Judgment: Deoki Nandan Prasad, J.-Both the appeals have been taken up together and heard as they are arising out of the same judgment dated 15.9.1995 passed in Sessions Trial No. 450 of 1984 by which the Additional Sessions Judge-III, Dhanbad, convicted the appellant Naushad Alam alias Akash under sections 363, 366A and 376 . of. the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and 10 years each respectively whereas the appellant Riyazul Rahman alias Raju was convicted under sections 323, 344 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 1 year, 3 years and 7 years respectively. All the sentences were ordered to run concurrently. 60th the appeals are being disposed of by this common judgment. 2. The prosecution case in brief as alleged is that the father of the victim girl, namely, Sardar Jarnail Singh, submitted a written report before the police alleging therein that his daughter Jashbir Kaur, aged about 15 years, was a student of 6.S.S. Mahila College, Dhanbad and she used to go to College as usual on 28.5.1992 at about 5 A. M., she had gone to college but she did not return till late evening. The informant started searching her. In course of search, he came to know that Jashbir Kaur instead of going by her own College bus had gone to Dhanbad by the bus of Central Fuel Research Institute (C.F.R.I.) as her College bus has not come on that very day. It was also informed that Jashbir Kaur was seen talking with the accused/appellant Naushad Alam alias Akash, who was a driver and used to drive the bus of B.S.S. Mahila college, Dhanbad, earlier, was standing there from before and both of them left the place. Accordingly, first Information report was lodged against unknown. 3. The police investigated the case and submitted final report finding no clue, but-later on accused Naushad Alam alias Akash had furnished the whereabout of Jashbir Kaur and thereafter the Inspector of Police passed an order for reinvestigating into the case. Thus the police started reinvestigation into the case after due permission and submitted charge sheet against both the accused/appellants. The witnesses were examined in the court below. Some documents were also produced. 4. Thus the police started reinvestigation into the case after due permission and submitted charge sheet against both the accused/appellants. The witnesses were examined in the court below. Some documents were also produced. 4. Having heard learned counsel for both sides and• considering the evidence on record, the learned court below convicted and sentenced the appellants in the manner as indicated above. 5. On being aggrieved by and dissatisfied with the judgment impugned, both the appellants preferred appeals claiming therein that the learned court below has committed error in convicting the appellants as the victim girl Jashbir Kaur is major and actually she had solemnised the marriage in court and also an affidavit was filed to this effect. It is also claimed that the victim Jashbir Kaur had gone with the appellant Naushad Alam alias Akash willingly and she was consenting party and,• therefore, the offence under section 376 as well as under section 366A of the Indian Penal Code is not applicable in tht:3 instant case. It is further claimed on behalf of the appellant Riyazul Rahman alias Raju that the question of kidnapping against him does not arise as well as the victim Jashbir Kaur was residing in his village willingly and no objection what so ever was raised during the period of her stay in the village though a Panchayati was also held and actually she stated before the court that she is willing to reside with Riyazul Rahman alias Raju. It is also• alleged that the offence under section 376 of the Indian Penal Code is also not made out against this accused/appellant as the victim girl admitted in her evidence that no any ill-treatment was made by this appellant as well as the girl Jashbir Kaur is no doubt more than sixteen' years of age at the time of occurrence, as a result of which, this case does not come within the definition of 'rape' under section 375 (6) of the Indian Penal Code. Therefore, the judgment of conviction and order of sentence passed by the court below is fit to be set aside. 6. At the very outset, It may be mentioned here that the victim girl Jashbir Kaur was brought from the village Katoria in the district of Banka. School Leaving Certificate (Ext. Therefore, the judgment of conviction and order of sentence passed by the court below is fit to be set aside. 