JUDGMENT 1. - This appeal is directed against the judgment dated February 1, 1991, passed by the Additional Sessions Judge, Chittorgarh, by which the learned Additional Sessions Judge convicted and sentenced the accused-appellant for the offence under Sections 376, 366 and 379 (PC. 2. The accused was tried by the learned Additional Sessions Judge, Chittorgarh, for the offence under Sections 366, 376 and 379 IPC. The case of the prosecution is than on 15-7-89, two girls, namely, Jayeda (aged about 14 years) and Abeda (aged about 8 years) were kidnapped from their lawful guardianship by the accused-appellant. The case of the prosecution is that these two girls, viz., Jayeda and Abeda daughters of Umardeen-alongwith their father and mother came to Rawatbhata on July 14 1989, to celebrate the Idd. Their parents went back to their village while both the girls stayed in Rawatbhata at their uncle's house. In the evening of July 15, 1989, they were kidnapped by the accused They were recovered from the custody of the accused on August 2i, 1989. The prosecution, in support of its case, examined eleven witnesses. The accused did not produce any evidence in his defence. PW 1 Sarif Mohammed is the uncle of Jayeda and Abeda, who has stated that on Bakra-Idd, his brother Umardeen alongwith his wife and two daughters Jayeda and Abeda, came to Rawatbhata. His brother and sister-in-law(Bhabhi) went away leaving she girls there. The girls took their tea in the morning and thereafter they went to the house of Mohammed, where they took the Prasad and went towards the field. In the way, accused Rafiq met them and induced them and took them with him to village Sayli. In the evening, Shambhu informed him that both the girls have been taken-away by accused Rafiq in a bus. A search of the girls was made in village Charbhuja and other places, but the whereabouts of the girls could not be known. PW 2 Ramjani is the brother-in-law of Sarif Mohammed, who stated that Rafiq (accused) was living in his house as a tenant, who vacated the house about four days before Bakra Idd and started living with his uncle. On the relevant day, he was not in the village and when he came back, he was informed that Abeda (aged about 10 years) and Jayeda (aged about 14 years) were missing. On the relevant day, he was not in the village and when he came back, he was informed that Abeda (aged about 10 years) and Jayeda (aged about 14 years) were missing. They had a suspicion against accused Rafiq and made search for the girls and ultimately the girls were recovered from Ramganjmandi. One Saleem Conductor of a bus had produced the girls and the accused-appellant, on which memo Ex.P 2 was prepared. PW 3 Jayeda is the main witness who has stated that on Bakra Idd, she alongwith her father, mother and younger sister, came to his uncle Sarif's house. Next day, after the Idd, their father and mother went and she and her sister Abeda remained at their uncle's house. When they were going back towards their uncle's house, in the way accused Rafiq met them. He showed a knife to them and forced them to accompany him. Thereafter he took the girls to various places. She has further stated that the accused sold her Paijeb, which she was wearing when she was taken by the accused. She has further stated that the accused Rafiq committed rape upon her several times. He used to have sexual intercourse with her in the day as well as in the night. Till she remained with the accused, the accused used to have sexual intercourse with her. A detailed cross-examination was conducted upon her and in the cross-examination, she has admitted that she was taken to several places and she met several persons. She was even taken to work as a labourer. She has, also, admitted that she visited several places and met several persons available there, with whom she had a talk, but she never told any person that she was forcibly taken by the accused and that he had committed sexual intercourse many a times without her consent. A close reading of the statement of this witness clearly shows that she went with the accused at her own accord and was not forcibly taken away. What will be the effect of the consent of this witness in going with the accused and surrendering herself for sexual intercourse on her own accord, will be considered later on. 3. A close reading of the statement of this witness clearly shows that she went with the accused at her own accord and was not forcibly taken away. What will be the effect of the consent of this witness in going with the accused and surrendering herself for sexual intercourse on her own accord, will be considered later on. 3. PW 4 Mohammed Umardeen, who is the father of Jayeda and Abeda, has stated that the age of Jayeda was 13-14 years while the age of Abeda was about nine years at the relevant time. He has further stated that a day earlier to Bakra Idd, he along with his wife and two daughters went to Rawatbhata in order to celebrate Idd festival with his brother Sarif Mohammed. Next day of Bakra Idd, he and his wife came back to their village leaving both the daughters there and some body kidnapped those girls. Thereafter they made a search for the girls and the accused Rafiq and ultimately the girls were recovered after one month and six days. Conductor Saleem brought the girls and accused Rafiq together. 