Judgment P.K.Deb, J. 1. This appeal has been preferred against the judgment and order dated 9-2-1989 passed by the then 5th Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 149/11 of 1987/1988 convicting the accused-appellant under Secs. 366/376, IPC and sentencing him to undergo rigorous imprisonment for seven years under Sec. 376. IPC and further convicted to go rigorous imprisonment for seven years under Sec. 366. IPC but both the sentences are ordered to run concurrently. 2. Ext. 1, fardbeyan was recorded by the Sub-Inspector N.K. Singh of Siwan Town P.S. on 21-1-1987 in the night hours at about 9 p.m. on the statement of victim, girl Shima alias Baby Kumari. The girl stated in the fardbeyan that about eight days before i.e. on 13-1-1987, the accused-appellant Radhey Chaudhary kidnapped her, from her house at village Dumari Chapia within P.S. Taraiya Distt. Saran on the plea that her father was ill and hospitalised at Siwan but instead of taking her to Siwan she was brought to his cousin brother Madan Chaudharys house at village Sahuli and there she was forcibly sexually assaulted on threat of her life. Somehow on 21-1-1987, she got opportunity of escape from that house and then appeared in the Police Station and gave the statement. She further expressed her apprehension that the accused might have killed her and as such she wanted protection of the Police. On such fardbeyan, the case was registered and investigation started and the accused appellant was also arrested on that very day. After closure of investigation, charge-sheet was submitted under Secs. 362/ 364/ 366/366(A) and 376 of the Indian Penal Code. During the course of investigation, the girl was medically examined and she was found to be aged less than 18 years. In her fardbeyan, the girl gave her age as 12 years. The defence case is of total denial of the prosecution story. According to the accused-appellant, the girl herself came to his house with a proposal of marrying her but he denied as he was already a married man but the girl was not ready to leave his house and, as such, on the advised of elderly person. he had taken the girl to the P.S. but there the girl had made statement implicating him and. as such he was arrested. 3. For and on behalf of the prosecution as many as eight witnesses have been examined. he had taken the girl to the P.S. but there the girl had made statement implicating him and. as such he was arrested. 3. For and on behalf of the prosecution as many as eight witnesses have been examined. PW 2 Kamal Chandra Kumar, PW 5 Mohan Sharma and PW 7 Ghan Shyam Ram are formal witnesses. PW 4 Dr. Shyama Sharma is a doctor who had examined the girl medically. The vital witness of the prosecution are PW 3 the prosecutrix herself and her mother PW 1. PW 6 Dr. Rajeshwar Tewary has examined the X ray plates and held also ossification test of the girl. In the medical examination, no sign of rape was found or any sexual intercourse. The private parts of the girl were found normal at the time of examination although it was alleged by the girl that she was sexually assaulted at the house of Madan Chaudhary the cousin brother of the accused-appellant. 4. The prosecution, story varied during the course of trial. It appears from the evidence adduced by the victim girl that she had suppressed and concealed many facts while giving fardbeyan. In per examination in the Trial Court, she stated that on the date of occurrence in the night hours, her father was out of the house and she was sleeping along with her two sisters in the ante-room while in the main room her mother was sleeping. At about 3 a.m. while the mother went out in call of nature, the accused-appellant wrapped her mouth by Gamcha and then dragged her out (sic). She was taken at a long distance and then to Siwan station, and from there, she was taken to Calcutta but as the place where she was taken by the accused-appellant at Calcutta, the people were not ready to keep them, they came back to Siwan and then kept at the house of Madan Chaudhary. It has further been stated that she and the accused-appellant went to the Marriage Registrar for the purpose of conducting marriage but because of her minority, marriage was refused. All these facts appear to have been suppressed by the girl, with the very intention to put the blame on the accused-appellant although she was also a consenting party while going out of the house with the accused-appellant as is revealed from her evidence itself. All these facts appear to have been suppressed by the girl, with the very intention to put the blame on the accused-appellant although she was also a consenting party while going out of the house with the accused-appellant as is revealed from her evidence itself. A girl may be a minor or just below 18 years was being carried from one place to another, she did not raise any alarm not to speaks anybody cannot be believable. Moreover, it appears that the gift herself is a crippled one as she stated in the Court. She is not in a position to move without the help of another due to polio leg. Some sort of absurdity is there when it could be found that a girl who was crippled one became missing from the house in the night hours but no information was lodged for long six days. Only after the father came to the house, information was tried to be lodged but by that time, already the case was registered at the instance of the girl herself. The accused appellant was serving as a labourer at the house of the villager Sakaldeo Singh and that house was also searched by the mother which shows that the mother was knowing that there was some affairs going on between the accused appellant and her daughter. From the totality of the evidence on record, it has been submitted by the learned Counsel appearing for and on behalf of the accused-appellant that the prosecution case has not been established by anything whatsoever on the charge under Sec. 376, IPC when there is no evidence except the vague statement of the girl herself, medical examination which was done immediately on her so-called recovery. It has further been submitted that the charge under Sec. 366 has also not been proved as from the evidence on the record, it could be well found that the girl was a consenting party and both the accused-appellant and the girl went out of the house for conducting marriage but when the Marriage Registrar or the Advocate concerned had rejected the proposal of marriage then and then the case was registered. I am in total agreement with the submission of the learned Advocate regarding the charge under Sec. 376, IPC but regarding the charge under Section 366, IPC. I am in total agreement with the submission of the learned Advocate regarding the charge under Sec. 376, IPC but regarding the charge under Section 366, IPC. I am not convinced with the submission, for even if the girl was a consenting party then also it depends upon the minority or majority of the girl. On physical appearance and other examination, she was found to be within the age of 15 and. 16 years and after ossification test and X-ray plates, it could be found that she was below 18 years. From the features finding and considering the medical jurisprudence, I am of the opinion that the girl is definitely below 18 years. In that view of the matter, even if the girl was a consenting party then also the charge under Sec. 366, IPC can be said to have been established against the accused appellant. The accused-appellant was very much interested of her taking away as it is evident from the fact that the girl being a crippled one was not in a position to move but the accused-appellant had taken her out from the house and loitered from place to place. The defence version that the girl herself came from the house with the proposal of the marriage has rightly been disbelieved by the learned Court below in the circumstances of the case. Thus, from the totality of the evidence and on independent scrutiny of the same, I came to the finding that the charge under Sec. 366, IPC has been established against the accused-appellant while the charge under Sec. 376, IPC has not been established. 5. In the result, the appeal is partly allowed and the conviction under Sec. 376. IPC is hereby set aside but the conviction under Sec. 366, IPC is here by retained. In respect of sentence imposed. I find that in the circumstances of the case, the same is too harsh. Moreover, the case is of 1987 and more than a decade has been elapsed by this time and the accused-appellant being a poor man has suffered mentally, physically and financially during this period together with the pangs of the criminal prosecution. It further appears that he remained in custody for more than two years during the course of trial. Moreover, the case is of 1987 and more than a decade has been elapsed by this time and the accused-appellant being a poor man has suffered mentally, physically and financially during this period together with the pangs of the criminal prosecution. It further appears that he remained in custody for more than two years during the course of trial. In the facts and circumstances of the case and in the position as described, I am of the opinion the justice would be done if the accused-appellant is let off to go away with the sentence of the period already undergone which I do accordingly. Thus, the appeal is partly allowed.