The main legal point established is that the victim's age, consent, and lack of resistance are crucial factors in determining the guilt of the accused in cases of kidnapping and rape.

S.P. GARG, J.

1. Challenge in this appeal is a judgment dated 11.01.2013 of learned Addl. Sessions Judge in Sessions Case No.17/11 arising out of FIR No.390/10 PS Narela by which the appellant Firoz was convicted under Sections 363/376 IPC. By an order dated 31.01.2013, he was sentenced to undergo RI for seven years with fine Rs.5,000/- under Section 376 IPC and RI for three years with fine Rs.3,000/- under Section 363 IPC. Both the substantive sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-sheet was that on 16.09.2010 at around 7.30 p.m. the appellant in furtherance of common intention with one Munni (since acquitted) kidnapped the prosecutrix ‘X’ (changed name), aged around 12 years, from the lawful guardianship of her parents from House No.E-291, JJ Colony, Bawana. The prosecutrix was, thereafter, taken to Aligarh where the appellant established physical relations with her during the period from 16.09.2010 to 18.09.2010.

3. On 16.09.2010 at about 07.30 the prosecutrix went missing from her house. Efforts were made by her family members to find her out but she could not be traced. Subsequently, they came to know that ‘X’ after being kidnapped by the appellant in connivance with Munni has been taken to Aligarh. ‘X’ was brought from there. Matter was reported to the police. The Investigating Officer after recording victim’s statement (Ex.PW-4/A) lodged First Information Report on 19.09.2010. ‘X’ was medically examined; she recorded her 164 Cr.P.C. statement. The accused was arrested. Statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against the appellant and Munni for commission of various offences. In order to establish its case, the prosecution examined seventeen witnesses. In 313 Cr.P.C. statements, the accused persons denied their involvement in the crime and pleaded false implication. DW-1 (HC Anil Kumar) and DW-2 (Mohd.Yusuf) were examined in defence. Upon appreciation of the evidence and after considering the rival contentions of the parties, the Trial Court, by the impugned judgment, found the appellant guilty of offences under Sections 363/376 IPC. It is relevant to note that co-accused Munni was acquitted of the charges and the State did not challenge her acquittal.

4. I have heard the learned counsel for the parties and have examined the file. Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective. The prosecutrix was a consenting party and had willingly accompanied the appellant to perform marriage with him at Aligarh. Necessary documents were executed in support of performance of marriage at Aligarh. Counsel would further urge that the prosecutrix was aged around 20 years and it was so reflected in the document (Ex.PW-1/B). The date of birth recorded in the school record cannot be relied upon as it was not based upon any birth certificate. Learned Addl. Public Prosecutor urged that no sound reasons exist to disbelieve the prosecutrix.

5. The occurrence took place on 16.09.2010 when the prosecutrix went missing from her house at around 07.30 p.m. While leaving the house, she did not inform her family members. She accompanied the appellant on her own to Aligarh. Certain documents including Ex.PW-1/B were executed there with an intention to perform marriage. The prosecutrix and the appellant also established physical relations during this period. At no stage, the prosecutrix raised any alarm to allege forcible kidnapping or rape. No injuries whatsoever were found on her body including private parts at the time of her medical examination vide MLC (Ex.PW-5/A). The examining doctor did not see any struggle or violence mark on her body. Apparently, no resistance was offered by the prosecutrix at the time of having physical relations with the appellant. The prosecutrix had ample opportunity to attract the atte