The importance of proving the prosecution's case beyond reasonable doubt and the need for consistent and reliable evidence.

S.P. GARG, J.

1. Aggrieved by a judgment dated 27.01.2005 of learned Additional Sessions Judge in Sessions Case No.48/01 arising out of FIR No.243/00 registered at Police Station Vivek Vihar by which the appellants were convicted under Sections 363/366/376 IPC, they have preferred the instant appeals. By an order dated 01.02.2005, the appellants were awarded various prison terms with fine.

2. Briefly stated, the prosecution case as set up on the charge-sheet was that on 23.11.2000 in between 7.30 a.m. to 9.30 a.m., the appellants in furtherance of their common intention kidnapped the prosecutrix ‘X’ (assumed name) aged 13 years from the lawful guardianship of her parents. After kidnapping, they took her to village Ramoli, Distt. Darbangha, Bihar where the appellant-Ajay committed rape upon her.

On 23.11.2000 ‘X’ went missing and could not be found despite hectic search by her parents. PW-2 (Nirmala Chaubey) ‘X’s mother lodged First Information Report with the police and suspected the appellants involvement in the crime. ‘X’ was recovered from appellants’ custody at their village Ramoli, Distt. Darbangha, Bihar on 30.11.2000. ‘X’ was medically examined, she recorded her statement under Section 164 Cr.P.C. Both the accused persons were medically examined after their arrest. Statements of witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against them for committing offence under Sections 363/366/376 IPC. To establish its case, the prosecution examined seventeen witnesses. In 313 statements, the appellants denied their involvement in the crime and pleaded false implication. The trial resulted in their conviction as mentioned previously. Being aggrieved and dissatisfied, the instant appeals have been preferred.

3. I have heard the learned counsel for the parties and have examined the record. Admitted position is that on 23.11.2000 along with her father ‘X’ had gone to Ucchtar Madhyamik Vidyalaya, Jhilmil Colony at 7.30 a.m. She went missing from the school leaving her school bag there. Principal of the school informed her parents. The appellants were working in the factory of the victim’s father. They were acquainted with ‘X’ before the incident.

4. On scrutinizing the testimony of the prosecutrix, it leaves no doubt that it was a case of elopement with consent. ‘X’ had entered inside the school premises after she was left there by her father. However, she of her own voluntarily came out of the school gate to accompany the appellants without informing anyone. She travelled by train to Darbangha, Bihar and remained in the company of the appellants for about seven days. Physical relations were established between ‘X’ and appellant Ajay during this period. At no stage ‘X’ raised any alarm to attract the attention of public/police to complain about the alleged forcible kidnapping and seek help from them. The appellants were not armed with any weapon to create real apprehension in ‘X’s mind to desist from protesting her kidnapping. At Darbangha (Bihar) also, where she lived for about seven days before her recovery by Delhi police, she had no complain, whatsoever, against the conduct and behaviour of the appellants. She was acquainted with the accused persons and used to be in conversation with them before the incident. During her stay with the appellants, she did not attempt to contact her parents to apprise them her whereabouts. She left the school without informing her friends or school teacher leaving her school bag there. She had no reasons or occasion to come out of school gate during school hours without seeking prior permission of her school teachers. Apparently, ‘X’ was a willing and consenting party. She was medically examined vide MLC Ex.PW-8/A by Dr.Anju Gautam on 2.12.2000. No visible injuries were found on her body. Vagina admitted two fingers with pain; hymen was found torn. Obviously, there were no marks of struggle or violence on her body. She had sexual inte