JUDGMENT M.M. Gupta, J. 1. THIS appeal has been filed by Kharag Singh, Mansingh. Jawahar Chhotey and Kripa Ram. Out of them, all except Kripa Ram, were convicted under Section 366 IPC and sentenced for four years' R. I. Kripa Ram was convicted under Section 368 IPC and sentenced to four years' R.I. 2. KM. Suneeta was living in Mohalla Ghasi of Ganjudundware along with her mother Smt. Sarupi Devi in Maternity Centre. In the same building on the upper storey, Kharag Sing and Jawahar appellants also lived. Jawahar appellant had appeared at the High School Examination. KM. Suneeta was a student of Class VII in Vedic Kanya Higher Secondary Schools Ganjudundwara. On 4-5-1970 she had gone to appear at her examination and since then she did not return to her home. Her mother Smt. Sarupi Devi was in the town on that day. At about 8 P. M. on 4-5-1970 when she returned to her house she came to know about the missing of KM. Suneeta from her mother, who also lived with her. On enquiry, Kharag Singh told him that he had seen Jawahar appellant, his sister Vidya and brother-in-law Man Singh along with KM. Suneeta at the railway station. They had in all probability taken her towards Kampil. The report was there after lodged by Smt. Sarupi on 5-5 -1970 at 9.05 p. m. after she had searched for KM. Suneeta and did not find her. It appears that on 4-7-1970, a telegram was received by Smt. Sarupi Devi. She handed it over to Mohd. Ismail Khan S. O. Ganjudundwara. In accordance with the information about Km. Suneeta's presence in Nari Niketan, Gwalior, Mohd. Ismail Khan proceeded to Gwalior and took her into his possession on 6-7-1970. He prepared the recovery memo. She was brought back to Etah, where Km. Suneeta was examined by Dr. Km. Kamla Misra, Medical Officer-in-charge, women Hospital, Etah on 8-7-1970 at 11.30 a. m. 3. ACCORDING to Doctor, her height was 4' 7 1/2". Her weight was 70 lbs. and her teeth were 14 x 14. Space for 3rd Molar was not formed as yet. Breasts were semi spherical developing. Axillary and pubic hairs were scanty and brownish in colour. No marks of external injury was found on her body. Hymen had old tears. Vagina was loose and admitted two fingers easily. Vaginal smear was taken and sent for examination. Space for 3rd Molar was not formed as yet. Breasts were semi spherical developing. Axillary and pubic hairs were scanty and brownish in colour. No marks of external injury was found on her body. Hymen had old tears. Vagina was loose and admitted two fingers easily. Vaginal smear was taken and sent for examination. X-ray of wrist and elbow joints was advised. 4. X-ray was performed by Dr. N. K. Mittal. It disclosed that epiphysis of elbow joints were fused but radius and ulna had not fused. According to him, her age was approximately 16 or 17 years and she was habitual to sexual intercourse. The investigation of the case was conducted by S. I. Sri Satyavir Singh. On 6-5-1970, he had recorded the statement of Smt. Sarupi and also Kharag Singh appellant, who had accompanied her. He continued his efforts for the search of Km. Suneeta, but he did not succeed. It was only on 1-7- 1970 that he had received information that Km. Suneeta was in Gwalior with Man Singh appellant. On 13-7-1970, after his return from leave. he came to know that Mohd. Ismail Khan, Station Officer, had recovered Km. Suneeta from Gwalior. He recorded his statement. He also got the statement of Km. Suneeta under Section 164 CrPC recorded before the Magistrate. The proceedings under Section 87 and 88 CrPC were taken against the appellants Jawahar and Man Singh and Babu. On 27-3-1971 Km. Suneeta was taken to different places where she pointed out the places where different happenings took place with her. Thereafter the arrest of Kripa Ram, Chhotey, Smt. Vidya, Babu, Smt. Kashi Bai was effected. He also prepared the site-plan of the house of Man Singh in which Km. Suneeta was kept. The site-plan of the house of Kripa Ram where Km. Suneeta was kept was also prepared. After completing the investigation, the charge sheet against the appellants and Smt. Vidya, Babu and Smt. Kashi Bai wife of Kripa Ram was submitted. 