J. P. SINGH, J. ( 1 ) AZHAR appellant has preferred this appeal against the judgment and order of Shri J. N. Dwivedi, Addi. Sessions Judge, Kanpur dated 25. 8. 77 in S. T. No. to of 1975, State v. Azhar and three others, convicting and sentencing Azhar appellant u/s 366; IPC to 2 years R. I. and u/s 316, IPC to 4 years R. I. Both the sentences were to run concurrently. ( 2 ) THE prosecution case is that Km. Vijay Laxmi prosecutrix (PW. 1), daughter of Shyam Lal, cobbler (PW 2) an unmarried girl of 14 years was a student of class VIII in Kailash Nath Balika Vidyalaya, Kanpur She used to go to school at 6. 30 A. M. normally on foot but at times on a rickshaw. ( 3 ) AZHAR appellant ran his darn shop in front of the house of Shyam Lal (PW21 ). On 2. 12. 71 at about 7 A. M. Km. Vijay Laxmi was on way to her school on a rickshaw. When the school was about 100 paces ahead her rickshaw was stopped by the appellant and inspite of her protests he and Aslam accused forcibly sat by her side. She raised alarm but the appellant silenced her on knife pomp. The appellant also placed his hand on her mouth to prevent her from shouting. At times she raised alarm but none came to her rescue. If someone tried to intervene the appellant told him that she was suffering from hysteria and they were taking her to hospital. They went to Bans Mandi. From there Aslam accused left them taking her school bag with him. The appellant took her to station from where they hired a taxi and reached the house of Juber at Lucknow. They started for the night and it is alleged that Azhar appellant committed rape on her that night. ( 4 ) THE next morning the appellant took her to Bareilly by train and stayed at the house of Nasir and Kallu for the night. The appellant again committed rape on her. ( 5 ) ON the 3rd day the appellant took herto Laxhimpur by train and then to Sitapur by bus. A night was spent at the bus station Sitapur. ( 6 ) THE following morning Mithai Lal and Jiva Nand accused persons met them at Sitapur Railway Station. The appellant again committed rape on her. ( 5 ) ON the 3rd day the appellant took herto Laxhimpur by train and then to Sitapur by bus. A night was spent at the bus station Sitapur. ( 6 ) THE following morning Mithai Lal and Jiva Nand accused persons met them at Sitapur Railway Station. Azhar appellant had gone away for sometime and in the meanwhile Mithai Lal and Jiva Nand brought her to railway station Biswan. Later on Azhar appellant also reached there. ( 7 ) DEVENDRA Nath Shukla (PW 11) Station Master, Biswan Railway Station informed the police. S. I. Kesho Ram Misra (PW 7) along with Gopi Chand (PW6) and constables arrived at the railway station and arrested the appellant and accused persons Jiva Nand and Mithai Lal. Memo Ex. Ka 6 was prepared about the recovery of Km. Vijay Laxmi (PW 1 ). The three accused and the prosecutrix were take to P. 5. Biswan where Km. Vijay Laxmi lodged F. I. R. on 5. 12. 71 at 7. 20 P. M. ( 8 ) SHE was medically examined by Lady Dr. K. K. Mehrolra (PW 3) Medical Officer, District Female Hospital, Silapurat 12. 35 P. M. on 6. 12. 71. The doctor came to the conclusion that the prosecutrix was about 14 years old. She found her hymen intact and did not find injuries on her private parts. She failed to express any definite opinion about the rape having been committed on her. ( 9 ) SHYAM Lal (PW 2) searched for her for 2 or 3 days. On the third day he received information from the police station Kotwali, Kanpur about the recovery of his daughter at Biswan He reached P. S. Biswan on 6. 12. 71 and the prosecutrix was handed over in his supurdagi vide spurdginama Ex. Ka 2. ( 10 ) SINCE the case related to P. S. Kotwali, Kanpur the FIR. was sent there. On 23. 12. 71 a case was registered at P. S. Kotwali, Kanpur. Investigation was taken up by Ibrar Ahmed S. I. (PW 17 ). He obtained certified copy of the scholar register from Kailash Nath. ! Balika Vidyalay regarding the age of the prosecutrix. He sent her to U. H. M. Hospital. Kanpur for her X-ray examination which was taken out on 31. 12. 71 by Dr. R. Prakash (PW 5 ). Investigation was taken up by Ibrar Ahmed S. I. (PW 17 ). He obtained certified copy of the scholar register from Kailash Nath. ! Balika Vidyalay regarding the age of the prosecutrix. He sent her to U. H. M. Hospital. Kanpur for her X-ray examination which was taken out on 31. 