JUDGMENT 1. - This appeal is directed against the judgment dated 3.12.92, passed by the Special Judge, dacoity affected area, Bharatpur, by which the learned Special Judge convicted and sentenced the accused-appellant for the offences under Sections 366,376/511 and 377 I.P.C. 2. The case of the prosecution is that on 29.6.91, at about 2.30/3.00 p.m. Kumari Sapna D/o Hukam Singh, aged about seven years, was going to purchase biscuits and sweetmeats from a shop in Rajendra Nagar Colony, Bharatpur. In the way the accused Chouhal Singh S/o Prabhati, who used to reside in Patwara Mohalla, met her and took her in the bushes behind Radha Swami temple. The accused tried to commit rape upon her but remained unsuccessful and thereafter has a carnal intercourse against the order of nature with her. The prosecution, in support of its case, examined seventeen witnesses. The accused did not produce any witness in his defence. The learned Special Judge, after trial, convicted the accused-appellant for the offences under Sections 376/511, 366 and 377 I.P.C. and sentenced him to undergo five years rigorous imprisonment and a fine of Rs. 5000/- and in default of payment of fine further to undergo one year's rigorous imprisonment for the offence under Sections 376/511 I.P.C.; seven years' rigorous imprisonment and a fine of Rs. 5000/- and in default of payment of fine further to undergo one years' rigorous imprisonment for the offence under Section 366 I.P.C. and seven years' rigorous imprisonment and a fine of Rs. 15,000/- and in default of payment of fine a further to undergo 21/2 years' rigorous imprisonment for the offence under Section 377 I.P.C. The learned Special Judge further directed that the amount of fine, if so recovered, then the same may be paid to Kumari Sapna as compensation. It is against this judgment, convicting and sentencing the appellant that the appellant has preferred this appeal. 3. It is against this judgment, convicting and sentencing the appellant that the appellant has preferred this appeal. 3. It is contended by the learned Counsel for the appellant that from the evidence produced by the prosecution, no case against the accused-appellant for any of the aforesaid offences is made out and totally a false story has been concocted against the appellant on account of pendency of the litigation between the father of the accused-appellant and Hukam Singh - the father of Kumari Sapna - with respect to a plot which was purchased by the father of the appellant and on which Hukam Singh has raised the construction. It has, also, been contended by the learned Counsel for the appellant that the learned Special Judge has not properly read the evidence produced by the prosecution and wrongly convicted and sentenced the appellant. According to the learned Counsel for the appellant there was no injury found on the vagina of the prosecutrix and there was, also, no case of the prosecution that the prosecutrix was kidnapped by the accused and, therefore, the conviction of the appellant for the offences under Sections 376/511 and 366 I.P.C. are not made out. According to the learned Counsel for the appellant, even the ingredients of the offence under Section 377 I.P.C. have not been established and, therefore, the appellant deserves to be acquitted of all the aforesaid offences. The learned Public Prosecutor, assisted by Mr. Punit Sharma learned Counsel for the complainant has supported the judgment passed by the Court below. 4. Before considering the arguments advanced by the learned Counsel for the parties, I would first like to consider the nature of the evidence produced by the prosecution. P.W. 1 Hukam Singh is the father of the prosecutrix Kumari Sapna (P.W. 2), who has stated that on 29.6.91, he had gone on his duty at 10.00 a.m. and when he returned to the house at about 4.00 p.m., he was informed by his wife that accused Chouhal Singh had done bad act with Kumari Sapna. The underwear of Kumari Sapna had blood-stains and when he made an enquiry from his daughter Kumari Sapna, she informed him that she had gone to a shop in Rajendra Nagar Colony to bring biscuits and in the way accused Chouhal Singh met her; asked her to go alongwith him and he would show her a game. The underwear of Kumari Sapna had blood-stains and when he made an enquiry from his daughter Kumari Sapna, she informed him that she had gone to a shop in Rajendra Nagar Colony to bring biscuits and in the way accused Chouhal Singh met her; asked her to go alongwith him and he would show her a game. On this pretext the accused took her in the bushes behind Radha Swami Temple; put off her underwear and his own underwear and thereafter tried to enter his penis in her vagina but remained unsuccessful. Thereafter he