SANKAR BHATTACHARYYA, J. ( 1 ) TAIYAB Sk. , the appellant before us, was arraigned before Shri P. Dutta, learned Sessions Judge, Nadia, to answer the following charges: -"first that you, on or about the 23rd day of September, 1983 at Debagram, P. S. Kaliganj, District Nadia abducted a woman, to writ, Basanti Turi alias Fultara with intent that she may be seduced to illicit intercourse or knowing that she will be forced or seduced to illicit intercourse with another person and thereby committed an offence, punishable under Section 366 of the Indian Penal Code, and within the Cognizance of the Court of Session. Secondly, that you on the same date, after abducting said Basanti committed rape upon her at Beldanga within P. S. Beldanga, District Murshidabad, and thereby committed an offence punishable under Section 376 of the Indian Penal Code and within the cognizance of the Court of Session. " ( 2 ) ON conclusion of the trial the learned Sessions Judge convicted the appellant under Section 366, Indian Penal Code and for such conviction, awarded him the maximum sentence of rigorous imprisonment for 10 years. The learned Sessions Judge did not, however, record any finding on the second charge under Section 376 Indian Penal Code as the offence of rape was alleged to have been committed outside the territorial jurisdiction of the sessions division of Nadia. The subject matter of challenge in this appeal is the above order of conviction and sentence passed by the learned Sessions Judge. ( 3 ) WHILE admitting the appeal, a Division Bench of this Court issued a suo motu Rule directing the appellant to show cause why the finding of the learned Sessions Judge regarding the charge under Section 376 Indian Penal Code should not be set aside and he should not be convicted and sentenced for the said offence or such other or further orders should not be. made as to this Court may seem fit and proper. This Rule was registered as Criminal Revision No. 1997 of 1985. ( 4 ) SINCE the appeal and the Rule arise out of a common judgment, they have been heard together and this judgment will, therefore, govern both, ( 5 ) PROSECUTION case was short and simple. made as to this Court may seem fit and proper. This Rule was registered as Criminal Revision No. 1997 of 1985. ( 4 ) SINCE the appeal and the Rule arise out of a common judgment, they have been heard together and this judgment will, therefore, govern both, ( 5 ) PROSECUTION case was short and simple. Basanti Turi (P. W. 12), a minor girl of about 13 years of age used to work as a labourer in the brick-field of Pradip Banerjee (P. W. 3) at Panighata, in the district of Nadia. The appellant also was employed as a skilled labourer in the nearby brick-field of Abul Kalarn (P. W. 2) and they knew each other. ( 6 ) ON the first Friday of the month of Ashwin, 1390 B. S. , corresponding to September 23, 1980, Basanti, accompanied by her neighbour and co-worker Dhansi Chowdhury (P. W. 1) and the latter's husband Hiralal Chowdhury (P. W. 6), went to, Debagram for witnessing a film show at the local cinema hall. After the show was over, they came to the bus stop around 4 P. M. for going back to Panighata. While waiting at the bus stop, Hiralal (P. W. 6) went to see his ailing uncle. Dhansi (P. W. 1) too, was about to go for marketing with Basanti when the appellant arrived there and started a dialogue with Basanti. The appellant asked Dhansi to go alone for marketing, assuring her that he would be waiting there with Basanti. ( 7 ) DHANSI returned to the bus stop after a while but could not find either of them, Returning to Panighata, she went to Basanti's house to ascertain whether she had come back but was told by her mother Saraswati (P. W. 11) that she had not returned. Dhansi then narrated everything to her. ( 8 ) SEARCHES were made for Basanti at different places, but without success. Searches were made also for the appellant who made himself scarce. After a long search, when ultimately he was traced, he confessed that he had sold away Basanti for immoral purpose. He requested Saraswati not to divulge this fact to anyone and offered to pay her some money. ( 9 ) ON 18. 1. 84, Saraswati went to the Kaliganj Police Station and lodged a verbal complaint which was reduced into writing and treated as the First Information Report. He requested Saraswati not to divulge this fact to anyone and offered to pay her some money. ( 9 ) ON 18. 1. 