6. At the very outset, It may be mentioned here that the victim girl Jashbir Kaur was brought from the village Katoria in the district of Banka. School Leaving Certificate (Ext. 10) has also been filed in connection with the age of Jashbir Kaur and the date of birth has been shown as 8.3.1976 whereas the occurrence took place on 28.5.1992. P.W.5 is the Medical Officer who had examined the victim (P. W.1) but could not give her opinion with regard to the age of victim on the ground that she could not receive the Radiologist report and X-ray. P.W.1 was examined on 6.4.1995 when she disclosed her age about 19 years. Thus it is clear from the evidence collected above that Jashbir Kaur was below 18 years of age at the relevant time. 7. P.W.1 Jashbir Kaur deposed that she had come to her College but it was closed on that very day and she had seen the accused Naushad Alam standing there who was the driver of her College Bus. According to her, she was brought to Putki on the trekker and thereafter he was taken to Kumardhubi and from there he was taken to Asansol and she stayed at Asansol Railway Station in the night. She further stated that thereafter she was brought to Bhagalpur by Bus and from there, she was brought to village Katoria where she was kept for two to three months in the house. She also stated that accused Naushad also committed rape on her during her stay at village Katoria. She further stated that she was handed over to Riyazul Rahman alias Raju, another appellant, with whom she stayed about 13-14 months. According to her, Riyazul Rahman alias Raju, the appellant, also committed rape on her as well as she was assaulted, a result of which, her left hand was fractured. But she clearly admitted in her cross-examination that she had never raised any objection at any place where she was taken or kept by either of the appellants. She stated to this extent in para 40 of her cross-examination that accused/appellant Riyazul Rahman alias Raju has not ill-treated her. 8. But she clearly admitted in her cross-examination that she had never raised any objection at any place where she was taken or kept by either of the appellants. She stated to this extent in para 40 of her cross-examination that accused/appellant Riyazul Rahman alias Raju has not ill-treated her. 8. The learned counsel appearing on behalf of the appellant Riyazul Rahman alias Raju drew my attention to the orders dated 19.2.1994 and 3.3.1994 passed by the court below from which it is clear that the victim girl Jashbir Kaur was also produced before the court of the Chief Judicial Magistrate, Banka, where she has stated her age as 21 years and she had expressed her willingness to go with Riyazul Rahman alias Raju on the ground that she has married with him. She has further stated before the court below that she is willing to live with Riyazul Rahman alias Raju. One affidavit (Ext. B) dated 18.8.1992 has been filed which goes to show that the victim girl had filed the said affidavit changing her name as Reshma Begam and she admitted to have married with accused/appellant Md. Naushad Alam alias Akash out of free will having no coercion. 9. P.W.2 Jaspal Kaur is the mother of the victim girl who had stated that Jashbir Kaur had gone to her college on the fateful day but she did not retum. She further stated that she had come to Court to get her daughter released and her daughter narrated that Naushad had taken away. According to her, the victim Jashbir Kaur' was traced out after two years. She also admitted in her cross-examination that she cannot say if Jashbir Kaur had gone with Naushad Alam alias Akash willingly. 10. P.W.3 Sardar Jarnail Singh, the informant, has stated that his daughter Jashbir Kaur had gone to college and thereafter she did not return and, therefore, he reported the matter to the police. He stated in his cross- examination that the College bus does not ply on the day the college remained close. 11. P. W.4 is Shri Sarvjeet, a Judicial Magistrate who recorded the statement of Jashbir Kaur under section 164 of the Code of Criminal Procedure. 12. P.W.6 is the Driver of the C.F.R.I. Bus, According to him, Jashbir Kaur had come on that very day by his Bus and he had seen talking with accused Naushad Alam alias Akash. 13. 11. P. W.4 is Shri Sarvjeet, a Judicial Magistrate who recorded the statement of Jashbir Kaur under section 164 of the Code of Criminal Procedure. 12. P.W.6 is the Driver of the C.F.R.I. Bus, According to him, Jashbir Kaur had come on that very day by his Bus and he had seen talking with accused Naushad Alam alias Akash. 13. P.W.7 is the Investigating Officer. According to him, Naushad made his confession on the basis of which the police reached Village Katoria and the victim Jashbir Kaur was apprehended from the house of Riyazul Rahman and thereafter she was brought to the court of the Chief Judicial Magistrate at Dhanbad. After investigation, he submitted charge sheet. He denied that Jashbir Kaur stated before him that she had gone with Naushad Alam on her own will. P.W. 8 is a formal witness. 