had a carnal intercourse against the order of nature with her. She felt pain in her anus and her anus was injured and she felt pains. She raised cries, upon which the accused left her and ran away and she came weeping to her house. Hukam Singh, thereafter, lodged a report of the incident at Police Station, Kotwali, Bharatpur. He, also, produced the blood-stained underwear of Sapna which was taken in possession by the police. PW 2 Kumari Sapna is the victim. She has stated that on the fateful day, at about 2.30 to 3.00 p.m., she was going to purchase biscuits from the shop in Rajendra Nagar Colony, Bharatpur. In the way the accused met her and asked her to come along with him on the pretext that he would show a game to her. He thereafter took her in the bushes behind Radha Swami Temple and tried to commit rape upon her, but his penis could not enter in her vagina and thereafter the accused committed carnal intercourse against the order of nature with her. She cried and on her crying the accused got up and ran away and she came to the house and narrated the incident to her mother. Thereafter her father came and she narrated the incident to her father, also. P.W. 3 Smt. Sharda is the mother of P.W. 2 Kumari Sapna, who has corroborated the statement of P.W. 1 Hukam Singh and P.W. 2 Kumari Sapna. P.W.4 Balveer Singh is the uncle of Kumari Sapna, who was present in the house when Kumari Sapna returned to the house after she was subjected to carnal intercourse against the order of nature. He has, also, supported the statements of the aforesaid three witnesses. P.W.4 Balveer Singh is the uncle of Kumari Sapna, who was present in the house when Kumari Sapna returned to the house after she was subjected to carnal intercourse against the order of nature. He has, also, supported the statements of the aforesaid three witnesses. P.W. 5 Attar Singh is a Motbir witness to the recoveries as well as to the preparation of the site-plan. P.W. 8 Dr. Umesh Mangal is the Radiologist posted in the General Hospital, Bharatpur, who examined the accused for determination of his age and according to Dr. Mangal, the radiological age of the accused was in between seventeen to nineteen years. P.W. 9 Dr. K.U. Gupta was the Junior Specialist posted in the General Hospital, Bharatpur, who examined the accused and found him sexually potent. P.W. II Dr. Y. Dayal Srivastava was the Medical Jurist posted in the General Hospital, Bharatpur, who attended Kumari Sapna on 29.6.91 and referred her for medical examination to the Senior Specialist, Gynaecology, Janana Hospital, Bharatpur, where she was medically examined on 30.6.91 at 9.15 a.m. by P.W. 13 Dr. Pushpa Jain. He, also, examined Kumari Sapna but did not find any injury on her person and prepared the injury report Ex. P.6. P.W. 13 Dr. Pushpa Jain prepared the medical report Ex. P. 17. This report relates to the medical examination of the private parts of Kumari Sapna. On 30.6.91, at about 10.30 a.m. he, also, examined accused Chouhal Singh and prepared the report Ex. P. 18. The accused was not found having any external injury on his private part and he was referred for radiological examination for determination of age and on radiological examination the age of the accused was found between 17 to 19 years. This witness has, also, stated that when he examined the accused, smagma was not present on his penis. P.W. 13 Dr. Pushpa Jain examined Kumari Sapna on 30.6.91 and stated that there was a swelling in the anus area and there was an injury of 1 c.m. in length. The swelling was all around the anus and small lacerations were found on all the sides of the anus i.e., internal and external, and no injury on any other part of the body of Kumari Sapna was found. She has, also, stated that carnal intercourse against the order of nature had been committed with Kumari Sapna. The swelling was all around the anus and small lacerations were found on all the sides of the anus i.e., internal and external, and no injury on any other part of the body of Kumari Sapna was found. She has, also, stated that carnal intercourse against the order of nature had been committed with Kumari Sapna. P.W. 14 Vijay Singh is a Motbir witness to the site-plan. P.W. 7 Yad Ram, P.W. 10 Sukhandra Singh, P.W. 12 Sohan Lal, P.W. 15 Ram Swaroop Yadav, P.W. 16 Mahesh Chand and P.W. 17 Sampat Singh, A.S.I., are the police personnel's. P.W. 6 Sohanveer Singh was the Police Constable posted at Police Station, Kotwali, Bharatpur, who is a witness to the arrest of the accused vide EX. P.8 and, also to the personal search of the accused. He is, also, a witness to the recovery of the underwear of the accused vide Ex. P. 9. PW 7 Yad Ram Constable is a witness to the recovery of the underwear of the accused