84, Saraswati went to the Kaliganj Police Station and lodged a verbal complaint which was reduced into writing and treated as the First Information Report. On the basis of the said complaint, a case was started against the appellant and investigation was taken up by the police. ( 10 ) THE appellant was arrested on the same date. Pursuant to the statement made by him, the police went with him and Basanti's brother Khudiram (P. W. 3) to village Kousha, in the state of Jammu and Kashmir. After they reached Kousha, the appellant led them to a house where Basanti was found, and identified by Khudiram. The police party then returned to West Bengal with the appellant and the victim girl and got her examined by a doctor. Her ossification test was also done by a radiologist to ascertain her age, On completion of the investigation the police submitted charge sheet against the appellant, which, in the usual course, ended in committal of the case to the, court of session. ( 11 ) THE defence of the appellant was that Pradip Banerjee (P,w. 3), owner of the neighbouring brick-field, wanted to employ him as a skilled labourer but he refused the offer which irked Pradip. His further case was that once he found Basanti in a compromising position with one Bairaggya. He disclosed this fact to others for which, Basanti nurtured grudge against him. According to the appellant, he was falsely implicated in the case by Pradip Banerjee, in collusion with Basanti and others. 11 (a) To prove its case the prosecution examined all total 16 witnesses, while none was examined by the defence. ( 12 ) BEFORE entering into the merits of the appeal, we would like to dispose of the Rule which involves a short question of law. The question is whether the learned Sessions Judge, Nadia, had jurisdiction to try the offence' under Section 376, Indian Penal Code, which was alleged to have been committed. outside the district of Nadia. It may be pointed out that at no stage of the trial did the defence raise any objection regarding jurisdiction and evidence was led by the prosecution with respect to both the charges under Sections 366 and 876, Indian Penal Code. outside the district of Nadia. It may be pointed out that at no stage of the trial did the defence raise any objection regarding jurisdiction and evidence was led by the prosecution with respect to both the charges under Sections 366 and 876, Indian Penal Code. In such a situation the learned Sessions Judge, before arriving at the conclusion that he lacked jurisdiction to try the offence under Section 376, Indian Penal Code, should have given an opportunity to the prosecution of being heard, It was not proper for him to refrain from giving his verdict on the second charge which amounted to an acquittal, without hearing the prosecution on the point. ( 13 ) SECTION 177, Criminal Procedure Code ('code' for short) lays down in general terms that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed (emphasis supplied ). 13 (a ). Section 178 of the Code deals with the place of inquiry or trial when it is uncertain in which of several local areas an offence was committed. ( 14 ) SECTION 179 of the Code enjoins that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued. ( 15 ) SECTION 184 of the Code specifies the place of trial for 1offences triable together. It reads thus: - where (A) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of Section 219, Section 220 or Section 221, or (B) the offence or offences committed by' several' persons are such that they may be charged with and tried together by ' virtue of the provisions of Section 223, the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences. ( 16 ) SECTION 220 of the Code under the Sub-heading 'joinder of charges' appearing in Chapter XVII, deals with the trial of more offences that one at one trial. ( 16 ) SECTION 220 of the Code under the Sub-heading 'joinder of charges' appearing in Chapter XVII, deals with the trial of more offences that one at one trial. For the sake of convenience, the Section is extracted below: -"220 (1) If, in the series of acts so connected together as to form the same transaction, more offences than one are committed by-the same person, he may be charged with, and tried at one trial for, every such offence. (the rest of the Section is omitted as being unnecessary for our present purpose ). ( 17 ) SECTION 223 of the Code deals with cases where several persons may be charged and tried together. It runs thus : -"the following persons may be charged and tried together, namely: - (a) persons-accused of the same offence committed in the course of the same transaction; (b)persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence (c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction;" ( 18 ) THUS on a plain reading of Section 184, 220 and 223 of the Code, it is manifestly clear that where in one series of acts so connected together as to form part of the same transaction, more offences than one are committed by the same person or a group of persons, he or they may be charged with and tried at one trial for every such offence by any court competent to inquire into or try any of the offences. ( 19 ) THE view taken by us is fortified by the decision of the Supreme Court in Purmshottamdas Dalmia vs. State of West Bengal (A. I. R. 1961 S. C. 1589) where their Lordships, while