5. APPELLANT Kharag Singh denied having kidnapped Km. Suneeta. He is a tenant on the upper storey of the house in which Km. Suneeta lives. He claimed that he was asked to give evidence in a case but since he has refused, he was falsely implicated. He had also moved an application to Superintendent of Police against Smt. Sarupi Devi as an altercation between him and her had taken place. Suneeta lives. He claimed that he was asked to give evidence in a case but since he has refused, he was falsely implicated. He had also moved an application to Superintendent of Police against Smt. Sarupi Devi as an altercation between him and her had taken place. Man Singh also denied the prosecution allegation and the incriminating circumstances brought against him. He claimed that Jawahar appellant is his brother-in-law. He might be having illicit sex-relations with Km. Suneeta and for this reason he and his wife have been falsely implicated. Jawahar appellant also denied having kidnapped or abducted Km. Suneeta. He also denied the allegation of abduction of Km. Suneeta by him. He stated that there were sex-relations between him and Km. Suneeta. Km. Suneeta had written to him many letters and had also gone to Kasganj for getting herself photographed with him. Km. Suneeta had told him that her parents want to have illicit relations with others. She therefore wanted to take her to some other place. He had, however, refused to take her to any other place. When Smt. Sarupi came to know of his being photographed with Km. Suneeta, a quarrel took place between him and Smt. Sarupi Devi. On account of this quarrel Km. Suneeta herself left her home and on her return, a false case was set up against him. Chhotey appellant claimed that he had been falsely implicated because he did not give him the whereabouts of his brother Man Singh and Jawahar, who is the brother-in-law of Man Singh, Kripa Ram also claimed that he has been falsely implicated. He denied that Chhotey appellant had brought Km. Suneeta to his house, where she was kept for about 8 days. 6. THE prosecution examined Km. Suneeta PW 9 prosecutrix and eyewitnesses, PW 3 Iqbal Hussain, PW 4 Deep Chand and PW 8 Om Prakash. However, none of these eye-witnesses supported the prosecution case. Besides these witnesses, PW 5 Smt. Sarupi Devi, mother of Km. Suneeta, PW 7, Ramji Lal, father of Km. Suneeta, PW 11 Dr. Km. Kamla Misra, who had examined the girl and PW 1 Dr. N. K. Mittal, who had taken the X-ray of elbow and wrist joints of Km. Suneeta, PW 2 Subedar, Clerk constable, PW 13 Mohd. Ismail Khan, who had found Km. Suneeta, PW 7, Ramji Lal, father of Km. Suneeta, PW 11 Dr. Km. Kamla Misra, who had examined the girl and PW 1 Dr. N. K. Mittal, who had taken the X-ray of elbow and wrist joints of Km. Suneeta, PW 2 Subedar, Clerk constable, PW 13 Mohd. Ismail Khan, who had found Km. Suneeta in Nari Niketan, Gwalior in July, 1970 and the Investigating Officer PW 10 Satyavir Singh were examined. The learned Sessions Judge relied on the medical evidence and the testimony of Km. Suneeta in holding that the prosecution case under Section 366 IPC was made out against appellants Kharag Singh, Man Singh, Jawahar and Chhotey (sic) (mistake in certified copy-Ed.). He gave benefit of doubt to Smt. Vidya wife of Man Singh and sister of Jawahar, Babu and Smt. Kashi Bai wife of Kripa Ram appellant and acquitted them. 7. THE learned counsel for the appellants has assailed the findings of the learned Sessions Judge and has contended that the learned Sessions Judge was hardly justified in finding the appellants guilty of the offences for which they have been convicted. 8. APPELLANT Jawahar has filed a number of letters Exts. Kha-1 to Kha. 4. These letters were received by appelliant Jawahar by post. The postal envelopes in which they were sent were also filed by him. Km. Suneeta, admitted in her statement that she had written these; letters to Jawahar appellant. The contents of these letters indicate that Km. Suneeta was deeply in love with Jawahar appellant and was keen on going away with him. One of the letters also discloses that on one occassion when her mother Smt. Sarupi Devi had discovered her illicit activities with Jawahar appellant, she had taken her to task and beaten her to such an extent that she had received painful injuries and in some injuries there was bleeding also. It is, therefore, obvious from the contents of these letters that the entire story of deception played on her being told about her mother's illness at Delhi or other places is not true version given by her, but as appears from these letters (Ext. Kha 1 to Kha 4) and from the fact that she had got herself photographed with Jawahar shows that she was the consenting party to her being taken away by Jawahar appellant. Kha 1 to Kha 4) and from the fact that she had got herself photographed with Jawahar shows that she was the consenting party to her being taken away by Jawahar appellant. Whether the act of taking her away amounts to kidnapping or not would depend on the fact if she was a minor on the date of occurrence. Smt. Sarupi, who is mother of Km. Suneeta, had stated that at the time of the occurrence Km. Suneeta was aged about 13 or 14. Km. Suneeta herself has given her age to be 17 at the time; of her statement was recorded in the