Honble B.R. ARORA, J.-These two appeals are directed against the judgment dt. December 18, 1989, passed by the Sessions Judge, Bhilwara, by which the learned Sessions Judge convicted and sentenced the accused-appellants. 2. Accused Ghisu Lal was tried for the offences under Sections 363, 366, 342 and 376 I.P.C. and under Section 4 of the Child Marriage Restraint Act, while the appellant Kamla was tried for the offences under Sections 363, 366 and 342 I.P.C. and Section 4 of the Child Marriage Restraint Act. Accused Ratan Lal, Ram Chandra, Rameshwar, Mst. Ajee and Roopa were, also, tried alongwith the appellants for the offences under Sections 342 and 343 I.P.C. and for the offence under Section 5 of the Child Marriage Restraint Act. The learned Sessions Judge, after trial, acquitted accused Ratan Lal, Ram Chandra, Rameshwar, Smt. Ajee and Roopa of the offences for which they were tried. The learned Sessions Judge, also, acquitted the present two appellants of the offences under Section 342 and 343 I.P.C. but convicted accused Ghisu Lal under Sections 363, 366 and 376 IPC. and Section 4 of the Child Marriage Restraint Act and sentenced him to undergo two years rigorous imprisonment under Section 363 I.P.C. three years rigorous imprisonment under Section 366 I.P.C. ten years rigorous imp:isoment under Section 376 (2) (f) I.P.C.and one months simple imprisonment under Section 4 of the Child Marriage Restraint Act. The learned Sessions Judge, also, imposed a fine of Rs. 100/on each count and in default of payment of fine further to undergo fifteen days simple imprisonment on each count. Appellant Kamla was convicted for the offences under Sections 363 and 366 I.P.C. and under Section 5 of the Child Marriage Restraint Act and was sentenced to two years simple imprisonment under Section 363 IPC, three years simple imprisonment under Section 326 I.P.C. and one months simple imprisonment under Section 5 of the Child Marriage Restraint Act. The learned Sessions Judge, also, imposed a fine of Rs. 50/ on each count and in default of payment of fine sentenced her to undergo fifteen days simple imprisonment on each count. Aggrieved with the judgment dated December 18, 1989, convicting and sentencing the accused, appellants Kamla and Ghisu Lal preferred an appeal through their Advocate, which appeal is registered as S.B. Criminal Appeal No. 9 of 1990. 50/ on each count and in default of payment of fine sentenced her to undergo fifteen days simple imprisonment on each count. Aggrieved with the judgment dated December 18, 1989, convicting and sentencing the accused, appellants Kamla and Ghisu Lal preferred an appeal through their Advocate, which appeal is registered as S.B. Criminal Appeal No. 9 of 1990. Appellant Ghisu Lal, also preferred an appeal through jail, which was registered as S.B. Criminal (Jail) Appeal No. 18 of 1990. 3. The incident, which led to the prosecution of the appellants alongwith five other co-accused, took place on May 10,1988 One Mst. Shambhu had gone to the onion field of her grand-mother. When she did not return till the evening then her grand-mother. Mst. Aloli went to the field, but Mst. Shambhu was not there in the field. While returning from the field; she was informed by one Ram Chandra and Govind Ram that Shambhudi had been taken away by accused Ghisa and Kamla toward village Danwra. After returning from the field, she informed all the neighbourers regarding this incident. Later on it was found that Mst. Shambhu has been kept in village Kanpura and the accused are intending to sell the girl. The report of this incident was lodged at Police Station, Gulabpura on May 12, 1988 at about 2.00 p.m. The prosecution, in support of its case, examined five witnesses while the accused, in their defence, examined DW 1 Bhanwar Lal. 4. The nature of evidence, produced by the prosecution, consists of the evidence of PW 1 Shambhudi the prosecutrix, who has stated that she was living with her grand-mother. Accused Kamla asked her that her sister has come from Sapola and she has brought clothes for her. She is in Village Chunnikheda and is calling her. She, thereupon, went with her. Thereafter Kamla and Shisu Lal took her in a bus to Hajiyas. From Hajiyas, she was taken to Fallamata and there a Saptapadi (Dhanman Feri) was performed. After performing the marriage ceremony, in the night accused Ghisa took her in his lap and touched his penis to her vagina, upon which she cried and then Kamla took Shambhudi in her room and she slept with Kamla. In the morning, she was taken to Tambudiya Kheda, where she stayed at the house of Ajee for three days. After performing the marriage ceremony, in the night accused Ghisa took her in his lap and touched his penis to her vagina, upon which she cried and then Kamla took Shambhudi in her room and she slept with Kamla. In the morning, she was taken to Tambudiya Kheda, where she stayed at the house of Ajee for three days. Thereafter she was taken to Bharaliya by Roopa Khati, where she stayed for one night and was recovered by the police. This witness, in the cross-examination, has admitted that she slept in the room before Ghisa came and took her in his lap. She has, also, admitted in the cross-examination that after her marriage, a Panchayat took place in the village. Her mother and grand-mother were called. Her mother did not come, but her grand-mother was present in the Panchayat. She, has, also, admitted that as Ghisa did not make the payment to her grand-mother, therefore, she had lodged the report to the police. In the Panchayat Ghisa admitted that as the money could not be arranged hence he could not make the payment and said that he will make the payment of the amount after-wards, but her grand-mother was not agreeable to this proposal and said that she had been deceived. 