dealing with the question of framing of charges, observed as under: -"it is further significant to notice the difference in language of. Section 177 and Section 233. Section 177 simply says that ordinarily every offence would be tried by a court within the local limits of whose jurisdiction it was committed. It does not say. that it would. Section 177 and Section 233. Section 177 simply says that ordinarily every offence would be tried by a court within the local limits of whose jurisdiction it was committed. It does not say. that it would. be tried by such court except in the cases mentioned in Sections 179 to 185 and 188 (old Code) or in cases specially provided by any other provisions of law. It leaves the place of trial open. Its provisions are not peremptory. There is no reason why the provisions of Sections 233 to 239 may not also provide exceptions to Section 177, if they do permit the trial of a particular offence along with others in one Court. On the other hand, Section 233 dealing with the trial of the offences reads: -'for every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239. ' 19 (a) The language is very peremptory. There is a clear direction that there should be a separate charge for every distinct offence and that any deviation from such a course would be only in cases mentioned in Sections 284, 235, 236 and 280. 19 (b) It is true that it is not stated in express terms either in Section 235 or Section 280, that their provisions would justify the joint trial of offences or of person mentioned therein in a Court irrespective of the fact whether the offences to be tried were committed within the jurisdiction of that particular Court or not. But such, in our opinion, should be the interpretation of the provisions in these two sections, the sections do not expressly state that all such offences which can be charged and tried together or for which various persons can be charged and tried together must take place within the jurisdiction of the Court trying them, The provisions are in general terms. Sub-sections (1) to (3) of Section 235 provide for the offences being charged with and tried at one trial and therefore, provide for the trial of those offences at one trial in any Court which has jurisdiction over any of the offences committed in the course of the same transaction. The illustrations to Section 235 also make no reference to the places where the. offences were committed. The illustrations to Section 235 also make no reference to the places where the. offences were committed. In particular, illustration (c) can, apply even when the offence referred to therein were committed at places within the territorial jurisdiction of different Courts. Similarly, Section 239 provides for the various persons being charged and tried together for the same offence committed in the course of the same transaction or accused of different offences committed in the course of the same transaction. Such offends or persons would not be tried together if some of the offences are committed by some of them outside the jurisdiction of the Court which can try the other offences, if the contention for appellant be accepted and that would amount to providing, by construction, an exception for these Sections. " ( 20 ) THE learned Session Judge appears. to have completely lost sight of the fact that both the offences were committed in course of the same transaction. In an identical case, (State of Karnataka vs. M. Balakrishna 1980 Crl. L. J.- Karnataka 1145) a Division Bench of the Karnataka High Court observed as follows: -"it is the intention mentioned in the former part of Section 366 of the I. P. C. , which gives an indication whether the offence of kidnapping and rape form part of the same transaction. The said intention cannot be read in isolation and intention to kidnap for a particular purpose which ultimately constitute an offence under Section 366 of the I. P. C. shall have to be taken into consideration in all such cases. That means, the initial place where the offence of kidnapping was committed or the place where the intention of kidnapping was achieved could both be the places where the offences could be tried, as the said offences are committed during the same transaction. " ( 21 ) IN the case before us, the evidence presented by the prosecution at the trial disclosed that the victim girl was abducted around 4 P. M. from Debagram bus stop and ravished on the same night at Beldanga and thereafter in Kashmir where there was taken by the appellant. That being the position both the offences, in our opinion, clearly form part of the same transaction arid the learned Sessions Judge, Nadia, had, therefore, jurisdiction to try both of them. We should mention that Mr. That being the position both the offences, in our opinion, clearly form part of the same transaction arid the learned Sessions Judge, Nadia, had, therefore, jurisdiction