vide Ex. P. 9. PW 10 Sukhendra Singh was the Head Constable posted at Police Station, Kotwali, Bharatpur, on 29.6.91 and was the Malkhana Incharge of the Police Station, with whom four sealed packets were deposited, which were later on sent for F.S.L. examination to the State Forensic Science Laboratory,Jaipur. P.W. 12 Sohan Lal is the constable who took the sealed packets for F.S.L. examination to the aforesaid Laboratory and deposited the same in the same sealed condition and both these witnesses have stated that the articles remained in the same sealed condition and till they remained in their custody. P.W. 15 Ram Swaroop Yadav was the Sub-Inspector of Police, posted at Police Station, Kotwali, Bharatpur, before whom PW 1 Hukam Singh submitted the written report Ex. P.1 and on the basis of which the F.I.R. (Ex. P.2) was registered. PW 16 Mahesh Chand is the Constable-cum-Driver, who is a witness to the arrest of the accused as well as the recovery of the underwear of the accused. P.W. 17 Sampat Singh was the A.S.I. posted at Police Station, Kotwali, Bharatpur, who conducted the investigation and presented the challan. 5. P.2) was registered. PW 16 Mahesh Chand is the Constable-cum-Driver, who is a witness to the arrest of the accused as well as the recovery of the underwear of the accused. P.W. 17 Sampat Singh was the A.S.I. posted at Police Station, Kotwali, Bharatpur, who conducted the investigation and presented the challan. 5. The prosecution case mainly rests upon the evidence of P.W. 1 Hukam Singh P.W. 2 Kumari Sapna @ Seema, the prosecutrix, PW 3 Smt. Sharda - the mother of the victim - and PW 4 Balveer Singh, which is sought to be corroborated from the evidence of PW 11 Dr. Y. Dayal Srivastava and PW 13 Dr. Pushpa Jain. PW 2 Kumari Sapna - the victim - was taken by the accused-appellant in the bushes behind Radha Swami temple when she was going to purchase biscuits from the shop situated in Rajendra Nagar Colony, Bharatpur, where the accused had a carnal intercourse with her against the order of nature. A lengthy cross examination was conducted from PW 1 Hukam Singh, PW 2 Kumari Sapna, PW 3 Smt. Sharda and PW 4 Balveer Singh, but nothing could be elicited from their cross-examination which could have shaken the veracity of their statements. The evidence of these witnesses further finds corroboration from the medical evidence of PW 11 Dr. Y. Dayal Srivastava - the Medical Jurist - who attended the victim as well as medically examined the accused. It is further corroborated from the medical evidence of PW 9 Dr. K.D. Gupta, who medically examined the accused and found smagma present on his penis. PW 13 Dr. Pushpa Jain has specifically stated that she found the hymen of Kumari Sapna intact but there was a swelling of 1 c.m. in reddish at 12 O'clock and 6 O'clock size one centimetre induration all around the anus of Kumari Sapna. She, also, found red swelling and laceration all around the anus and the membrane was, also, present. She has specifically stated that carnal intercourse against the order of nature was committed on the girl. From the evidence of these witnesses it, therefore, stands proved that carnal intercourse against the order of nature was committed by the accused-appellant with Kumari Sapna. She, also, found red swelling and laceration all around the anus and the membrane was, also, present. She has specifically stated that carnal intercourse against the order of nature was committed on the girl. From the evidence of these witnesses it, therefore, stands proved that carnal intercourse against the order of nature was committed by the accused-appellant with Kumari Sapna. The prosecution has, therefore, been able to prove the case against the accused-appellant for the offence under Section 377 I.P.C. and the lea coed Trial Court has not committed any illegality in convicting the accused-appellant for this offence. 6. The next question, which requires consideration in the present case, is whether the prosecution has been able to prove the case against the accused-appellant for the offence under Sections 376/511 I.P.C., for which he has been convicted and sentenced by the learned Trial Court. The prosecution initially came with the case that the accused committed bad-act with Kumari Sapna and the medical evidence against the accused-appellant was, also, that the accused committed carnal intercourse against the order of nature with the victim. No injury was found on the private parts of Kumari Sapna. PW 13 Dr. Pushpa Jain has specifically stated that she found no injury on the chest, abdomen, pelvis or any other part of the body of Kumari Sapna. PW 1 Hukam Singh and PW 2 Kumari Sapna, in their earlier statements, have not comp-up with the case that any