5. PW 2 Aloli - the grand-mother of the prosecutrix has stated that Shambhudi used to live with her and used to take care of her onion field. When she did not return from the onion field then she searched for her and was informed by Shivji that Kamla has taken Shambhudi with her then she lodged the report and upon her report, the police recovered Shambhudi. In the cross-examination, she has admitted that she lodged the report after three days of the incident. The Panchayat was called for two days but as Ghisu Lal did not make the payment of the agreed sum, therefore, the report was lodged at the Police Station. The members of the Panchayat and the Sarpanch of village Modra, tried for five to six times to persuade Ghisa for making the payment but he was not agreeable to this. She has, also, admitted that before the Panchayat she has stated that she got her grand-daughter married but accused Ghisa is not making payment of the agreed amount. 6. The members of the Panchayat and the Sarpanch of village Modra, tried for five to six times to persuade Ghisa for making the payment but he was not agreeable to this. She has, also, admitted that before the Panchayat she has stated that she got her grand-daughter married but accused Ghisa is not making payment of the agreed amount. 6. PW 3 Swaroop Singh has stated that the recovery of the clothes was made in his presence vide Ex. P. 7. In the cross-examination, he has admitted that Aloli her self brought Shambhdi for her marriage and got her married with Ghisa. 7. PW 4 is Mangu Khan, who conducted the investigation and presented the challan. In the cross-examination, this witness has admitted that Bhanwar Lal Teli was an eye-witness of the occurrence, whose statement was recorded by him and the marriage was performed by Ghanshyam. 8. PW 5 Govind Ram is the person who had seen the accused taking away Shambhudi on 10-5-1988. He is, also, a witness to Ex. P. 4. 9. From the statements of these witnesses it is, thus, clear that Shambhudi was not taken-away by Kamla or Ghisa, rather she was given in marriage to Ghisa by Aloli herself. This is clear from the statements of PW 1 Shambhudi, PW 2 Aloli and PW 3 Swaroop Singh. PW 1 Shambhudi herself has admitted in the cross-examination that after her marriage, the Panchayat took place and her grand-mother was called and as Ghisa did not make payment to her grandmother, therefore, the report was lodged by her grand-mother. She has, also, admitted that her grand-mother had said that by deceit the marriage was performed and the accused are not making the payment. Smt. Aloli (PW 2"), in her cross-examination, has specifically admitted that she disclosed to the Panchayat that she got her grand-daughter married but the accused Ghisa is not making the payment. In the cross-examination, she has stated in the following terms :— ^^eSusa iapksa dks dgk fd yM+dh dks Hkh ijuk fn;k vkSj iSlk Hkh ugha nsrs gSA** PW 3 Swaroop Singh, in the cross-examination, has admitted that for the marriage of Shambhudi with Ghisa Shambhudi was brought by her grandmother Smt. Aloli herself. In the cross-examination, she has stated in the following terms :— ^^eSusa iapksa dks dgk fd yM+dh dks Hkh ijuk fn;k vkSj iSlk Hkh ugha nsrs gSA** PW 3 Swaroop Singh, in the cross-examination, has admitted that for the marriage of Shambhudi with Ghisa Shambhudi was brought by her grandmother Smt. Aloli herself. In the cross-examination she stated as under :– ^^?kkslk dk fookg ml yM+dh ls gqvk FkkA yM+dh dh nknh ekW vyksyh dks Hkh tkurk gwaA ml yM+dh dks kknh djokus ds fy, vyksyh ykbZ Fkh vkSj dgk Fkk fd xjhch gS vkSj toku Hkh gS blfy, kknh djokus ds fy, tYnh gSA From the statement of this witness, it is clear that the marriage of Shambhudi was performed with Ghisa in the presence of Srnt. Aloli and Smt. Aloli performed the marriage at her own will for the sake of some money which Ghisa could not pay and, therefore, on account of this non-payment of the amount, the accused have been prosecuted. Thus, no offence under Sections 363 and 366 I.P.C. is made-out against the accused-appellants as the girl was never kidnapped by the accused-appellants but was rather given in marriage by her grandmother Smt. Aloli herself. 