14. One defence witness was also examined to prove the petition in the hand writing of P.W.7 which has been marked as Ext. C. 15. Thus, from going through the evidence on the witnesses mentiond above, it is apparent that the victim Jashbir Kaur remained/stayed with Naushad Alam for about two/three months in Village Katoria and thereafter she again stayed about 13/14 months with Riyazul Rahman alias Raju. In the meantime, there was also a Panchayati held in the 'village but admittedly the victim Jashbir Kaur never raised any objection during that period and she stayed there. Further it is also evident that Jashbir Kaur is a literate girl who was admittedly studying in Intermediate Class in the College and she had put her signature on the affidavit admitting about the marriage with Naushad as back as on 18.8.1992. It further goes to indicate from the order-sheet dated 19.2.1994 and 3.3.1994 of the court below that Jashbir Kaur was also produced before the Chief Judicial Magistrate, Banka and she expressed her willingness to stay with Riyazul Rahman alias Raju. It further goes to indicate from the order-sheet dated 19.2.1994 and 3.3.1994 of the court below that Jashbir Kaur was also produced before the Chief Judicial Magistrate, Banka and she expressed her willingness to stay with Riyazul Rahman alias Raju. At this stage, it may further be noted that of her evidence in para 40 where she clearly deposed that Riyazul Rahman alias Raju has not done anything wrong with her which goes to belie all the allegations of committing rape against Riyazul Rahman alias Raju when Jashbir Kaur remained admittedly in his house without any resistence or objection for 13/14 months and it has also come in evidence from the deposition of Jashbir Kaur that she used to come out from the house for natural call. She admitted that Panchayati was held in the village when Naushad left her alone in the village. Had there been any coercion, pressure, forceful confinement or ill treatment, she would have easily raised such objection during her so much long stay and she has not complained in the Panchayati which proves that she is consenting party. In this way, the offence of wrongful confirement is also not made out. 16. As regards the offence under section 323 of the Indian Penal Code against Riyazul Rahman alias Raju, the only allegation against him was about the assault, but no medical report or any corroborative evidence to this effect has been adduced. In absence of any corroboration either oral or documentary, this charge under section 323 of the Indian Penal Code also belied as against Riyazul Rahman alias Raju. In the above facts and circumstances, I find that the prosecution has totally failed to establish the charges against the appellant Riyazul Rahman alias Raju beyond all reasonable doubts. 17. Section 375 of the Indian Penal Code reads as follows:- "375. Rape.-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First-Against her will. Secondly-Without her consent. Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Secondly-Without her consent. Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly-With or without her consent, when she is under sixteen years of age." The description as indicated sixthly that even "with or without consent", rape is complete with a girl under sixteen years of age. Thus if the girl is under sixteen years of age, her consent is of no importance or substance. 18. Description thirdly denotes that rape is complete if her consent was obtained by putting her in fear of death or of hurt. 19. The victim Jashbir Kaur's School Leaving Certificate (Ext. 10) shows her date of birth as 10.3.1976, whereas the occurrence took place on 28.5.1992. Evidently she was more than 16 years of age at the time of occurrence as well as she was admittedly a student of first year in the Intermediate. Further it is obvious that she moved from one place to another with accused Naushad Alam alias Akash and also stayed at the Railway Stations where several persons are available. She admittedly resided in Village Katoria with Naushad Alam for about two/three months and during her stay, she also visited Bhagalpur to swear the affidavit claiming therein to have performed marriage, but nowhere she raised any type of resistence or alarm. By staying long period with Naushad Alam in the village and other places, admitting to have married will suffice to draw only inference that her consent has never been obtained by put- r ting her in fear of death or of hurt. Thus it can safely be concluded that she was consenting party. By staying long period with Naushad Alam in the village and other places, admitting to have married will suffice to draw only inference that her consent has never been obtained by put- r ting her in fear of death or of hurt. Thus it can safely be concluded that she was consenting party. Her statement under section 164 of the Code of Criminal Procedure was also recorded where she stated that the accused committed rape by putting her in fear, but she has not mentioned about Chhura whereas in her deposition, she took a plea that she was kept under the fear at the point of Chhura which is apparently a material contradiction and it has been made out afterthought. In such situation, her conduct itself goes to establish that she was agreeable on this score. 