court on 1st April, 1975. According to her statement she was only 12 at the time of the occurrence. It is obvious from the statements of both these witnesses that they tried to understate the age of Km. Suneeta. It finds complete contradiction from the statement of P. W. 11 Dr. Km. Kamla Misra and Radiologist P. W. 1 Dr. N. K. Mittal. The statement of Dr. Km. Kamla Misra shows that Km. Suneeta was 4, 7 1/2" in height and 70 lbs in weight with teeth 14 x.14. Her genitals were fully developed. Her breasts were semi-spherical. She had also developed axillary and pubic hair which were scanty. The radiological data found by Dr. N. K, Mittal P.W.1 discloses that epiphysis of elbow joints had fused but the lower end of radius and ulna had not fused. From this data, Dr. N. K. Mittal came to the conclusion that Km. Suneeta was a girl aged 16 or 17. In cross-examination, it was stated by Dr. Km. Kamla Misra that even allowing a margin of either side, Km. Suneeta could not be of the age beyond 171/2 years. This clearly means that Km. Suneeeta had not completed 18 at the time of the occurrence and as such she must be held to be a minor with in the meaning of section 361 I.P.C. on the date of occurrence. Thus if she was a consenting party to have been taken away by the appellants she was legally incompetent to go with her own consent. 9. I now proceed to examine the statement of Km. Suneeta PW 9. She states that on 4-5-1970, she had gone to her school and at about 9. Thus if she was a consenting party to have been taken away by the appellants she was legally incompetent to go with her own consent. 9. I now proceed to examine the statement of Km. Suneeta PW 9. She states that on 4-5-1970, she had gone to her school and at about 9. 30 A. M. when she was returning home, Jawahar appellant met her near the power house. He told her that her mother, who had gone on some official business was seriously ill at Etah. She refused to believe him and went ahead towards her house. A little ahead near the crossing Kharag Singh met her. He also told her that her mother was ill at Etah and she should go to see her. When she said that she would go to inform her mothers' mother he told her that he would give the message to her and asked her to go with Jawahar, who would take her to her mother. Her mother was also not well in those days. As already observed above, so far this story of mother's illness being conveyed by Jawahar appellant to her or by Kharag Singh appellant is not believable as it is obvious from the letters that she wrote to Jawahar that she was infatuated of him and must have gone with Jawahar of herself. She was then brought to Railway station, where Man Singh and his wife smt. Vidya and Babu appellant met her. All these persons used to visit Jawahar and Kharag Singh who lived on the upper storey of her house. One of them only Babu was not known from before. She was from there taken to the house of Nek Ram but since that house was locked she was brought back to Railway station Ganjdundwara and by the train leaving at 10 A. M. she was taken to Darya Ganj by Jawahar, Man Singh, Smt. Vidya and Babu. From Darya Ganj Railway station, she was taken to Etah. She was kept in Etah at the house of a person at Aligarh road. When she asked them to take her to her mother, she was told that they would find the whereabouts of her mother and then they would take her to her. From Darya Ganj Railway station, she was taken to Etah. She was kept in Etah at the house of a person at Aligarh road. When she asked them to take her to her mother, she was told that they would find the whereabouts of her mother and then they would take her to her. Jawahar and Man Singh returned after a good deal of time and told her that her mother had become seriously ill and was taken to Delhi. From that place Man Singh went away and returned on 6th with Ms brother Chhotey. On May 7 1970, Chhotey took her in Bus to Hathras, from where she was taken by train to Delhi. At Delhi she was told by Chhotey that the condition of her mother was serious and she was taken to Gwalior. From Delhi, Chhotey took her to Gwalior. For three days she was kept in the house of Anek Singh in Gwalior. Chhotey then took her from Gwalior to Murar, where she was kept at the house of Kirpa Ram appellant. In the house of Kripa Ram appellant, there was his wife Smt. Kashi Bai and a child. She was hept in that house for about 18 days. Man Singh and Jawahar came to her at the house of Kripa Ram. They used to talk in whispers about selling her. When she asked them to take her to her mother, they told her that it was only an excuse. When she used to weep she was threatened by Jawahar and Man Singh. From there she was taken by Man Singh and his wife Smt. Krishna to Takenpur. jawahar also reached there and after a show of force with 'Panja' and knife rape was committed on her. When she wanted to resist she was threatened wiith these weapons. Man Singh also committed rape on her. At Takenpur, a person came to Man Singh, who told him that the police was after him. He, therefore, admitted her in the Nari Niketan, Gwalior from where a sub-inspector of police took her to Etah, where she was medically examined. 