asked as to where she had gone. She told him that she had gone to the house of her friend. PW-4 informed the father of the prosecutrix (PW-3), who came to Bhedu-farm in a vehicle. PW-4 and the prosecutrix both came in that vehicle to the village.

The prosecutrix when asked by her parents as to where she was, the prosecutrix did not tell anything about the incident to them, of course, she revealed that she had gone to the house of her friend. It is on 30th November, 2011, she told her mother PW-2 for the first time that she was kidnapped on 26th November, 2011 at 10.00 p.m. by the accused and subjected to sexual intercourse during that night in a house at village Kakira. On such statement, the mother of the prosecutrix (PW-2) has lodged FIR Ext. PW-2/A in Police Station, Sadar, Chamba.

The prosecutrix was taken to hospital. She was medically examined by Dr. Sucheta Pathania (PW-5). The vehicle was taken into possession alongwith its documents Exts.PW-8/A and PW-8/B from Rajinder Lal (PW-8), brother-in-law of its owner Smt. Sunita Chopra. The accused was arrested and subjected to medical examination vide medico-legal certificate Ext.PY. The medico-legal certificate Ext.PW-5/A of the prosecutrix was also obtained. On the receipt of forensic science laboratory report and completion of the investigation, report under Section 173 of the Code of Criminal Procedure was filed against the accused.

On finding prima facie case that the accused has committed the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, charge against him was framed accordingly. He, however, pleaded not guilty and claimed trial.

The prosecution apart from the aforesaid witnesses, has also examined Kishori Lal, Panchayat Sahayak, Gram Panchayat, Sungal (PW-6) and police officials, namely Raj Kumar (PW-9), Kuldeep Chand (PW-10), Jagroop Singh (PW-11) and the Investigating Officer Vinod Singh (PW-12). On remand, statement of Sham Lal (PW-13) Secretary, Gram Panchayat has also been recorded, who has produced the birth certificate of the prosecutrix, Ext.PW-13/B.

The accused in his statement under Section 313 of the Code of Criminal Procedure has admitted he being the driver of pick-up bearing registration No. HP-68-0116 and arrested as well as subjected to medical examination consequent upon registration of FIR Ext.PW-2/A against him, however, denied the remaining prosecution case either being wrong or for want of knowledge. His defence is that the case has been registered falsely against him and also that the prosecutrix is not known to him.

As noticed at the outset, learned trial Judge has, however, convicted the accused for the commission of offence punishable under Sections 363 and 376 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 10,000/- under Section 363 of the Indian Penal Code and rigorous imprisonment for a period of seven years and to pay a fine of Rs. 10,000/- under Section 376 of the Indian Penal Code with default clauses. Both the sentences were ordered to run concurrently.

Shri J.R. Poswal, Advocate, learned defence Counsel, has vehemently argued that there is no iota of evidence to show that the accused has committed the alleged offence. The statement of the prosecutrix, according to learned defence Counsel, cannot be relied upon, being contradictory in nature. FIR (Ext.PW-2/A), having not been signed by the informant, being contrary to the provisions contained under Section 154 of the Code of Criminal Procedure, goes to the very root of the case. The non-examination of the Radiologist in whose opinion, the radiological age of the prosecutrix was 15 1/2 - 16 1/2 years, is stated to be fatal to the prosecution, besides causing a grave injustice to the accused. It has further been pointed out that the conduct of the prosecutrix reveals that she was never kidnapped or abducted by the accused. Tangible evidence to show that she was kidnapped is also stated to be not on record.

On the other hand, learned Additional Advocate General has supported the judgment under challenge while submitting that the prosecution has succeeded to prove beyond all reasonable doubt that the prosecutrix, a minor below 16 years of age, was taken away by the accused from the lawful guardianship of her parents during dead hours of night intentionally to subject her to sexual intercourse and ultimately he succeeded in assaulting her sexually in a house at village Kakira. Therefore, according to learned Additional Advocate General, the Court below has not committed any illegality or irregularity in convicting and sentencing the accused vide judgment under challenge in this appeal.

