JUDGMENT 1. - S.B. Criminal Jail Appeal No. 310 of 1976 filed by Bhikhla and S.B. Criminal Appeal No. 213 of 1976 preferred by Jalma, Roopa, Hema, Motia and Bhikhla arise out of one and the same judgment of the Sessions Judge, Udaipur, dated February 27, 1976, convicting and sentencing the appellants as under: 1. Bhikhla Under Section 147, I.P.C. Six months' R.I. Under Section 366, I.P.C. One year's R.I. and a fine of Rs. 100/-, in default one month's further R.I. Under Section 376, I.P.C. Three years' R.I. and a fine of Rs. 100/-, in default one month's further R.I. Under Section 379, I.P.C. One month's rigorous imprisonment. 2. Jalma 3. Hema Under Section 147, I.P.C. Each to suffer six months imprisonment. 4. Roopa Under Section 366, I.P.C. Each to suffer one year's rigorous imprisonment and a fine of Rs. 100/, in default one month's further rigorous imprisonment. 5. Motia The substantive sentences awarded to all the appellants were ordered to run concurrently. As common questions of law and fact arise in both the appeals, they are disposed of together by this Court by one judgment. 2. The prosecution case against the appellants was as follows On March 24, 1975, at about 8 a m. a minor girl Nathi aged about 14 years, had gone to a quarry (Khadi) for collecting her wages. She was accompanied by her aunt Bhurki on that day. On reaching the Khadi, she received Rs. 60/-, from her employer. When she was returning home after collecting her wages along with Bhurki, all the five appellants m147 , 363 and 366, I.P.C. and took-up the usual investigation. In the course of investigation, Nathi was recovered from the house of Bhikhla vide memo of recovery Ex P. 2. The Station House Officer recovered her Ghaghra, Polka and the currency notes of Rs. 60/-, also at the instance of Bhikhla appellant and inconsequence of his information which he furnished to the Station House Officer, while being under police custody. The aforesaid articles were kept concealed by Bhikhla on the roof of his house. After Nathi was recovered, she was sent to General Hospital, Udaipur, for medical examination as to her age and for ascertaining whether rape had been committed on her. Dr. D.C. Dangi examined Nathi on April 1, 1975, and noticed the following physical features: 1. Height 5-1". 2. Weight 74 lbs. 3. Teeth 28 permanent. After Nathi was recovered, she was sent to General Hospital, Udaipur, for medical examination as to her age and for ascertaining whether rape had been committed on her. Dr. D.C. Dangi examined Nathi on April 1, 1975, and noticed the following physical features: 1. Height 5-1". 2. Weight 74 lbs. 3. Teeth 28 permanent. 4. Space for 3rd molar formed on both sides lower jaw and not formed on both sides upper jaw. 5. Breasts started developing. Dr. D.C. Dangi noticed two external injuries also on her body. There was one rub-abrasion 1 x 1/10" medial side on the left thigh and the second was rub-abrasion 11/2"xl/10" medial side right Thigh. Upon examination of her genitals, her hymen was found in semi-lunar shape turned at 3, 6 and 11 o' clock position and turned part looked like a smaller granular tag of tissues. Her Vagina admitted two fingers and discharge careund genitals was present. Her Ghaghra was suspected to have some sort of stains, so it was seized by the Doctor who took vaginal swab and smear and public hair also for being sent to the Chemical Examiner for analysis. Upon analysis, the Director, Forensic Science Laboratory detected human semen in the vaginal swab, and smear and on the public hair and Ghaghra of Mst. Nathi and found blood in the vaginal swab and on the Ghaghra. Mst. Nathi's elbow and wrist joints were X-rayed with a view to ascertaining her age by ossification test. The X-ray findings were as follows: Olecranon process started fusion. But not completed. Medial epicondyle, head of radius, head of metacarpals & lower end of radius and ulna are separate. On the basis of the X-ray report and the physical characteristics and developments of the body of Nathi, Dr. D.C. Dangi was of opinion that the age of the girl was about 14 years and the possibility of the rape could not be denied. On the basis of the X-ray report and the physical characteristics and developments of the body of Nathi, Dr. D.C. Dangi was of opinion that the age of the girl was about 14 years and the possibility of the rape could not be denied. The Station House Officer collected other evidence in the case and eventually submitted a charge-sheet against all the appellants in the court of the Additional Munsiff and Judicial Magistrate First Class No. 3, Udaipur, under Sections 147, 363, 366A, 376, 343 and 379, I.PC The learned Magistrate upon finding a prima-facie case exclusively triable by the court of Sessions committed the five appellants to the court of the Sessions Judge, Udaipur, for trial under the aforesaid sections of the Penal Code The learned Sessions Judge tried Bhikhla appellant for the offences punishable under Sections 366, 147, 376 and 379, I.P.C. while the other four appellants were tried for offences under Sections 366 and 147, I.P.C.. Upon conclusion of the trial, the learned Sessions Judge convicted and sentenced the appellants in the manner stated above. Aggrieved by their conviction and sentences, the appellants have come up to this Court in appeal. 