4. PW 5 Salim is the person, who recovered both the girls from the grip of accused Rafiq and brought all these three persons to village Rawatbhata. PW 6 is Mohammed Khan, who is the Motbir witness. PW 7 is Dr Dileep Bhandari, who examined Jayeda and after medical examination, he opined that the age of Jayeda was between 14-16 years. PW 8 Raju is a goldsmith, to whom the accused sold the silver Paijeb of Jayeda for a consideration of Rs. 700/-. PW 9 Damodar is the witness to the recovery of the silver Paijeb, but he has not supported the prosecution case and, therefore, he was declared hostile. PW 10 Gordhan Singh was the Assistant Sub-Inspector of Police posted at Police Station, Rawatbhata, who conducted the investigation, prepared the site-plan and other memos. PW 11 is Dr. Asha Akali, who examined Mst Jayeda regarding the commission of rape upon her. She has stated that Mst. Jayeda had been subjected to sexual intercourse several times. In the cross-examination, she has admitted that Jayeda was habitual to sexual intercourse and her hymen was torn which was more than one year's old, but she did not give any opinion how the hymen was torn. She has stated that Mst. Jayeda had been subjected to sexual intercourse several times. In the cross-examination, she has admitted that Jayeda was habitual to sexual intercourse and her hymen was torn which was more than one year's old, but she did not give any opinion how the hymen was torn. The evidence produced by the prosecution, thus, clearly shows that the girl Mst. Jayeda was habitual to sexual intercourse and her hymen was torn about a year before. She was examined by Dr. Asha Akali on 22-8-1989. Thus, even prior to this incident. Jayeda was habitual to sexual intercourse. She travelled with the accused at a number of places, but she did not tell any person, who met her and with whom she had a talk, that she has been forcibly taken-away by the accused. It appears that she was one of the consenting parties to the act of sexual intercourse. 5. Now, in the light of consent of this prosecutrix to the sexual intercourse, it has to be seen whether any offence has been committed by the accused-appellant or not ? So far as the age of the girl Jayeda is concerned, the doctor has opined that the-age of the girl, at the relevant time, was between 14-16 years The father of the girl Jayeda has stated the age of her as 13-14 years. In the cross-examination, he has stated that his marriage took-place about 22 years before and his first daughter was born after one year of marriage and the second daughter was born after two years and this third daughter, viz , Jayeda, was born after two years of the birth of the second daughter. As per the version of this witness, itself, the age of the prosecutrix Jayeda comes near about 17 years at the relevant time. Even the medical evidence cannot be definite with regard to the age and it can vary by two years on either side. As per the version of this witness, itself, the age of the prosecutrix Jayeda comes near about 17 years at the relevant time. Even the medical evidence cannot be definite with regard to the age and it can vary by two years on either side. From all the attending circumstances, it appears that the girl Jayeda might have been slightly above 16 years of age and, therefore, in the light of the statement of the father of the girl, along with the medical evidence, the age of the prosecutrix Jayeda was slightly above 16 years and as she was a consenting party, therefore, the offence under Section 376 IPC is not proved beyond a reasonable manner of doubt and the appellant deserves to be given the benefit of doubt on this count. The prosecution has, thus, failed to prove the case against the accused for the offence under Section 376 IPC beyond reasonable manner of doubt. 6. So far as the offence under Section 366 IPC is concerned, the girl Mst. Jayeda was admittedly below 18 years of age and, therefore, the consent of the girl has no relevance so far as the offence of kidnapping is concerned. Further, the accused had kidnapped not only Jayeda but, also, kidnapped her younger sister Abeda (aged about 9-10 years) and certainly looking to the tender age of Abeda, she could not be a consenting party. Therefore the learned lower Court has rightly convicted the accused for the offence under Section 366 IPC, as all the ingredients of the offence under Section 366 IPC stand proved. 7. Now coming to the offence under Section 379 IPC Mst. Jayeda was wearing silver Paijebs at the time when she was taken-away by the accused. The only evidence, produced by the prosecution in this respect, is that he sold the silver Paijebs of Mst. Jayeda to PW 8 Raju. It is, thus, possible that Ms. Jayeda might have given her silver Paijebs to the accused, She has not stated in her statement that the accused had stolen the silver Paijebs. Therefore, the offence under Section 379 IPC is, also, not proved against the accused-appellant. The accused-appellant, therefore, deserves to be acquitted on this count, also. 8. Nov/coming to the question of sentence. The accused, at the relevant time was only 19 years old and he is not a previous convict. Therefore, the offence under Section 379 IPC is, also, not proved against the accused-appellant. The accused-appellant, therefore, deserves to be acquitted on this count, also. 8. Nov/coming to the question of sentence. The accused, at the relevant time was only 19 years old and he is not a previous convict. He is behind the bars for the last about three years and he has suffered a lot. It will be in the interest of justice that the accused-appellant may be awarded the sentence already undergone by him. 9. In the result, I allow this appeal in part; set-aside the conviction and sentence imposed by the learned lower Court under Sections 376 and 379 IPC, but, however, maintain the conviction of the accused-appellant for the offence under Section 366 IPC, but the substantive sentence is reduced to the period already undergone by him. The sentence of fine, passed by the learned lower Court under this count, is maintained.Appeal partly allowed. *******