Judgment 1. JUDGMENT :- The appellants Upendra Baraik and Smt. Magan Tirkey have preferred this appeal against the judgment and order of conviction and sentence dated 13-2-1995 passed in Sessions Trial No. 8 of 1990 by the First Addl. Sessions Judge, Gumla whereby the learned Addl. Sessions Judge convicted both the accused Upendra Baraik and Smt. Magan Tirkey under Secs. 366, 368 read with Sec. 34 of Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years under Secs. 366/368/34 of Indian Penal Code and to pay a fine of Rs. 200.00 (rupees two hundred) each. The Learned Additional Sessions Judge has also convicted Upendra Baraik under Sec. 376, I.P.C. and sentenced him to undergo rigorous imprisonment for seven years under Sec. 376/IPC and to pay a fine of Rs. 200.00 . In default of payment of fine both the accused have to undergo further rigorous imprisonment for one month each. The sentences are to run concurrently. 2 In short, the case of the prosecution is that on 1-1-1987. Geeta Kumari aged 15 years, daughter of the informant Sunder Singh had disappeared from her house and the informant had searched for her, but she could not be traced. Fard-beyan of the informant Sundar Singh was recorded on 30-1-1987 at Bariatu P. S. by Sub Inspector of Police A. Khan of Bariatu P. S. One week before the recording of the fard-beyan of the informant, one Sukhdeo Mahali of his village had told the informant that he had seen Geeta Kumari with Magan Tirkey and Upendra Baraik in the house of Magan Tirkey in Tetartoli, P. S. Bariatu, District Ranchi. On the information, the informant along with his wife Chhotan Devi, his sister Savitri Devi and brother-in-law Bhukhan Singh came to Tatartoli and saw his daughter in the house of Magan Tirkey and Upendra Baraik. Magan Tirkey and Upendra Baraik work at Ranchi and they live in the same house in Tatartoli. P. S. Bariatu, Dist. Ranchi. The informant took his daughter Geeta Kumars from the house of Magan Tirkey and Upendra Baraik and also caught Magan Tirkey and Upendra Baraik and took the three persons to the police station. It has been alleged in the FIR that both the accused had brought Geeta Kumari for marrying her with Upendra Baraik. On the basis of the fard beyan (Ext. 6) of the informant Sundar Singh, formal FIR (Ext. It has been alleged in the FIR that both the accused had brought Geeta Kumari for marrying her with Upendra Baraik. On the basis of the fard beyan (Ext. 6) of the informant Sundar Singh, formal FIR (Ext. 1) was drawn. After investigation police submitted chargesheet against both the accused appellants. The Chief Judicial Magistrate after taking cognizance of the case committed it to the Court of Session for trial. On 22-4-1991 the learned Additional Sessions Judge had framed charges under Secs. 366/34 and 368/54 of Indian Penal Code against both the accused appellants. On 2-9-1992 the learned Additional Sessions Judge also framed charge under Sec. 376 of the Indian Penal Code against accused Upendra Baraik. 3. The defence of the accused persons according to the trend of the cross-examination of the prosecution witnesses is that they have been falsely implicated in this case. 4. It was argued by the learned counsel for the appellants that the fard beyan of the father of the victim girl was recorded by the police after recovery of the girl from the house of the accused persons, but in the fard-beyan there is no allegation of commission of rape against accused Upendra Baraik and the prosecution has developed its case at the evidence stage to attract Sec. 376 of Indian Penal Code. The contention of the learned Addl. P. F. appearing on behalf of the State was that the medical examination shows that the girl was subjected to sexual intercourse and she had lost her virginity. 5. In this case six witnesses have been examined on behalf of the prosecution. P.W.1 Buneshwar Prasad is a witness of formal nature who has proved Ext. 1, the formal FIR of this case and Ext. 2 the endorsement of Rao Puker Singh, Sub Inspector of Police on the fard-beyan. PW2 is Santu Prasad Singh. He is also a witness of formal nature who has proved Ext. 3 the chargesheet of the case. 6. PW3 is Dr. Shakuntala Pandey, a Civil Assistant Surgeon. She has stated that on 1-2-1987 she was posted as Civil Assistant Surgeon at Sadar Hospital, Gumla and on that day at 2.30 p.m. she had examined Geeta Kumari daughter of Sunder Singh. According to her, she had found on physical and clinical examination that her age appeared to be approximately 18-19 years. Shakuntala Pandey, a Civil Assistant Surgeon. She has stated that on 1-2-1987 she was posted as Civil Assistant Surgeon at Sadar Hospital, Gumla and on that day at 2.30 p.m. she had examined Geeta Kumari daughter of Sunder Singh. According to her, she had found on physical and clinical examination that her age appeared to be approximately 18-19 years. She has stated that her actual age may be confirmed by looking to the X-ray of diffusion of bone. There is nothing on the record to show that X-ray of the girl was done to show diffusion of bones. Therefore, it cannot be accepted from her evidence that the girl was aged 18-19 years. PW3 Dr. Shakuntala Pandey has further stated that as per vaginal examination, hymen was ruptured and vagina was well dialated and admits two fingers very easily and she had lost her virginity and she is habituated to sexual intercourse. In her opinion, repeated sexual intercourse had been committed with her. Ext. 4 is her report. 