10. Now coming to the offence under Section 376 I.P.C. for which the learned Sessions Judge has convicted and sentenced the appellant Ghisu LaL Shambhudi, in her examination-in-chief, has nowwhere stated that any sexual intercourse was committed by the accused Ghisa with her. She has only stated that Ghisa took her in his lap and touched his penis with her vagina, upon which blood came-out and she cried and thereafter slept with Kamla. Vaginal smear was taken and was sent for chemical examination, which was found negative for the presence of supsrmetozae, and on the basis of the examination of the prosecutrix, the doctor was of the opinion that there was an attempt to commit rape but actually no rape was committed. Vaginal smear was taken and was sent for chemical examination, which was found negative for the presence of supsrmetozae, and on the basis of the examination of the prosecutrix, the doctor was of the opinion that there was an attempt to commit rape but actually no rape was committed. From the evidence on record, it is thus, clear that no rape was committed upon PW 1 Shambhudi but it was only an attempt by accused Ghisa to have a sexual intercourse with Shambhudi.The learned lower Court was, thun, not justified in convicting and sentencing the accused for the offence under Section 376 I.P.C. From the facts and circumstances of the case, in my view, the offence under Section 376/511 I.P.C. has been committed by the accused-appellant Ghisu Lal 11. Now coming to the conviction of accused-appellant Ghisa for the offence under Section 4 of the Child Marriage Restraint Act. The accused himself has admitted the performance of the marriage ceremony with Shambhudi and even the witness DW 1 Bhanwar Lal also, admitted the fact of performance of marriage of Ghisa with Shambhudi. The performance of the marriage is, also, proved from the statements of PW 1 Shambhudi, PW 2 Aloli and PW 3 Swaroop Singh. Admittedly, as per the medical evidence, the girl was between 9 to 11 years of age at the time of her marriage and the accused was about 21 years of age. Thus, the prosecution has been able to prove the case under Section 4 of the Child Marriage Restraint Act against the appellant Ghisa. 12. So far as the offence under Section 5 of the Child Marriage Restraint Act allegedly committed by accused Kamla, is concerned, there is no evidence on record, produced by the prosecution to prove this offence against appellant Kamla beyond reasonable manner of doubt. It was Mst. Aloli-the grand-mother of Shambhudi herself who gave her grand-daughter Shambhudi in marriage to accused Ghisa and Kamla was not, in any way, connected with this crime. The prosecution has failed to prove the case against accused-appellant Kamla for the offence under Section 5 of the Child Marriage Restraint Act. For maintaining the conviction under Section 5 of the Child Marriage Restraint Act, it is necessary that a person must perform, conduct or direct any child marriage. The prosecution has failed to prove the case against accused-appellant Kamla for the offence under Section 5 of the Child Marriage Restraint Act. For maintaining the conviction under Section 5 of the Child Marriage Restraint Act, it is necessary that a person must perform, conduct or direct any child marriage. In the present case, there is no evidence on record, from which it could be gathered that accused Kamla in any way, performed, conducted or directed the child marriage and, therefore, she cannot be convicted for the offence under Section 5 of the Child Marriage Restraint Act, and, as such, she deserves to be acquitted. 13. Now coming to the question of sentence. Accused-appellant Ghisa has been found guilty for the offence under Section 376/511 I.P.C. and under Section 4 of the Child Marriage Restraint Act. The learned lower Court has sentenced the accused to undergo one months simple imprisonment under Section 4 of the Child Marriage Restraint Act and a fine of Rs. 100/- and in default of payment of fine further to undergo one months simple imprisonment. I maintain the sentence awarded by the learned lower Court on this count. 14. Now comes the question, what sentence should be imposed upon the accused-appellant Ghisu Lal for the offence under Section 376/511 I.P.C Smt. Aloli herself gave her grand-daughter Shambhudi in marriage to accused Ghisa and as such she is his wedded wife. The marriage was not legal looking to the age of the girl as she was minor. The accused tried to have a sexual intercourse with her, but when she cried, he left her and did not complete the sexual intercourse with her. The accused is in judicial Custody since 16th May 1988. In these circumstances I think it proper to pass an order to the effect that the sentence already undergone by him will be adequate to meet the ends of justice. 15. In the result, the appeal filed by appellant Kamla is allowed and she is acquitted of all the offences for which she was charged and tried and her conviction and sentence are set-aside. 16. The appeal filed by accused-appellant Ghisu Lal is allowed in part. He is acquitted of the offences under sections 366, 363 and 376 I.P.C, but his conviction and sentence under section 4 of the Child Marriage Restraint Act are maintained. 16. The appeal filed by accused-appellant Ghisu Lal is allowed in part. He is acquitted of the offences under sections 366, 363 and 376 I.P.C, but his conviction and sentence under section 4 of the Child Marriage Restraint Act are maintained. He is, also convicted for the offence under Section 376/511 I.P.C. and is sentenced to the imprisonment already undergone by him.