20. P.W.2, the mother and P.W.3 the father of the victim girl (P.W.1) did not whisper anything in respect of sexual assault. In the above facts and circumstances, it is clear that the prosecution has failed to establish the charge under section 376 of the Indian Penal Code against the accused/appellant Naushad Alam alias Akash beyond all reasonable doubts. 21. Section 363 of the Indian Penal Code reads as under:" 363. Punishment for Kidnapping - Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 22. Jashbir Kaur herself came to her College on the fateful day where the accused/appellant Naushad Alam alias Akash met her. There is no question of taking away her from India and also from lawful guardian as the definition of 'Kidnapping' from lawful guardianship contains the words "whoever takes or entices any minor". Where a minor girl is taken or enticed by the accused, it is for the prosecution to prove that the accused either took or enticed her from her home i.e. from the lawful guardianship. 23. In the above facts and circumstances, I further find that the prosecution has also failed to establish the charge under section 363 of the Indian Penal Code against the appellant Naushad Alam alias Akash beyond all reasonable doubts. 24. It is true that accused Naushad Alam induced Jashbir Kaur and took away on several places. 23. In the above facts and circumstances, I further find that the prosecution has also failed to establish the charge under section 363 of the Indian Penal Code against the appellant Naushad Alam alias Akash beyond all reasonable doubts. 24. It is true that accused Naushad Alam induced Jashbir Kaur and took away on several places. It is also clear that Jashbir Kaur was minor girl under 18 years of age at the relevant time. It has come in evidence of P.W.1 that she was also offered a glass of soft drink (Sarbat) by appellant Naushad Alam and thereafter she was taken to Putki and from there, she was again taken to different places. 25. It is well established that any reason given by the accused to move the girl from one place to another is sufficient for inducement. Even from where the girl discovers that she is not being so taken and falls in with the plan of the accused, the inducement is complete and the girl's subsequent willingness will neither prevent the offence nor reduce its gravity. It is manifest that this accused/appellant induced and took away Jashbir Kaur, who was minor under the age of 18 years, from one place to another with ill• motive. In such circumstance, the ingredients of the offence under section 366A of the Indian Penal Code are complete. 26. Having regard to the above facts and circumstances coupled with the evidence on the record, it is clear that the prosecution has fully established the charge under section 366A of the Indian Penal Code against the appellant Naushad Alam alias Akash beyond all reasonable doubts. 27. For the reasons aforesaid, it is held that the accused/appellant Naushad Alam alias Akash has rightly been convicted and sentenced under section 366A of the Indian Penal Code by the learned court below which is, accordingly, confirmed. 28. For the above findings, Criminal Appeal No. 81 of 1995(R) as against appellant Naushad Alam alias Akash is dismissed. 29. Criminal Appeal No. 80 of 1995(R) as against Riyazul Rahman alias Raju is allowed. Accordingly, he is acquitted and discharged from his bail bonds. 30. The accused/appellant (Naushad Alam alias Akash) is on bail. His bail bond is cancelled and he is directed to surrender in the court of Additional Sessions Judge-III, Dhanbad, forthwith to serve out his sentence. 29. Criminal Appeal No. 80 of 1995(R) as against Riyazul Rahman alias Raju is allowed. Accordingly, he is acquitted and discharged from his bail bonds. 30. The accused/appellant (Naushad Alam alias Akash) is on bail. His bail bond is cancelled and he is directed to surrender in the court of Additional Sessions Judge-III, Dhanbad, forthwith to serve out his sentence. The Additional Sessions Judge is also directed to take all necessary steps in this regard.