Y. B. SURYAVANSHI, J. ( 1 ) THE four appellants Siyaram, Rambagas, Harcharan and Raghubir, all sons of Amar Lodhi, rio Papawani, P. S. Jirou, District Tikamgarh (appellants 1 to 4) have preferred this appeal against the judgment and findings dated 31/10/1983 by Shri S. K. Jam, Sessions Judge Tikamgarh in S. T. No. 11 of 82, Appellant No. 1 Siyaram has been convicted on two counts viz. under sections 376 and 366 I. P. C. and has been sentenced to undergo RI for three years on each count, with a direction that the sentences shall run concurrently. The remaining 3 appellants have been convicted under section 366 I. P. C. and sentenced to RI for one year each. ( 2 ) THE four appellants are brothers. They lived in the village Papawani P. S. Jirou. The prosecutrix P. W. 1 Shila, her brother P. W. 4 Swami and her mother P. W. 7 Sagun also lived in the same village. P. W. 1 Shila was married to one Dhokal of village Bheloni, District Lalitpur. The marriage was consumated in the year 1979-80 and in the month of Kartika, 1980, Shila was with her mother at village Papawani. ( 3 ) ACCORDING to the prosecution, Shila's husband, sometime in the month of Kartik, had gone to Papawani to bring Shila. It is alleged that Shila had taken a vow of taking holy dips in the river in the month of Kartik and therefore, she was unwilling to go. It is further alleged that as it was imminent that Shilas husband would taker her back and she would be unable to fulfil her vow, the accused inveigled Shila and took her to his house saying that this would prevent her return with her husband and would enable her to stay at Papawani. The prosecution picture itself is very blurred but it seems that in those circumstances, the mother of Shila kept her at Siyarams house. According to the prosecution, Shila was wrong fully confined for 3 days and was subjected to sexual intercourse without her consent. On or about 4th February, 1981, P. W. 1 Shila managed to escape and join her mother. While P. W. 1 Shila was returning from her field alongwith her mother, all the accused persons are said to have forcibly taken her. On or about 4th February, 1981, P. W. 1 Shila managed to escape and join her mother. While P. W. 1 Shila was returning from her field alongwith her mother, all the accused persons are said to have forcibly taken her. On that occasion, P. W. 4 Swami, P. W. 7 Sagun and P. W. 6 Kriparam respectively the brother, mother and uncle of P. W. 1 Shila, intervened but were assaulted. She appears to have been kept in the house of Siyaram almost for a period of 3 months. Ultimately P. W. 4 Swami lodged a written report Ex. P- 2 addressed to S. P. on basis of which, the FIR Ex. P-i was recorded by P. W. 5 Shri Kushwaha, S. I. P. S. Girou on 27-2-81. All the four accused were charge-sheeted for committing offences under sections 636, 344 and 325/34 LP. C and accused Siyaram was further shown to have committed offence under section 376 I. P. C. ( 4 ) THE trial Court charged Siyaram under sections 366, 344 and 376 I. P. C. ; whereas, other accused were charged under sections 366/368 I. P. C. All of them abjured the guilt. The defence case is that the prosecutrix was reluctant to go to her husband and as Shila's husband had visited the village to take her back, P. W. 7 Sagun asked Siyaram to keep Shila at his house. P. W. 7 Sagun was very insistent. Therefore, Siyaram kept her, though reluctantly. Thereafter, Shila remained at the house of Siyaram on her own accord for about three or four months. They denied that she was wrongfully confined. It was further suggested that ultimately Shila left Siyaram's house with a wrist-watch and one article Bela and therefore, P. W. 4 Swami lodged the FIR to falsely implicate them. ( 5 ) THE trial Court, in Para 4, observed that the age of the prosecutrix P. W. 1 Shila is said to be about 16 years; but there is no evidence of her age and therefore, no case of kidnapping had been made out. He further found that so far as the alleged offence under section 344 I. P. C. is concerned, there are no allegations that the accused Rambagas, Harcharan and Raghubir had wrongfully confined Shila. He further found that so far as the alleged offence under section 344 I. P. C. is concerned, there are no allegations that the accused Rambagas, Harcharan and Raghubir had wrongfully confined Shila. He further found that Shila undisputedly lived in the house of Siyaram for about three to four months from Kartik 1980 till 4th Feb. 1981. According to Paras 5, 6 and 7, it was further found that P. W. 