3. I have carefully gone through the record and heard Mr. P.R. Chaudhary appearing on behalf of the appellants and Mr. K.C. Bhandari, Public Prosecutor, for the State. The prosecution has led evidence to prove that Bhikhla and the other four appellants kidnapped a minor girl Nathi and Bhikhla committed rape on her in his house and deprived her of her clothes and currency-notes of Rs. 60/- without her consent. The learned Counsel for the appellants vehemently contended before me that there is no reliable evidence on the record to prove connection of any of the appellants with the alleged crimes, because Bhurki the only eye-witness has turned hostile to the prosecution case and could not identify any appellants. As for the statement of Nathi prosecutrix, the contention of the learned Counsel for the appellants is that her evidence finds no corroboration from independent source and so it cannot form a sure basis for conviction of any of the appellants under Sections 366, 376, 147 and 379, I.P.C.. The above contention has no force. It is undoubtedly true that Mst. Bhurki could not identify the appellants to be the persons who had forcibly taken away Mst. The above contention has no force. It is undoubtedly true that Mst. Bhurki could not identify the appellants to be the persons who had forcibly taken away Mst. Nathi from the way, while she was returning to her house after collecting her wages from her employer, but there is reliable evidence of Mst. Nathi on the record to prove the guilt of the appellants. Mst. Nathi clearly stated in her deposition that Bhikhla along with four appellants met her in the way when she was returning home and forcibly dragged her towards the jungle despite her resistance. She further stated, in clear and definite terms, that Bhikhla and his companions took her to jalma's house, wherein she was detained for sometime and then forcibly removed to Bhikhla's house. According to her version, she was raped by Bhikhla in his house and her Ghaghra, Polka and currency-notes of Rs. 60/-, were taken away by Bhikhla Mst. Nathi's statement does not suffer from any infirmity, although she was subjected 10 lengthy cross examination by the learned Counsel for the appellants. In her cross-examination, she definitely stated that Bhikhla and the four appellants were known to her prior to the occurrence, as she used to work with them at the Khadi. Nathi's evidence finds corroboration from the fact that she was recovered from Bhikhla's house by the Station House Officer in the presence of Motbirs, vide memo of recovery Ex. P. 2 Jang Bahadur Khan, Station House Officer, Ogna stated on oath at the trial that Nathi was found in the house of Bhikhla which was closed from outside. The Station House Officer further stated that he recovered her Ghaghra, Polka and currency notes of Rs. 60/-, from the roof of the house of Bhikhla at the latter's instance and in consequence of his information, which he furnished to the former, while being under police custody. Bhikhla appellant denied the recovery of the girl from his house He further denied the recovery of her clothes and currency-notes from his house in pursuance of his information. His mere denial is not sufficient to rebut the strong evidence led by the prosecute on to prove the recovery of the girl and her clothes and currency-notes from the house of Bhikhla. 4. The evidence of Nathi finds further corroboration from the medical evidence. His mere denial is not sufficient to rebut the strong evidence led by the prosecute on to prove the recovery of the girl and her clothes and currency-notes from the house of Bhikhla. 4. The evidence of Nathi finds further corroboration from the medical evidence. It is proved by the ossification test that her age was about 14 years at the time when she was forcibly removed and raped by Bhikhla. Dr. Gopal Lal Yadav, who performed the X ray examination, definitely stated that the fusion of olecranon process starts at the age of 13 years & is complete at the age of 15 years in case of females. According to him, the olecranon process had rot fused in the case of Nathi Likewise, he detected that medical epicon dyle, head of radius, head of metacarpals and lower end of radius & ulna were separate and so her age was about 14 years. Although the parents of the girl could not give out a correct estimate of her age, yet she was rightly held to be below 18 years of age by the trial court on the basis of medical of evidence and classification in test and I see no reason to disbelieve the medical evidence led by the prosecution to prove her minority, especially when it had not been shaken at all in cross-examination. 