12. 71 by Dr. R. Prakash (PW 5 ). He also physically examined here. From her physical developments and X-ray report about the right elbow joint, which revealed fashion of epiphysis around lateral epicondyle and head of radius but did not show fussion of epiphysis around medial epicondyle, though it had appeared there, he opined that her age was about 14 years. After completion of the investigation the appellant and accused persons Alam, Jivanand and Mithai Lal were put up for trial for offences punishable uls 363/366/376 IPC. ( 11 ) THE appellant denied having kidnapped the prosecutrix or to have committed rape on her. He however, did not give any reason for his false implication. ( 12 ) ACCUSED Aslam attributed his false implication to the police. Mithai Lal and Jivanind accused pleaded that their Ram Lila drama party held gone to Biswan from Sitapur. When they entrained at Sitapur railway station they came to know from enquires made from Azhar appellant by copassengers that he was inducing away a Hindu girl. Both of them did not permit Azhar appellant to take away the girl. Accordingly, they handed over the appellant and the prosecutrix to the custody of the Station Master, Biswan railway station. However, Shahid Ali Beg. Telegraph Clerk was in favour of letting the appellant take away the girl. Their contention is that they were falsely implicated in the case by -said Shahid Ali Beg. However, no defence was led by any of the accused. ( 13 ) THE prosecution examined in all 17 witnesses, After assessing evidence on record the learned Sessions Judge acquitted Mithai Lal, Jivanand and Aslam accused and convicted the appellant as above. Their contention is that they were falsely implicated in the case by -said Shahid Ali Beg. However, no defence was led by any of the accused. ( 13 ) THE prosecution examined in all 17 witnesses, After assessing evidence on record the learned Sessions Judge acquitted Mithai Lal, Jivanand and Aslam accused and convicted the appellant as above. ( 14 ) AT the time of hearing this appeal none appeared for the appellant I was taken through the file and the judgment of the Session Judge by Shri S. C. Srivastava, learned A. G. A. Statement of the prosecutrix (PW 1) and Shyam Lal (PW 2) coupled with the medical evidence on record as well as the school register en-tries leave no doubt that on the date of the occurrence Km. Vijay Laxmi was about 14 years of age. The learned Sessions Judge recorded that finding and I see no reason to differ on this point. ( 15 ) AS regards kidnapping, Km. Vijay Laxmi, (PW 1) has deposed all the details regarding her kidnapping by Azhar appellant on knife points when she was on way to her school. She also stated that she raised shouts but none came to her rescue arid those who tried to intervene were silenced by the appellant stressing upon them that she was suffering from hyateria. She was taken to Lucknow, Bareilly, Lakhimpur, Sitapur and ultimately to railway station Biswan. The statements of both Km. Vijay Laxmi (PW 1) nod Shyam Lal (PW 2) leave no doubt that she, a minor, was in the lawful guardianship of her father at the time in question and was taken away out of the keeping of the lawful guardianship of her father without his consent. ( 16 ) A reading of the judgment of the court below indicates that the prosecutrix was believed despite her being treated as hostile by the prosecution and that the counsel for the appellant in the court below had raised a point that she having been treated hostile should not be believed I do not think, the learned Sessions Judge committed any error in placing reliance upon he testimony. It is well settled law that the mere fact that a witness has been treated a hostile would not have the effect of washing away the entire testimony of the witness. It is well settled law that the mere fact that a witness has been treated a hostile would not have the effect of washing away the entire testimony of the witness. It is for the court to appreciate the statement as a whole of such a witness and to draw a conclusion whether despite his hung treated hostile he still inspires confidence of the court or not. I have gone through the statement of Km. Vijay Laxmi (PW5 ). She was treated hostile by the prosecution simply for the reason that she did not implicate Aslam accused along