to try both of them. We should mention that Mr. Sengupta, the learned Advocate for the appellant, very candidly concedes the position that the learned Sessions Judge, Nadia, had jurisdiction to try both the offences under Sections 366 and 376 Indian Penal Code. ( 22 ) HAVING disposed of the point involved in the Rule, we now proceed to examine the evidence to see for ourselves whether the charges under Sections 366 and 376, Indian Penal Code, have been brought home to the appellant beyond all reasonable doubt, ( 23 ) DHANSI Choudhury (P. W. 1) who was a co-worker of the victim girl Basanti (P. W. 12) in the brick field of Pradip Banerjee (P. W. 8) deposed that on the date of occurrence she and her husband (P. W. 6), along with Basanti (P. W. 12), went to witness a film show at the Debagram cinema hall and after the show was over reached the bus stop around 4 P. M. After reaching there, her husband went to see his ailing uncle and she too, went for marketing leaving Basanti there. Before, however, she left the place, the appellant appeared there and told her to go alone assuring her that he and Basanti would be waiting for her at the bus stop. She found them gossiping when she left the place. Returning to the bus stop after marketing, she came to learn that the bus had already left and she did not find either the appellant or Basanti at that place. ( 24 ) SHE then came back to Panighata by the next bus and went to Basanti's mother Saraswati Turi (P. W. 11) to inquire whether Basanti had returned but was told by her that Basanti had not returned till then. At this, Dhansi told the relatives of Basanti that she was last seen at the Debagram bus stop with the appellant. ( 25 ) HER evidence has been assailed by the defence on the ground that in her statement under Section 161 Criminal Procedure Code, she, did not disclose to the Investigating Officer that after reaching the bus stop her husband went to see his ailing uncle and she went for marketing. ( 25 ) HER evidence has been assailed by the defence on the ground that in her statement under Section 161 Criminal Procedure Code, she, did not disclose to the Investigating Officer that after reaching the bus stop her husband went to see his ailing uncle and she went for marketing. These, undoubtedly, are material omissions but then, her evidence that the appellant came to the bus stop and told her to go alone to the market assuring her that he would be waiting there with Basanti remained unshaken and Cannot, therefore, be discarded. as undependable. Moreover, there is not even a shred of evidence to suggest that she had any animus against the appellant which prompted her to implicate him on such a serious charge. ( 26 ) DHANSI's husband, Hiralal (P. W. 6), though examined by the prosecution, did not say anything except this that Basanti was a labourer in the brick-field of Pradip Banerjee (P. W. 3) and that for sometime past, she was not working there. ( 27 ) SARASWATI Turi (P. W. 11), mother of Basanti, corroborated Dhansi (P. W. 1) by stating that sometime in the first week of Ashwin, 1890 R. S. , Basanti went to Debagram for marketing but did not return therefrom. It was, however, reported to her by Dhansi (P. W. I ). and her husband Hiralal (P. W. 6) that Taiyab Sk. (appellant) had taken away Basanti who was waiting at the bus stop and further reported that they could not find her at the bus stop when they returned there, They then made searches for the girl who could not be traced and finally Saraswati lodged the First Information Report at the Kaliganj Police Station. ( 28 ) MR. Sengupta points out that though, according to Saraswati (P. W. 11), the incident was reported to her by both Dhansi (P. W. 1) and Hiralal (P. W. 6), Dhansi did not claim that her husband was with her when she reported the incident to Saraswati nor did her husband say anything on this point. This discrepancy appears to us to be of no moment whatsoever since it is quite immaterial whether Hiralal was present with Dhansi or not when she reported the incident to Saraswati. ( 29 ) THE incident took place on 23. 9. 83, while the First Information Report was lodged on 18. 1. 84. This discrepancy appears to us to be of no moment whatsoever since it is quite immaterial whether Hiralal was present with Dhansi or not when she reported the incident to Saraswati. ( 29 ) THE incident took place on 23. 9. 83, while the First Information Report was lodged on 18. 1. 