JUDGMENT 1. - Salim, the accused-appellant along with one Rafique was tried by learned I Sessions Judge, Merta on charges under sections 366, 376 and 323 I. P. C. The I learned Sessions Judge convicted the appellant and his co-accused Rafique by judgment dated March 26, 1980 under sections 366, 376 and 323 I. P. C. After hearing the accused-appellant and Rafique on the quantum, the learned Sessions Judge by a separate order dated March 26, 1980 sentenced both the accused to various punishments under the aforementioned three sections. The accused-appellant was sentenced to undergo seven yeats'rigorous imprisonment under section 376 I. P. C. five years rigorous imprisonment under Section 366 I. P. C. and to six months' rigorous imprisonment under section 323 I. P. C. The substantive sentences were ordered to run concurrently. 2. Two appeals were filed in this Court. One by Rafique, which was registered as S. B. Criminal Appeal No. 140/80 and the other by the accused-appellant Salim, which has been registered as S. B. Criminal Appeal No. 239/80. The appeal of Rafique came up for admission before another Judge of this Court and : A at the admission stage, the learned Judge maintained the conviction and sentence j of the accused Rafique under sections 366 and 323 I. P. C., but modified him conviction under section 376 I. P. C. to one under section 376 read with section 511 I. P. C. and sentenced the accused Rafique to undergo five years' rigorous imprisonment for the said offence 3. As the learned advocate has not challenged the conviction and sentence of the accused under sections 366 and 323 I. P. C. and has only submitted that in view of the decision of the appeal of Rafique, the conviction of the accused should also be modified from section 376 to 376 read with 511 I.P.C., it is not necessary for me to give the facts of the case in detail. Suffice it to say that the incident which took place with Smt. Bhanwari, a girl of 16 years of age is a serious incident. Suffice it to say that the incident which took place with Smt. Bhanwari, a girl of 16 years of age is a serious incident. It is alleged that on December 9, 1977 at 12 noon when Smt. Bhanwari was going on the road, the accused-appellant, who is a conductor of a truck No RRQ 4148 and Rafique, the driver of the said truck on seeing Smt. Bhanwari stopped the truck, came out and forcibly lifted Smt Bhanwari to the truck. The truck was driven in the jungle and there Smt. Bhanwari was ravished by Rafique twice and once by the accused-appellant. The act of abduction of Smt. Bhanwari was witnessed by Nandlal PW 3 and Jagdish Prasad PW 9. Before they could do anything, the accused and Rafique drove away the truck. One Ram Singh along with Ladu Singh PW 5 chased the truck on his motor cycle. Meanwhile information of the crime was lodged with Kuchaman City without any delay. Nichhatra Singh PW 10 S. H. O. Police Station Sikar and A. S. I. Ramswaroop PW 4 intercepted the truck near Sikar. The accused and Rafique were found naked as also Smt. Bhanwari, who was found lying on a seat behind the driver and blood was coming out not from her private parts but she was also having many injuries including a fracture of a bone. Smt. Bhanwari was examined by Dr. (Mrs.) C. P. Sharma, as also by Dr. Bhagwati Prasad, the medical jurist of the I S, K. Hospital, Sikar and by Dr. Shankar Lal. 4. During the course of trial, the prosecution examined Smt. Bhanwari, Ram Singh, Nandlal, Rameswaroop, Ladu Singh, Harbaksha, Mohana, Sabir Ali, Jagdish Prasad, Nichhatra Singh, Dr. Shankarlal, Naraindas, Dr. (Mrs.) C. P. Sharma, and Dr. Bhagwati Prasad in support of his case and all o them duly supported the prosecution case. 5. The accused-appellant in his statement under section 313 Cr.P.C. denied the allegations made against him. 6. Shankarlal, Naraindas, Dr. (Mrs.) C. P. Sharma, and Dr. Bhagwati Prasad in support of his case and all o them duly supported the prosecution case. 5. The accused-appellant in his statement under section 313 Cr.P.C. denied the allegations made against him. 6. As stated earlier, the learned advocate has not challenged the conviction and sentence of the accused under sections 366 and 323 I.P.C. He has challenged the conviction of accused under section 376 I. P. C. That apart, there is sufficient material on record to sustain the conviction of the appellant under section 366 and 323 I.P,C, The act of abduction was witnessed