Judgment S.N.Pathak, J. 1. This appeal has been preferred against the order of conviction and sentence passed by Sri Birendra Kumar, 3rd Addl. Sessions Judge, Bhagalpur, in Session Trial No. 560/95, Tr. No. 9/97. The appellant was convicted under Secs. 363 and 376 of the Indian Penal Code and sentenced to undergo RI for 3 years and 7 years respectively. Both the sentences were directed to run concurrently he was sentenced to pay a fine of Rs. 5,000.00 also. 2. The case of the prosecution, based on the written report of the informant was that on 27-9-1995 his daughter Soni Kumari aged about 14 years went out of her house at 3 a.m. along with Babita Devi and Kirtee Devi (sister and mother of the appellant) for easing. When the informants daughter did not return for a considerable time, informant went out in search of her and when he enquired from Babita and Kirtee Devi, they expressed their ignorance of the whereabouts of the informants daughter. At 6 a.m. the informant was intimated by one Raju Singh of his village that he had seen her daughter Soni Kumari going in the company of Braj Kishore Singh. Vijay Singh. Bimal Singh in Bahiyar at 4 a.m. Then the informant went to the house of Braj Kishore Singh where he found Vijay Singh and Bimal Singh sitting at their darwaja. The informant inquired from them and then the latter told him that they had no knowledge of the where about of the informants daughter. Bijay Singh subsequently told the informant under the pressure of the villagers that he will produce the girl on 2-10-1995 and so no case should be lodged. When his daughter was not produced on 2-10-1995, he submitted written report at the police station. 3. The appellant was facing trial along with Bijay Singh. Bimal Singh. Babita Devi. Kirtee Devi and Sita Ram Mandal and they were all charged under Secs. 120B, 363, 366A, 376 and 379, IPC. However, all of them were acquitted except the appellant. 4. The appellant took a defence of false implication as also the fact that the informants daughter was in love with him for which she had written several letters and she had married him with her sweet free will. Therefore. no offence under Secs. 363 and 376. IPC was made out. 5. 4. The appellant took a defence of false implication as also the fact that the informants daughter was in love with him for which she had written several letters and she had married him with her sweet free will. Therefore. no offence under Secs. 363 and 376. IPC was made out. 5. The witnesses were examined on behalf of the accused-appellant who proved certain documents which were Exhibit (A 164 statement of the girl), certain love letters. Exhibit-B, and signature of Sony Kumari on affidavit Exhibit-C. 6. Prosecution examined ten witnesses. PW 10 was a formal witness. PW 9 was the doctor. PW 8 was the I.O. PW 7 was Krishna Devi wife of the informant. PW 6 was Uma Devi (grand mother of the victim), PW 5 was the information (father of the victim). PW 4 was Kapil Deo Yadav. He had seen the accused persons going away in a car in the company of the informants daughter. PW 3 was the victim herself. PW 2 was Raju Singh who initiated the informant about his daughter. Soni Kumari being kidnapped by the accused, appellant. PW 1 was Shankar Singh who had seen the informants daughter going with Sita Ram Mandal in a Rickshaw at Bhagalpur. The evidence, of the informant Shankar Singh as also informants father are relevant to substantiate the case of the victims abduction and her subsequent subjection to the offence under Sec. 376. IPC by the accused appellant. So far defence of the appellant, which has emerged from the cross-examination and the circumstances on record. It is apparent that she was produced in the court from the custody of co-accused Sita Ram Mandal and thereafter she was examined by the court under Sec. 164. Cr PC. and in this statement she said that she had married Braj Kishore Singh with her own consent However, since she was produced from the custody of one co-accused this statement of the girl was not reliable. Admittedly, she was referred to remand home, Deoghar, from where she was again produced and her statement was recorded under Sec. 164. Cr PC, where she said that she was forced to marry the appellant at the instance of coaccused. Sita Ram Mandal, and thereafter she was subjected to criminal assault by the accused appellant. This statement figured at Para-8 of her cross-examination. Cr PC, where she said that she was forced to marry the appellant at the instance of coaccused. Sita Ram Mandal, and thereafter she was subjected to criminal assault by the accused appellant. This statement figured at Para-8 of her cross-examination. The doctors (PW 9) evidence shows that the girl was examined by him on 15-11-1995. In the opinion of the doctor, age of the victim was below 18 years. 7. In this case, alleged occurrence took place on 27-9-1995 and the doctor examined the girl on 15-11- 1995. On the date of the occurrence girl is below 18 years. So it is not ascertainable from the medical evidence whether she was below 16 or above 16 years. Doctors opinion perhaps regarding the age of the victim is not sufficient because he has not been able to fix the age of the girl between particular years. So age of the victim is apparent from her own evidence, which she gave as 17 years on 9-3- 1998. Father in his written statement described her aged as 14 years. The girl stated of oath in court that she was subjected to rape by the accused and she did not give consent to sex. Her statement has to be believed so far abduction or kidnapping is concerned, because admittedly, she was produced in the Court from the custody of one of the accused who is admittedly brother-in-law of the appellant. From the circumstances, it can be gathered that either she did not go with the appellant or his other relations voluntarily or even if she had gone to their house with consent, the moot question is whether she had also consented to sex with the appellant. 8. In this connection, evidence of the victim girl is only relevant. She has stated on oath in court that she was forced to marry the appellant by Sita Ram Mandal and subsequently, after marriage she was also forced to sex with the appellant. Of course, there are certain love letters produced in the court regarding which she said that love letters were written from the remand home under the threat of the appellant. Chance of the appellant and other relations visiting her in remand home cannot be ruled out. So all the love letters did not indicate that the victim had consented for sex even if she was in love with him. 9. Chance of the appellant and other relations visiting her in remand home cannot be ruled out. So all the love letters did not indicate that the victim had consented for sex even if she was in love with him. 9. Shankar Singh has supported the victim to the effect that she was carried on rickshaw by an accused and he was asked by the victim to inform her father. 10. The above circumstances clearly indicated that the informants daughter was forced to sex with the appellant without her will. 11. In the circumstances of the case even if it is assumed that she had consented to her abduction the fact whether she will-fully submitted herself to the offence committed by the accused is not borne out from the evidence on records because the victim in her evidence in court specifically stated that she was subjected to criminal assault by the appellant. 12. So I do not find myself persuaded to disagree with the findings of the trial court regarding the findings arrived at for recording the order of conviction. So far sentence is concerned, the same is not excessive. 13. In the result, this appeal is dismissed.