5. As to the rape committed on her by Bhikhla, her evidence is entirely trust worthy and supported by medical evidence. Dr. D.C. Dangi, who examined her genitals, found her hymen in a semi-lunar shape torn at 4, 6 and 11 o' clock position and torn part looked like a smaller granular tag of tissues. Her public hair were downy, scanty and matted with whitish discharge. Her vagina admitted two fingers, he further noticed two external injuries on her body. One was rub abrasion on medial side of left thigh and another was rub abrasion on medial side of right thigh. On the basis of the above data, the Doctor opined that possibility of rape could not be denied. Her Ghaghra and cuttings of matted public hair along with vaginal swab and vaginal smeer were sent for chemical analysis and upon chemical analysis, human semen was detected on all these articles. Hence, the evidence of Mst. On the basis of the above data, the Doctor opined that possibility of rape could not be denied. Her Ghaghra and cuttings of matted public hair along with vaginal swab and vaginal smeer were sent for chemical analysis and upon chemical analysis, human semen was detected on all these articles. Hence, the evidence of Mst. Nathi that she was subjected to rape by Bhikhla appellant in his house cannot be discarded on the ground that it has not been corroborated from any independent source. Apart from this, Nathi clearly stated in her deposition at the trial that Bhikhla took off her Ghaghra and Polka after ravishing her. The Ghaghra and the Polka were, later on, recovered at the instance of Bhikhla appellant and in pursuance of his information which he furnished to the Station House Officer, while being under police custody. The recovery of the Ghaghra which was later on found stained with human seman lends support to the evidence of the girl that she was subjected to rape by Bhikhla in his house where from she was recovered by the police. The external injuries found on her body lend further assurance to her evidence that she was dragged and forcibly removed by Bhikhla appellant while she was returning to her house with her aunt Bhurki. Hence, upon careful review of the entire evidence, I have no hesitation in holding that Bhikhla Was rightly convicted by the trial Judge under Section 366, 376. 147 and 379, I. P, C. because it is proved to the hilt that he along with the four appellants formed an unlawful assembly with the common object to kidnap the minor girl Nathi in order that she may be seduced to an illicit intercourse, and, later on, kidnapped her in prosecution of the common object and subsequently raped her in his house and dishonestly deprived her of her clothes and currency notes of Rs. 60/-, without her consent Likewise the four appellants, namely, Jalma, Roopa, Hema and Motia were rightly held guilty under Sections 147 and 366, I.P. C, as it is proved beyond reasonable doubt by the evidence of Nathi that they were members of an unlawful assembly, the common object of which was to kidnap her with an intention that she may be seduced to illicit intercourse by Bhikhla. It is further proved by the evidence of Nathi that the four appellants came to the place of occurrence along with Bhikhla and when Bhikhla dragged her towards the jungle, they went with him upto the house of Jalma, wherein she was detained for sometime. The learned Counsel appearing on behalf of the appellants strenuously urged before me that the four appellants, namely, Jalma, Roopa, Hema and Motia did not commit any overt act and so their mere presence at the time and place of occurrence is not sufficient to hold them guilty of the offences under Sections 147 and 366, I.P.C.. The above contention is not acceptable, because the four appellants could not afford any reasonable explanation about their presence at the time and place of occurrence and because they assisted Bhikhla by their presence at the spot in kidnapping the girl and in taking her to the house of Jalma appellants. If they were innocent or silent spectators, they would not have accompanied Bhikla, when the latter was dragging the girl towards the jungle. They did not leave Bhikhla until the girl was taken to Jalma appellant's house and unlawfully detained therein. Hence, I do not find any substantial ground for interference with the findings of the trial Judge as to their guilt. As regards sentences, awarded to the appellants, it may be observed that are not excessive in the circumstances of the case. 6. The result is that both the appeals have no force and are hereby dismissed. The four appellants, namely, Jalma Roopa Hema and Motia are on bail. They shall surrender to their bail bonds and shall be sent to jail for serving out the sentences awarded to them by the trial court. These four appellants are not present in the court today. Hence, the Chief Judicial Magistrate, Udaipur, is directed to get them arrested and sent to jail for serving out the sentences imposed on them. However, the period of detention, if any, under gone by them during investigation, inquiry or trial of this case and before the date of such conviction, shall be set off against the term of imprisonment under Section 428, Cr. However, the period of detention, if any, under gone by them during investigation, inquiry or trial of this case and before the date of such conviction, shall be set off against the term of imprisonment under Section 428, Cr. P.C. The sentence of Bhikhla appellants was not suspended by this Court but it is reported by the Superintendent, Central Jail, Udaipur, vide his letter No. 3175 dated 15.10-1977 addressed to the Registrar, Rajasthan High Court, Jodhpur, that he has been released from jail on 14th October, 1977, after serving out his sentences.Appeal dismissed. *******