with Azhar appellant about kidnapping affair. To my mind this attitude could not and should not discredit her as regards the role played by the appellant, as deposed by her. since her other statement is consistent with the F. I. R. lodged by her and receives due corroboration from that F. I. R. Besides the evidence led by th prosecution regarding her arrival at Biswan railway station with the appellant is another circumstance to lend support to her testimony. I, therefore, hold that Azhar appellant had kidnapped Km. Vijay Laxmi (PW 1 ). ( 17 ) THE medical evidence on record does not indicate any signs of rape on Vijay Laxmi so much so that the doctor certified that even her hymen was intact. But this situation would not be conclusive rebuttal to the alleged rape. In the present case there is direct evidence of the minor girl that she had been raped by the appellant. In this way the court is confronted with the situation where the direct evidence of the prosecutrix does not find corroboration apparently from the medical evidence. The learned Session Judge has quoted from Modis Jurusprudence and Toxicology 38th Edition at page 290 as follows; normally the hymen is ruptured by the first act of coitus, though it may persist even after frequent acts of coitus if it happens to be loose, folded and elastic, or their, tough and fleshy. Cases have been recorded in which the hymen had to be incised at the time of delivery, while even prostitutes have been known to possess intact hymen. Thus the hymen being intact would not conclusively negative rape having been committed on her. Cases have been recorded in which the hymen had to be incised at the time of delivery, while even prostitutes have been known to possess intact hymen. Thus the hymen being intact would not conclusively negative rape having been committed on her. The learned Sessions Judge who had the benefit of seeing the girl and her demeanour has preferred to place reliance on her solitary evidence to believe her al legation that appellant had committed rape on her at Lucknow when they spent night at the house of Juber and at Bareilly in the house of Nasir and Kallu. The attending circumstance that the appellant had forcibly kidnapped her on knife point and none came forward to her rescue, she certainly would have lost all her self- confidence. When placed in strange environment she could not have resisted the appellant. It cannot be said that the appellant would not have raped her. Accordingly, when she affirmatively asserted that Azhar appellant did commit rape on her there is no reason why she should not be believed. ( 18 ) KM. Vijay Laxmi being a minor girl of 14 years On by there could not arise any question of her consent. This is clear from the definition of the offence given u/s 375, IPC. Besides, the circumstances in which she was kidnapped seems to have demoralised her arid even if she in a helpless situation surrendered her body to the appellant; it would be of no consequence. The fact that no injuries were found on her body would only emphasise that no violence was committed against her but that would be completely inconsequential where the prosecutrix is under 16 years of age. I, therefore, affirm the view of the learned Session Judge that Azhar appellant is guilty of committing rape on her. ( 19 ) IN view of the above finding the only conclusion that can be drawn is that the kidnapping was, with intent to compel Km. Vijay Laxmi to illicit intercourse. Evidently then the appellant is also guilty of an offence punishable li/s 366, IPC. ( 20 ) NO circumstance appears from the record which could serve as a mitigating factor in the way of punishment. Vijay Laxmi to illicit intercourse. Evidently then the appellant is also guilty of an offence punishable li/s 366, IPC. ( 20 ) NO circumstance appears from the record which could serve as a mitigating factor in the way of punishment. The sentence awarded by the learned Sessions Judge to the appellant under each of the sections 366 and 376, IPC do not appear to be excessive ( 21 ) IN the result, the appeal fails and is hereby dismissed. The conviction and sentences awarded by the learned Sessions Judge to the appellant are confirmed. The appellant is on bail. He shall be taken into custody forthwith to serve out his sentences. His bail bonds are cancelled. Appeal dismissed .