84. Therefore, there was a delay of about 4 months in lodging the First Information Report which has been made the subject matter of severe criticism by the defence. In her evidence Saraswati offered an explanation for the delay. The explanation was that as she had to search for her daughter at different places, she could not lodge the First Information Report in time. It is seen from her cross-examination that besides other places, she had been to Mirzapur, the village of residence of the appellant in the district of Murshidabad and also to the residence of one of her relatives at Munghyr to search for her daughter. ( 30 ) IN the First Information Report also, the explanation was more or less the same. According to her statement in the First Information Report the appellant absconded from the next day and she had to go to his house in village Mirzapur in search of her daughter who could not be found there. After a long abscondence the appellant suddenly approached her one day and confessed that he had sold away her daughter. He requested her not to divulge the fact to anybody and also offered to give her some money. ( 31 ) UNDOUBTEDLY, the delay was long but at the same time, we cannot lose sight, of the fact that Saraswati is an illiterate lady who, as her own evidence indicates, had no relative at Panighata where she used to live and work as a day labourer. Even assuming that the delay of 4 months in lodging the First Information Report has not been sufficiently explained, we are not inclined to think that the prosecution case should suffer on that score. A different view might have been taken by us if the victim girl herself was the informant and she did not lodge the First Information Report in time inspite of having opportunities to do so. She, however, as we shall presently see from her evidence, had absolutely no scope for lodging the First Information Report. A different view might have been taken by us if the victim girl herself was the informant and she did not lodge the First Information Report in time inspite of having opportunities to do so. She, however, as we shall presently see from her evidence, had absolutely no scope for lodging the First Information Report. We, therefore, see no substance in the defence criticism as regards the delay in lodging the First Information Report which, in any event, cannot be of any assistance to the appellant. ( 32 ) THE victim girl Basanti (P. W. 12) stated in her evidence that about a year before her deposition she used to work as a labourer in the brickfield of P. W. 3 at Panighata. According to her, some days before the puja in the month of Aswim she, along with Dhansi (P. W. l) and the latter's husband Hiralal (P. W. 6), went to Debagram for witnessing a film show at the local cinema hall. After the show was over, they did some marketing and then came to the bus stop. The appellant who used to work in another brick field close to the brick field of Pradip Banerjee and was known to them, also came there following them. Thereafter Dhansi and her husband went to see their mother. While they were leaving the bus stop the appellant told them that he would remain there with her. Shortly after they had left, a truck came and stopped there when the appellant asked her to board the truck saying that he would drop her at a Panighata and then proceed towards his house in village Mirzapur. He lifted her up in the truck which, however, did not stop at Panighata. When she asked the appellant to drop her at Panighata, the appellant commanded her to remain silent threatening her that she would be thrown out of the moving truck if she did not obey his words. Out of fear, she kept quiet and ultimately the truck stopped at Beldanga. ( 33 ) BOTH of them alighted at Beldanga where the appellant hired a rickshaw and took her near a cinema hall. Keeping her outside the cinema hall, he brought some fried edibles. which she ate. Thereafter, she was brought to a hotel where both of them took their meals. From the hotel she was taken to a house in a rickshaw. Keeping her outside the cinema hall, he brought some fried edibles. which she ate. Thereafter, she was brought to a hotel where both of them took their meals. From the hotel she was taken to a house in a rickshaw. Reaching there, she told the appellant and the inmates of the house that she was feeling exhausted and wanted to sleep. The appellant also shared the same bed with her and committed rape on her forcibly. ( 34 ) NEXT morning, the appellant took her to a place by bus where they boarded a train. She was then taken to Kashmir where she used to be ravished by the appellant. Thereafter, she was taken to another place where she found several persons. The appellant accepted a sum of Rs. 4,500 from one of them and spent the night in the house of that person. Next morning, around 5 A. M. he left the house leaving her there although, she implored him several times to take her back home. She stayed there for 3 months after which, the police went there being accompanied by her elder brother Khudiram (P. W. 13) and the appellant and brought her back to West Bengal. At the police station, she met her mother and narrated the entire occurrence to her. Basanti categorically stated that she would not have boarded the truck had she known that she would be taken to