7. PW4 is Chhotan Devi. She has stated that Magan Tirkey had come to her house and taken away Geeta Kumari. When Geeta Kumari did not return in the night, then she went to the house of Magan Tirkey to bring her daughter, but neither Magan Tirkey, nor her daughter Geet Kumari was found and again on Tuesday, she went to the house of Magan Tirkey and Magan Tirkey was at her house and she (PW4) inquired from her about her daughter and Magan Tirkey told her that she had no knowledge about Geetakumari. According to her (PW4) when her husband came in the night, she told him about Geeta Kumari and both of them searched for Geeta Kumari, and went to the police station where they were told to search the girl. It was submitted by the learned counsel for the appellants that there is nothing on record to show that soon after Geeta Kumari had left her house, no information was lodged at the Police Station. According to PW4 Smt. Chhotan Devi after one month, one person from Ranchi told her that he had seen her daughter at Ranchi in the house of Magan Tirkey and that man had also told her that he had seen her daughter with a boy in the house of Magan Tirkey. According to PW4 Smt. Chhotan Devi after one month, one person from Ranchi told her that he had seen her daughter at Ranchi in the house of Magan Tirkey and that man had also told her that he had seen her daughter with a boy in the house of Magan Tirkey. Thereafter she (PW4) along with her husband went to Ranchi and saw her daughter in a house in Tetertoli and when she wanted to take her daughter with her, Magan Tirkey did not allow her to take her daughter and she (Magan Tirkey) removed her somewhere and then she went to Bariatu Police Station and with the help of police she brought her daughter. Further, according to her, her daughter Geeta Kumari told her that Magan Tirkey had brought her to Ranchi and at Ranchi she (Magan Tirkey) had assaulted her and handed her over to a boy who had forcibly committed rape on her and that boy was Upendra Baraik. She has stated that at that time age of her daughter was 15 years. She has said in her cross-examination that after seeing the girl she did not tell any person of Bariatu about it and she talked to the girl for about half an hour and thereafter her daughter went away from there. According to the fard-beyan of Sunder Singh, father of the girl Geeta Kumari, he had taken the girl and Magan Tirkey and Upendra Baraik to the Police Station. But according to PW4, Chhotan Devi, she had talked with her daughter for half an hour and thereafter her daughter held left that place. So her statement that she had talked to her daughter for half an hour and thereafter her daughter had gone away does not appear to be acceptable. 8. PW5 is Geeta Devi the victim girl. Her evidence was recorded in the trial Court on 28-8-1991. The date of occurrence of this case is 1-1-1987. So her evidence was recorded in the trial Court after 41/2 years of the occurrence. It appears that the trial Court has assessed the age of the girl as 21 years and she had stated her age as 19 years. It was submitted by the learned Addl. P. P. that even if the age of the girl on that day is taken to be 21 years, she was definitely below 18 years at the time of the occurrence. It was submitted by the learned Addl. P. P. that even if the age of the girl on that day is taken to be 21 years, she was definitely below 18 years at the time of the occurrence. PW5 Geeta Kumari has stated that at about 4.00 P. M. Magan Tirkey had gone to her house and her father was not there and her mother was there and Magan Tirkey had asked her (PW5) to go out, but she had not agreed. Then again Magan Tirkey had asked her to go with her and then she had gone with Magan Tirkey. According to her, Magan Tirkey had taken her in a bus to Ranchi and then to a house in Tetertoli and she kept her (PW5) in her house. She has stated that Upendra Baraik of her village was in that house and Magan Tirkey asked her to marry him on which she (PW5) told her that she belongs to another caste and there cannot be marriage with him. Further according to her, when she asked Magan Tirkey to allow her to return home she (Magan Tirkey) did not allow her to go home. She has stated that Upendra Baraik had forcibly committed rape with her and Magan Tirkey had kept her in her house for three weeks and they (the accused) used to guard her and they were not allowing her to go out of the house. She has also said that Upendra Baraik used to commit rape on her during that period. She has stated that after three weeks, her mother, father, fua and fufa came to Tetertoli in Ranchi and at that time Magan Tirkey and Upendra Baraik were in the house and her father took her and Magan Tirkey and Upendra Baraik to Bariatu P. S. and there she and her father had narrated about the occurrence to the Daroga and the Daroga had recorded it and sent it to Bismpur P S. According to her, Daroga had sent her to Gumla Sadar Hospital for medical examination, where she was examined. 9. PW3 is Dr. Shakuntala Pandey who had examined Geeta Kumari, she has stated that her (Geeta Kumari) vagina was well dialated and she was habituated to sexual intercourse. She (PW3) has also said that in her opinion, repeated sexual intercourse had been committed with her (Geeta Kumari). 