The first and foremost question needs adjudication in the light of claims and counter-claims laid on both sides is that it is the accused who removed and enticed the prosecutrix allegedly a minor below 16 years of age from the lawful guardianship of her parents. The answer to this poser in all fairness and in the ends of justice would be in negative for the reason that at 10.00 p.m. the accused could have not kidnapped the prosecutrix from her house, had she not been a consenting party to her elopement with him. It cannot be believed to be true that she was picked-up by the accused at a stage when came out for easing. Had she been picked-up by the accused, she could have raised hue and cry. The story that her mouth was gagged by the accused cannot be believed to be true, as according to her, it was pitch-dark night, therefore, how he could have gagged her mouth and also used force to take her away to road side where the vehicle was lying parked. He was alone or PW-7 Ramesh was also with him at that time, is again a mystery because she did not support her statement Ext.D-1 recorded during the course of investigation that Ramesh met them on the way at a place known as Bhijhod, while going to river Sahal for doing fishing and that he boarded the vehicle on the request of the accused to bring the same back from a place where they (accused and prosecutrix) are able to board the bus enroute Chamba-Amritsar. While in the witness box as PW-1, she has stated that PW-7 Ramesh was sitting in the vehicle when she was brought to road by the accused. The story of offering to drink some intoxicant is missing in her statement while in the witness box, whereas in Ext.D-1 it has come that she was administered some intoxicant substance and on drinking the same she fell unconscious. She, however, tells in Ext.D-1 that the accused introduced her to be the sister of his brother-in-law to PW-7 Ramesh and represented that her mother was ill at Pathankot and that she had to board Amritsar bus, however, when they could not board that bus and reached Tunuhati, Ramesh (PW-7) refused to accompany them any further beyond Tunuhati and on the request of accused said Shri Ramesh brought them to village Kakira and they were made to stay in the house of his relations. Nothing to this effect, however, has come in her statement recorded in the Court. She, in a nutshell, has stated that the accused accompanied by PW-7 brought her to village Kakira and there she was made to stay in a room of the house of someone in his relation. Who was owner(s) of that house, remained unexplained as no one was associated during the course of investigation in this regard. The present, therefore, is not a case where it can be said that the prosecutrix was removed from her lawful custody by the accused. No case under Section 363 of the Indian Penal Code is, therefore, made out against the accused. His conviction and sentence for the commission of such offence is not legally and factually sustainable.

If coming to the commission of the offence punishable under Section 376 of the Indian Penal Code, in a case of this nature it is age aspect of the prosecutrix which assumes considerable significance. Here it has been claimed that the prosecutrix being born on 5th August, 1997 was minor, below 16 years on 26th November, 2011, the day of occurrence. The evidence in support thereof relied upon by the prosecution is the certificate Ext.PW-6/B issued by PW-6 Shri Kishori Lal, Panchayat Sahayak, Gram Panchayat, Sungal. PW-6 has categorically stated that he has issued the certificate on the basis of birth entries of the prosecutrix in the Pariwar register.

This Court vide order dated 21st July, 2014, passed in an application (Cr.M.P. No. 11276 of 2013) under Section 91 read with Sections 391 and 482 of the Code of Criminal Procedure, while allowing the prosecution to produce in evidence the date of birth of the prosecutrix with the help of the entries in the Birth and Death Register, has directed learned trial Court to take on record the date of birth certificate sought to be produced by the prosecution by way of leading additional evidence and after taking the same on record in accordance with law to record the statement of the appellant-convict also under Section 313 of the Code of Criminal Procedure enabling thereby him to rebut the incriminating circumstance, if any, appeared in the prosecution evidence against him. The trial Court consequently recorded the statement of PW-13 Sham Lal, Secretary, Gram Panchayat, Baror. He has produced the date of birth certificate of the prosecutrix Ext.PW-13/B. No doubt, in this document also, her date of birth has been shown as 5th August, 1997 and as per the version of this witness in cross-examination, it is one Govind Ram, Ward Panch, Gram Panchayat, Baror, who got entered such date of birth of the prosecutrix in that register.

Normally, the date of birth of a newly born child is entered in the record by the members of the family, like father, grand-father. There is nothing bad in recording the date of birth of a newly born child by Member, Gram Panchayat also, however, it is not known that said Shri Govind Ram was Ward Panch of Gram Panchayat from the Ward of the parents of the prosecutrix when she was born. Not only this, but as per the version of PW-13, eleven pages in the Birth and Death Register are blank in between the entry made on 4th September, 1996 and the entry pertaining to the date of birth of the prosecutrix. There is no certificate on the register as to on which date the same was issued and how many leaves it contains.

