S.P. Garg, J.

1. The appellant-Kuldeep Tyagi impugns judgment dated 03.04.2010 in Sessions Case No.64/2008 arising out of FIR No.91/2008 registered at Police Station I.P.Estate by which he was convicted for committing offence punishable under Section 376 IPC and sentenced to undergo RI for seven years with fine Rs.10,000/-.

2. Allegations against the appellant were that on 12.04.2008 at 02:45 P.M., he and Raj Kumar (since acquitted) kidnapped ‘X’ (assumed name) aged 17 years from ITO with intent to secretly confine her. It was further alleged that ‘X’ was wrongfully confined and demand of Rs.15 lacs was made from her father Narvender Singh for her release. The appellant repeatedly committed rape upon her at Mussoorie and Shimla on the false promise to perform marriage with her after she turned 18. The prosecution examined 14 witnesses. In 313 Cr.P.C. statement, the appellant pleaded false implication. He stated that physical relations with ‘X’ were consensual and when her parents came to know about it, they falsely implicated him. He was apprehended from his office at Khuleshra, Noida on 16.04.2008. DW-1 (Naveen Srivastava) and DW- 2(Raman Bhardwaj) appeared in defence. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, convicted the appellant under Section 376 IPC and acquitted co-accused Raj Kumar Sharma. Being aggrieved, the appellant has preferred the appeal.

3. At the outset, it may be mentioned that appellant and his associate Raj Kumar Sharma were also charged for offences under Section 365/364A/34 IPC. However, the prosecution failed to establish the charges and both the appellant and Raj Kumar Sharma were acquitted of the charges under Section 365/364A/34 IPC. It is significant to note that State did not challenge the said acquittal. It is further significant to note that 12.09.1990 was ascertained the date of birth of the prosecutrix ‘X’. Date of occurrence was 12.04.2008. The prosecutrix was admittedly 17 years and 7 months of age at the time of incident. The Trial Court observed that ‘X’ was a consenting party and had established physical relations with the appellant without any fear or pressure. It, however, was of the view that her consent was obtained on the promise to marry and it was no consent in the eye of law.

4. After analysis of evidence, it transpires that no credible evidence was adduced to prove that ‘X’ was forcibly taken to Shimla/Mussoorie/Nanital against her wishes after administering poisonous substance in juice as alleged earlier. The Trial Court did not believe that the prosecutrix was not in her senses when she went with the appellant and others to Shimla. She had conversation with her sister on her mobile No.9818982905 for 59 seconds at 16:29:53. In her statement before the Court ‘X’ gave clean chit to Raj Kumar Sharma and admitted that she had no grievance against him as he had not done anything.

5. Statement of the prosecutrix is wavering. In her 164 Cr.P.C. statement (Ex.PW6/A) made on 19.04.2008, she revealed that she was having friendship with Kuldeep Tyagi and had physical relations with him for some time. She, however, disclosed that the relationship was not with her consent. She was forced in physical relationship by her friend Neha Manchanda. The physical relationship was established as Neha after introducing her to Kuldeep and her friend Ashok blackmailed her and threatened to involve her elder sister and to cause physical and mental harm to her. She further disclosed that she was offered a glass of juice on the day of incident and after taking juice, she felt drowsiness. Thereafter, she was taken to Shimla as the appellant threatened her that on her refusal, he would tell about previous relations and will harm her sister and family. When she regained consciousness, she found that they had come to Mussoorie. Kuldeep made physical relationship with her. He had told her on previous occasion that he was unma