BHAWANI SINGH, J.

(1.) The trial Court has convicted the accused for offence under Section 366, Indian Penal Code. He has been sentenced to rigorous imprisonment for four years and pay fine of Rs.2,000/-. In default of payment of fine, to undergo further rigorous imprisonment for six months. He has, however, been given benefit of Section 428, Criminal Procedure Code, 1973. Feeling aggrieved by this judgment, the accused has filed the present appeal. The prosecution case may, brietly, be stated as under.

(2.) Prosecutrix Kumari Soma Devi (hereafter prosecutrix) is the daughter of Puran Chand (P.WA). The accused resided nearby the house of the prosecutrix, however, he used to come to her house daily for fetching milk. Because of these daily visits, the prosecutrix and the accused came closer to each other. The accused sought her company but when she declined, he started saying that he would commit suicide. He also induced her to perform marriage with him and promised to provide her good clothes and ornaments. During the night of 13t714tAugust, 1987, she was sleeping in one of the rooms of the house along with her sister and two brothers. Her parents were sleeping in the adjoining room. At about 3/4 a.m., the accused came into the room, coaxed and coerced the prosecutrix to elope with him and in case she did not do so, he threatened to commit suicide. Finally, he succeeded in enticing her away and reached near Jagaat Khana and proceeded towards Subathu by bus. They went to Chintpumi in District Una. The accused took her to his house. He was questioned by his mother why he had brought a stranger girl to the house. The accused told that he would marry the prosecutrix. The mother of the accused settled them in different rooms, however, at about 9.10 p.m., the accused entered into the room of the prosecutrix and cohabited with her without her consent. Though the prosecutrix offered resistance, yet soon her resistance, failed. Repeated acts of sexual intercourse were committed on her by the accused during the said night.

(3.) The next morning, the accused took the prosecutrix to Beas. The accused stitched new clothes to her since the old clothes had become blood stained on account of forcible sexual intercourse by the accused with her. These bloodstained clothes were kept in a bag by him. For 34 days, she was kept in the Derra of Radha Swami at Beas. When they returned to their- house, they were caught by the police. During the investigation, the blood-stained Shirt, Salvar and Dupatta were taken into possession. The clothes worn by the prosecutrix and the accused at the time of arrest, were also taken into possession by the police. The prosecutrix was found under 16 years of age at the time of commission of the offence. After collecting the evidence and completing the investigation, charge- sheet was submitted for the prosecution of the accused for offence under Ss. 363/366/376, Indian Penal Code.

(4.) The accused was charged on June 14, 1988 but he pleaded not guilty. In order to substantiate the charge, the prosecution examined as many as eight witnesses. In his statement under Section 313, Criminal Procedure Code, the accused has denied the prosecution case. According to him, the father of the prosecutrix had borrowed Rs.700/- from him and the case against him was false, frivolous and concocted by the father of the proseeutrix who did not want to pay the loan.

(5.) The trial Court considered the matter under the following four heads:

(1) Whether the prosecutrix Kumari Soma Devi was under 16 years of age at the time of commission of offence by the ace used (2) Whether the prosecutrix was a consenting party to the sexual iiltercourse committed on her by the accused (3) If point Nos. 1 and 2 above are held in negative and affirmative respectively, whether the accused committed offence under Section 376 I.P.C. (4) Whether accused has committed an offence under Sections 363/366 I.P.C.

(6.) The trial Court found that the prosecutrix was more than sixteen but less than seventeen years when this crime was committed. The prosecutrix had consented to the sexual intercourse committed on her by the accused and, therefore, no offence of rape was committed by the accused. Commission of offence under Section 363, Indian Penal Code was ruled out, however, it was found that the accused had committed offence under Section 366, Indian Penal Code, therefore, liable to be convicted and punished for the same.

(7.) During the course of arguments, learned counsel for the parties concentrated their submissions to the question whether the offence under Section 366, Indian Penal Code was made out against the accused. Therefore, all other questions are left and the present judgment is confined to the application of Section 366, Indian Penal Code.

(8.) There is medico legal report of Dr. Veena Gupta (P.W. 2) about the age of the prosecutrix who was examined on August 20, 1987 at 10.45 a.m. After the examination of the prosecutrix and the skiagram obtained through X-rays, the prosecutrix has been found between sixteen to seventeen years. In copy of Parivar Register (Ext. PK), the birth of the prosecutrix has been shown in the year 1970. Secretary of the Panchayat Shri Bal Krishan has proved it. Puran Chand (P.W. 4) is father of the prosecutrix. He also admits the correctness of this copy of the Pariwar Register (Ext. PK). Though the prosecutrix has stated that there is horoscope of her birth, yet her father has denied it. She also states that her age was sixteen and-a-half years at the time of the occurrence. The Panchayat record has given year of the birth but not the date and month of the same. Learned counsel for the accused contended that the prosecutrix was born in the month of January. The school register describes her age June 15, 1972. In face of this kind of evidence and assuming that the prosecutrix was born in the month of January, 1970 as per thePariwar Registed, in that case also the age of the prosecutrix would also be less than eighteen years.

(9.) Turning to the facts of the case, Shri K.D. Batish submitted that the prosecutrix had reached the age of discretion. She was neither enticed away nor taken away from the guardianship of her father by the accused. She was a consenting party to the elopement. Letters written by the prosecutrix, available on the case file, were referred to substantiate the contention coupled with the incident of elopement during the intervening night of l3th/l4thAugust, 1987. Learned counsel also placed reliance on S.Varadarajan v. State of Madras, Baldeo sb Kachore v. State of U.P. and Ram Murti v. State of Haryana.

(10.) After scrutinising the available evidence carefully, I am of the considered opinion that no offence under Section 366, Indian Penal Code is made out. It may be that the prosecutrix was below eighteen years on the day of occurrence, however, it is absolutely clear from her conduct and the evidence that she had reached the stage of discretion. She was in complete love with the accused for a long time. She had written number of letters to him disclosing her close intimacy and friendship with the accused. It is not possible to believe that the prosecutrix was in any way influenced or coerced by the accused either for friendship, or for marriage and providing her ornaments and clothes. It appears that she had already settled to elope with the accused that is why the accused came at that hour of the night entering into the room where the prosecutrix was sleeping with her sister and two brothers and parents in the adjoining room. The fact that the prosecutrix had not bolted the door from inside, also reinforces the conclusion that she had invited the accused to take her at that time of the night. She changed her clothes and left this place so secretly that the elopement was not noticed by anyone of the inmates. There could be no reason for the prosecutrix to be under any kind of pressure from the accused. Voluntarily, she left the place and moved with the accused from place to place for days together without raising hue and cry. The facts rather disclose that it was the prosecutrix who played the dominant role in leaving the house. When the elopement was settled, it can be legitimately inferred that the accused may not have at all entered the room of the prosecutrix and coerced her to leave the place as alleged. Rather, she must be waiting for his appearance. At one time, she had gone out during the night looking for the accused, though, she has stated that she had done so for urination, yet the fact remains that when she returned to the room, she did not bolt the door from inside. Consequently, it is plainly clear that the prosecutrix left her fathers guardianship voluntarily and the accused was not responsible for the same. The trial Judge has not appreciated the evidence correctly with the result that wrong conclusion has been drawn on this aspect of the case.

(11.) No other point was urged. The result of the aforesaid discussion is that there is merit in this appeal and the same is accordingly allowed. The judgment of the trial Court is set aside and the accused acquitted of the charge. Bail bonds and surety bonds, if any executed by the accused, are hereby terminated. Appeal allowed.