7 Sagun had sent her daughter P. W. 1 Shila to Siyaram and therefore, the finding is that Siyaram has NOT abducted Shila. Accordingly, Siyaram stands exonerated of the charge under section 366 I. P. C. pertaining to the incident of Kartik 1980 Apropos alleged wrongful confinement, the learned Sessions Judge discussed those aspects in Paras 8 and 9 and found that P. W. 1 Shila could not have been confined for such a long duration of three to four months and for such wrongful confinement, her brother and mother i. e. P. W. 4 Swami and P. W. 7 sagun could not have been mute-spectators; that Shilas mother, brother and uncle P. W. 6 Kriparam should have lodged the report which was not done because of fright. The trial Court therefore concluded that the prosecution case under section 344 I. P. C. also fails. The learned Sessions Judge however held that the age of the prosecutrix is round about 16 years and she is apparently innocent girl who was found in a helpless condition in the face of compulsion. Therefore, her narration about sexual intercourse with our her consent has been believed. Accordingly, the appellants have been convicted as referred in Para 1 supra. ( 6 ) THE learned counsel for the appellants Shri Rajendra Singh urged that P. W. 1 Shila was an adult woman and free to go anywhere. She did not wish to go back to her husband. P. W. 7 Sagun in fact had left her daughter with Siyaram with whom she lived as his mistress. Even the defence witnesses have stated that Shila lived with Siyaram for almost three to four months and as she lived as mistress of her own accord, the finding about rape is unsustainable. Even otherwise, looking to the discrepancies in evidence, no case of rape has been established. Even the defence witnesses have stated that Shila lived with Siyaram for almost three to four months and as she lived as mistress of her own accord, the finding about rape is unsustainable. Even otherwise, looking to the discrepancies in evidence, no case of rape has been established. ( 7 ) SO far as the age of the prosecutrix is concerned, that finding of the learned Court that she is round about 15 years of age, does not appear to be borne out by the evidence on record. The prosecution did allege that age but rightly opted not to lead any evidence on that aspect because P. W. 1 Shila was subjected to medical examination and the lady doctors medical certificate which is on record, mentioned her age about 20 yearst Since the prosecution did not produce any evidence about the age, I have to conclude that she was an adult woman, already married to Dhokal before this alleged incident. ( 8 ) NOW, the question is how far her testimony about forcible sexual intercourse i. e. without her consent, can be accepted. P. W. 1 Shila stated that in the month of Kartik she had come to her mother at village Papawani. According to her version, accused Siyaram visited her house and said that her husband would be coming to take her back and she will not be able to stick to her decision to have a holy bath in the river throughout Kartik and therefore, she went to Siyarams house. This is the first part of the incident and it seems that she was wrongfully detained for about 3 days till allegedly she managed to escape and joined her mother. The second part of the incident is that, thereafter all the four accused had forcibly taken her away. P. W. 4 Swami, P. W. 7 Sagun and P. W. 6 Kriapram intervened but all of them were assaulted. Thereafter, it appears that she remained with Siyaram almost for three months. ( 9 ) ACCORDING to P. W. 1 Shila, even on the occasion of the first incident, every night Siyaram forcibly had sexual intercourse with her. After her escape, she apprised her brother and mother about this molestation. Apropos the first incident, she has been contradicted with her police statement Ex. ( 9 ) ACCORDING to P. W. 1 Shila, even on the occasion of the first incident, every night Siyaram forcibly had sexual intercourse with her. After her escape, she apprised her brother and mother about this molestation. Apropos the first incident, she has been contradicted with her police statement Ex. D1 portion A to A wherein she stated that she was unwilling to go to her husband and when Siyaram visited them saying that her husband had come to take her back and was even prepared to resort Marpeet for this purpose, her mother agreed to send her to Siyarams house, obviously, with a purpose to screen her from her husbands proposed action in taking her to his house. Similarly, in portion B