Kashmir instead of Panighata where she used to live with her mother. It is also in her evidence that while in Kashmir she was not allowed to go out of the house where she was staying. ( 35 ) IT was elicited from her cross-examination that she did not tell the Investigating Officer that when Dhansi and her husband left the bus stop, the appellant told them that he would remain with her at the place. She also did not tell the Investigating Officer that after she was taken to Kashmir she repeatedly implored the appellant to take her back to West Bengal. In our opinion, these omissions have no bearing upon the alleged abduction or rape and may, therefore, safely be ignored. ( 36 ) MR. Sengupta strenuously contends before us that the evidence of Basanti is ex facie improbable and liable to be rejected outright. According to him, she did not seek anybody's help when the appellant went to bring fried edibles. ( 36 ) MR. Sengupta strenuously contends before us that the evidence of Basanti is ex facie improbable and liable to be rejected outright. According to him, she did not seek anybody's help when the appellant went to bring fried edibles. Leaving her alone near the cinema hall at Beldanga nor did she tell anyone while travelling by train that she had been abducted although, her evidence goes to show that apart from the passengers and the railway staff, there were some police personnel in the compartment. in which she travelled for 3 to 4 days before reaching Kashmir. ( 37 ) WHATEVER might be her conduct after her arrival at Beldanga the offence of abduction was complete as soon as she was induced to board the truck at the bus stop on the false representation that she would be dropped at Panighata. The representation was palpably false because she was taken to, Beldanga under threat that she would be thrown out of the moving truck, if she raised alarm. ( 38 ) IT has been mentioned above. that after her rescue Basanti was clinically examined by a doctor and was also subjected to ossification test by a radiologist. ( 39 ) ON 11. 2. 84 she was clinically examined by Dr. J. K. Das Mahapatra (P. W. 4) before whom she gave out that she was raped 4/5 months before her examination. The doctor did not, however, find any recent marks of rape on her person. This was elaborated injury on her body or on the genital organ. It may, however, be recalled that the alleged rape took place towards the latter part of September, 1983, that is more than 4 months before her examination by the doctor and, in such a situation, no injury to her genital organ or other parts of the body could reasonably be expected to be seen. The evidence of Dr. Mahapatra, therefore, appears to be of no assistance either to the prosecution or to the defence. ( 40 ) THE ossification test was conducted by Dr. Jagadish Ch. Debnath (P. W. 5) on 11. 4. 84 that is, about 8 months after the date of occurrence. According to Dr. Debnath, she was between 16 and 17 years of age on the date of her ossification test. ( 40 ) THE ossification test was conducted by Dr. Jagadish Ch. Debnath (P. W. 5) on 11. 4. 84 that is, about 8 months after the date of occurrence. According to Dr. Debnath, she was between 16 and 17 years of age on the date of her ossification test. It was, however, admitted by him in cross-examination that the union of different bone joints may slightly vary due to congenital bone disease and also due to dietetic, hereditary and climatic conditions. ( 41 ) MR. Sengupta, has relied upon the decision of the Supreme Court in Jayo Mala vs. Government of Jammu and Kashmir (A. I. R. 1982 S. C. 1297) where their Lordships, while dealing with the opinion of thee radiologist, observed as follows: - ( 42 ) "however, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. " ( 43 ) RELYING upon the above observation and the evidence of the mother of the victim girl, Mr. Sengupta strenuously argues that the age of the victim girl could not be lest than 22/23 years on the date of occurrence. According to Mr. Sengupta, the evidence clearly indicates that she voluntarily went away with the appellant apparently to have a free trip to the beautiful land of Kashmir and was also a consenting party to the sexual intercourse. ( 44 ) BASANTI's mother Saraswati (P. W. 11) stated in cross-examination that Basanti's father is her second husband with whom she was married at the age of 15/16 years and that her first issue Khudiram (P. W, 13) was born about 3 years after her second marriage that is, when she was 18/19 years of age. She further stated that she was 40 years of age at the time of her deposition and that her other children were born at a gap of 3 years. ( 45 ) DRAWING inspiration from the above evidence Mr. Sengupta argues that according to Saraswati, Basanti was born when she was 21/22 years of age and since she was 45 years of age at the time of her deposition, Basanti must have