On the other hand, the report mark ''B'' made by the Radiologist reveals that the radiological age of the prosecutrix was between 15 1/2 - 16 1/2 years. The Radiologist has not been examined enabling the accused to cross-examine him qua this aspect of the matter. It is well settled at this stage that while determining the age radiologically the margin of error of 2-3 years on either side is always there. It is the Radiologist, who was the best person to have thrown some light qua this aspect of the matter, however, he has not been examined. Therefore, an adverse inference should have been drawn against the prosecution, but to the contrary learned trial Judge has given the benefit of non-examination of the doctor concerned to the prosecution, which neither stands for the test of judicial scrutiny nor legally sustainable.

The mother of the prosecutrix while in the witness box as PW-2 though has denied she having married to Piar Singh her husband, 20 years ago, however, admitted that she was married to him 17 years ago. Not only this as per her version, the prosecutrix was born to her after one year of her marriage with PW-3 Piar Singh. Meaning thereby that as per her version also, the age of the prosecutrix was near and around 16 years. Neither prosecutrix nor her mother has said anything qua date of birth of the prosecutrix while in the witness box. No doubt, PW-3 Piar Singh has said that she is born on 5th August, 1997, however, as per his version, he is not sure as to who got entered her date of birth in the Panchayat as it is for this reason he states that it is his father who might have entered her date of birth in the record, however, PW-13 states that the date of birth of the prosecutrix has been entered by Govind Ram, Ward Panch. Therefore, in view of above stated position, it is difficult to believe that the prosecutrix took birth on 5th August, 1997.

So far said Shri Ramesh (PW-7) is concerned, as per his version, on 27th November, 2011 the prosecutrix happens to meet him around 4.00 p.m. on the road at Kakira where he had gone to make doors of the house of his co-brother. On enquiry, she told that she had come to meet her friend, however, it being late she was looking for some accommodation to stay. Therefore, he asked her to stay in the house of his co-brother. The prosecution story that he accompanied the accused in the vehicle and brought the vehicle to village Kakira and made the prosecutrix in the house of his relation alongwith the accused has been denied being wrong. Interestingly, all the witnesses including the prosecutrix and her mother have not stated whatever they told the police in their statements under Section 161 of the Code of Criminal Procedure, while in the witness box.

The primary evidence qua the date of birth of a person is the entry in the Birth and Death Register. As noticed supra, the date of birth of the prosecutrix has been entered in the Birth and Death Register at the instance of some Govind Ram. Said Govind Ram has not been associated during the course of investigation. In case the entries were made at the instance of grand-father of the prosecutrix, he should have been examined. The production of a certificate allegedly from the Birth and Death Register, which is neither properly paged nor contains any certificate and rather pages in between the last entry dated 4th September, 1996 and the entry qua the date of birth of the prosecutrix are blank, is not sufficient to discharge the onus by the prosecution to prove that the prosecutrix is born on 5th August, 1997. A reference can be made to the judgment of the Apex Court in Birad Mal Singhvi Vs. Anand Purohit, , which reads as follows:

"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."

Similar is the ratio of the judgment again that of Hon''ble Apex Court Madan Mohan Singh and Others Vs. Rajni Kant and Another, , 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. The State of Bihar, ; Ram Murti Vs. State of Haryana, ; Dayaram and Others Vs. Dawalatshah and Another, ; Harpal Singh and Another Vs. State of Himachal Pradesh, ; Ravinder Singh Gorkhi Vs. State of U.P., ; Babloo Pasi Vs. State of Jharkhand and Another, ; Desh Raj Vs. Bodh Raj, ; and Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh and Another, . 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.

19.........................................................

So far as the entries made in the official record by an official or person authorized in performance of official duties are concerned, they may be admissible under Section 35 of the Evidence Act but the court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entries in School Register/School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases."

Significantly, in the statement under Section 313 of the Code of Criminal Procedure of the accused a question has been put to him that the age of the prosecutrix was between 15 1/2 - 16 1/2 years. This reveals that the prosecution itself is not sure as to what was the exact age of the prosecutrix at that time and rather as per its own version, her age was 15 1/2 - 16 1/2 years. No question has been put to the accused that the prosecutrix being born on 5th August, 1997 was minor, in his statement under Section 313 of the Code of Criminal Procedure. Therefore, such incriminating circumstance appeared in the prosecution evidence cannot be used against him. It is held so by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, , as under:

"142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh Vs. State of Madhya Bharat, this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule Vs. State of Maharashtra, this Court held thus:

"The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.

It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration."