9. PW3 is Dr. Shakuntala Pandey who had examined Geeta Kumari, she has stated that her (Geeta Kumari) vagina was well dialated and she was habituated to sexual intercourse. She (PW3) has also said that in her opinion, repeated sexual intercourse had been committed with her (Geeta Kumari). According to PW5, Geeta Kumari the victim girl, accused Upendra Baraik had forcibly committed rape on her and he had continued to commit rape on her for about three weeks. The statement of the victim girl (PW5) that she was raped for three weeks by the accused Upendra Baraik is supported by the medical evidence of PW3 who has said that as per vaginal examination her hymen was ruptured, vagina well dialated and admits two fingers very easily and she has lost her virginity and she is habituated to sexual intercourse. In her (PW3) opinion, repeated sexual intercourse had been committed with her (Geeta Kumari). This proves beyond all reasonable doubts that accused Upendra Baraik has committed the offence punishable under Sec. 376 of India Penal Code. 10. PW6 is Sunder Singh father of the victim girl and the informant of this case. According to him, he had gone to his sister and when he returned, Geeta Kumari was not in the house and his wife had told him that Magan Tirkey had taken away Geeta Kumari and Geeta Kumari had not returned. He has further stated that he searched for her daughter and after three weeks Sukhdeo Mahli told him that he had seen Geeta Kumari with Magan Tirkey and Upendra Baraik in Tetartoli, Bariatu at Ranchi and then, he along with his wife, sister and brother-in-law went to Tetartoli at the house of Magan Tirkey, where Magan Tirkey and Upendra Baraik and Geeta Kumari were found. According to him, Magan Tirkey and Upendra Baraik started quarrelling with him and he went to Bariatu P. S. and he informed the Daroga and a constable came to the house of Magan Tirkey and from there Magan Tirkey, Upendra Baraik and Geeta Kumari were taken to the Police Station, where he (PW6) gave his statement which was recorded by the Daroga and he had signed on it. Ext. 6 is his fard-beyan. He has stated that his daughter told him that Upendra Baraik had committed rape on her. Ext. 6 is his fard-beyan. He has stated that his daughter told him that Upendra Baraik had committed rape on her. There is nothing in the cross-examination of these witnesses (PWs 3, 4, 5 and 6) to disbelieve their evidence. 11. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that accused Smt. Magan Tirkey had taken away Geeta Kumari, a girl under 18 years of age, out of the keeping of her lawful guardian without the consent of her guardian with intention that she may be compelled to marry against her will and in order that she may be forced to illicit inter- course and Smt. Magan Tirkey after kidnapping Geeta Kumari had wrongfully confined her in her house. The victim girl Geeta Kumari had been recovered from the house of accused Smt. Magan Tirkey. Therefore, the conviction of accused Magan Tirkey u/S. 366, I.P.C. is maintained. The occurrence of this case is of 1-1-1987 and, therefore, it is more than 131/2 years since then. In view of the fact that this case was instituted more than 131/2 years back and the accused was under shadow of the case for a long time and in view of the facts and circumstances of the case, a sentence of four years rigorous imprisonment to Smt. Magan Tirkey will meet the ends of justice. Therefore, sentence of accused Magan Tirkey is reduced to R. I. for four years u/S. 366 of the Indian Penal Code. 12. The above evidence adduced on behalf of the prosecution does not show that accused Upendra Baraik had taken away the victim girl Geeta Kumari from her house and that he had kept her in the house of accused Smt. Magan Tirkey. Admittedly, the victim girl Geeta Kumari was recovered from the house of the accused Smt. Magan Tirkey. It cannot be inferred from the above evidence adduced on behalf of the prosecution that accused Upendra Baraik has committed the offences punishable under Secs. 366 and 368 of the Indian Penal Code and, therefore, he is acquitted of the same. 13. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that accused Upendra Baraik has committed rape on the victim girl Geeta Kumari. Therefore, the conviction of accused Upendra Baraik under Sec. 376 of the Indian Penal Code is confirmed. 13. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that accused Upendra Baraik has committed rape on the victim girl Geeta Kumari. Therefore, the conviction of accused Upendra Baraik under Sec. 376 of the Indian Penal Code is confirmed. The date of occurrence of this case is 1-1-1987 and so it is more than 131/2 years since then. In view of the fact that this case was instituted more than 131/2 years back and the accused was under shadow of the case for a long time and in view of the facts and circumstances of the case, sentence of four years rigorous imprisonment under Sec. 376 of the Indian Penal Code will meet the ends of justice. Therefore, sentence of accused Upendra Baraik u/S. 376, I.P.C. is reduced to R. I. for four years under Sec. 376 of the Indian Penal Code. 14. With above modification in the judgment and order of conviction and sentence, this Criminal Appeal is dismissed. 15. Both the accused appellants are on bail. Their bail bonds are cancelled and they are directed to surrender in the Court of learned Additional Sessions Judge, Gumla, forthwith to serve out their sentences. The learned Addl. Sessions Judge will also take all necessary steps in this regard. Appeal dismissed.