Consent is a crucial factor in determining allegations of kidnapping and rape.

NAWAB SINGH J.(ORAL)

1. Ms. Deepa Singh, Advocate, who is present in Court, is appointed Amicus Curiae.

2. This revision has been filed by prosecutrix challenging the judgment dated July 15th, 2003 passed by Additional Sessions Judge Ad-hoc, Jhajjar, whereby, respondents No.2 and 3 were acquitted in case bearing First Information Report No. 36 dated February 8th, 2002 under Sections 363, 366, 376 and 506 of Indian Penal Code, Police Station Sadar Bahadurgarh, District Jhajjar.

3. Facts. On January 28th, 2002, prosecutrix (PW-10), aged about 18 years, met Jai Parkash in the Bazar in Jhajjar. She was student of 12th class. Jai Parkash told her that she was being called by her brother Jagbir. She accompanied him. At a little distance, a car was parked. He pushed her inside the car. She became unconscious. He threatened her with dire consequences if she raised alarm. Jai Parkash's brother Jitender alias Manju also reached there. She was administered two tablets by Jitender. She again became unconscious. She was kept in a room in jungle where besides Jitender, 2/3 other persons were present. Jai Parkash left the spot. She was kept in that room upto February 8th, 2002, that is, for 12 days. During that period, Jitender continued raping her. On February 8th, 2002 Rajroop-father of prosecutrix moved complaint (Exhibit PH) to Jai Singh, Assistant Sub-Inspector, Police Post Chhara. First Information Report (Exhibit PH/2) was recorded. The Police started searching the prosecutrix and on the same day, Jai Singh found the prosecutrix and Jitneder-accused sitting at the Bus Stand, Bahadurgarh. Jitender was arrested. Statement of the prosecutrix (Exhibit PK) was recorded. She was medically examined by Dr. Manju Lata (PW-1).

4. On completion of investigation, the accused were sent for trial.

5. Indeed, there is no dispute with regard to age of the prosecutrix. She was about 18 years old when as per her, she had sex with the accused. Thus, the questions which arise adjudication are (i) whether the prosecutrix accompanied the accused on her own on January 28th, 2002 or not ? (ii) whether during the period January 28th, 2002 to February 8th, 2002, the prosecutrix was subjected to consensual sexual intercourse by the accused forcibly or against her will ?

6. The respondents in their defence have proved letters (Exhibits D-2 to D-6) and greeting card (Exhibit D-7) written by the prosecutrix to the accused. A reading of the letters goes to show that the prosecutrix was having love affair with Jitender. The photograph (Exhibit D-1) featuring the prosecutrix and Jitneder together further strengthens the fact that they were in love with each other. The prosecutrix in her statement has admitted that she wrote those letters and has also admitted her photograph with Jitender but to avoid it, she stated that the letters were got written by Jitender while she remained with him in the room in jungle. It is not acceptable at all in the facts and circumstances of the case. The prosecutrix has also stated that from Jhajjar firstly, she was taken in the car and then in the bus. While in bus she was not unconscious. She was student of 12th class. It is not digestible at all that during her stay with the accused, she would not raise any hue and cry. Both of them moved about freely, in public, by public transport and stayed together before being intercepted at Bus Stand, Bahadurgarh on February 8th, 2002. The matter does not rest here. Dr. Manju Lata (PW-1) medically examined the prosecutrix and opined that she was habitual to sexual intercourse. The prosecutrix in her statement (Exhibit PK), stated that prior to January 28th, 2002, she had sexual intercourse with Jitneder, her next door neighbour. The conduct of the prosecutrix voluminously speaks for itself that she accompanied the respondents on her own and had consensual intercourse with Jitender. This being so, the allegations of kidnapping and rape must fall to the ground. It also appears unbelievabl