This Court held in State of H.P. Vs. Phurva and Others , as under:

"19. In present like cases, age of the Prosecutrix is of utmost importance. Prosecutrix though at the time of her examination has stated that she was 17 years of age, yet there is no document with respect to the date of birth obtained by the police during investigation of the case, from the concerned Panchayat or from any School or Institution where she was admitted and studied. However, the prosecution has put its reliance only on the ossification report Ext. PW10/C showing her between 16-17 years on the basis of the epiphysis of bones. To prove this report PW10 Dr. G.D. Gaur was examined. His opinion is based upon the study of Dr. M.L. Aggarwal and I.C. Pathak in Punjab Region which has no hilly terrace. He also admitted that the development of bone depends on hereditary, dietary, harmonious factors, climatic condition and it varies from place to place. He also admitted that assessment of the age on the basis of fusion of bones is not a perfect science. It is also equally fallacious to apply the study of Dr. M.L. Aggarwal and I.C. Pathak to hilly terrace with respect to their studies which they have conducted in Punjab region. Admittedly, both the parties, in this case belong to tribal area of Lahaul where development of the bones differs considerably from the subject which is in the plain and warmer areas. The pubic signs appear early in warmer and lower parts of India whereas physical development, fusion of bones and also puberty is always delayed in the hilly areas. Thus giving the benefit of +2 years on both sides, as per the Modi''s Jurisprudence, the age of the prosecutrix comes to 18-19 years at the relevant time and in any case above the age of discretion."

Therefore, on critical analysis of the age aspect of the prosecutrix vis-a-vis the evidence available on record and also the legal position discussed in this judgment in paras supra, it would not be improper to conclude that the prosecution has miserably failed to prove that 5th August, 1997 is the date of birth of the prosecutrix and that on the day of occurrence, she was below 16 years of age.

In this back drop, if coming to the commission of offence punishable under Section 376 of the Indian Penal Code, undisputedly, the prosecutrix left her parental house, however, in view of the evidence discussed hereinabove, voluntarily and without there being any allurement or pressure from the side of the accused. Although, the prosecutrix denied she having acquaintance with the accused, yet in the same breath she tells us that he used to come to her village with vehicle. Meaning thereby that he was known to her. It is for this reason she accompanied him, that too, in the mid night. If her conduct in totality is seen after leaving the house of her parents she went to village Kakira where she was made to stay in the house of someone allegedly co-brother of PW-7 Ramesh, she and the accused were made to sleep in the same room. She could have protested of her lodging with the accused in the same room. She could have also informed the owner of that house qua she was brought there forcibly and without her consent. However, she kept mum and slept in the room with the accused. Although, the accused has denied the entire prosecution case being wrong and also that the prosecutrix was made to sleep with him in the same room, yet the suggestion given to the prosecutrix (PW-1) in her cross-examination that she slept in that house with a lady and not with the accused amounts to admission on his part qua she was taken by him to village Kakira and made to stay there in that house. She has denied the suggestion that she was made to sleep with a lady in the room. Therefore, the only conclusion would be that it is the accused, who slept with her in that room. Her conduct in not raising hue and cry while being allegedly kidnapped by the accused from her house and on the way to village Kakira and even not lodged any protest with the owner of the house at village Kakira where she was made to stay, speaks in plenty that she having attained the age of discretion was a consenting party to her elopement with the accused. The explanation she set forth that the accused threatened her, remained unexplained because she disclosed nothing qua the particulars of such fear or threat. There is even no charge qua criminal intimation against the accused. She, therefore, at her own free will and voluntarily accompanied the accused.

Now if adverting to the prosecution case qua the prosecutrix was assaulted sexually in that house at Kakira, the prosecutrix, no doubt, while in the witness box has stated that the accused subjected her to sexual intercourse twice. Whether she has been assaulted sexually by the accused or not, is known only to her and the accused, however, as per own case of the prosecution, when visited Police Station on 28th and 29th November, 2011, she did not disclose anything that she was subjected to sexual intercourse by the accused. Not only this, when she met her brother Bhuvnesh Kumar (PW-4), on asking she revealed to him that she had gone to the house of her friend. Not only this, but when she reached on 27th November, 2011 in the evening in the house, she revealed to her mother that she had gone to the house of her friend. How her mother or father could have accepted the version of the prosecutrix to be true and correct, as no one goes to the house of the friend during mid night. Therefore, the representation so made by the prosecutrix itself should have raised suspicion in the mind of her parents qua its authenticity. Therefore, the representation so made by the prosecutrix being incorrect itself speaks in plenty qua the authenticity and genuineness of the prosecution story.