been 23/24 years of age during the occurrence. ( 45 ) DRAWING inspiration from the above evidence Mr. Sengupta argues that according to Saraswati, Basanti was born when she was 21/22 years of age and since she was 45 years of age at the time of her deposition, Basanti must have been 23/24 years of age during the occurrence. We find ourselves unable to accept the above contention which proceeds on the assumption that Basanti is the second issue of Saraswati about which, there is absolutely no evidence on record. All that the evidence indicates not possible to jump to the conclusion that no other child was born to Saraswati before the birth of Basanti and that she is her second issue. In this connection, reference may also be made to another part of her cross-examination where she gave out that her first issue Khudiram was 20 years of age at the time of her deposition. If we are to proceed on the footing suggested by Mr. Sengupta, then Basanti was around 17 years of age at the time of her deposition which means that she was about 16 years of age at the time of occurrence. Therefore the evidence of Saraswati who, as pointed out already is an illiterate rustic lady, does not help us in any way in ascertaining the correct age of Basanti at the time of occurrence. ( 46 ) IN view of the observation of the Supreme Court in Jaya Mala's case (supra), even the opinion of the radiologist can not be regarded as conclusive as to the age of Basanti at the date of occurrence because, her age could also be any where between 17 and 19 years at that time. ( 47 ) UNDER Clause 'fifthly' of Section 375, Indian Penal Code, consent is immaterial to constitute the offence of rape where the woman who is the victim of sexual intercourse is under 16 years of age. The question of consent arises only where she is above 16 years of age at the material time. Under Section 861, Indian Penal Code, a person commits the offence of kidnapping if he takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound without the consent of such guardian. ( 48 ) SECTION 362 defines 'abduction' as follows: -whoever by force compels or by any deceitful means induces, any person to go from any place, is said to abduct that person. ( 49 ) IN the absence of any dependable evidence to show that Basanti was under 18 years of age on the date of occurrence, to bring home the charge of abduction to the appellant, the prosecution must prove that either force or deceitful means was used by the appellant in inducing her to go from the Debagram bus stop. ( 50 ) WE have discussed at length the evidence of Dhansi (P. W. 1) with whom Basanti went to Debagram from Panighata as well as the evidence of Basanti herself. We have also discussed the evidence of Saraswati, mother of Basanti, to whom Dhansi narrated the occurrence after returning from Debagram. ( 51 ) THE evidence of the above witnesses, which we see nothing to disbelieve, can hardly leave any room for doubt that on the date of occurrence Basanti was waiting at the Debagram bus stop for going back to Panighata and that the appellant was with her at that time. They knew each other and worked in two adjacent brickfields at the same place. In such circumstance, there was nothing unusual for Basanti to board the truck at the Debagram bus stop at the instance of the appellant and on his representation that he would drop her at Panighata and then proceed towards his house in village Mirzapur within police Station Beldanga. She must have thought that she would reach Panighata earlier if she went by the truck as the bus was yet to arrive, little knowing that instead of Panighata she would be taken to Beldanga by the appellant under threat. In fact, as pointed out above, she categorically stated that she would not have boarded the truck if she had the slightest doubt that she would be taken to Beldanga instead of Panighata. This clearly goes to show that the appellant induced her to go from the Debagram bus stop by deceitful means and the offence of abduction was, therefore, complete as soon as the truck left the Debagram bus stop. ( 52 ) AS regards the alleged rape, we should not lose sight of the fact that Basanti was completely under the appellant's control at Beldanga. ( 52 ) AS regards the alleged rape, we should not lose sight of the fact that Basanti was completely under the appellant's control at Beldanga. She was taken to a place where she did not know anyone and the appellant shared the same bed with her at night. It is also her evidence that the appellant forced her to yield to his lust taking under advantage of her absolutely helpless condition. It may be well presumed that the appellant had the tacit support and cooperation of the inmates of the house where she was taken as, otherwise, without. asking a word, they would not have allowed the appellant to spend the night in the same room with Basanti whom they did not