10. I have carefully gone through the statement of Km. Suneeta and her cross-examination. Her statement leaves no room for doubt about the fact that she was kidnapped from Ganjdundwara and finally taken to Gwalior. He, therefore, admitted her in the Nari Niketan, Gwalior from where a sub-inspector of police took her to Etah, where she was medically examined. 10. I have carefully gone through the statement of Km. Suneeta and her cross-examination. Her statement leaves no room for doubt about the fact that she was kidnapped from Ganjdundwara and finally taken to Gwalior. As already discussed above, it is not possible to believe that she was taken away under any deception of her mother's illness. All the story of taking her on the pretext of her mother's illness appears to be figment of imagination of this girl. In fact she was in love with Jawahar appellant and she was a willing party to have been taken away. So far as Kharag Singh appellant is concerned, it is difficult to believe that he was a party to the kidnapping of Km. Suneeta. The F. I. R. lodged by Smt. Sarupi Devi shows that she got information about going away of Km. Suneeta with Jawahar appellant from Man Singh and he had also accompanied Smt. Sarupi Devi to the police station, when she had gone there to lodge the F.I.R. This could not be the conduct of a guilty person. If he was a party to the kidnapping of Km. Suneeta, he could have certainly avoided giving information in this connection to Smt. Sarupi. He is, therefore, clearly entitled to get the benefit of doubt. 11. SO far as Chhotey appellant is concerned, he did not come to the picture till according to the statement of Km. Suneeta PW 9 she reached Etah. He did not come in the picture at all on Ganjdundwara, the place from where she was kidnapped. The learned counsel for the State has contended that this is a case of abduction and abduction being a continued offence Chhotey appellant is also guilty. However, the main ingredients of the offence of abduction is defined in Section 362 IPC are ;- ''Whoever by force compels, or by any deceitful means induces any person to go from any place is said to abduct that person." 12. SO far as this case is concerned I have already disbelieved the statement of Km. Suneeta PW 9 about any deceitful means as stated by her being used. Thus, it is not a case of abduction but an outright case of kidnapping, which is not a continuing offence. SO far as this case is concerned I have already disbelieved the statement of Km. Suneeta PW 9 about any deceitful means as stated by her being used. Thus, it is not a case of abduction but an outright case of kidnapping, which is not a continuing offence. Chhotey appellant could therefore, not be held to be guilty of the offence of kidnapping under Section 366 IPC. So far as Kripa Ram appellant is concerned, Km. Suneeta has stated that she was kept confined in his house at Munar for about 18 days before she was taken from his house by Jawahar appellant and Man Singh appellant. However, Km. Suneeta's statement does not show in any way that Kripa Ram appellant had the knowledge that she was a kidnapped girl. Unless the knowledge is imputed to him of knowing that she was a kidnapped girl, he cannot be found guilty under Section 368 IPC. 13. THE prosecution evidence, in my opinion, clearly makes out the prosecution case against Jawahar and Man Siingh appellants but. in my opinion, prosecution has failed to make out any case against Kharag Singh, Chhotey and Kripa Ram appellants. They are entitled to get benefit of doubt. 14. SINCE Km. Suneeta had already illicit sex relations and was a consenting party to her being kidnapped, the sentence of four years' R. I. in a case like the present one appears to be severe. In such circumstances the sentence of R. I. for one year would meet the ends of justice. The appeal is partly allowed. The conviction and sentences imposed against Kharag Singh, Chhotey and Kripa Ram appellants are hereby set aside. The conviction of Man Singh and Jawahar appellants under Section 366 IPC is hereby maintained, but their sentences are reduced to undego R.I. for one year. They are on bail. They shall be taken into custody to serve out the sentence of imprisonment. Appeal partly allowed.