to B she stated that her mother and brother had gone to Siyaram to bring her back but the accused had threatened them. She has further stated about a portion in Ex. D-2 (statement under section 164 Cr. P. C. recorded before a Magistrate) that her mother had sent her to Siyarams house. All those relevant portions have been denied by her. Since those contradictions relate to taking her away initially, they are material contradictions. Moreover, when after 3 days, she had managed to come back home, there was no reason why her relations could not have lodged a report about rape. ( 10 ) ACCORDING to P. WA Swami, on the occasion of first incident, he had gone to his Sasural (in- laws) in a different village. To recall, P. W. 1 Shila was already then in the house of Siyaram, which may be because of Siyarams initiative or at the instance of P. W. 7 Sagun. According to P. W. 4 Swami, on his return, he enquired about Shila and P. W. 7 Sagun stated that she does not know about Shila's whereabouts, According to this witness, alongwith his mother, he was trying to trace Shila. Similarly, P. W. 7 Sagun, in Para 1 of her examination-in-chief says that her son Swami had gone to his Sasural. Suddenly she found Shila missing and therefore, she too was trying to trace her out. When her son Swami returned, he also tried to trace her. She admits that this was in the month of Kartik and after about 5 days, Shila had returned. She was confirmed with her police statement Ex. Suddenly she found Shila missing and therefore, she too was trying to trace her out. When her son Swami returned, he also tried to trace her. She admits that this was in the month of Kartik and after about 5 days, Shila had returned. She was confirmed with her police statement Ex. D-3 wherein she had stated that Siyaram told that about the visit of Shilas husband and the likelihood of an assault by him Shila was sent to Siyarams house. In the portion B to B of Ex. D-3, she had stated thereafter alongwith her son, she had gone to bring Shila back. She had disowned those portions. On the contrary, the conclusion is inevitable viz, that initially Shila was sent to the house of Siyaram and all this was in the knowledge of P. W. 4 Swami and P. W. 7 Sagun. When they knew where Shila was, the question of tracing whereabouts did not arise. Moreover, when Shila has complained about molestation during those three to five days, there was no reason why a report should not have been lodged about that incident. In context of all those circumstances, a report Ex. P-2 dated 27-2-81 seems to have been lodged about the incident, which had occurred in October. 1980. ( 11 ) THE learned trial Court had erred in coming to the conclusion that the evidence of DW 1 Damrulal and DW 2 Bhagirath supports the prosecution case. Both those witnesses stated that three to four months, Shila lived with Siyaram as his mistress. On the other hand, according to D. W. 2 Bhagirath, the domestic troubic probably arose when Siyaram's wife objected about Shilas induction in the house and threatened to go to her parental house because of that development. This witness had suggested that on account of this, Siyaram and his wife asked Shila to go away. A Panchayat was held, which amongst others was attended by him also. A sudden appearances of P. W. 1 Shila after living with Siyaram for a long period of three to four months, indicates that the story as told by Shila cannot be accepted at its face value. Even after all those incidents, she has not gone back to her husband and does not give any explanation about it. A sudden appearances of P. W. 1 Shila after living with Siyaram for a long period of three to four months, indicates that the story as told by Shila cannot be accepted at its face value. Even after all those incidents, she has not gone back to her husband and does not give any explanation about it. This provides handle to the defence contention that throughout P. W. 1 Shila was reluctant, for reasons best known to her, to go with the person with whom she was married. The prosecutrix as also the accused belong to the same caste of Lodhia where such instances are not uncommon. That community appears to be quite permissive in its outlook towards marital and sexual relationship. ( 12 ) IN view of the above discussion, the convictions of the appellants are unsustainable. Accordingly, this appeal is allowed. Their convictions already referred in Para 1 supra as also the sentences awarded to them thereunder, are hereby set aside. Their bail bonds are cancelled. .