SURJIT SINGH, J.

(1.) State has challenged the acquittal of respondents Bahadur Bir and Ashok Kumar of offences, under Sections 342, 363, 366, 376 read with Section 109 of the Indian Penal Code, recorded by the trial Court vide judgment dated 20.09.1999, by means of the present appeal.

(2.) Prosecutrix examined as PW-18 (name withheld), was a student of 10th standard of Government school in the area of Sub-division Rohru of Shimla District in the year 1994. Respondent Bir Bahadur was also a student of that very school. On 06.05.1994, when the prosecutrix alongwith her friend Sneh Lata, examined as PW-1, was returning home after attending the school, respondents Bahadur Bir and Ashok Kumar started following them. When the respondents reached near a place called Chopoti, they saw PW-4 Rajinder Singh and PW-16 Kirpa Lal, an uncle of the prosecutrix, sitting there. Respondents asked them to go away towards their village as one of them, namely, respondent Bahadur Bir wanted to sort-out some matter with the prosecutrix. The two witnesses then left the place. Similarly, Sneh Lata (PW-1), the friend of the prosecutrix was also asked to go to her house as respondent Bahadur Bir wanted to discuss some matter with prosecutrix. After Sneh Lata and the abovenamed two witnesses went away, respondent Bahadur Bir allegedly took the prosecutrix to his nearby Dogri (out-house), situated by the side of the path. The room of that Dogri was locked from outside by respondent Ashok Kumar. Bahadur Bir is alleged to have committed sexual intercourse with the prosecutrix without her consent and against her will after the Dogri's door had been locked from outside. Prosecutrix, according to the prosecution, was below 16 years of age at the relevant time.

(3.) Kirpa Lal alias Shishu Pal (PW-16) informed Vidya Singh (PW-3) telephonically that the prosecutrix had been kidnapped by respondent Bahadur Bir. Vidya Singh (PW-3) then went to the forest where the mother of the prosecutrix had gone to collect fuel wood. He informed the mother of the prosecutrix PW-2, namely, Timni Devi about the incident. Timni Devi went to the out-house of respondent Bahadur Bir but when she did not find the prosecutrix in that out-house, she went to Police Station Rohru and lodged F.I.R. Ex.PW-2/A. The F.I.R. was lodged at 9:30 P.M. As per F.I.R., the prosecutrix had been kidnapped by respondent Bahadur Bir.

(4.) Police went to village Kuie where the school is situated. Prosecutrix was found at the house of PW-5 Sham Lal in village Kuie. Sham Lal told the Police that the prosecutrix had been brought to his house by Jitu, an uncle of respondent Bahadur Bir and one Teju. Custody of the prosecutrix was handed over to Timni Devi (PW-2). Next day, she was got medically examined at Civil Hospital Rohru. PW-15 Dr. A. Banerjee conducted her medical examination. He did not find any sign of recent intercourse, though as per his testimony, the hymen of the prosecutrix was in the form of caranaculia, indicative of the fact that hymen was torn long back and its edges had changed into caranculia. Vaginal swab was sent to the Chemical Examiner. No dead or alive sperm was found. However, on the Salwar of the prosecutrix signs of semen were detected by the Chemical Examiner.

(5.) Both the respondents were sent up for trial, on the completion of investigation. Case was committed to Sessions Court by the concerned Judicial Magistrate. It was assigned by the Sessions Judge to learned Additional Sessions Judge, who charged the respondents, as aforesaid. Respondents pleaded not guilty. They were, therefore, put on trial. Trial Court concluded that there was no evidence proving the involvement of respondent Ashok Kumar in the alleged offence of kidnapping and rape. As regards the second respondent, trial Court concluded that age of the prosecutrix was more than 16 years and it appeared that no offence of rape had been committed.

(6.) We have heard learned Additional Advocate General, as also the learned counsel representing the respondent and gone through the record.

(7.) Skeltal age of the prosecutrix as per testimony of Radiologist, namely Dr. Suman Gupta (PW-9) was between 15 and 16 ? years at the relavant time. As per school record, the date of birth of the prosecutrix is 26.06.1979. As per entry in the Pariwar Register, per testimony of PW-7 Gita Ram, Secretary Gram Panchayat, the year of birth of the prosecutrix is 1978. Incident had taken place in the month of May, 1994. In the Parivar Register, the date and month of the birth of the prosecutrix are not given, but the year, as already noticed, is mentioned, which is 1978. In the absence of evidence of specific date and month, presumption has to be drawn that the prosecutrix was born before the month of May, 1978. If that is so, her age as per prosecution's own evidence was more than 16 years at the relevant time.

(8.) From an over all reading of the prosecution evidence, we are of the view that there cannot be any escape from a legitimate presumption that the prosecutrix voluntarily went with respondent Bahadur Bir. Prosecutrix in her testimony admitted that she had been knowing the respondents for the last one year. Her uncle Kirpa Lal, who appeared as PW-16, stated that he went to the out-house where the offence of rape was allegedly committed and shouted from out-side if the prosecutrix wanted to go home or not. Inference from this statement of PW-16 is anybody's guess. Conduct of PW-16 in asking the prosecutrix if she wanted to go home or not, when she according to his own testimony was in a locked out-house with respondent Bahadur Bir, clearly suggests that the prosecutrix and the respondent were in the out-house of their own volition. Prosecutrix does not say that she raised any hue and cry or that she put up any resistance when allegedly subjected to sexual intercourse by the respondents. Also, no marks of struggle were noticed on her body by PW-15 Dr. A. Banerjee during the course of her medical examination.

(9.) It has come in the evidence that the door of the out-house was opened by Jitu, a Chacha of respondent Bahadur Bir and when said Jitu and some other persons went inside the out-house, prosecutrix was lying on a bed. Now, if she had been taken to the out-house forcibly, she would not have been lying on the be

d, but would have attempted to escape especially when the prosecutrix herself has stated in her testimony that there was an open window in the out-house through which respondent Bahadur Bir had escaped. (10.) Sneh Lata (PW-1), though declared hostile by the prosecution, stated that the prosecutrix had been demanding back certain letters written by her to respondent Bahadur Bir and the latter was saying that those letters were at home. Her statement suggests that the prosecutrix and the respondent Bahadur Bir were having an affair. (11.) In view of the abovestated position, we do not think this to be a fit case for interfering with the judgment of acquittal. Hence, appeal is dismissed.