attempt was made by the accused for committing the sexual intercourse with Sapna. The medical evidence is, also, lacking on this point. From the statements of these witnesses, the case against the accused-appellant for the offence under Sections 376/511 I.P.C. is, therefore, not made out. The prosecution has, thus, failed to prove the case against the accused-appellant for the offence under Sections 376/511 I.P.C. beyond reasonable manner of doubt and the learned Special Judge was, therefore, not justified in convicting and sentencing the accused-appellant for the offence under Sections 376/511 I.P.C. 7. The next question, which requires consideration in the present case, is: whether the prosecution has been able to prove the case against the accused-appellant for the offence under Section 366 I.P.C.? The next question, which requires consideration in the present case, is: whether the prosecution has been able to prove the case against the accused-appellant for the offence under Section 366 I.P.C.? For proving the case under Section 366 I.P.C., the prosecution has to prove that PW 2 Kumari Sapna was kidnapped by the accused and the kidnapping of Sapna was with an intention that she may be compelled to marry any person or she will be forced or seduced to illicit intercourse. So far as subjected to carnal intercourse against the order of nature is concerned, that stands established, but so far as kidnapping part is concerned, for proving it the prosecution has to prove that the accused picked or enticed Kumari Sapna out of the keeping of the lawful guardian without the consent of such guardian: Taking or enticing out of the keeping of the lawful guardianship of Kumari Sapna without the consent of such guardian, has not been established in the present case. Even as per the prosecution case, Kumari Sapna was going to purchase biscuits from the shop situated in Rajendra Nagar Colony, Bharatpur, from where she was taken in the bushes behind Radha Swami Temple. Therefore, it cannot be said that Kumari Sapna was taken away from the lawful guardianship of her parents. The ingredients of the offence under Section 366 I.P.C. are, also, not proved in the present case. The prosecution has, therefore, failed to prove the case against the accused-appellant for the offence under Section 366 I.P.C. The learned Special Judge was, therefore, not justified in convicting and sentencing the accused-appellant for the offence under Section 366 I.P.C. and the conviction and sentence of the accused-appellants for this offence, therefore, deserve to be quashed and set aside. 8. The next question, which arises for consideration in the present case, is: what should be the appropriate sentence which should be imposed upon the accused-appellant ? Though the accused-appellant has committed the offence against a minor girl of seven years and on that count he deserves severe punishment, but the accused-appellant himself, at the relevant time, was between 17 to 19 years of age and may be unable to understand the implication of his act. He has suffered the agony of prosecution for considerably a long time. He has a long life ahead. He has suffered the agony of prosecution for considerably a long time. He has a long life ahead. In the facts and circumstances of the case, looking to the age of the accused-appellant, I, therefore, think it proper to reduce the substantive sentence awarded by the learned Special Judge from seven years' rigorous imprisonment to four years' rigorous imprisonment for the offence under Section 377 I.P.C. I, also, think it proper to reduce the amount of fine from Rs. 15,000/- to Rs. 5000/- and in default of payment of fine the appellant shall further undergo one year's rigorous imprisonment. In case the amount of fine is recovered from the appellant then the same may be given ,to prosecutrix Kumari Sapna as compensation. 9. In the result, the appeal, filed by the accused-appellant, is partly allowed. The conviction and sentence of the accused-appellant for the offences under Sections 366 and 376/ 511 I.P.C., passed by the learned Trial Court, are quashed and set aside but, however, the appellant's conviction for the offence under Section 377 I.P.C., passed by the Trial Court, is maintained. However, the substantive sentence of seven years' rigorous imprisonment for the offence under Section 377 I.P.C., passed by the learned Special Judge, is reduced to four years' rigorous imprisonment and the amount of fine is, also, reduced from Rs. 15,000/- to Rs. 5000/- and in default of payment of fine the appellant shall further undergo one year's rigorous imprisonment. The amount of fine, if so recovered, shall be given to prosecutrix Kumari Sapna as compensation.Appeal partly allowed. *******