It is well settled at this stage that the statement of the prosecutrix, if inspires confidence, is sufficient to bring the guilt home to the accused and no other and further corroboration thereto is required. Statement of the prosecutrix and for that matter that of her mother PW-2 and father PW-3, however, inspires no confidence as the same is highly doubtful right from the very beginning till end. Their statements besides being contradictory in nature and also false. Besides, they improved their version at every stage. Therefore, keeping in mind the legal principles settled by the Apex Court in Rajoo and Others Vs. State of M.P., , the present is a fit case where the statements of the prosecutrix and that of her parents PW-2 and PW-3 cannot be relied upon universally and mechanically, because while the rape causes great distress and humiliation to the victim, a false allegation of rape can cause equal distress, humiliation and damage to the accused as well.

If coming to the medical evidence, though in the opinion of Dr. Sucheta Pathiana (PW-5) it cannot be said that sexual intercourse has not been done. The doctor is not very specific in opining that the prosecutrix was subjected to sexual intercourse, may be on account of the finding she recorded during clinical examination of the prosecutrix. No scratches, bruises or lacerations were detected during the course of medical examination of the prosecutrix. No loose pubic hair were found on combing. No abnormality could be detected in labia majora and labia minora and also fourchette cervix and the perineum. Vagina was found to admit two fingers, of course tight and painful. Laceration in vagina was found in five O''clock position.

The Chemical Examiner report reveals that blood and semen could only be detected on the underwear of the prosecutrix. On other exhibits like shirt, a cloth piece taken from her neither blood nor semen could be detected. Similarly, on the underwear of the accused and his pubic hair neither semen nor blood could be detected. Human blood, of course, was there on the Salwar of the prosecutrix. The presence of human blood on vaginal slides and vaginal swab is obvious, however, not the proof of commission of sexual intercourse. The mere presence of human blood and semen on the underwear of the prosecutrix, that too, when the same was taken into possession on 1st December, 2011 after about four days of the commission of alleged offence and without there being any link evidence connecting the accused with the commission of sexual intercourse with her, cannot be believed to arrive at a conclusion that she has been subjected to sexual intercourse by the accused.

In the given facts and circumstances and the evidence discussed hereinabove, it is not safe to place reliance on the sole statement of the prosecutrix that she has been subjected to sexual intercourse against her will and without her consent. Even if any such act has been committed by the accused, the same at the most can be said to be consensual one because the prosecutrix was a consenting party to her elopement with the accused.

True it is that for the purpose of commission of offence, punishable under Section 363 and 366 of the Indian Penal Code, kidnapping means taking or enticing away a minor under 16 years of age, if a male or under 18 years of age, if a female or any person of unsound mind, out of the lawful guardianship of such minor or person of unsound mind, without the consent of such guardian. As already pointed out, the evidence is not suggestive that the accused had any role in taking or enticing away the prosecutrix from the lawful guardianship of her parents. Rather it would not be improper to conclude that she being well known to accused voluntarily joined the company of the said accused. As a matter of fact, there seems to be an agreement between accused and the prosecutrix with regard to her elopement. It is for this reason, she first came out of her house and the moment accused came there she slipped away from the house and boarded the vehicle. Above all, what is her exact age is also not proved on record beyond all reasonable doubt.

The evidence, as discussed hereinabove, therefore, is not sufficient to arrive at a conclusion that the prosecution has been able to prove its case against the accused beyond all reasonable doubt.

The evidence, as has come on record by way of statements of remaining prosecution witnesses, including the Investigating Officer, is formal and could have at the most been used as link evidence, had the prosecution been otherwise able to bring the guilt home to the accused with the help of cogent and reliable evidence.

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 seems to have been swayed by passion that the offence is against a woman, while holding the accused guilty for the commission of the alleged offence. The findings so recorded being based on surmises and conjectures are neither legally nor factually sustainable.

The upshot of the discussion hereinabove, therefore, would be that the accused is entitled to the benefit of doubt and ultimately acquittal.

In view of what has been stated hereinabove, the present appeal succeeds and the same is accordingly allowed. Consequently, impugned judgment is set aside and the findings of conviction and sentence recorded against the accused are also quashed and set aside. Accused, Ramu is in custody and is serving out the sentence, he, therefore, be set free forthwith, if not required in any other case.

The appeal stands accordingly disposed of.