JUDGMENT 1. - This appeal is directed against the judgment of Additional Sessions Judge No. 1, Baran, dated October 29, 1982 whereby the accused-appellant has been convicted for offences under sections 366 and 376 IPC and sentenced to four years' rigorous imprisonment and a fine of Rs. 100/-in default whereof to further undergo two months' rigorous imprisonment on each count. Both the sentences were made to run concurrently. The accused preferred this jail appeal in the year 1983 which was admitted on March 14, 1983. The accused-appellant was ordered to be released on bail on the same day but it appears from the record that he could not furnish the bail and surety bonds and hence had to remain in jail as is further evident from the letter of the superintendent, District Jail, Kota addressed to the Additional Registrar, Rajasthan High Court Bench, Jaipur. Thus it is apparent that the accused-appellant is to jail since February 7, 1982. 2. This case started on a complaint filed by the father of the prosecutrix on February 6, 1982 whereby allegation was levelled that the accused had abducted his daughter Sushila on February 1, 1982 and it was this complaint which has been sent to the police under section 156 (3) Cr PC which was registered as a First Information Report and the accused was arrested. The case of the prosecution as given by Mst. Sushila PW 6 in her statement in court is that she had been married about 11/2 years back and was working as a labourer on an Irrigation project. Her younger sister also used to go to work with her. She stated that Tulsiram Karigar told her on chetki-Saptami that she should bring cement from the quarter. This was told to her at about 10.00 A.M. When she went to the quarter she found the accused-appellant Shrilal present who gave a thrust on her head and then threatend that if she will shout he will kill her. At that time it was alleged that Mst. Dakhan entered the room who was asked to go out. Thereafter accused took her to Jesma via Kishanganj where she was asked to stay at the house of one Chanda. Thereafter the accused took her to Kelwada and from there came to Baran where they found her brother and father who took her to their house. Dakhan entered the room who was asked to go out. Thereafter accused took her to Jesma via Kishanganj where she was asked to stay at the house of one Chanda. Thereafter the accused took her to Kelwada and from there came to Baran where they found her brother and father who took her to their house. It was alleged that during this period the accused had done forcibly sexual inter-course with her. This statement of the prosecutrix about the accused committing sexual intercourse with her does not find support from the medical evidence or any other evidence. J She has herself not stated a word in her statement that there was penetration. The prosecution has miserably failed to bring out the ingredients of section 376 IPC in the instant case and it appears that the Public Prosecutor did not take care while getting her statement recorded. In the absence of her own evidence and the medical corroboration I cannot sustain the conviction of the accused for an offence under section 376 IPC. However, a perusal of the evidence does make out a case for offence under section 366 IPC for which he has been rightly convicted. The accused is in jail since February 7, 1982 and it would be traversity of the justice to detain him in jail any further particularly when the charge of rape is not established. 3. As a result of the aforesaid discussion, I partly allow this appeal, set aside the conviction and sentence of the accused for offence under section 376 IPC but maintain his conviction and sentence under section 366 IPC. I reduce the sentence already undergone. The sentence of fine on this count is maintained. The accused shall be released forthwith if he is not required in any other case.Appeal partly allowed. *******