by Jagdish Prasad PW 9 and Nandlal PW 3, who have clearly stated that when Smt. Bhanwari was going away, the truck was stopped and the accused-appellant and Rafique forcibly lifted Smt. Bhanwari Bai to the truck. The occurrence took place in the day and they have given the number of the truck as RRQ 4148. They have clearly stated that before hey could do anything ,the truck had been driven away by the accused and his companion. Both of them informed PW 2 about what had happened. Ram Singh was going on his motor cycle and Ram Singh was also informed by Jagdish Prasad about this incident. He chased the truck on his motor cycle with Shri Lado Singh PW 5. Therefore, as already stated earlier, there is sufficient material on record to sustain the conviction of the accused-appellant under section 366 IPC. Dr. Bhagwati Prasad PW 4 has proved the injuries received by Smt, Bhagwati. It is stated that the injuries were received by her at the hands of the accused persons. Therefore, the accused-appellant has been rightly convicted under section 323 IPC. 7. Taking up the case of the accused under section 376 IPC it may be stated that the only argument advanced by the leanned advocate is that the learned single Judge of this Court having modified the conviction of the accused Rafique from section 376 to one under section 376 read with 511 I. P. C., judicial propriety demands that the conviction of the accused should also be modified, as it is based on the same evidence, which was again Rafique. I have gone through the record of the case and I am of the opinion that though there is no legal bar to maintain the conviction of the accused under section 376 I. P. C. not with standing the fact that on the same evidence case of Rafique was held to be one under section 376 read with 511 I. P. C. but I am of the opinion that judicial propriety demands that the case against the appellant should also be dealt with similarly. This Court should take same view as was taken by another single Judge of this Court on the same set of evidence. In the matter of sentence, it is the consistent view of the Supreme Court that when the case of the accused person is the same, then the sentence to be passed on the conviction should not be different. Reference may be made to 1972 S.C.C. (Cr.) 172 Judgment of Rafique v. State of Rajasthan , Criminal Appeal No. 140/80, decided on May 1, 1980 shows that because the doctor was not examined to prove the injuries on the private part of Bhanwari, the learned single Judge of this court held that an offence under section 376/511 is made out. To quote the words of the learned Judge : "As already stated, the prosecutrix was too stunned and shocked to be able to recall, if the appellant had affected penetration or not, Dr. Bhagwati Prasad, who recorded his opinion on the basis of the findings of Dr. (Mrs.) Sharma, deposed that there was nothing specific as to suggest "forcible intercourse". The Vaginal swab was not sent to the Chemical Examiner for as long as four months The Chemical Examiner's report on the basis of the said swab cannot therefore carry much weight. For all these reasons, it will not be safe to convict the appellant on the charge of rape punishable under section 376 I.P.C." The evidence against the appellant and the defence of the accused is the same and as already seated judicial propriety demands to take similar view against accused similarly placed. I am of the opinion that it will be in the interest of justice if the conviction of the accused is modified from section 376 to one under section 376 read (vith 511 I. P. C. and the accused is awarded the same sentence as was awarded to the co-accused Rafique. I am of the opinion that it will be in the interest of justice if the conviction of the accused is modified from section 376 to one under section 376 read (vith 511 I. P. C. and the accused is awarded the same sentence as was awarded to the co-accused Rafique. 8. In the result. I partly accept the appeal. So far as the conviction and sentence of the accused-appellant under sections 366 and 323 are concerned, the appeal is dismissed. But the conviction of the accused under section 376 I. P. C, is altered to one under section 376 read with 511 I.P.C. The accused is sentenced to undergo five years' rigorous imprisonment under section 376 read with section 511 I.P.C. The sentence on all the counts shall run concurrently. Sd/- M. B. Sharma, J. *******