even know. It was, therefore, not at all difficult for Basanti to imagine that she would not receive any help from the inmates of the house even if she had asked for it and being completely at the mercy of the appellant, she could have no option but to submit herself to his will. We are, therefore, fully impressed by her evidence that the appellant had sexual intercourse with her by force, that is, against her will and without her consent, even though there might not be any active resistance on her part as such resistance would have been quite futile. ( 53 ) IT appears from the evidence of the Investigating Officer (P. W. 16) that acting on the information received from the appellant during interrogation he, along with Assistant Sub-Inspector S. Ganguly (P. W. 15), Constable Dilip Neogi (P. W. 14), Basanti's elder brother Khudiram (P. W. 13) and the appellant left for Kashmir. After they arrived there, the appellant led them to a village named Kousha within Police Station Magam. At Kousha, the appellant led them to a house where Basanti was found along with some other females. She was identified by her brother Khudiram and with the help of the local police, was rescued, and brought back to West Bengal. ( 54 ) THE above evidence receives corroboration from A. S. I. Ganguly (P. W. 15), Constable Neogi (P. W. 14) and Basanti's elder brother Khudiram (P. W. 13 ). According to Khudiram, the appellant led them to village Kousha in Kashmir and pointed out a house where Basanti was identified by him (P. W. 13 ). ( 54 ) THE above evidence receives corroboration from A. S. I. Ganguly (P. W. 15), Constable Neogi (P. W. 14) and Basanti's elder brother Khudiram (P. W. 13 ). According to Khudiram, the appellant led them to village Kousha in Kashmir and pointed out a house where Basanti was identified by him (P. W. 13 ). It further appears from the evidence of A. S. I. Ganguly and Constable Neogi that besides Basanti, there were many other women in that house all clad in Kashmiri women's dress and Khudiram spotted out Basanti from amongst them. ( 55 ) MR. Sengupta has assailed the evidence regarding the recovery of Basanti from Kashmir on the ground that the General Diary of the Magam Police Station where the Investigating Officer went for assistance was not produced by the prosecution. We are not inclined to think that non-production of the General Diary of the Magam Police Station can be regarded as a ground for discarding the evidence of P. Ws. 13 to 16 as undependable. Moreover, it is seen from the evidence of P. Ws. 14 and 15 that at that time Kashmir was having snow fall and since Khudiram who had no warm garments with him was severely afflicted by cold, they hurried back to West Bengal after reporting the entire occurrence to the Sub-Divisional Police Officer, Katwali (Srinagar), without even producing the girl before any Magistrate. Whatever laches might be there on the part of the Investigating Officer following the recovery of Basanti, the evidence regarding the recovery itself seems to us to be wholly above suspicion. We, therefore, hold that both the charges have been proved against the appellant beyond the slightest shadow of doubt. ( 56 ) THE defence case that the appellant was falsely implicated by Pradip Banerjee (P. W. 3), in collusion with Basanti, appears to us to be without any substance at all. Pradip stoutly denied the defence suggestion that he ever wanted to engage the appellant as a stilled labourer or that he, in collusion with others, falsely implicated the appellant in the ease as the appellant refused to work in his brick field. ( 57 ) BASANTI too, categorically denied the suggestion that the appellant found her and, one Tapan Bairagya in a compromising position and that she nurtured grudge against the appellant as he disclosed this fact to others. ( 57 ) BASANTI too, categorically denied the suggestion that the appellant found her and, one Tapan Bairagya in a compromising position and that she nurtured grudge against the appellant as he disclosed this fact to others. We, therefore, reject the defence case as nothing but an afterthought. ( 58 ) FOR the foregoing reasons, we affirm the order of conviction of the appellant by the lower court under Section 366 Indian Penal Code. We, however, feel that the sentence imposed by the lower court is too severe and a sentence of rigorous imprisonment for 8 years will sufficiently meet the ends of justice. We also convict the appellant under Section 378 Indian Penal Code and sentence him to rigorous imprisonment for 8 years, with the direction that both the sentences shall run concurrently. ( 59 ) IN the result, the appeal is allowed in part to the extent indicated above. Criminal Revision No. 1997 of 1985 is allowed and the Rule is made absolute. The appellant will get the benefit of Section 428, Criminal Procedure Code. J. N. Hore, J. I agree. Appeal dismissed.